Equitable property division vital for growing number of ‘grey’ divorces

The divorce rate for individuals over 50 doubles in two decades as baby boomer generation ages into retirement.

The baby boomer generation was born amidst a time of change, when World War II had come to an end and the country began to rebuild. As the generation began to age, they continued to be a revolutionary force that redefined societal norms.

Relationships certainly were not exempt from this generation's refusal to accept the status quo. As baby boomers approach and enter retirement, more are filing for divorce. In fact, the divorce rate among those above the age of 50 has approximately doubled since 1990.

The Census Bureau's American Community Survey found that 10 percent of individuals aged 50 or older were divorced in 1990. That number had increased to over 28 percent in the nearly two decades to follow.

Why? Maybe it is due to healthy living and a longer lifespan, more dual-income households, a shifting attitude towards divorce or the increased autonomy of women. Researchers all have their educated guesses that help explain the increase in what has become known as the "gray divorce" rate.

Whatever the motivation may be, the truth is that divorcing at this age has its own implications. There are different considerations to be made for spouses ending their marriage on the cusp of their golden years.

New York is an equitable division state

With retirement in mind, property division only becomes a more important aspect of divorce. Starting over at this age is not likely a possibility anymore, and couples at this stage in life must often rely on the assets that they have already acquired.

Under Section 236 of the New York Consolidated Laws, the first step in dividing property is to determine which assets and liabilities are considered part of the marital estate and those that should remain separate property. Although there are a few exceptions, for instance an inheritance, any property acquired by either spouse during the marriage is considered subject to division.

Absent a valid marital agreement, any assets or liabilities that are deemed to be part of the marital estate will be divided equitably between the spouses. The definition of equal under this section is not based on a mathematical equation, but instead it is based on a number of factors. These include:

  • Income of each spouse at both the time of the marriage and the divorce
  • Length of the marriage
  • Age and health of each spouse
  • Possible loss of health insurance benefits
  • Any alimony or maintenance award
  • A spouse's equitable claims to property held in title solely by the other spouse
  • Contributions, both monetary and non-monetary, made by one spouse to the actual or potential career of the other spouse
  • Future financial circumstances of each party
  • Feasibility and economic desirability of dividing a business owned by one or both spouses
  • Tax consequences

In application, what seems like even a simple factor can quickly complicate the division of martial property. Not only is this true, but the law also grants a judge the authority to use his or her discretion in considering any other factor that the court deems "just and proper."

When your future is on the line, it is important that you have a Queens property division lawyer on your side to help navigate the process and ensure that your interests are protected by a divorce settlement.

Keywords: equitable division, property division, divorce, retirement,

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