Part 2: Division of Assets and Debts, Retirement Benefits, and Estate Planning Matters

As discussed in Part One of our two-part series detailing the social phenomenon know as “grey” divorce, a number of recent studies, reports and other analyses have found an interesting trend in the divorce rates amongst adults of 45 years of age or older. While studies show that the rate of divorce for adults under 35 has significantly decreased in the past three decades, divorce rates involving middle aged and older Americans have risen.

Regardless of the potential rationale or basis for this societal phenomenon, its mere existence has also contributed to the rise of some special, unique considerations which should be evaluated in connection with divorces and dissolutions of couples in this particular age demographic.

In the first installment of this series, we examined the following three special considerations: spousal support; access to health insurance; and adult children. In this second and final installment, however, we will examine three additional special considerations for cases involving parties in this particular age demographic: in particular, the division of assets and debts, retirement benefits and assets and subsequent estate planning.

Division of Assets and Debts

The division of assets and debts is a critical component in any divorce or dissolution matter. In connection with the termination of a marriage, one of the main tasks that a domestic relations court must complete is to address and otherwise resolve the parties’ property and financial issues. This includes classifying the parties’ assets and debts as either marital or separate (i.e., non-marital).

In Ohio, marital assets and debts are generally defined as those which have been accumulated and acquired by the parties during marital assets and debts the marriage at issue. In contrast, Ohio statues define separate (i.e., non-marital) assets and debts as those that fall into one of the following categories:

1. An inheritance of a spouse
2. Any assets or debts acquired by a spouse before the date of marriage (i.e., premarital assets or debts)
3. Any passive income or appreciation on the separate property of a spouse
4. Any assets or debts that were acquired by one spouse following a decree of legal separation
5. Any assets or debts that are excluded pursuant to a prenuptial agreement
6. Any compensation to a spouse for a personal injury, with noted exceptions
7. Any gift that is demonstrated to have been made solely to one spouse during the marriage.

In connection with the termination of a marriage, marital assets and debts are usually divided equitably (typically, equally) between the parties, whereas separate marital assets and debts are returned to the originating party.

In light of this distinction, locating, categorizing, and dividing all the assets and debts in a divorce or dissolution involving middle-aged or older couples often involves some unique considerations, especially when compared to the same process in a matter involving a younger couple. Again, as current demographic trends suggest, the reason for this is relatively obvious: the older the couple, the more likely it is that the marriage will have been of a longer duration; and the longer the duration of the marriage, the more assets and debts that are likely to have been accumulated, and thus, need to be identified and allocated in connection with any divorce or dissolution proceedings.

That said, there may be one silver lining inherent in these circumstances: generally, in a long-term marriage involving a middle-aged or older couple, the bulk of the existing assets and debts is more likely to be marital in nature than separate, simply given the longer timeframe of the marriage at issue. Often times, the longer the marriage, the more likely it is that the majority of assets and debts that exist were acquired during the marriage, and thus, are marital in nature.

Notably, however, divorce or dissolution proceedings involving middle-aged or older parties are not solely limited to those who have been involved in long-term marriages. Indeed, demographic trends suggest that a number of the divorces and dissolutions which involve middle-aged or older parties represent the termination of a second or higher marriage. When a middle-aged or older couple is involved in a second or higher marriage, there is likely to be a number of assets and debts which pre-date the current marriage at issue, and thus, are a spouse’s premarital, separate property. As such, in these particular matters, identifying, classifying, and tracing the separate assets and debts of the parties may take on a special significance, so as to ensure the return of the same to the appropriate spouse(s).

One particular type of property necessitates extra note in the context of middle-aged or older couples: burial plots and arrangements. While it is certainly not uncommon for younger couples to, collectively engage in pre-planning with respect to their final arrangements, it is simply more likely, as a practical matter, for individuals who are of more advanced age to have already completed this exercise. In the context of a divorce or dissolution, burial plots and arrangements are treated like any other property. However, with respect to these assets, other complicating factors may, to some extent, need to be taken into account when evaluating the division of the same, such as the availability of other plots in the same location as well as the sentimental desire to remain among family.

