Getting a divorce later in life, often referred to as “grey divorce,” has become increasingly common in Chicago family law courts. As a Chicago divorce attorney, I’ve worked with several older clients who underwent a divorce for a myriad of reasons. Some knew their marriage was failing but choose to postpone their divorce until the kids moved out of the home to promote stability. For others, changes in their spouse’s physical and/or mental health created an unhappy home life. A few even jumped into a second marriage but quickly decided they preferred being single. Whatever the circumstances, divorce in your sixties and older comes with its own complications. You will want an experienced divorce lawyer to help you navigate to protect yourself and your assets and get you everything you are entitled to from your spouse.
How Divorce Will Impact Your Retirement
Couples in their sixties (60s) and older generally tend to have more assets and accumulated wealth than their younger counterparts. Older couples have been working and, presumably, saving and investing longer, so they tend to have more money in their retirement and bank accounts. Likewise, they are more likely to have more significant equity in their homes because they’ve been paying them off longer. They may also have more personal property that they’ve accrued over time and more investments.
In the case of a long-term marriage, it is much more likely that all assets and debts that exist at the time of the divorce have been accrued during the marriage. Therefore, when dividing retirement accounts, the split is more likely to be equal (i.e., 50/50) because the account was most likely created during the marriage, and the balance consists of contributions and interest accrued during the marriage. When dividing retirement accounts or the equity in the marital home, it is essential to realize that it does not matter if only one party worked or if one party earned significantly more money in those accounts than the other spouse. The courts will not look at how much you contributed to those accounts when dividing those assets. Marital funds are joint contributions, so they are divided equitably (which is often, but not always, equally). It’s essential to recognize that any retirement accounts you created during the marriage are not “yours” but marital property that will be divided equitably between you and your spouse. Equitable division of retirement is to ensure that neither of you is destitute in your old age.
For those in long-term marriages, I’m often asked if they will have to pay maintenance to their spouse and, if so, for how long? Spousal maintenance is only appropriate when there is a significant disparity between the incomes of the two spouses or one spouse cannot support themselves due to illness, disability, etc. If maintenance is ordered by the court, the length of maintenance is dictated by the length of the marriage. The longer your marriage, the longer you will have to pay, or you will be entitled to receive maintenance.
For parties who have been married twenty-five years or more, maintenance is the length of the marriage or “indefinite.” That said, so long as your maintenance is reviewable in your marital settlement agreement, the maintenance amount and length of time it has to be paid can be modified upon a substantial change in circumstances like retirement. So, don’t be afraid that deciding to get divorced later in life and being allocated a maintenance obligation means you will be working until the end of your life. The courts recognize your right to retire and will make adjustments to accommodate that change in your life accordingly.
Non-Marital Property and Second (or Third, or Fourth) Marriages
In the case of a short-term second, or even third or fourth, marriage, it is much more likely that most of the assets owned by the parties are non-marital and were accrued or purchased prior to the marriage. If that’s the case, those assets are not subject to division. This offers significantly more protection for older individuals seeking to retain the assets they accrued prior to the marriage.
Spouses With Significant Wealth or Assets
For those with a spouse who come into the marriage with significant property or other wealth, it is important to know that marriage does not mean those assets automatically become marital.
For example, if one party owns a home and the other party moves in after the marriage, but the parties make no effort to make the home marital by changing the deed, then the home remains non-marital and, therefore, not subject to division, even if both parties are contributing to the mortgage and other expenses. Don’t make the mistake of assuming that living in the house as a married couple, or paying for it with marital funds, transforms the home into a marital asset. If that is your intent, you and your spouse will have to take affirmative steps to make the house marital property after the marriage.
The same can be said for savings, investment accounts, and personal property. Anything accrued prior to the marriage will be non-marital unless you and your spouse take affirmative steps to make those funds marital by comingling your funds or transforming the accounts into joint accounts. As for retirement accounts, anything accrued or contributed prior to the marriage will remain non-marital. However, the courts will divide any gain or loss to your retirement accounts to the funds added to or accrued during the marriage.
Don’t Let Emotions Control Your Financial Decisions
After spending so much time together, having raised children, and having been through so many of life’s challenges, many couples in their 60s find that divorce can be especially painful and emotional. When there has been infidelity, the sense of betrayal is often more acute.And many older couples experience significant anxiety about the fact that they will not be heading into their golden years with the support and companionship of their spouse.
Illinois is a “No-Fault” Divorce State
Going into your divorce, it’s important to know that Illinois is a no-fault state, so the judge is not going to care if your spouse was unfaithful or if your spouse was a dud parent to your now-grown children. Resentments and frustrations over your spouse’s behavior during your marriage are not going to result in a greater allocation of assets or funds to you. To be clear, no one is saying that you are not entitled to your feelings and opinions about your spouse and the end of your marriage. But don’t let your anger or resentment control the financial decisions you make in your divorce.
A perfect example is the division of personal property. I’ve had multiple cases where the spouses fought tooth and nail over their personal property items like bedroom sets, televisions, and even a deep freezer. This does not help in getting you the best outcome for your divorce.
While the idea of furnishing a new home, or furnishing a home that has been emptied out by your spouse, can seem daunting, remember that the cost of fighting over these kinds of items can cost more attorneys’ fees than just buying a replacement item. Don’t waste time, energy, funds, and your sanity trying to find ways to convince the judge that your spouse is a bad person who should be punished for their actions or inaction during the marriage. It’s not going to happen. Save the venting for your therapist—or your divorce attorney—and stay focused on finalizing your divorce so you can focus on enjoying your golden years.