Special Considerations for Senior Divorce in Florida

Florida has long held a reputation as a destination for retirees. Based on 2020 Census figures, Florida trailed only Maine in the percentage of the population reaching at least 65 years or older. In Hillsborough County, Florida, which includes Tampa, one out of every five residents is at least 60 years old. The Sunshine State, California, and Texas are home to almost one-fourth of Americans aged 65 years and older.

With a sizable senior population in Florida comes a higher number of married seniors – and prospects of divorce cases involving these senior citizens. Nearly 20 percent of females aged 60 years or older in Hillsborough County are divorced. For males aged 60 or over, the divorce rate is 15 percent.

Divorce and separation among seniors involve generally the same legal standards but present unique facts and circumstances. If you’re a senior citizen facing separation or divorce, property settlement and alimony can impact your ability to pay for advanced assistance and health care and deal with the challenges of fixed income.

Retirement Benefits

Equitable distribution represents the process of dividing marital assets in an equitable fashion. By default, each spouse gets fifty percent of property acquired from the date of marriage through the date of separation, with some exceptions. Various factors may call for an unequal division in order to have an equitable distribution.

Florida law provides for the equitable distribution of retirement and pension benefits. These include benefits from:

• 401(k) plans
• Profit-sharing
• Annuities
• Deferred compensation plans, in which the employer withholds a certain amount of wages or salaries each period for later payment usually at retirement
• Insurance plans

Getting your share of retirement or pension benefits helps you have at least one source of income beyond Social Security benefits. By one report, nearly 40 percent of seniors have Social Security as the sole source of income. Generally, Social Security is not sufficient by itself to comfortably meet expenses in retirement.

No matter which name appears on the retirement account or plan, the benefits or contributions accumulated from the date of marriage to the date of separation constitute marital property. The contributions that predated the marriage are separate property and do not become part of the equitable distribution.

To divide retirement plan benefits, courts enter Qualified Domestic Relations Orders (QDROs). Such an order instructs the plan administrator to distribute a specified amount to the other spouse. The federal Employment Retirement Income and Security Act (ERISA) imposes required provisions in and prohibits certain provisions from QDROs. For instance, a QDRO cannot designate anyone other than the spouse, former spouse, dependent of the spouse, or child of the account holder. QDROs can also function in alimony payments.

Note that the division of Individual Retirement Accounts (IRAs) (both traditional and Roth) does not require a QDRO. This is because employers do not sponsor or fund IRAs, and ERISA applies only to employee benefits. If you or your spouse are employees or retirees of Florida local governments, your QDROs will get recognition.

Taxes

That ERISA does not require a QDRO does not mean that you should accept a transfer of IRA benefits without a court order. Even as a senior citizen, if you have not reached age 59 ½ years at the time of a division, you might face taxes and penalties for early withdrawals. To avoid it, you must have a court order or property settlement agreement to divide the account, and the proceeds must be transferred to another IRA.

Social Security

Under Social Security, a recipient’s spouse may obtain retirement benefits as calculated based upon the earnings of the recipient. A divorce does not prevent you from benefits based on those earnings if you:

• Were married to the recipient at least 10 years
• You are at least 62 years old
• You would get less based on your own level of earnings than based upon your ex-spouse’s earnings
• Your ex-spouse qualifies for Social Security retirement benefits

If you qualify under these rules, you may still receive benefits even if your ex-spouse remarries.

Dividing Other Property

In equitable distribution, the court does not treat your retirement accounts separately from other assets. Generally, all that you and your spouse acquired between the date of marriage and date of separation qualifies as marital assets subject to equitable distribution.

Divorcing or separating senior citizens likely have considerable equity in homes and other real estate. With the principal residence especially, you or your spouse have paid the mortgage in full or have a small balance at the time of separation or divorce. As your children likely have reached adulthood and do not live in the home, a court could very well order the sale of the home and division of proceeds. By contrast, when a divorcing couple has minor children, the desirability of keeping them in the home and which parent will have custody factors into who gets the home upon divorce.

If you insist upon keeping the home for yourself, the court might balance that distribution with your spouse being awarded perhaps vacation or second homes and pension plans. As you have reached or may soon reach retirement, you should consider your need for income streams rather than holding onto physical assets such as homes.

Alimony For Seniors

In Florida, alimony turns on a spouse’s dependency on the other , a spouse’s ability to support the other, and the duration of the marriage. With likelihood that senior couples will have reached 17 years or more of marriage, permanent alimony becomes a very possible outcome. The issue of which spouse is dependent or able to pay alimony takes on considerations that might not exist for younger couples. These include:

• Living on a fixed income
• Need for assisted living, nursing home care, or home health care
• Presence of children, grandchildren, or others to care for seniors post-separation
• Disabilities, such as hearing, visual, mobility, or cognitive impairment
• Prolonged period of time having worked or not worked
• Availability of Medicare or other health insurance

Need a Tampa Senior Citizen Divorce Lawyer?

If you are a senior in need of legal advice, contact our Tampa Senior Citizen Divorce Lawyers today.

Sometimes life takes an unexpected turn. With the right approach and the representation of an attorney experienced in the nuances of Florida’s divorce laws, you can be confident in the outcome of your case. At Robert Sparks Attorneys, we take these matters seriously.