Retirement

In connection with a divorce or dissolution proceeding, the retirement benefits and accounts of the parties are treated in the same way as any other property. Specifically, the marital portion of any retirement benefits or accounts of the parties are divided equitably (typically, equally), and the separate portion of any retirement benefits or accounts of the parties are returned to the originating party. As a result, the special considerations concerning the identification, classification, and tracing of the separate and marital portions of a middle-aged or older party’s retirement benefits and assets remain the same as already described in this article. However, for middle-aged and older couples who are in the process of terminating their marriage, there are at least two other special considerations that are unique to retirement accounts and benefits for those in this age demographic that may also be worth exploring.

First, for middle-aged and older parties, retirement assets may already be in pay-out status, meaning that a party is already actively receiving a financial benefit from said asset each month. If this is the case, it may be important to explore how the party has elected to receive the benefit, as well as the potential implications of the same, if any, on his or her spouse’s ability to continue to receive an allocated portion of the benefit in the incident of the receiving party’s death. Similarly, to the extent that a party is in pay-out status on a retirement asset, this may also have financial implications in connection with other aspects of the divorce or dissolution proceeding, including as it pertains to support matters.

Second, for middle-aged and older parties, there may also be unique considerations to take into account as it pertains to collecting on a former spouse’s social security benefits. While social security benefits are not inherently divisible in connection with a divorce or dissolution proceeding, under certain circumstances, it may still be possible for a spouse to subsequently receive a social security benefit based upon their former spouse’s work record. In particular, a divorced spouse may have the ability to claim up to 50% of a former spouse’s monthly social security benefit to the extent that the marriage lasted 10 years or longer and other various preconditions are satisfied. Notably, the payment of any portion of a former spouse’s monthly social security benefit to the other spouse will not decrease the amount of the former spouse’s monthly benefit. Instead, depending on the circumstances, the potential availability of this benefit may simply represent yet another possible, readily available income stream to factor into the overall divorce or dissolution analysis, especially for middle-aged and older couples. As such, for a couple that falls into this age demographic, it may be financially prudent, under certain circumstances, to wait until after the 10-year wedding anniversary to finalize an impending divorce or dissolution action. That said, other considerations, of course, might outweigh any desire for such financial prudency.

Subsequent Estate Planning

In Ohio, the termination of a marriage may automatically revoke or otherwise impact certain provisions of previously executed estate planning documents. This remains true regardless of whether a divorced spouse intended for these automatic impacts to occur or not.

Similarly, in other circumstances, the termination of a marriage may not automatically impact other previously made end-of-life designations or elections, including beneficiary designations. Instead, in order to modify or otherwise alter certain other previously made end-of-life designations or elections, an extra, affirmative step on the part of a divorced spouse may be necessary. This remains true regardless of whether a divorced spouse intended for these modifications or alterations to occur automatically or not.

To this end, it is not uncommon for a divorced spouse to not intend—and potentially, not even realize—the automatic impacts (or lack thereof) to his or her estate plan that are incident to a divorce or dissolution. As a result, following a divorce or dissolution proceeding, it is always best practice for parties to review and potentially reevaluate any previously executed estate planning documents as well as any other previously made end-of-life designations or elections, including beneficiary designations.

For numerous reasons—including the obvious ones, like advanced age and the likelihood of having more assets to protect—this is an especially important step for middle-aged and older parties to take immediately following the termination of a marriage. In fact, it may be absolutely critical for middle-aged and older parties to consult with an estate planning professional at the conclusion of a divorce or dissolution proceeding in order to ensure the intended continuity across all governing legal documents and designations.

At KJK Family Law, we are experienced in dealing with all aspects of the termination of a marriage, including those which may more commonly impact middle-aged and older parties. For further guidance on these and other related matters, please contact John D. Ramsey (JDR@kjk.com; 216.736.7289), Janet Stewart Scalley (js@kjk.com; 216.736.7261), or another member of KJK Family Law by calling 216.696. 8700.