Once considered extremely unusual, many attorneys have begun to notice a rise in the amount of divorce clients who are retirement age. These separations nicknamed “grey divorces” are still somewhat uncommon, but the recent increase has caused several attorneys, including the Gateville Law Firm, to begin to look at the unique and complex issues that surround the separation of elderly couples.
What issues arise in a Grey Divorce?
When most people think of a divorce, they think of three things in particular, parenting time with their children, child support payments, and the allocation of maintenance (formerly known as alimony). With elderly couples, the children are usually grown and emancipated, and the payment of maintenance is all but a certainty and is generally accepted.
There are, of course, instances where all of these issues are still considered, particularly the finer details of maintenance allocations, but most grey divorces tend to center around other issues. Grey divorces tend to predominately center around the division of marital property.
In all divorces there are two types of property: non-marital property and marital property. Under Illinois law non-marital property that was acquired by a party before the marriage or property that was acquired by a spouse subsequent to the marriage that:
- Was acquired by gift, legacy or descent or property acquired in exchange for such property;
- Property acquired in exchange for property before the marriage
- Property acquired by a spouse after a judgment of legal separation;
- Property excluded by a valid agreement of the parties;
- Any judgment or property obtained by judgment awarded to a spouse from the other spouse;
- All property acquired by a spouse by the sole us of non-marital property as collateral for a loan that then is used to acquire property during the marriage.
Marital property is property acquired during the marriage, this includes marital homes, cars, and most other assets acquired by couples. As most elderly marriages have spanned a significant amount of time, in some cases 30, 40, or even 50 years, the amount of marital property to be divided is often great.
Additionally, through a process known as “transmutation” even non-marital assets can become marital due to the contributions of marital property or effort of one spouse during the marriage. Because of the duration of the marriage, alongside the effects of transmutation, it is common for most, if not all, assets in a grey divorce to be considered marital property.
So, what marital property is going to be divided?
When most people think of the split of property they think of the split of physical assets: houses, cars, furniture, and money in the bank. Grey divorces tend to focus on rights to money such as pensions, retirement savings, 401(k)s, Social Security, and other retirement benefits, as both spouses want to receive benefits that they both have contributed to.
In many instances, even if most or all of the retirement benefits came from one spouse’s employment, these retirement accounts will still be split evenly because the non-working spouse still contributed so much of his or her time, if not his or her money, to the marriage.
Additionally, medical bills, treatments, and other health care expenses might need to be arranged for during a grey divorce. It’s important to have legal representation throughout the entire process as a grey divorce can leave one in dire financial straits if the division of property is not handled well, particularly for women. (http://healthjournalism.org/blog/2016/01/increase-in-gray-divorce-hurts-finances-health-for-many-women)
When I made my will, I included my spouse, will he or she still be a part of it?
One of the most commonly asked questions in a grey divorce is whether or not a spouse will still take under the will of the divorcing spouse. The answer is generally no. If a will is executed prior to the divorce or annulment, even if the couple still wish to have each other benefit through their will, any provisions naming them are unenforceable after a divorce judgment is finalized. However, it is important to amend your wills and trusts.
The judgment must be finalized, and the process finished for the provisions to be voided, however, so a spouse will still be a beneficiary under a will during the separation process. It is highly recommended that a new will be executed once the divorce process has either begun or been finalized so that the Testator can make sure his or her assets are distributed as he or she intends.
Gateville Law Firm offers Estate Planning, Asset Protection, and Wealth Preservation services that are extremely beneficial when considering your will and financial health while going through a grey divorce.
Divorce is always a difficult process, but it can be especially stressful for the elderly. We here at Gateville Law Firm know the full range of issues facing elderly couples during this difficult time and have staff to inform, support, and assist our clients as they move on with their lives.
Gateville Law Firm can assist you with your divorce related issues. We are eager to assist you at 630-780-1034.