Divorce can be challenging at any age. Those divorcing later in life may escape some of the most emotionally-fraught aspects of divorce, such as child custody battles. But, divorcing after 50 raises special concerns as well–particularly if the couple is already retired or approaching retirement.
If you’re over 50 and considering divorce, this book will help you understand what to expect in the divorce process, what challenges you should be prepared for, and how to set yourself up for a comfortable life after divorce.
Note, though, that there’s no substitute for the personalized advice of an experienced South Carolina divorce lawyer. It’s easy to make mistakes that can impact your rights, affect the division of property, or hurt your case in some other way. So, the best time to consult an attorney is before you take any action. If you’ve been served with divorce papers unexpectedly, you should contact an attorney immediately.
“Gray Divorce” is Increasing
Divorce among older Americans used to be rare. A report from Bowling Green State University showed that between 1990 and 2012, divorce rates dropped among younger adults. But, in all age groups 45 and up, the rate increased significantly. People aged 55-64 were more than twice as likely to divorce in 2012 as they’d been in 1990, and those 65 and older were three times as likely to divorce.
The increase in divorce rate was much more significant for older women than for older men.
A separate report based on data from the U.S. Vital Statistics Report and the American Community Survey showed that the divorce rate among women aged 50 and older more than doubled from 1990 to 2017. The rates varied significantly from state to state, with South Carolina falling near the middle of the country and close to the national median.
Why are More Older Couples Divorcing?
There are many reasons older Americans are choosing to divorce more frequently than they did in the past. Of course, the decision to end a marriage is a very personal one, and the exact combination of factors differs from couple to couple. Some of these factors include:
Americans are living longer and staying healthy longer. So, the decision to divorce at 50–or even 60+--means something very different today than it did decades ago. In earlier generations, someone in their 50s or 60s might have considered it “too late” to get divorced. But now, many people live active, healthy lives well into their 70s and 80s (or beyond). That means there’s likely plenty of time to pursue the life you want if you end your marriage after 50. And, perhaps decades to be unhappy if you stay in a bad relationship.
It’s not uncommon for couples to hold out until the kids grow up to separate, even if they’ve been unhappy for a long time. Across the past several decades, people have started having children later, which means they’re older when the kids reach adulthood. And, kids are taking longer to move out. For those born in the early 80s, the median age for leaving the family home was 19. The Great Recession changed all that, and in 2017 the median had shifted to age 23.5.
Divorce no longer carries the social stigma it once did. People who were 55 in 1990 were teens in the late 1950s and early 1960s, when divorce was generally discouraged. Those who are 55 today were teens in the 1980s–a very different era with different views. Today’s post-50 adults grew up more independent, more accustomed to relying on their own judgment versus social norms, and aware of a much wider range of possibilities for their lives. And, our current culture says it’s okay to value your own happiness and expect more from life.
More two-income households have changed the equation when it comes to separating the household and dividing assets. It’s less likely that one spouse is entirely financially dependent on the other, and more likely that a spouse who was a stay-at-home parent has education and/or work experience to help jump start a return to the workforce.
People aged 50 and up with college degrees are more likely to divorce than those with only some college education or those who have a high school education or less, and that’s especially true for women.
Regardless of your reasons for seeking a divorce in later life, it’s important that you know your rights, understand what to expect, and know how to protect yourself.
Divorcing after 50
In many regards, the divorce process is the same regardless of your age and how long you have been married. But, there are also special considerations for people divorcing later in life, especially when you’re divorcing after a long marriage. For example:
The time remaining to earn money and build wealth after divorce is of particular concern for many couples. Divorce can be beneficial for people at any stage of life, and may open a door to a life you’d never dared imagine. You could even extend your life–studies have shown that frequent conflict takes a toll on your physical health as well as your emotional well-being. But, divorce is financially stressful. The end result of any divorce case is that the resources that were supporting one household will now have to support two. Whether you have significant assets or few, whether you earn a lot of money or a little, whether you are a two-income household or one, you will generally walk away from your marriage with fewer assets. The same aggregate income will be stretched to make two mortgage or rental payments instead of one, two utility bills, and so on. That’s a challenge everyone must plan for when considering divorce, but it’s especially important when divorcing later in life. That’s one reason it’s important to have knowledgeable guidance and a dedicated advocate on your side before you make any changes. With the right planning and the right representation, you can minimize the disruption and plan for a financially-stable life after divorce.
