Spousal Support in Late Term Marriages

If pressed to do a quick take on marriage in America today, I might say something like this:  Marry late in life and if need be, marry often.

Americans nowadays, if they choose to marry at all, marry later in life than most of their parents did.  Statistics show that Americans now marry either after, or on the far side of, the heretofore ‘typical’ age range (from 20 to 35) for first-time marriage.   And make no mistake:  this phenomenon of late in life marriage does not simply describe those marrying for the first time.  A random sampling of weddings across America today would easily reveal many forty- or fifty-somethings walking down the aisle yet again for the second, or even the third time.

What underlies all this late in life marital activity (aka. “late life marriage”)?  Could it be improved longevity rates?  Americans, after all, now routinely live into their eighties and nineties, so perhaps there is no longer any hurry to marry at a young age.  Or, “is it the economy, stupid?”  Could it be that Americans now defer marriage as long as possible because they feel they cannot afford it during their twenties or early thirties?  Time Magazine’s 2011 cover story on the decline of marriage in America claims that young Americans nowadays are more concerned with career and making money than they are with marriage per se, which they regard not as a crucial first step of adult life, but rather as a “late in the game” reward for previously achieved financial or life success.

Or is there something else entirely to consider:  namely, the pervasive belief among many children of the ‘60s that they, unlike birds, will not “mate for life,” but instead will practice serial monogamy, replacing spouses acquired in youth with new ones once grey hair sets in and kids are out of the house?

No matter what the cause may be, all this late in life marital activity has definitely given rise to more late in life divorce activity.   My own practice alone bears this out:  in 2011, a noticeable portion of my work as a private neutral came from cases involving later life unions.  And dissolutions of late in life marriages do indeed present a number of legal challenges largely because these situations intersect only obliquely with the relevant statutory guidance, which, to all appearances, was forged in relation to the life needs of parties who married in their twenties and thirties.

Consider this, for example:  how will the law address the dissolution of a twelve-year marriage (hence, a long term marriage) in which one or both of the parties are 60 years or older at the time of dissolution?  And how, in particular, will the Court handle the matter of spousal support in this instance?

In the dissolution of any long term marriage, the law presumes that permanent spousal support will be ordered on a long term, or even a life-long basis.   But in this specific instance—a long term marriage with parties who either have retired or are soon to do so—this standard presumption about permanent spousal support hardly seems to apply.

Here’s why.

If the Payor of spousal support in a long term marriage is either soon to retire or already has retired at the time of dissolution,  he or she will certainly not possess sufficient—or any—funds from employment to pay for spousal support on a long term or a life-long basis.  Moreover, following Reynolds, the Court typically holds that a person cannot be compelled or required to work past the age of 65 (which, at the time of Reynolds, was the legally recognized age of full social security retirement) if the sole purpose of such post-retirement work is to generate income for the payment of spousal support.

Granted, American life has changed substantially since the time of the Reynolds case.  The official age of retirement is currently set at age 66 and seems to be ever creeping upward.  Economic realities of late, moreover, have left many Americans feeling that retirement is simply out of their reach, so now more than ever, many continue working well into their seventies and beyond.

But these particular realities of contemporary American life have not affected or altered the guidance that the Reynolds decision still provides in dissolutions of long-term marriages.  And even without formal knowledge of the fundamental principle of Reynolds, spouses in these marriages are usually quite vocal in expressing strong aversion to the notion of working beyond the official retirement age simply for the purpose of generating income for spousal support.

Nor is there any statutory basis for the Court to ask a party who has retired early to come out of retirement and work up to the officially recognized age of retirement.  To paraphrase the opinion on this matter of Judge Jim Stewart, a well respected veteran of the Santa Clara County Family Court:  “Well, I’m going to retire at age 62, so why should I make anyone else retire later than that?”

True enough:  parties who divorce late in life often have accumulated large sums of money in their various retirement accounts, which would lead one to imagine that these parties might have funds available, post-dissolution, for the payment of spousal support.  But even if one or both parties in a long term marriage do indeed have substantial retirement income from pension and/or 401 (k) funds, these funds alone would most likely NOT be sufficient for spousal support payments in a late-term marital dissolution.

