Alternatives to Divorce for Older Couples in Maine

Divorce is surprisingly common amongst couples aged over 50 in Maine. There is even a special name for it: “gray divorce”.

However, the older a couple is when they divorce, the more there is to “unravel” during the process. Although the children may be adults and child custody, parenting, and support may not be factors, the financial matters of property division, spousal support, and retirement can become complex for older couples considering divorce.

Let’s consider the main challenges, the financial implications, and the alternatives to divorce that couples should factor in before opting for a gray divorce.

Although divorcing later in life usually means the children are grown and have “fled the nest”, the divorce can still have a profound impact on families.

There may be no disputes about parental rights and responsibilities or child support, but the emotional fallout of a divorce can deeply affect the entire family. The adult children may need to choose between spending time with one parent over another, and family birthdays, graduation parties, or holiday get-togethers can become awkward.

Financial and retirement matters

The main practical concerns for couples considering a divorce later in life are usually financial. Often, couples plan for a retirement together, calculating how much they will need and allocating funds accordingly based upon shared retirement years in the same family home.

When this turns out not to be the case, a major shift in mindset is necessary and a lot of work is required to unravel commingled assets and debts.

If a couple must run two households after separation, it inevitably incurs more expense. The resources calculated for a retired couple may not be enough to support two households. Investments, retirement accounts, and social security may be insufficient when halved between the spouses.

If a couple is not yet retired but has been planning for it, a divorce can mean that retirement is no longer possible at the desired age.

Some couples have a significant age gap that can further complicate a divorce. For example, a divorce may be more complex when an older, retired spouse separates from a much younger spouse who is still working.

If both spouses are retired and have similar sources of income, spousal support may be unnecessary. However, if one spouse has significantly higher income or assets—even in retirement—the court may still consider a support order. When one spouse is still employed while the other is retired, that income difference can play a major role in determining spousal support.

Another complication may arise during divorces where one party acts as a caregiver to the other spouse. An incapacitated party may require guardianship if the caregiver departs

A range of financial matters must be addressed when older couples divorce.

Social security benefits and the division of retirement accounts

For couples married for at least 10 years, a spouse may be able to claim social security benefits based on the other spouse’s work record.

Another major financial consideration for older couples who separate is how to divide a 401(k) or pension plan. This can have a significant bearing on each spouse’s future finances. Generally, a Qualified Domestic Relations Order (QDRO) is required before such retirement accounts can be divided.

Before considering the implications of this further, discuss your situation with an experienced divorce attorney or financial professional. Withdrawals from retirement accounts can carry tax penalties, significantly reducing the value of an asset.

Tax implications

Every financial decision in divorce can affect taxes. This is why it’s essential to talk through your unique situation with a knowledgeable tax professional before deciding on retirement account division, support payments, etc.

Healthcare planning

You will also need to decide what will happen with healthcare if you are currently covered by your spouse’s health insurance policy and are seeking a divorce. Healthcare becomes a key issue as couples age. Alternative coverage, such as COBRA, state healthcare exchanges, or employer-provided insurance, may be necessary depending on your age and qualification for Medicare.

Arrangements for assisted living may need to be made for some older spouses in poor health, while long-term provisions should be made for the future needs of spouses who are currently healthy.

Estate planning

Some other aspects of long-term care planning include legal decision-making documents, healthcare proxies, and powers of attorney. These are often created in case a spouse loses mental capacity.

Such documents are commonly included as part of an overall estate plan, which also covers wills, trusts, and other provisions for asset distribution. In the event of a divorce, these documents need to be reviewed and updated to reflect current wishes and preferences. It’s essential that someone you trust is responsible for your health-related decisions in the future and that assets end up where you intend.

With so many challenges and considerations for older couples during a gray divorce, many couples consider other options…

Legal separation

Legal or “judicial” separation allows couples to live apart but remain married, often retaining certain benefits by doing so. Typically, these benefits include private health insurance coverage through a spouse, especially if they do not qualify for Medicaid/Medicare yet. Sometimes, religious beliefs prevent a divorce, making legal separation the preferred option.

In Maine, legal separation can be requested by a couple if they live apart for more than 60 continuous days. The court can establish spousal support, but property is not usually divided unless both parties agree to it.

Is annulment an option?

Despite what some people may think, annulment is not an option because this effectively means that the marriage never existed. Generally, annulment is used to legally end a marriage that is not consummated, non-consensual, or illegal in another way, which does not apply to most marriages involving older spouses.

Mediation and negotiation

Older married couples may be concerned about the consequences of divorce and may want to explore solutions to problems through non-adversarial means, such as collaboration between lawyers, negotiation, or mediation.

Mediation, in particular, can help resolve issues without litigation or divorce. Mediators help facilitate discussions between the parties involved and may present solutions—but the decision-making powers rest with the disputing parties and matters remain private.

In relatively amicable marriage break-ups, negotiation and collaboration between attorneys can result in a workable separation agreement. This agreement can be used later as the foundation for a divorce settlement if the couple decides to proceed with a legal divorce.

For legal assistance with any aspect of divorce in Maine, speak to an experienced family law attorney at The Maine Divorce Group during an initial consultation.