In decades past, filing for divorce was an incredibly taboo subject, leading many to remain in unhappy marriages. However, as the view on this matter has shifted, it has led many couples who have been married for decades to file for separation. As such, if you are over the age of 50 and considering a divorce, you should understand how a gray divorce differs from the traditional process, and the importance of working with one of our experienced New York divorce attorneys.

Understanding Gray Divorce in New York

Gray divorce refers to couples over the age of 50 who are going through a divorce. A gray divorce is different from other kinds of divorce because couples over 50 may have to deal with certain issues that other couples are unlikely to face.

Gray divorces are becoming increasingly common in recent years, as many couples are rejecting previous societal pressures to remain in unhappy marriages. As such, if you are considering a gray divorce in Suffolk County, Nassau County, or the surrounding New York areas, understanding what you can expect from this process is critical.

Key Issues Unique to Gray Divorce

As mentioned, due to the age of the parties involved, you’ll find that a gray divorce often has a number of unique issues that arise. As such, understanding what issues you may face during this process is critical to preparing for your divorce.

Division of Retirement and Pension Accounts

When you and your spouse file for divorce, it’s critical to understand that any retirement plan earned during the marriage will be considered marital property under New York law. This means it will be subject to division in accordance with your other jointly owned assets.

It’s also important to understand that the division of retirement accounts can be incredibly complicated due to the early withdrawal penalties imposed. As such, a Qualified Domestic Relations Order (QDRO) may be necessary to divide these funds without facing penalties.

It’s critical to understand, however, that a QDRO is only necessary for certain ERISA accounts, like 401(k)s, profit sharing plans, and 403(b)s. You will be unable to use a QDRO to divide assets held in an IRA, for example.

Alimony (Spousal Support)

Alimony is often one of the most contentious matters in a divorce, as you may find that the paying spouse may feel the amount is too high, while the receiving spouse may feel as though the amount is not enough.

It’s important to understand, however, that alimony is not automatically awarded to the lower-earning spouse, but instead must be requested. Additionally, New York courts will consider a number of factors before determining whether or not to award alimony, and if so, how much and for what duration. These factors include:

  • The age and health of each party
  • The length of the marriage
  • The income difference between each party
  • The tax consequences for both parties
  • Whether or not the recipient spouse would be able to rejoin the workforce

Property and Asset Division

Under NY Dom Rel L § 236, all assets obtained during the marriage are considered marital property and therefore are subject to division in accordance with the state’s equitable distribution process. This means that your assets will be divided based on each spouse’s contribution to the marriage, rather than an automatic 50/50 split. As such, the division may not be equal.

Social Security and Healthcare Coverage

It’s important to understand that, in many instances, one spouse may be eligible for the other’s Social Security benefits. This is only possible if the marriage lasted more than 10 years. However, in order to receive these benefits, you must:

  • Be unmarried
  • Turn 62

It’s also necessary to understand that if you receive benefits on your ex’s Social Security, it will not impact your former spouse’s benefits, as they will be eligible for full benefits regardless of whether or not you file.

You should also consider that one spouse may face pre-Medicare health coverage gaps. As such, consulting with an attorney is critical, as you may need to begin planning for COBRA or Medicare early.

Mediation vs. Litigation for Gray Divorce in New York

When you are going through a divorce, it’s important to understand that you aren’t limited to only litigation. In fact, many who go through a gray divorce opt to mediate their divorce when possible.

Mediation is a form of alternative dispute resolution in which you and your spouse will meet with a neutral third-party entity, the mediator, who is responsible for facilitating conversation and helping you and your spouse reach an agreement. It’s critical to understand that they are not there to take sides, but rather help you and your spouse reach a compromise.

There are multiple benefits to choosing mediation over litigation when going through a gray divorce. They include the following:

  • The couple does not want to waste a lot of money on the divorce: Couples going through a divorce after years of marriage are most likely in their 50s or 60s, insinuating that they plan on retiring soon. Because of this, they may not want to spend a lot of money on their divorce in order to protect their retirement fund. Mediation costs much less than litigation
  • They do not want to waste a lot of time on the divorce: Divorces can take years to settle. Older couples usually do not want to spend their time dealing with in a heated courtroom. If they opt for mediation, resolutions can be reached much faster and more efficiently
  • They do not want to add any more pressure to their life: Those of an older age may have specific difficulties and stressors. This can refer to a difficult job, college tuition bills, caring for aging parents, continuing to support children, medical issues, etc. A complex divorce is typically what an older couple does not want to add to their life. With mediation, it will be a much calmer process

Contact Our Suffolk County Divorce Firm Today

Going through a divorce when you’re over the age of 50 can be an incredibly complex legal and financial matter. However, this is often a difficult emotional time as well. As such, it is in your best interest to connect with an experienced attorney with the Law Offices of Susan A. Kassel, P.C. Our firm understands how difficult these matters can be, which is why we will do everything possible to assist you. Contact us today to learn how we can help.