It wasn’t so long ago that divorce among the older population was almost unheard of. In 1990, less than 1 individual in 10 who filed for divorce was over the age of 50. By 2020, 1 in 4 individuals who filed for divorce was over the age of 50.
Since the rise in Gray Divorce, the term used for people over 50 seeking to end their marriage, is a fairly recent phenomenon, laws and guidelines regarding things like post-divorce maintenance had to be updated and clarified to account for people who would be paying maintenance to an ex well after they retired.
When maintenance is either agreed upon though mediation or negotiation, or a court sets the amount of maintenance due to the legal formula and advisory guidelines, it is expected that maintenance would continue to be paid regardless of the situation the payor finds themselves in. If a person paying maintenance loses their job, they are still responsible for paying maintenance.
The same was true for a person who retires. The only recourse a person had post-retirement was to petition the court for a modification of maintenance and request that the amount being paid be based on their new income reality.
However, that process did not take into account the reality of the situation that many people face regarding income, health, and other post-retirement financial concerns. Additional language was added to the Domestic Relations Law (DRL) to account for the growing number of people seeking a divorce while close to, or even after retirement.
DRL 236B says that when a Judge is deciding to use the advisory guidelines to set the duration of post-divorce maintenance, they “shall take into consideration anticipated retirement assets, benefits and retirement eligibility age.”
A significant concern for many people contemplating retirement is what their retirement income is going to be and are they going to have to severely curtail their lifestyle to account for the loss of their regular income. With the added burden of paying maintenance well after retirement, the stress of attempting to live on an even further diminished income can become too much to bear and even cause a person to delay retirement or come out of retirement to work just to be able to meet their financial obligations.
The purpose of much of the language in the DRL is to avoid as much strife and to remove any situation where a person would act vindictively, or even in a way that could be construed as being vindictive. Without the update to the DRL, a person who would be paid maintenance could conceivably accuse their ex of retiring solely to avoid the possibility of paying maintenance. In this case the guideline now includes the caveat of “retirement eligibility age.”
The added language doesn’t mean that there will not be some form of negotiation or clarification of details, such as when a person was otherwise planning to retire regardless of marital status.
There are always going to be situations where people are legally obligated to make some form of payment, whether it is annual income tax, or other obligation such as child support or maintenance, however, there are often considerations put in place to ensure that the person making the payments, doesn’t become destitute just by keeping up with their obligations.
The same is and should be true for post-gray divorce maintenance when one or both spouses are close to retirement age. In a situation where one spouse’s income far surpasses the other spouse’s ability to earn, maintenance is an important part of allowing the non-monied spouse to begin to get themselves into a position where they can become self-sufficient. This transition can take even longer after a long-duration marriage.
It is also right and proper that the reality of any situation become a variable for consideration including the reality that many people begin to plan for retirement years in advance and the added expense of maintenance, especially at a pre-retirement rate, can be overly burdensome.