South Carolina Divorce Basics
A little later in this book, we’ll look at what the differences described above and others mean for a divorcing couple and how they’re likely to affect your divorce case. First, let’s look at the basics of South Carolina divorce cases. Some aspects of divorce are the same for everyone, regardless of age, how long you’ve been married, the value of your assets, or other variables. This section walks you through the fundamentals of how divorce works in South Carolina.
Grounds for Divorce in South Carolina
Like most states, South Carolina has both fault-based grounds for divorce and no-fault divorce. The fault-based grounds are:
Unlike some states, South Carolina does not recognize mental cruelty as grounds for divorce. Either spouse may also petition for divorce if the couple has lived “separate and apart without cohabitation” for at least a year. Whether the petition for divorce is based on fault grounds or is a no-fault application based on a separation of at least one year, the filing party must prove the grounds. Obviously, proving that the couple has lived separate and apart for one year is simpler, less emotional, and often involves less conflict than one party presenting evidence that the other was unfaithful, abusive, habitually intoxicated or abandoned the other. The no-fault option also means the couple needn’t disclose the messy details of the reason for the split on the record in a public court proceeding. Each person who has fault-based grounds for divorce must weigh the pros and cons of filing immediately with a fault claim or waiting until the couple has been separated for a year to pursue a no-fault divorce. An experienced South Carolina divorce lawyer can be the best source of information about how each option might play out in your case.
Residency Requirements for a South Carolina Divorce
You and/or your spouse must have lived in South Carolina for a minimum period of time before filing for divorce in the state. The length of time varies depending on whether one or both of you lives in the state, and on whether you have minor children. If only one spouse is a South Carolina resident when the complaint is filed, either the filing spouse or the respondent spouse must have resided in the state for at least one year. If both spouses are residents of the state of South Carolina when the action for divorce is filed, the residency requirement is relaxed. One spouse must have resided in the state for at least three months. If initial custody of a minor child is at issue, there is an additional residency requirement. Either the child must live in South Carolina when the action is initiated or the child must have lived in South Carolina at some point in the prior six months and one parent must still live in the state.
South Carolina Divorce Process
Since couples pursuing a no-fault divorce in South Carolina must live separate and apart for at least one year before filing for divorce, it’s often necessary to start by pursuing an order for separate maintenance and support. These are temporary orders that will address issues such as:
During this phase, titles are sometimes transferred and joint accounts closed and such. So, in a simple case with few assets, property issues may have been resolved by the time the divorce case is filed. In that situation, either spouse can file an action for divorce only. However, that will rarely be the case for an older couple whose debts and assets have become entangled across many years–particularly if the couple has significant assets, one partner owns a business, or there are other complex issues in play. So, in most cases, the next step will be to file an action for divorce. Remaining issues involving property, debt, maintenance, child custody and child support will be resolved in the divorce case. These orders are permanent, though some (such as child custody and child support) may be subject to modification later.
Division of Debts and Assets in a South Carolina Divorce
South Carolina is not a community property state. That means that in a divorce case, marital debts and assets are divided using a method called “equitable distribution.” Under the equitable distribution model, marital property isn’t necessarily divided equally. Instead, marital debts and assets are allocated in a manner the family court determines is fair to both parties. The family court judge has significant discretion in deciding what’s fair under the circumstances. While South Carolina law sets forth a long list of factors to be considered, the judge decides how much weight to give each of those factors, and can decide to consider other relevant factors. South Carolina law also allows the court to consider marital misconduct in determining the equitable distribution of marital assets. Misconduct that contributed to the economic circumstances of the couple or the breakup of the marriage may be considered even in a no-fault divorce case. Property settlement orders are permanent, which means that they are subject to change only if one party successfully appeals. South Carolina law does not allow modification of property division orders based on a change in circumstances after the order is entered.
