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Unique Challenges that the Elderly Face when they Divorce

If you are an older individual or are approaching the age of being a senior citizen and you are probably familiar with various forms of discrimination that may be impacting your life and those around you. A common form of discrimination that I'm aware of for people that are in their 50s, 60s, and 70s is that employers can shy away from hiring folks in this age group due to several different preconceived notions and biases against hiring older people. This can make a big difference if a senior citizen or older person faces a change in their life that requires them to return to the workforce. The hurdles to finding employment make cause someone in that position to not make necessary changes in their lives because of the fear of the unknown.

Older people may also be more set in their ways and nervous about the possibility of changing their lives for several reasons. There is something about being more comfortable with the devil you know versus the devil you don't that may cause you to stay in a bad marriage, a bad job, or any sort of negative circumstance just because of the fear of the unknown. You may be concerned with the risks that are a part of making significant changes to your life they may not want to deal with the consequences of making decisions that end up harming you.n This may be the sort of mindset that encourages dealing with the problems you have instead of meeting them head-on and facing the possibility of new challenges they may even be worse.

Another issue that older people may face these days is an especially real concern over their health. As we begin the end of the pandemic here in the united states it is a real concern that older people have towards making sure that they can remain healthy and vibrant for the remaining years of their lives. Whereas younger people may believe that they have a greater chance of bouncing back from illness older people are likely to be more conservative in their approach to their health. 

As anyone who has checked out the mortality rates regarding this virus can attest to there certainly is a discriminating factor when it comes to this virus and the elderly. With improved treatment methods and the ready access that we Americans have to the vaccine, this will hopefully be less of a concern moving forward. However, it may be that we Americans place greater emphasis on our health in general as we begin to shift out of a pandemic mindset and into post-pandemic normalcy.

The question that I would like to pose and then answer in today's blog post has to do with the challenges that elderly people have in facing the prospect of a divorce. If considering a divorce there's something on your mind of late then you should understand that there are consequences to the decision one way or the other. In deciding whether to get a divorce or not get a divorce you are going to be facing consequences. Whether those consequences are negative or positive for you is largely up to your mindset and planning. Let's discuss what those challenges are and how you can best prepare for them as an older American.

Staying in the marriage even when it is not healthy for you

The truth of modern America is that divorce is more common in this generation than in any generation past. Look at divorce statistics over the past 60 years will show that this increases a great deal since the legalization of no-fault divorces. No-fault divorce is allowed you and your spouse to get divorced for no reason in particular. This is as opposed to prior generations where you had to specify and prove a particular fault ground to have your divorce court-approved. Now that getting a divorce is no more complicated than simply filing paperwork the red divorce among our neighbors increases to a great deal. 

Whether or not you think this is a good or bad thing, the fact is that more divorce means more people in society. The family structures of our grandparent's generation are largely gone. Well, there are still many nuclear families, single Parenthood single adult households, traditional, married families. As another American, this may give you pause given that you are of a generation where traditional households were much more common than the single adult or single-parent households that are becoming more and more commonplace in our society. This alone may bias towards marriage and cause you to take a long hard look at whether or not the divorce is in your best interest. 

Ultimately, the decision to get divorced is a personal one is largely based on your circumstances. A family law attorney, no matter how much experience we may have, will not be able to tell you exactly the odds of success he will have in post-divorce life. All we can do is guide you on the specifics of the law and how they are likely to apply to you and your family. There is no doubt that of course can be a confusing time no matter what your age is. However, the degree of uncertainty and confusion for a person who's been married for decades probably at a person who has been married for only a few years. 

For this reason, I find that many people stay in marriages that are not productive or healthy rather than take a risk of going through with the divorce that may leave many question marks in your life. The advice that you receive about divorce may be completely different than the advice that your child or their friends may receive. After all, some people may not see the utility in an older person getting a divorce simply because getting a divorce at an advanced age may seem less fruitful or riskier. A younger person has more years ahead of them in their life and therefore a divorce may be more highly advisable.

This does not help you necessarily, given that you are thinking about a divorce and need to know whether or not it is in your best interest. To you, your age may play a little as far as a role in the decision to get a divorce. If you believe in your heart of hearts that divorce needs to be considered and you are unlikely to be persuaded by an argument that at your age you shouldn't get one. Rather, all the circumstances of your life need to be considered. This is most specifically true when it comes to the state of your marriage and your relationship with your spouse. 

It may be difficult for you to assess the strength of a marriage that has been decades in the making. On the one hand, marriages that last for decades at a time are fewer and far between now than in years prior. However, it does not mean that your marriage is a healthy relationship or that you have even been able to assess its strengths or weaknesses. You may have more or less become immune to the changes in your relationship and are content to go along for the ride so long as you and your spouse can remain civil living under the same roof.

