The term silver divorce generally applies to couples who are at least 50 years old and have been married for many years. Once this point is reached, divorce becomes that much more financially challenging and has the potential to derail one or both spouses’ financial stability.
While child custody may not be a concern, the amplified financial impact of dividing marital assets after many years of marriage can be difficult to overstate. If you’re facing a silver divorce, it’s time to consult with a dedicated Round Rock divorce attorney with reserves of experience successfully guiding challenging cases like yours toward advantageous outcomes.
Texas Is a Community Property State, but It’s Not That Simple
Texas is what’s known as a community property state, which means that everything you and your spouse – together or separately – came to own while you were married belongs to both of you. While most community property states divide marital property evenly in divorce, Texas takes a different approach.
A Just and Right Division of Assets
In a Texas divorce, assets are split in a manner that is considered just and right in relation to a range of circumstances that include all the following:
The length of the marriage, which is generally more considerable in a silver divorce
The age and overall mental and physical health of each spouse, which can play a more significant role in a silver divorce
The size of the marital estate, which can be far larger and a more complicated matter after a marriage of many years
The size of each spouse’s separate estate
Whether fault played a role in the dissolution of the marriage, which can be a relevant factor even in a no-fault divorce
The earning capacity of each spouse and any earning disparity, which can be especially important in a more traditional marriage that includes one spouse in the role of breadwinner and one spouse in the role of homemaker
Any anticipated inheritance on the part of either spouse, which tends to be a more relevant factor with silver divorce
Any additional factors that the court considers relevant in the case at hand
Texas is committed to dividing assets fairly in response to critical factors like the above, and it’s important to remember that Texas courts pay special attention to divorces that fall into the silver classification.
Separate Property
Separate property refers to assets that belong solely to one spouse or the other, and they are generally assets that belonged to the original owner prior to marriage and that were kept separate throughout the marriage.
In a long marriage, however, there are plenty of opportunities for separate assets to become commingled with marital assets, which can make distinguishing between the two far more challenging and potentially void any distinction altogether.
There are very few exceptions when it comes to marital property, and they include:
Gifts that either spouse received in their name alone
Inheritances that either spouse received in their name alone
The compensation for pain and suffering that either spouse received in a personal injury claim that was initiated during the marriage
The most important point to make about separate property is that the person who asserts an asset’s separate nature is required to prove it. The State of Texas, in other words, begins with the presumption that every asset a married couple has is a marital asset.
It’s also important to know that any increase in a separate asset’s value over the course of your marriage is generally treated as marital property, and the amount that it increases over a long marriage can be immense.
For example, if one of you comes into the marriage with a retirement account that continues to grow over the years, the value of the account at the time you married will be the separate property of the original owner, but the amount that it’s increased in value will be treated as a marital asset.
Settling Your Case Out of Court
If your divorce goes to court, the separate nature of any assets that either of you claims for yourself will need to be proven, and your overall assets will need to be established. From here, the court will determine a just and right division according to its legal vantage point, which may be very different from your own.
If you settle your case out of court, however, you have options and will retain the right to make primary decision about your finances on your own behalf.
Your Options
Your options when it comes to settling your divorce out of court include negotiating between yourselves, which means working with your respective divorce lawyers to ensure that your financial rights are well protected throughout the process.
If communication between the two of you has broken down to the point that negotiating between yourselves isn’t viable – which isn’t especially unusual in a silver divorce – you can turn to your respective divorce lawyers to negotiate on behalf of each of your best interests.
Mediation might be the answer if one or more divorce terms remain unresolved.
Mediation involves you and your divorce attorney and your divorcing spouse and theirs coming together with a professional mediator who serves in the role of a neutral third party. The mediator will go back and forth between both sides in an attempt to help you explore your options and expand on the compromises you’ve reached so far.
The benefits of mediation include all the following:
It is a more private process – court records are a matter of public information.
It tends to be a less expensive process.
It tends to be a less time-consuming process and avoids the complications of syncing with the court’s docket.
It tends to be less emotionally charged than going to court would be, which can help make moving forward into what comes next less frightening.
It allows you and your divorcing spouse to retain your decision-making authority, which means you’ll remain in charge of your own destiny and is almost universally preferred.
