The term “gray divorce” is used to discuss divorces among couples who are over 50 years old and who are in long-term marriages. Another popular term for this is “silver splitters.” When a marriage has gone on for many years, a divorce can be particularly challenging. Talk with a Berkeley County, SC gray divorce attorney as soon as possible to get the help you need to deal with the potentially complicated legal issues that can come up for those getting divorced later in life.
In any divorce, working out how to divide the property is one of the biggest potential areas for contention. When you’ve been married for a long time and have mingled your life with that of another person for years on end, these property division issues can become especially complicated. South Carolina law demands that assets and debts be divided equitably, or fairly, but not necessarily equally. The assets that might be included in your divorce would include not only the marital home and any joint bank accounts and vehicles you own but also your retirement accounts, pensions, other real estate, a family business, and all valuable items acquired during the marriage, such as artwork or jewelry. You will also be splitting all debts, including credit card debt, mortgages, and any other debt that you may have incurred.
The only property that would not be divided would be property that could be proven to be separate. Separate property is anything that either of you brought to the marriage or which was gifted or inherited during the course of the marriage. A complicating factor here is that any separate property that was mingled with marital property at any point during your life together becomes marital property. For example, if one of you received an inheritance and then used part of that inheritance to pay off a mortgage on a shared home, or deposited the inheritance in a joint bank account, that inheritance would become community property.
When dividing the property, the courts taken into consideration the length of the marriage and the age and health of both parties. Their goal will be to put the two parties on an equal financial footing, and, depending on where each party is in their career and how much working life they have left, this could mean a very lopsided division of the assets. Some assets are particularly difficult to divide, such as a business or a retirement account. If a business is owned entirely by one spouse, but it can be shown that the other spouse contributed either directly or indirectly to the success of the business, then the courts will likely give them a share. When it comes to retirement accounts, cashing out accounts in order to divide them is not only complicated but can also come with serious tax penalties.
Spousal support is not a given in South Carolina divorces, but the longer a marriage has gone on, the more likely it is that the court will award alimony. If one of the spouses has been out of the workforce for most of their adult life, then the South Carolina courts will expect the other spouse to continue to support that spouse either as they become self-sufficient or permanently if it’s not possible for them to train up to a career that would allow them full self-sufficiency. Alimony can be paid periodically or in a lump sum, and the court will consider several factors when deciding whether to award spousal support, how much it should be, and how long it should last.
In addition to considering the length of the marriage, expect the court to also take into consideration the age and health of both the spouses, the financial resources that both spouses have to lean on, including separate property, and the behavior of both spouses leading up to the divorce. In gray divorces in particular, poor health can be a serious issue for one or both spouses and complicate issues of alimony and spousal support. For example, if one spouse has been having an affair, this would not necessarily mean that they have to pay spousal support. However, if they were using shared marital assets to give gifts to their partner in adultery, the court may consider this not only in asset division but also in issues of spousal support.
Social Security benefits can’t be divided in a divorce per federal law, but a spouse can claim their spousal benefits from the other party’s Social Security benefits if the two were married for 10 years or more. Obviously, this is much more likely in a gray divorce than in other divorces and will need to be considered in asset division and spousal support discussions. If one party is collecting spousal benefits from the other party’s Social Security benefits, they can only do so as long as they do not remarry before age 60.
In a gray divorce, it’s usually especially important for the couple to review their estate plan. Younger couples may not have developed an estate plan at all by the time of their divorce, but when a couple divorces later in life, wills and trusts need to be updated and many other aspects of estate planning can be affected. It’s important to get on this right away so that an unexpected accident, illness, or death doesn’t cause issues for either spouse’s estate.
Some couples consider a “Medicaid divorce” to protect their assets from medical expenses. This type of divorce is much less common now than it was a few decades ago, since the federal government passed Spousal Impoverishment Rules to protect the assets of a healthy spouse when the other spouse is forced to go into long-term Medicaid care. Prior to passing these rules, it was not uncommon for the spouse who was not going into care to lose virtually everything and go into poverty.
A Medicaid divorce takes place when one spouse needs long-term care and the couple’s assets are just large enough that the applicant who needs long-term care can’t become eligible for Medicaid, but just small enough that the sick spouse’s care will burn through all of the couple’s assets, leaving the other spouse with nothing for their own end-of-life care. This type of divorce awards most of the community property to the healthy spouse so the other spouse can qualify for Medicaid and the healthy spouse can keep the assets they need to live out the rest of their life.
Again, this type of divorce is quite uncommon these days and is probably not a good strategy for many older couples. If you’re considering anything like this, be sure to talk with an attorney so that you can get an accurate picture of what the law actually says and how it will apply in your situation. Don’t rely on outdated information or assumptions: talk to a family law attorney for specific help.
Contact the experienced lawyers at Ballinger Law Firm today & schedule your free consultation. We proudly serve Mt Pleasant & all throughout South Carolina. Visit our law office at:
Ballinger Law Firm – Mt Pleasant
858 W Lowcountry Blvd,
Mt Pleasant, SC 29464, United States
Phone: (843) 412 9507
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