Wikipedia defines grey divorce as a "term referring to the demographic trend of an increasing divorce rate for older ("grey-haired") couples in long-lasting marriages." Now while "grey divorces" of a short or mid length marriage provide challenges for a divorce attorney, many believe that divorces of long term marriages are easy. Just whack up the assets 50-50, agree to permanent alimony and call it a day, right? That is not an uncommon result, but does it really make sense to do so and not consider real life anticipated events such as retirement and the receipt of Social Security, to name just two.
Typically, when marriages are longer than 20 years, the concept of permanent alimony seems like a no brainer. When the parties are in their sixties (or maybe even late fifties) does this make sense? What if the parties always discussed and agreed that at age 65, the husband was going to retire and planned and lived their life accordingly? Now, at age 61, either party seeks a divorce (I was going to say the wife – but it really doesn’t matter). Should this be a permanent alimony case? The default answer is yes but should there be more critical analysis to this?
In this case, we can assume that all of the assets will be divided 50-50, except perhaps a business asset. Even then, while business assets are usually disproportionately divided, for longer marriages, the non-titled spouse gets more than they would have in a shorter marriage (the fairness of this may be the subject of another post.) In addition, it is likely that the amount of alimony afforded will not allow the payor to save substantially before the divorce and a normal retirement age in a few years hence.
If the agreement does not account for retirement, aren’t the parties just buying themselves more litigation in a few years? Should consideration be given to allowing for retirement and the termination of alimony any time after retirement age without the need to litigate? If that is the case and someone still works full time after the agreed upon retirement age, should alimony continue?
As noted recently, the proposed alimony reform bill is calling for automatic termination of alimony when someone gets to the age of retirement as determined by Social Security. Is this fair if that person keeps working full time?
Several years ago, I had a case where the husband sold his business, but signed an agreement to remain with the company for up to three years (and he had a contract that said he would be paid for 3 years – even if they let him go sooner.) He was probably close to 60 at the time of the sale. He and his wife had agreed that once either the contract was over or they let him go, that they were going to retire and move to the shore house. Half way into the contract, the wife filed for divorce and sought permanent alimony, up to the day of trial. The case ultimately settled just prior to trial when the trial judge learned that the wife admitted at her deposition that the family plan, was in fact, that the husband would retire as noted above. The judge made it pretty clear that permanent alimony was not going to happen here. Unfortunately, it took more than a year of litigation to get to that point.
Also, if one or both of the parties are going to be getting Social Security soon, that factor should at least be considered, though it may or may not make a difference. If a pension is going to be divided that is going to be providing monthly benefits to each party in short order, that too may be something to be considered.
In short, fairness seems to dictate that these things and retirement at least be discussed and some common sense be applied when settling grey divorces after long term marriages.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.