Mediation only becomes legally binding if you and your soon-to-be ex sign off on the terms that you hammered out between yourselves. If you don’t make it to this point, however, it’s back to the drawing board, which means your case will likely proceed to court.
Complicating Factors
There are several issues that can make settling a silver divorce out of court more difficult. To begin, you were married for a long time, and it stands to reason that you expected your marriage to last at this point in your relationship.
Few people who’ve been married for many years step back at the point of divorce, and say, well, everyone saw that coming. We tend to believe that, once you’ve made it to a certain point, you’re in it for the long haul, but the truth is that silver divorces are on the rise.
After a long marriage, being blindsided by divorce takes on a whole new meaning. If you married young, you’ve spent what amounts to your entire adult lives together, which can make a future on your own seem incredibly uncertain.
Another concern that is commonly associated with silver divorce is that one spouse may have focused on their career while the other supported their efforts, raised the children, and kept the home fires burning, which generally translates to an immense discrepancy in terms of earning power.
Disentangling your lives from each other financially in a silver divorce is likely to be even more challenging for reasons like the following:
You’re likely to have higher assets.
Your finances are likely to be more complex.
Disentangling separate property from marital property can be far more complicated.
Valuations and forensic accounting may be required.
To accurately assess and fairly address property division in a silver divorce, you’re more likely to need financial specialists to not only put accurate values on specific assets but also to determine the extent of your marital estate, which can’t be divided in a just and right manner until you know exactly what you’re working with.
Silver divorce can be more emotionally and financially challenging, so the best path forward is to work closely with an accomplished Round Rock divorce attorney from the outset.
The Matter of Children
If you’re facing a silver divorce, there are less likely to be minor children involved, which takes some concerns off the table. The fact that your children are no longer minors, however, in no way means that your divorce won’t affect them.
Your family has routines and traditions that you’ve refined over your children’s lifetimes, which can make your divorce very painful for them – even as adults. Although your children may have already been launched, they are still likely to consider their childhood home their happy place, and depriving them of this can add an additional layer of emotional complication to your case.
There is also the matter of your family home, which is likely a considerable asset in your divorce. If you’re both invested in staying in the home you raised your children in, it can raise the stakes in terms of property division, and complications are likely to ensue.
Your trusted Round Rock divorce attorney will help you establish your divorce priorities – based on what makes the most sense for you in your unique situation – and will help you navigate a path forward that honors your goals.
Retirement
If you’re going through a silver divorce, you’re closer to retirement than most people in your position are, which makes it a matter of even greater importance.
If you and your spouse both had successful careers, you may each have retirement accounts in place that will serve you both well. It’s common, however, in a silver divorce for one spouse to have raised the children and cared for the home while the other forged a career.
If you find yourself in this situation and if you are the spouse who supported your spouse’s career, you’ll need to pay careful attention to your retirement, which is likely to include obtaining your fair share of your divorcing spouse’s retirement accounts.
It’s possible to effectively divide these accounts before they mature in Texas, but the process can be complex. Your seasoned divorce lawyer will leave no stone unturned in their efforts to secure your financial rights in relation to any retirement accounts in your spouse’s name.
Alimony
Alimony, which is called spousal maintenance in Texas, is reserved for fewer divorce cases than most people realize, but silver divorce is one instance when alimony is more likely to play a role. Alimony is ordered when divorce leaves one spouse without the financial ability to cover their own reasonable needs while the other has the financial ability to help.
The kinds of factors that tend to bolster bids for alimony in silver divorce cases include all the following:
Any discrepancy in earning power
The degree to which one spouse sacrificed their own career in order to support their spouse’s
Each spouse’s earning potential, which must be considered in relation to how close each is to retirement – if they’re not there already
The job market and the likelihood that the recipient of alimony could get up to speed in terms of supporting themself financially
If you’re facing a silver divorce and you earn considerably less than your spouse, it’s important to explore alimony in relation to your case.
An Experienced Round Rock Divorce Lawyer Is on Your Side
Brett Pritchard at The Law Office of Brett H. Pritchard is a compassionate Round Rock attorney who has earned an impressive reputation for skillfully handling challenging silver divorce cases. He’s on your side. Learn more about what we can do for you by contacting or calling us at 254-781-4222 and scheduling a free consultation today.