In the first place, any retirement account funds earned during the marriage would be considered c/p and hence, would be divided by QDRO and distributed equally to both parties.  Whatever would then be left in these accounts after such fund division would surely not be sufficient BOTH to sustain the fund owner in her/his retirement AND provide for spousal support payments sufficient to bring the Recipient up to the marital standard of living (MSOL).

So we are back, once again, to the original question:  where do the funds for spousal support come from for parties in their late 50’s or 60’s at the time of dissolution?  And in addition to this, there are other important questions to consider.  For example, if child rearing responsibilities are no longer at issue in the dissolution of a late term marriage, is the party who previously deferred work and career in order to raise children now entitled to “retire” and receive spousal support, especially because this party now, at his/her advanced age, is likely to have few or no other sources of well compensated employment?

In any event, how many different “line item expenses” can retirement assets actually sustain?   If retirement assets in a late term marriage are barely sufficient for a single household, is it even possible that they be mobilized, in the event of a marital dissolution, to pay for the cost of a second household?  And what if individual retirement assets were unequally owned during the marriage?  How, then, would the Court handle the matter of permanent spousal support?

The short answer to all these questions is that there is no “one size fits all” approach.  Here, however, are some of the factors that the Court will surely consider in handling a dissolution that occurs late in life (NB: some of these may already be documented in the parties’ prenupt):

  1. How old were the parties when they married and what were their expectations for career and family life at the time of marriage?
  2. What kind of assets did each of the parties already have when they married?
  3. What was the picture of work life in the marriage?  Did one or both parties work?  Did one or both parties have traditional careers (e.g. law, medicine, Silicon Valley engineering), or perhaps, did the marriage involve one party giving up a career and hence, losing both asset accretion and employable skill development?
  4. Were childrearing obligations of import in the marriage?  If so, whose children were raised and for how long?
  5. Is this a late in life, long term 1st, 2nd or 3rd marriage?  If not a 1st marriage, how old were the parties when they entered into earlier marriages and how did the earlier marriages affect the parties’ accumulation of retirement assets, employment skills, and parenting obligations?  In other words, in a late term marriage of any length, who bears the responsibility for choices made in earlier marriages?

Also important to recognize is that in late term marital dissolutions, the Court tends to privilege each party’s “location in life” over the simple fact of marital length, and in this regard, the Court will look closely at several key indicators:

  1. the number of years each party has left until retirement age;
  2. the skill sets possessed by each party and the remuneration level that can reasonably be associated with such skill sets;
  3. the number of years in the marriage that was spent managing the twin issues of child bearing and child rearing;
  4. the economic consequences now, for each party, of delayed child rearing; and
  5. the economic consequences now, for each party, of a mid-to-high- paying career that was started early in life and then ended well before the official retirement age, due to the well-known age-bias in Silicon Valley.

Given the many different factors that the Court may consider in making a determination of spousal support in a late term marital dissolution, there is little to no predictability as to the outcome.  Each side will have the opportunity to argue a particular position in an attempt to influence the Court’s determination of how much, and for how long, any given retirement-aged Payor can reasonably be expected to provide in spousal support.

Because of the many factors involved in these instances, a strong case can be made either for the Court to retain jurisdiction over the on-going payment of spousal support, or for the parties themselves to resolve this matter once and for all through a binding agreement that clearly defines the responsibilities of both Payor and Recipient.  Any party in a late term marital dissolution would do well to consider this:   isn’t it better to settle now for what you need, rather than straining to get ‘what you really want’ through prolonged litigation?  Better to conserve retirement funds to pay for a satisfactory life in retirement, rather than consigning a sizeable portion of these funds to pay for current and on-going legal expenses.

As the entire foregoing discussion suggests, a late in life marital dissolution is just one more fact pattern that demonstrates a less-than-perfect fit between common legal expectations and the demographic of those divorcing today.

About James Frederic Cox

Former Family Law Settlement Officer, with experience in over 13,000 cases,working as a Private Neutral in family law dispute resolution, from mediation through settlement conference to trial.
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