Dallas Bar Association

The Empty Nest Divorce

by Angeline L. Bain

Since an all-time high in the 1980s, divorce rates have been generally going down for most segments of the population. However, in the over-50 demographic, often an “empty-nest” couple, divorce rates have been increasing. An article in Reuters (June 12, 2013) reports a poll of American divorce lawyers that finds 61 percent have seen an increase in the divorce rate of people over 50. The typical reasons for divorce often apply in the long-term marriage: adultery, abuse, and substance abuse. Often, however, the marriage has been unhappy for years, but the leaving party or both have been waiting until the children grow up and leave the nest.

 When a couple divorces after many years of marriage, when their children are adults or almost adults, the emotional dynamics are unique and the financial stakes are high. The empty nest couple may be in the throes of financing college for one or more children. One or both of the spouses may have long-term health issues. A couple divorcing in their fifties or sixties does not have long to financially rebuild before retirement. Many nonworking spouses are unwillingly thrust into the work world, perhaps unprepared.  And, the stark reality is, especially for women, the older they are, the less likely they are to remarry. Here are some of the issues of an empty nest divorce of which to be cognizant.

Many long-term marriage divorces involve the division of one or more qualified retirement plans. The myriad of retirement plans existing today can be complex and tricky. Texas law controls the characterization of a retirement plan, separate or community property, and its award to spouses upon divorce. However, the federal laws contained in ERISA and the Internal Revenue Code must be followed when dividing a qualified plan. These rules are fraught with traps and pitfalls. A mistake in the mechanics of dividing a qualified- or non-qualified-plan can be financially devastating in the dissolution of a long-term marriage.

For instance, a defined benefit plan typically has a surviving spouse right that may be irrevocably designated notwithstanding a divorce. The surviving spouse benefit should be valued and factored into the divorce division scenario. Dividing non-federally qualified retirement benefits has its own set of traps. Most often, the company granting the benefit will not recognize the rights of a former spouse. Therefore, all provisions must be carefully drafted to be contractual obligations of the employee spouse. The savvy family law attorney and spouse contemplating divorce or involved in a divorce proceeding should 1) obtain a copy of any retirement plan Summary Plan Document to familiarize him or herself with the benefit, and 2) hire a Qualified Domestic Relations Order specialist to prepare the court order which effectuates the division intended by the parties.

A state court may not make orders regarding the receipt of social security benefits. However, a general knowledge of the effects of divorce on social security benefits is essential. In brief, a divorced spouse may qualify to receive a social security payment earned by his or her former spouse if 1) their marriage lasted 10 years or more; 2) the applicant has attained the age of 62; 3) the applicant remains unmarried; and 4) the amount of benefit he or she has earned themselves is less than one-half of the monthly benefit earned by the former spouse. The monthly benefit for the applicant will be one-half of the monthly benefit earned by their former spouse. Because the benefit qualification rules in the case of divorce, death and surviving minor children may uniquely effect each individual situation, each effected person should review their situation with the Social Security Administration.

One often overlooked aspect of the empty nest divorce is the emotional reaction of, and toll on, adult children. When people divorce with young children they are more likely to attempt to shield the children from the details and emotions. Adult children almost always find themselves confided in, which makes it difficult not to take sides. Additionally, adult children of divorce are forced to question what they may have thought was ideal, constant. This questioning can shake the roots of their self-perception leading to relationship difficulties of their own. We divorce professionals often counsel parents to obtain counseling for their children. We should similarly suggest it for the adult children of the empty nest divorce.

When couples divorce after many years of marriage, the case should be analyzed and handled with the many unique issues in mind.

 

Angeline L. Bain is a member of GoransonBain, PLLC, and can be reached at abain@gbfamilylaw.com.

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