Challenges Unique to Gray Divorce

Posted on in Divorce

gray divorce, DuPage County divorce lawyersIt used to be that once a marriage had passed a certain benchmark of years, it was considered basically safe from the possibility of divorce. However, in this day and age, numerous social and anthropological factors have combined to make divorce much more of a reality for those over 50. While the reality of divorce itself is much more common nowadays, it is not necessarily the same process for seniors as it is for those in their 20s and 30s. If you are planning to divorce later in life, especially after retirement, there are considerations you must take into account.

Social Security Questions

It is reasonable for one to assume that Social Security benefits would be divisible, as is most other property, in a divorce. This is not actually the case; courts may not divide Social Security income or benefits, because they are considered non-marital property. However, the Social Security Administration does permit spouses (or ex-spouses, in some cases) to qualify for direct benefits based on their spouse’s work history. The criteria for receiving your own benefits based on your ex-spouse’s work history are:

  • If you were married for 10 or more years;
  • If you are presently unmarried (your spouse may be remarried);
  • If you are aged 62 or older;
  • If your spouse is/was eligible for either Social Security retirement or disability benefits; and
  • If the amount you would earn from your own work history would be less than what you would earn from your spouse’s.

This option can alleviate many issues in gray divorce. If a divorced spouse can still claim SSI benefits, they may be less inclined to fight for other assets or to argue against a certain property division concern.

Estate Planning and Retirement Accounts

The other major issue that most younger couples do not have to confront is that of estate planning. Illinois has a law that automatically revokes any provisions in your will that grant bequests to a former spouse upon a divorce becoming final. If you wish to retain them, your will must be revised and updated.

Retirement accounts may qualify as marital property in Illinois, and usually do, meaning that their proceeds will be divided in most divorces. However, they can also touch estate planning concerns, because in a gray divorce, both spouses are usually approaching the end of their careers, so retirement funds become more important. Also, some retirement accounts and insurance policies that specify beneficiaries may not be challenged by law. In other words, if you wish to change the beneficiary on an insurance policy or retirement account after a divorce, you must do so manually, as it will not be done for you.

Do Not Go It Alone

If you are in the position where divorce is imminent, an experienced gray divorce attorney can significantly ease the burden. The dedicated Wheaton divorce attorneys at our law firm are experienced in negotiating the unique issues that can appear in a gray divorce. We are happy to help you through what can be a difficult process. Contact our office today to discuss your options.


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