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Three Things Every Senior Should Know About Divorce

Debt and Divorce
Debt and Divorce

Divorces after the age of 55 are becoming increasingly common, and those leaving long-term marriages are now more likely to enter into new marriages.

Here are three topics to keep in mind if you are contemplating a divorce or entering into a new relationship:

Division of retirement assets

The marital share of any retirement assets earned during the marriage will be divided equally. The marital share of the retirement asset is the portion earned from the date of the marriage through to the date of commencement of the divorce action. Anything earned prior to the marriage or after commencement of a divorce is separate property. Retirement assets are divided tax free by court order.

Disability awards, such as awards from the 9/11 Victims Compensation Fund, are considered the separate property of the recipient, and will not be distributed upon divorce.

Maintenance

While lifetime maintenance (spousal support) is still awarded in some cases, most maintenance awards are for a limited period of time, based upon the length of the marriage.

Courts will often direct that maintenance ends when the recipient becomes eligible to receive Social Security. Where one party has either not worked or only worked sporadically during the marriage, he or she will be able to claim Social Security using the spouse’s record, provided he or she meets certain eligibility criteria which includes being married for 10 years or more.

Maintenance is no longer tax deductible by the payor nor declarable as income by the recipient.

Protecting assets in future relationships

A pre-nuptial agreement can help establish what assets are to remain the separate property of the party who owned them prior to the marriage, and how increases in the value of those assets are to be addressed. A post-nuptial agreement can be entered into after a marriage and would have the same effect as a pre-nuptial agreement. As an example, if one party owns a house (which would be their separate property), and the parties decide to live in that house together, a pre- or post-nuptial agreement could establish how the contributions by the non-titled spouse to the value of the house would be addressed in the event of a subsequent divorce.

The spousal right of election, which entitles a spouse to claim one-third of the estate of his or her spouse, may be waived as part of a pre- or post-nuptial agreement in favor of provision(s) made for the spouse in a Will or Trust. This may be worth considering if your new partner is already comfortable financially, and you would prefer the bulk of your estate to pass to your children or grandchildren.

Cash assets such as savings accounts and brokerage accounts should be kept separate as much as possible. Commingling is the term for when assets that are separate in nature are combined with marital assets, such as incomes earned during the

Once separate assets are commingled with marital assets, they are generally subject to equitable distribution in the event of a divorce.

This is not intended to be legal advice.  You should contact an attorney for advice regarding your specific situation.


Martin S. Butcher, Esq.
Martin S. Butcher, Senior Counsel

Martin Butcher is senior counsel with the firm and practices Matrimonial and Family Law.

He can be reached by phone at 866-303-9595 toll free or 845-764-9656 and by email.

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