You need to realize that staying in a marriage that is failing is not something that has no downsides unless there is violence in the home. For any decision that you choose to make there are always side effects, upsides, and downsides to this decision. Remaining in a marriage that is not healthy for you to benefit yourself, your children, your finances or your emotional health has side effects and impacts that may not yet be obvious to you. However, you need to be aware that your decisions to do or not do something always carries impacts. If you are familiar with the idea of the butterfly effect then you know what I'm talking about. The decision to do something or not to do something can have far-reaching effects that may not become apparent for years but almost always will exist.

To summarize, I think one of the many challenges that elderly people face when determining whether a divorce is right for them is the thought that it is pointless to get divorced simply due to your age. I realize that our society can give you the impression that you are less than or not as important as others do to your age. Ageism is a real thing period however, I can tell you that you are relationships are just as valuable as mine, my neighbors, or your neighbors. It doesn't matter how old you are you have worth in value. By the same token, your relationships have worth and value no matter what age you are period to remain in a marriage out of habit or fear of the unknown is not a positive thing for you or your spouse.

Remaining in a marriage for financial reasons

Of all the reasons to remain in a marriage that has outlived its better days, doing so for financial reasons has got to be one of the more common. On one hand, the need to be able to support yourself and take care of your children is essential. No one is debating that. You may have been out of the workforce for many years or perhaps never even entered the workforce after your marriage. If you are in your Golden years are nearing retirement you likely have double concerns regarding taking care of yourself in your household after your divorce as well as being able to retire sooner rather than later.

Let's discuss the issue of retirement as it pertains to you and your Golden years. I have worked with many men and women who were considering divorce in their 50s and beyond that stops short of filing for divorce multiple times due to concerns over their ability to retire and live comfortably. Of course, each one of us has a different definition of what comfortably means. However, when I think of comfortably I think about being able to have fixed costs as far as your living situation is concerned. This means either having a mortgage that allows you to pay the same amount of money each month for your housing or having a paid-off home completely. What I would want to avoid is a situation where you are having to pay rent into your Golden years. Rents only increase. They do not decrease. If you are living on a somewhat fixed income in retirement this is not a situation you want to find yourself in.

The other consideration that may be of some relevance here is that you may be able to negotiate for your family home in the divorce. People in their Golden years more often and younger people have paid off homes which means that your housing costs are much closer to 0 each month than someone has to pay rent or a mortgage. Remember that insurance and maintenance on even a paid-off home can stack up over time. However, these costs pale in comparison to paying the principal on a mortgage in addition to interest each month. 

Additionally, we have issues regarding retirement savings to consider for a golden years divorcee. The nice part of being young is that you don't have to invest a lot of money each month to retire comfortably. My experience is that the people who end up not retiring comfortably tend to do so because they failed to invest rather than invested in the wrong thing. With that said, being later in life means that having retirement at the front of your mind is understandable. 

Texas is a community property state. This means that all property that was acquired during your marriage is presumed to be owned wholly and completely by you and your spouse. This doesn't mean that you own half and your spouse owns half, either. This means that this community property must be divided in divorce. It is up to you and your spouse, primarily, to divide this property between yourselves either in informal settlement negotiations or in mediation. It is only if you all are unable to negotiate through the issues in your case does a family court judge steps in to determine how the property should be divided. 

Retirement savings can be divided in the divorce just as readily as any other sort of property. If you and your spouse have been married for an extended period then it is probable that the vast majority of your spouse’s or your retirement savings are considered to be community property. How that property is divided up is up to you and your spouse. Keep in mind that how Community property is divided can be based as much on your particular circumstances as on the family law in Texas. 

For instance, if you know that retirement is around the corner for you then you have to be able to bear that in mind while you are negotiating on the division of your Community property. Sometimes that means that you have to be able to negotiate for those assets that are most important to you. For example, if having money in the bank for your Golden years is most important to you then you may be willing to give up more of the equity in your home tier spouse in favor of retaining more in retirement savings. You may even choose to retain all of your retirement savings in addition to a portion of your spouse's in exchange for all of your interest in the home.

Another important consideration as you head into your post-divorce life and planning is that you may not have the money necessary to pay for your essentials after the divorce due to your financial situation as well as a history of not being in the workforce. For example, you may have stayed at home to take care of the house while working part-time jobs while your spouse was in school to become a doctor or attorney. Now that he or she can earn a significant income it has been due to your sacrifices.

This is where contractual alimony and spousal maintenance come into play. Spousal maintenance can be ordered by a judge to help you pay for your essentials when you are unable to do so by yourself. Contractual alimony is negotiated for in mediation or informal settlement negotiations. You should work with your attorney to discuss this issue early and often and to prepare a method to negotiate for contractual alimony before a trial. 

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great opportunity for you to learn more about the world of Texas family law as well as how your family’s circumstances may be impacted by the filing of a divorce or child custody case. 

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