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What Particular Concerns Are There When Divorcing Near or After Retirement?

What Particular Concerns Are There When Divorcing Near or After Retirement?

Ending a marriage after being legally married for ten, twenty, or even fifty years has direct impacts on more than deciding how to divide up marital property and the marital home. If you are contemplating ending a marriage and are nearing retirement or are already retired, a late-life divorce and starting over will have financial impacts you may not realize.

Retirement Accounts

Couples often make important future financial decisions throughout the marriage in regards to retirement investments, such as 401k accounts, Social Security contributions, pensions, and so on. These types of assets are also considered marital property in New York.

Unless you have a legally binding prenuptial agreement in place detailing how retirement investments are to be divided in the event of a divorce, your soon-to-be ex-spouse also has legal rights to lay claim to a portion of your retirement benefits.

The courts tend to rely upon what is known as the "Majauskas Formula." This came about due to a case reviewed by the New York Court of Appeals and case law. The Majauskas were getting divorced, and one of the spouses appealed based on the right to a portion of the other's retirement assets-and won the case.

Essentially, the court bases how much each party is entitled to receive based on the number of months benefits were acquired and how long the couple was married. For longer marriages, this could potentially result in retirement accounts being divided equally.

Alimony (Maintenance) Payments

If one person was a "stay-at-home" parent and never returned to work, the other person could have to pay maintenance until receipt of full social security benefits. Even if your ex-spouse decides to get a part-time job, you should plan on paying some amount of maintenance if you provided the primary source of income throughout the marriage.

Disposition of the Marital Home

Late Life Divorce Starting Over

It is not uncommon for many spouse to want to keep the marital home during a late-life divorce. There are sentimental reasons and memories they have, and giving up the home can be difficult. However, what you need to know is the courts will require you to give something else up in order to keep the home.

For instance, you could agree to a lower portion of the retirement benefits, give up maintenance payments, or some other valuable assets, so everything is divided equally. However, once you have sole ownership of the home, you are responsible for all upkeep, property taxes, and other such expenses. So, it may be more beneficial financially to give up the home instead.

Get a Prenuptial Agreement if You Remarry

If you decide to get remarried, it is always in your best interests to get a prenuptial agreement. Your divorce attorney in Long Island can help draft and create a legally binding agreement. Otherwise, if this marriage also ends in divorce, you could have to split part of the property you acquired during your last divorce.

For more information about getting a divorce later in life, please feel free to schedule a consultation appointment by contacting The Law Office of Robert H. Montefusco P.C. at (631) 801-0007 today.

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