How Long Does a South Carolina Divorce Case Take?
Technically, a South Carolina divorce case can be resolved in just a few months. But, when there are more complex issues in the case, it typically takes much longer. If the parties are unable to reach an agreement and issues such as property division, maintenance, child custody and child support must be determined by the court, a complex divorce can easily take a year or more.
Child Custody and Visitation in South Carolina
Many couples divorcing after 50 have raised their kids and no longer have minor children at home. But, every family is different. It’s not unusual to have children in your thirties, or even forties. That means many couples divorcing after 50 still have to contend with child custody and child support issues. A South Carolina family court may award joint or sole custody. But, there is some confusion over what those terms mean. The difference between joint custody and sole custody in South Carolina is that with joint custody, parents share decision-making authority regarding issues such as education, religious instruction, medical care and other important areas of the child’s life. With sole custody, those decisions are made exclusively by the parent with sole custody. However, that issue is separate from parenting time. For example, a court might award sole decision-making authority to one parent, but still award the other parent significant parenting time–perhaps even equal time. Ideally, the parents will agree on a parenting plan and jointly submit it to the court for approval. But, that’s not always possible. In that case, each parent will submit a proposed parenting plan, and the court will determine custody. The court is required to make that determination based on the best interests of the child or children. Some of the factors a court may consider are spelled out in South Carolina law, including:
As with property settlement, however, the court has discretion to consider other factors it considers necessary.
South Carolina Child Support
Child support in South Carolina is calculated based on state guidelines. The basic support obligation is based on the total income of both parties. For example, for a couple with two children and a combined income of $5,000/month, the basic child support obligation will be $1151/month. As combined income rises, the basic child support obligation is typically a lower percentage of total income. In the example above, parents with $5,000 in combined income are expected to devote about 23% of their income to supporting two children. On the other hand, a divorcing couple with two children and combined income of $15,000/month has a base child support obligation of $1,873, or about 12.5% of total income. At a combined income of about $26,000/month, it drops below 10%. But, that doesn’t mean that’s what either parent pays. The child support calculation also takes into account expenses such as medical insurance and child care, and the child support obligation is apportioned between the parents based on the percentage of total income they have. The amount of parenting time each parent has with the child is also considered. The actual calculation can be complicated, given the many variables included and the way different expenses are treated. Your divorce lawyer can walk you through the calculation and–because child support obligations are nearly always determined based on the guidelines–give you a very good idea of what you can expect to receive or pay in child support. Occasionally, a South Carolina court will deviate from the child support guidelines. When this happens, the judge must enter written findings explaining the reason or reasons for the deviation. Some factors that may lead a court to deviate from the guidelines include:
The parents may also agree to deviate from the child support guidelines. However, it is ultimately up to the court to determine whether the agreed amount is reasonable and in the best interests of the child or children. If the judge determines that the agreement is not in the best interests of the children, the court can reject the agreement and either enter an order for child support based on the guidelines or based on other factors that support deviation from the guidelines.
Special Considerations When Divorcing after 50
When you divorce later in life, the stakes are often higher and the issues are often more complex. This section offers an overview of issues common to later-in-life divorces, such as division of assets acquired across decades, possible conflicts over what remains separate property, joint investments, business ownership, and other factors that can make a divorce more complicated. It’s also important not to underestimate that emotional and psychological impact that may come with ending a decades-long marriage. This impact may be greater if you aren’t the one who wanted the divorce and may have been blindsided by the change. But, even if you are confident divorce is right for you and looking forward to moving into your new life, disentangling a lifetime of shared assets and obligations can be difficult. Divorce later in life can impact relationships with children, including adult children, and create stress among long-time family or couple friends. And, the transition period can be stressful financially. Of course, this doesn’t mean you shouldn’t get divorced later in life, or that you won’t end up happier and healthier. I mention this because it is important to be aware of the possible effects and be on the alert for when you need to make changes, talk to a friend, or seek out a counselor to help smooth the transition and get you to the next stage of life.
