One of the features of a collaborative divorce is that you and your spouse tailor an agreement to fit your situation. When spouses cannot agree, judges have limits on which facts they can consider and what they can order after a trial. The following are examples of judicial limitations and how they may be significant to those divorcing later in life:
- Supporting adult children. Judges cannot order child support for a child over age 18, unless the child is disabled. In a collaborative divorce, spouses can work out an agreement that provides for continuing financial support for adult children. How college education expenses, down payments for first homes, and weddings will be financed are often interests identified by divorcing parents.
- Meeting requirements for benefits. Judges cannot force spouses to delay a divorce until eligibility requirements are met for Social Security, Medicare, or military retirement benefits. You are eligible for Medicare at age 65. If you are married for ten years and age 62, you may be eligible to draw 50% of your former spouse’s Social Security benefits beginning at age 62. Sometimes spouses agree to delay the finality of their divorce until these ages or time periods have occurred; in the meantime, they may have signed a post-marital agreement (called a partition and exchange agreement) which allows them to divide assets and liabilities yet continue being married.
- Spousal maintenance (contractual alimony). Judges can order spousal maintenance only if specific circumstances are proven, and there are amount and duration limits. But spouses can agree to spousal maintenance for a variety of reasons, and for amounts and duration that differ from statutes. Contractual alimony can be an attractive option for older couples to help a former spouse who needs time to re-tool skills and education for the marketplace; to help defray costs of health care or insurance; to make a property division more equitable.
- Estate planning tools. Judges do not have the authority to order people to execute trusts or wills that leave certain assets intact for adult children to inherit. You can agree to do this. Older spouses may even agree to continue designating each other as beneficiaries on life insurance policies they have paid for during their marriage or agree that the proceeds will go into a trust to benefit their adult children or grandchildren. It is not unusual for individuals in a late-life divorce to incorporate estate planning elements in their divorce settlement agreements.
The beauty of collaborative divorce is that it offers a safe environment where spouses are free to explore creative solutions for their unique needs and goals. Janice Green is a Collaborative Law Institute of Texas member. She is Board Certified in Family Law by the Texas Board of Legal Specialization and is a partner in the Austin-based law firm Farris & Green. She is the author of Divorce After 50: Your Guide to the Unique Legal and Financial Challenges (Nolo Press 2010).