Gray divorce rates are rising. If you’re considering it, you’ll want to consider your maintenance obligations, especially if you’re simultaneously thinking about retirement. 

What do Bill Gates and Jeff Bezos have in common? A lot. But beyond the billionaire, tech-legend status, the two men are part of a “gray divorce” club that involves couples divorcing after the age of 50 or so. A 2022 study in The Journals of Gerontology reported that the rate of gray divorce has doubled since 1990. 

While, at this point, children may have grown and flown, this demographic is also often considering retirement, a move that shifts finances. As such, it’s crucial for people contemplating divorce later in life to understand the financial nuances of a system set up mainly to work for younger couples. Namely, gray divorce couples will hear the word “maintenance,” which has nothing to do with readying a shared home for sale. It’s a term you’ll hear in place of alimony, and it’s essential to understand the nuances and number-crunching that goes with it, plus what you can do to protect your financial well-being (and plans to retire) amid gray divorce.

What Is Maintenance?
Put simply, maintenance is a form of financial spousal support. However, let’s back up. It used to be that only women could receive alimony from their male ex-husbands. That law necessarily changed as it was found to be discriminatory against men, as women have made significant strides in the workforce in contemporary times. Now, the spouse who makes less money in certain circumstances and based upon a statutory calculation, receives payments. Instead of indefinite alimony payments, maintenance payments give a spouse time to work their way back into and upward (financially) in the workforce over a period of time based on the amount of years spent in a marriage. Maintenance is meant as a means of support during the period the recipient is rehabilitating themselves back into the workforce. So, for example:

1. Marriages that last up to 15 years require maintenance payments that last for 15 to 30% of the marriage (So, a 15-year marriage would require maintenance payments for 2.25 to 4.5 years)
2. Higher-earning spouses in marriages that lasted 15 to 20 years will make payments for 30 to 40% of that time (4.5 to 8 years)
3. Higher-earning spouses in marriages for more than 20 years will be on the hook for payments for about half the length of their marriages.

Couples in the “gray divorce” age bracket have generally been married longer, and therefore, so is the maintenance period.

Where Maintenance and Gray Divorce Gets Tricky
If you’ve been married for five years and only have to pay 15% maintenance, you’re done in nine months — a significant upgrade over the alimony system. It’s even more advantageous if you’re at the peak of your career from an earnings standpoint with a several-year runway left to work.

If you’re 63 and set your sights on retiring in two years but look down the pike at 15 years of maintenance payments following the end of a 30-year marriage, that’s a tough pill to swallow. Complicating matters, courts take different approaches to maintenance, especially given that it’s still a novel concept. Some judges will take a rudimentary approach, telling the higher-earning spouse that if they’ve been married for 40 years, they owe 20 years of maintenance payments (So, if you’re 63, that means paying out until you’re 83.) Other times, judges will say that the maintenance ends once social security payments begin.

Rarely do judges award lifetime maintenance, but it’s all a gamble people take when heading to court for a gray divorce after a decades-long marriage.

The No. 1 Way To Protect Your Assets
We romanticize marriage as a society — and romance and marriage are typically seen as partners. We don’t like considering love and marriage a game. But if you’re considering a gray divorce, at best, you may have…questions about that idea, and, more likely, it’s far away in your rearview mirror. So, bear with me: If you’re thinking about starting proceedings for a gray divorce and nearing retirement in the next year or two, stay in the marriage until you retire if you can. Then, file for divorce. Not the day after your retirement party, but some significant time after it. Ultimately, it’s a long game you can play to your benefit if given the chance. Once you retire, you’re on a fixed income and are likely to get a more favorable ruling than you would if you state that you hope to retire within two years and want a shorter maintenance period. A judge will most likely not require a retired person to go back to work, as long as the retirement was not found to be a litigation tactic.

Regardless, having an attorney who is knowledgeable of the nuances relating to a gray divorce with respect to maintenance obligations and how to overcome a simplistic view of the situation; namely basing maintenance solely on the length of the marriage; you want an attorney who is well versed in taking into account and arguing such facts as:

1. Whether retirement was discussed during the marriage and there was a set plan/age for retirement in place;
2. The equitable distribution the parties would receive, which may alleviate the need for a long maintenance award;
3. Social security and other retirement benefits and savings
4. Ability to evaluate the specific facts of each case, in order to make specific arguments which would warrant a reduced maintenance award