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DIVORCE IN THE SECOND HALF: OVER 50 |
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Are there accurate statistics for the frequency of divorce for people over 50? |
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Does the reduction of income because of my retirement impact on my obligation to pay maintenance (alimony)? |
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Because I was the stay-at-home parent and raised the family, I accrued no Social Security benefits. In the divorce judgment, can the court award me, as my own asset, part of my husband's Social Security benefits? |
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If I am assigned a part of my spouse's pension plan, can I take "early retirement" under his plan? |
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Is the non-employee spouse entitled to "survivor benefits" under the employee spouse's pension plan? |
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Rather than marrying we lived together. Upon a breakup can my significant other successfully sue me for maintenance (alimony) or be awarded an interest in any of my property? |
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I am a wife over 50, married for more than 20 years, and (a) I had no significant employment outside of the home, or (b) my income is substantially smaller than my husband's. Will I receive what I have heard is the usual maintenance award of three years and then the court will review the maintenance award to see if I still need it? |
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Is a premarital (prenuptial) agreement a good idea for an over 50 second marriage? |
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| Q: |
Are there accurate statistics for the frequency of divorce for people over 50? |
| A: |
No. The U.S. government, through the Center for Disease Control, publishes monthly statistics on the incidence of births, deaths, marriages and divorces, but it is not broken down according to age. The current overall incidence of divorce, as compared to marriage, is that more than 50 percent of marriages end in divorce. My sense, from my practice, is that first marriages of people over 50 are less likely to end in divorce than for younger couples. However, statistics show an increased likelihood of divorce each time a person has been divorced, so that a person over 50 who has been married two or three times before, is much more likely to be divorced again than is a person who is over 50 and has not been divorced. |
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| Q: |
Does the reduction of income because of my retirement impact on my obligation to pay maintenance (alimony)? |
| A: |
Yes, but not if you retire too early. An appellate court case refused to give the husband any relief from his maintenance obligation when he took early retirement at age 54. Age 65 is a safe bet for reducing or terminating maintenance, but before age 65 it is doubtful. |
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| Q: |
Because I was the stay-at-home parent and raised the family, I accrued no Social Security benefits. In the divorce judgment, can the court award me, as my own asset, part of my husband's Social Security benefits? |
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No. While Illinois courts consider a pension plan (that part that is earned during the marriage) an asset which can be divided between the parties, Social Security is not considered an asset that the court can divide. A former spouse age 62 or older, who is not remarried, can receive Social Security benefits on account of the ex-spouse if the marriage lasted more than ten years and more than two years have passed since the divorce. |
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| Q: |
If I am assigned a part of my spouse's pension plan, can I take "early retirement" under his plan? |
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Yes. Under what is known as a Qualified Domestic Relations Order (QDRO), a non-employee spouse receives a part of the employee-spouse's pension plan as if it were her own. When she qualifies for benefits, the pension plan administrator sends the payments directly to her. A non-employee spouse has the same rights under the pension plan as the employee-spouse, including early retirement. |
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| Q: |
Is the non-employee spouse entitled to "survivor benefits" under the employee spouse's pension plan? |
| A: |
Maybe. Many pension plans give the employee the option of reducing retirement benefits for himself during his life, so as to provide that upon his death his spouse will receive benefits for the remainder of her life. Considering the statistical fact that women live approximately seven years longer than men, the survivor's benefit can be significant to a surviving spouse and should be negotiated for in a divorce settlement. |
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| Q: |
Rather than marrying we lived together. Upon a breakup can my significant other successfully sue me for maintenance (alimony) or be awarded an interest in any of my property? |
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No. There is no "palimony" in Illinois. And, as long as you keep your assets in your own name, they remain yours. Of course if you have a provable agreement (oral or written) as to the financial aspects of your non-marital relationship, you will likely have to live up to the agreement. But keep in mind that agreements about real estate must be in writing. |
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| Q: |
I am a wife over 50, married for more than 20 years, and (a) I had no significant employment outside of the home, or (b) my income is substantially smaller than my husband's. Will I receive what I have heard is the usual maintenance award of three years and then the court will review the maintenance award to see if I still need it? |
| A: |
No. The trend for a long-term marriage, where the financially dependent spouse is of such an age that she is not readily employable, or employable only at a minimum wage, is that there should be "permanent" maintenance, which is not subject to automatic review. |
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| Q: |
Is a premarital (prenuptial) agreement a good idea for an over 50 second marriage? |
| A: |
Yes. In an over 50 second marriage, often each party wants to leave what they had before the new marriage to their own children, with the new spouse having no interest in the assets owned before this marriage. This can be accomplished through a premarital agreement. A premarital agreement can also address a possible future divorce by having a waiver of maintenance, or structuring of maintenance. |
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