Property Division after a Long Marriage
Disentangling property acquired across decades and separating back out property one spouse brought into the marriage can be a painstaking process–especially if separate property has been sold, converted to other property, or improved upon during the marriage. Though the process and factors impacting property division are the same for young couples and older couples, the way they play out can be quite different depending on variables like age of the spouses and the length of the marriage. Here’s an overview of how property division works in a South Carolina divorce and what that means for couples divorcing after a long marriage.
Prenuptial and Postnuptial Agreements in South Carolina
Prenuptial agreements have gained popularity in recent years. But, even now, most married couples don’t have a prenup. And, if you married 20 or 30 or 40 years ago, prenuptial agreements were even less common than they are today. That means most gray divorce cases don’t involve a prenup.
Enforceability
Prenuptial agreements are generally enforceable in South Carolina, but there are some qualifications. First, your prenup must be a valid contract, signed by both people. A prenuptial agreement doesn’t become effective until the couple marries. A court may set aside a prenuptial agreement under limited circumstances, such as when one spouse didn’t enter into the agreement voluntarily or when one spouse concealed assets in the negotiation of the agreement. A prenuptial agreement may also be unenforceable if the court finds that it is unconscionable, or that circumstances have changed in a way that would make enforcement unreasonable. Certain issues, such as child custody and child support, cannot be addressed in a prenup. If your prenuptial agreement contains provisions about who will get custody or who will be responsible for child support and how much, the court will ignore those provisions. All decisions about child custody, visitation and support are made based on what is best for the child or children.
Postnuptial Agreements
Postnuptial agreements are similar to prenups in most regards. One significant difference is the need for consideration. Contracts require consideration on both sides–that is, each person must be receiving something of value in return for what they’re promising or agreeing to. With a prenuptial agreement, the marriage is the consideration for the contract. With a postnup, the couple is already married. So, there must be some other consideration. The best way to ensure that your postnuptial agreement contains all of the necessary provisions and is executed properly is to have it drafted by an experienced local family law attorney. Assuming you have a valid prenuptial or postnuptial agreement, resolution of issues such as property division and alimony will be simplified somewhat. However, applying a prenuptial or postnuptial agreement may not be as straightforward as you anticipate. That’s because these agreements often rely on categories to direct disposition of property and responsibility for debts. And, after many years of marriage, the lines may be blurry as to what property is considered separate and to what extent.
Marital v. Separate Property
The first and most significant classification of property in a South Carolina divorce case is the division of separate property and marital property. The general rule is that property acquired or built up during the marriage is marital property, while property one spouse brought into the marriage is separate property. Retirement accounts are subject to division in a South Carolina divorce case if the account is marital property. This is an important issue in many divorce cases, but is often of particular importance to older couples because they typically have more money in their retirement accounts, they are closer to relying on those funds for living expenses, they have less time to add to the accounts, and they have less time to accrue interest on the accounts. Generally, any account that was started during the marriage is considered marital property and can be equitably divided by the court. This may mean a 50/50 split, or the court may adjust that balance based on other factors. If the retirement account originated before the marriage, or includes funds that were rolled over from a previous account that was separate property, the account may contain both separate and marital property. Because retirement accounts may gain and lose value over time, establishing how much of the account should be considered marital property may require an expert witness. One thing many people don’t realize is that it generally doesn’t matter how property is titled or who made the purchase. For example, if one spouse purchases a new vehicle during the marriage and that vehicle is registered in that spouse’s name only, it’s still marital property. If each spouse maintains a separate bank account for deposit of their paychecks, the funds in both accounts are marital property, even though each account has only one name on it and all of the funds in that account were earned by one spouse. There are a few exceptions. Property acquired during the marriage will be considered separate property if it is:
