Our Irvine Divorce Law Firm is Highly Experienced in Divorce Among Baby Boomers and Retirees

Most consider divorce to be an issue dealt with primarily by young and middle-aged couples, but divorcing late in life (colloquially known as “gray divorce”) is becoming increasingly common. According to the Pew Research Center, the divorce rate for individuals 50 and older has roughly doubled over the past 25 years, from 5% in 1990 to 10% in 2015. While this is still far below the 24% rate for those aged 25-39, it means that more Baby Boomers are now going through the divorce process. And for older individuals, divorce has special challenges, as explained by an Orange County divorce attorney below. 

Division of Property 

California is a community property state, meaning that any property acquired by either spouse during the marriage is considered to belong to both spouses and must be distributed equally upon divorce. Couples who have been married for longer are likely to have more community property and less separate property. All of these assets — including the couple’s home — must be divided equally. In most cases, the spouse who receives the home in the divorce must give up something (such as alimony or a share of retirement accounts) in return. 

Spousal Support in Long-Term Marriages

When awarding spousal support, the divorce court must consider what each spouse can earn to maintain their standard of living after the divorce. One of the most important considerations when awarding spousal support is the length of the marriage. In California, courts are more likely to award spousal support in long-term marriages (10+ years) and, in some cases, may not set an end date for the support order. 

Dividing Retirement Benefit 

Interest or income derived from retirement plans, including 401(k)s, pensions, military pensions, and profit sharing plans, are considered community property and subject to division upon divorce. In many cases retirement assets are among the most valuable of the community property assets. However, for older individuals, the division of retirement assets can result in a diminished retirement.

Social Security is Not Automatically Divisible in California

Social Social benefits are not divisible upon divorce; however, one spouse may be able to receive benefits based upon their former spouse’s earnings record if: 

• The marriage lasted 10 years or longer
• The claimant must be at least 62 years old
• The claimant has remained unmarried after divorce
• The claimant’s former spouse must be entitled to receive Social Security retirement or disability benefits
• The Social Security benefits the claimant is entitled to are less than what their former spouse is entitled to 

Once the couple has been divorced for two years, the claimant will be entitled to benefits through their ex-spouse, even if he or she is eligible for benefits but is not collecting them.

Contact an Orange County Divorce Attorney at Our Irvine Office

If you are considering a divorce later in life, you should contact an experienced attorney who can help you tackle the unique challenges inherent in gray divorces. To get started, please contact an Orange County divorce attorney at Seastrom Tuttle Murphy Dockstader by using our online form or calling us at 949-474-0800.

Common Questions About Later-Life Divorce in Orange County

How are pensions and retirement accounts divided after a long marriage?

The community portion is divided, and the mechanics differ by plan type. Contributions and growth accumulated during marriage are community property; what accrued before marriage or after separation is separate. A defined contribution account such as a 401(k) is divided by a qualified domestic relations order directing the plan to establish a separate interest for the other spouse. A defined benefit pension is harder, because it pays a stream rather than a balance, and the parties must choose between dividing the future payments as they are received or valuing the benefit today and offsetting it. Government and military plans follow their own rules and require orders drafted to their specifications.

Is spousal support permanent after a marriage of thirty or forty years?

There is no order that is literally permanent, but for a marriage of long duration the court ordinarily retains jurisdiction over support indefinitely rather than setting a termination date at judgment. Practically, in a long marriage where one spouse has little independent earning capacity and both are at or near retirement, support tends to continue and the real questions become amount and what happens at retirement. A supporting spouse’s genuine retirement at a customary age is generally a legitimate basis to seek modification, which is a reason to address the retirement transition in the judgment rather than leave it for a later motion.

What happens to Social Security benefits in a divorce?

Social Security is not divisible as community property, and a court cannot award part of it to the other spouse. A separate federal rule can still matter a great deal: a divorced spouse may be able to claim a benefit based on the former spouse’s earnings record where the marriage lasted at least ten years and other conditions are met, and doing so does not reduce what the worker receives. Survivor benefits follow their own requirements. Because the ten-year threshold is a hard line, the timing of a dissolution near that anniversary is worth checking before the case is finalized.

What needs to change in an estate plan after a later-life divorce?

Almost all of it, and much of it does not change automatically. Wills, revocable trusts, powers of attorney, advance health care directives, and the beneficiary designations on retirement accounts and life insurance each require separate attention, and a beneficiary designation naming a former spouse will generally control over a contrary provision in a will. Restraining orders that take effect at filing limit changes to some of these instruments while the case is pending, so the sequence matters: certain revisions belong immediately, others must wait until judgment. Existing irrevocable trusts and long-term care arrangements should be reviewed alongside the division itself rather than after it.

About the Firm

Seastrom Tuttle Murphy Dockstader is a family law firm in Irvine representing clients throughout Orange County, and in Los Angeles County. The firm practices family law exclusively. Its attorneys include Fellows of the American Academy of Matrimonial Lawyers and of the International Academy of Family Lawyers, and attorneys certified as specialists in family law by the State Bar of California Board of Legal Specialization. Call 949.474.0800 to discuss a later-life divorce with the firm.