Divorce has no age limit. While no one would wish divorce upon an elderly couple (or any couple), it is an option in San Diego. If you are unhappy in your marriage or you and your spouse have irreconcilable differences, you can get a divorce no matter how old you are or how long you’ve been married. Note, however, that the divorce process and its implications can be different for older individuals compared to young couples. You’re never “too old” to file for divorce, but make sure you know what you’re getting into before filing.
While old age does not necessarily mean a longer marriage, if you and your spouse have been together for years or decades, you might have a more difficult time dividing marital property and assets than other couples. In California, couples have the option to decide how to separate their community property. Community property refers to income, assets, and debts the couple acquired during marriage. Property each spouse brought into the marriage, as well as one spouse’s inheritance or gifts, is not part of community property.
Property division can be more difficult when you’re older for a few different factors. Older age can make you eligible for attractive property tax exemptions. If you’re over 62, you’re also eligible for a reverse mortgage (a potential stream of income). You can also qualify for special treatment for public benefits like Medicaid if you own a house. Deciding who gets to keep the house if you’re both over qualifying ages, therefore, can be difficult. You may need the court to handle property division for you.
Nest Egg Division
If you and your ex-spouse cultivated a nest egg together for retirement, it can be a daunting task to try to divide it. A “nest egg” can include any and all funds, investments, and accounts set aside for your retirement. You might have Roth IRAs, 401(k)s, pension plans, stocks, bonds, jointly-owned rental properties, or other retirement assets you created and contributed to as a couple. During a divorce, it is up to you to decide how to split your retirement funds – without compromising your future.
It’s important to work with a knowledgeable attorney and financial advisor if you and your spouse need to divide retirement-related assets and funds. A split right down the middle might not seem fair to you if you contributed more to the accounts than your spouse, or if you believe your spouse is at-fault for the divorce. A lawyer can help you and your spouse compromise on the terms of the division without needing to involve a judge.
Social Security Benefits
If you’re over the age of 62 and your marriage lasted 10 years or longer, you’re eligible for retirement benefits from your spouse’s Social Security. Keep this in mind if you’re considering divorce. You can still receive up to 50% of your spouse’s benefits without affecting how much your ex-spouse receives. You have the choice to use your own SS benefits or to switch to your spouse’s if you’ll receive more that way once you reach full retirement age. If you’re over 60 and were married for at least 10 years, you can receive up 100% of your former spouse’s Social Security benefit if he or she dies.
The California courts are more inclined to give permanent spousal support orders to couples who are older and who have been married for a long time – especially if one spouse gave up education or work experience to take care of the home and/or children from the marriage. You could be eligible for long-term spousal support if this sounds like you. Discuss this possibility and other important aspects of financial planning after divorce with an attorney if you’re thinking about divorce as an older individual.