Separate property is not subject to division in a divorce. However, separate property may have an impact on how marital property is divided, since the individual resources of either party can be considered when determining both property division and alimony. Carving out separate property can be challenging, and the classification is often disputed. For example, imagine that one spouse already owned a vacation home, mortgage free, when the couple married. Over the course of the marriage, the value of the property increased significantly, due to changes in market rates. Under South Carolina law, the entire value of that asset would remain separate property. If the couple divorced after 20 years, the vacation home would remain the separate property of the spouse who brought it into the marriage, and it would not be subject to division in the divorce case. But, instead imagine that over the course of the marriage, the couple took out a home equity loan to make improvements on the house, and then paid back that loan during the marriage. When they divorce 20 years later, the house is worth substantially more than it was at the time of the marriage. Partly, that’s due to the same market increases that raised the value of the home in the first example. But, it’s also partly because the couple made improvements to the home, using marital funds. If the parties can’t agree on how much is attributable to each, they’ll have to present evidence–probably through expert witnesses–to allow the court to determine how much of the value in the property is separate and how much is marital. This is just one relatively simple example of the way separate property can become mingled over the course of a long marriage and how complicated it can be to separate that property back out.
Division of Marital Assets
As mentioned in the introductory overview of property division, a South Carolina family court has broad leeway in determining what constitutes equitable distribution of marital property. South Carolina law provides a lengthy list of factors that may be considered by the court in determining how to divide marital property. But, the court is not limited to these factors in making its determination. The statutory factors include:
Where minor children are involved, custody arrangements may also be considered–particularly with regard to who keeps the marital residence. You can probably see immediately how many of these factors weigh heavily in a gray divorce case. For example, those divorcing are older and nearer the end of their careers (or already retired). Older couples may have been married longer–often for several decades. If one spouse has been a stay-at-home parent or homemaker during a long marriage, earning capacity is affected in two ways: the stay-at-home spouse may not have the current skills and experience necessary to secure good-paying work, and the time remaining to earn money and to advance in a career will be limited. We help clients protect their assets and income by:
Alimony in Later-in-Life Divorces
Alimony in South Carolina takes many forms, which are described in detail below. Alimony may be short-term or long-term. It may be awarded as a fixed sum, or for a fixed period, or may continue for life unless circumstances change. The family court has broad discretion in determining whether to award alimony, for how long, and in what amount. Later in this section, you’ll see the factors South Carolina law lays out for courts to consider. But, there is no formula as there is to determine a child support award. Judges decide how much weight to assign each of the statutory factors, and are free to consider other factors. In one way, South Carolina has an unusually harsh alimony statute: the court cannot award alimony to a spouse who commits adultery. And, that prohibition doesn’t just apply to the time when the spouses were living together as husband and wife. Instead, the court is precluded from granting alimony to a spouse who committed adultery at any time before one of two events occurred:
This is important information to have in advance if you’re planning on pursuing alimony. Dating during separation isn’t uncommon, but it can be very costly. Many people aren’t aware of this strict law regarding alimony, and don’t find out until it’s too late. Information like this is another reason that it’s best to talk with a divorce lawyer right away when you’re considering divorce or have reason to believe your spouse is going to file. The more you know from the start, the better equipped you are to protect yourself.
Factors in Determining South Carolina Alimony
The issues to be considered by the court in deciding whether to award alimony and how much alimony to award are similar (though not identical) to those considered in dividing marital property. That shouldn’t come as a surprise, since the goal of both determinations is to ensure a fair allocation of resources. The statutory factors a family court is to consider in awarding alimony include:
The court must consider all of these factors, but has discretion to determine how much weight to assign each. And, the court is free to consider other factors it deems relevant. While every case is different, alimony is most often awarded when:
Alimony can take many different forms, depending on the circumstances of the parties.
Types of Alimony
In South Carolina, alimony may be temporary or permanent, and may be paid out in a variety of ways. These include:
The type and amount of alimony awarded depends on all of the factors listed earlier in this section and any others the court finds to be relevant. As a general rule, older spouses who have been married for a long time and have been out of the workforce or have scaled back their work during the marriage are more likely to receive periodic alimony that may last for life. If an able-bodied younger person who has been married for a shorter time receives alimony, it will typically be time-limited, limited to a specific total amount, or tied to a goal such as completing an educational program or staged re-entry to the workplace. But, a family court is far less likely to expect a spouse nearing retirement age to retrain and significantly increase earning capacity. The spouse who will typically face the greatest challenge with regard to spousal maintenance is an older person who is dependent on the other spouse’s income, but who married late in life or was previously married. This issue will be discussed in greater detail in the section on ending second (or subsequent) marriages later in life.
Second Marriage Divorces
Many of the issues particular to people who divorce in middle age or later relate to the duration of the marriage. But, some couples divorcing later in life have been married before. That means the marriage being dissolved may have been relatively short compared with the decades-long relationships discussed up to this point. That changes some aspects of later-in-life divorce, but some of the most serious concerns remain the same.
How Second-Marriage Gray Divorce May Be Different
If the marriage has been shorter in duration and the couple married later in life, chances are good that each has significant separate property (either independently acquired or awarded in the previous divorce). At the same time, there will often be less marital property and the marital property the couple does own may be less entangled than is typical after a decades-long marriage. That means there may be less property to divide, and there may be fewer issues with sorting out separate property that has been mingled with the other spouse’s separate property or with marital property. In one way, that makes the divorce process simpler than it would be after a long marriage. However, one key issue remains: the divorcing couple has limited time to rebuild assets after divorce. That’s especially true if one spouse has been out of the workforce and has limited earning capacity. Imagine, for example, that a woman who stayed home to raise children in her first marriage–a union that lasted 25 years–remarried three years after her divorce. We could generally expect that she would be awarded periodic alimony, or at least rehabilitative alimony, in her original divorce case. The type and duration of the alimony would have been based on factors such as her age, the length of the marriage, and her earning capacity. Most types of alimony terminate on remarriage. So, the woman in this example might have received three years of alimony payments before remarrying. But, marriage would likely have permanently terminated those payments. There’s no going back for more if the second marriage fails–even if it fails very quickly. Say the second marriage ends after five years, when the woman is 60 years old. She’s in a very difficult position as far as becoming self-supporting at this stage of life, and has little time to upskill or to build retirement savings. She may have little or no Social Security record, meaning that she may not be entitled to benefits based on her own record. She would still be entitled to Social Security benefits based on her first husband’s record, since the marriage lasted longer than 10 years. But, And, since her second marriage was relatively short in duration and the marriage commenced when she was already in her mid-50s, it will be a tougher battle to secure the property and/or alimony she needs to support herself after divorce. In this situation, it is especially important to have an experienced divorce lawyer on your side from the beginning.
About the Fender Law Firm
This general information is provided by Fender Law Firm to help people considering divorce in later life prepare themselves, avoid common missteps, and understand what lies ahead. But, the process itself is often complex–especially when there are significant assets involved. Your best resource for navigating divorce after 50 is to have an experienced family law attorney at your side from the very beginning. Your lawyer can:
Fender Law Firm has served the people of Beaufort County since 2010, but the firm’s roots–and its founder’s–run much deeper. Addison Dowling Fender is a third-generation Lowcountry lawyer. Both of his parents, his uncle, and his grandfather practiced law in Beaufort County. His mother was a family court judge. Mr. Fender grew up in the area, and went to college and law school in South Carolina before returning to Beaufort to serve his community. He has dedicated his practice to providing Beaufort County residents the same honest, high-quality legal services the community came to expect from his family. If you’re considering divorce or have been served with divorce papers, it’s in your best interest to get reliable advice from a veteran family lawyer as soon as possible. You can schedule a consultation right now by calling 843-379-4888.
