In recent years, "gray divorce"—divorce among individuals over 50—has become increasingly common. While divorce at any age presents challenges, those who divorce later in life often face unique financial concerns, particularly regarding spousal support and maintaining the marital standard of living. At Moore, Schulman and Moore, APC, we’ve seen firsthand how these issues can significantly impact the financial future of both parties.
Eligibility typically hinges on two main factors: the financial need of one spouse and the other spouse’s ability to pay. This is often evaluated based on various types of support, such as temporary support during the divorce process, rehabilitative support to help a spouse become self-sufficient, or long-term support in rare cases where a spouse cannot become self-supporting.
How is Spousal Support Calculated?
The right to spousal support is not based on gender or who initiated the divorce. Either spouse can request it. Unlike child support, which often uses specific formulas, spousal support is largely based on a judge’s discretion. Judges typically consider several factors to determine a fair amount of alimony. Some of these include:
- Both spouses’ needs
- Each spouse’s ability to earn, based on their education, employment history, age, health, and other factors
- Each spouse's financial resources
- Contributions to the marriage, including childcare, homemaking and spouse’s education
- Whether a spouse was out of the workforce or passed up career opportunities to care for the family
- Tax consequences
- Length of the marriage
- Each spouses obligations and assets
- Balance of hardships for each party
- Criminal convictions including history of domestic abuse or emotional distress
The Marital Standard of Living
Judges often consider the marital standard of living (MSOL) when determining a spouse’s financial needs. This refers to the lifestyle the couple enjoyed before separating. However, maintaining that standard may not be feasible due to the costs of two separate households especially if one or both of the people are retired. So, many judges will focus on reasonable needs instead. Judges often define "need" as the reasonable minimum required for basic living expenses. In California, workers have an absolute right to retire at 65, so a judge could decide not to order any spousal support. Also, if the primary breadwinner has health concerns, that could influence the court’s support decisions.
Is Savings Included in the Standard of Living?
In California courts have determined that if a couple's lifestyle involved saving, that should be considered when determining alimony.
Earning Capacity and Imputed Income
Judges will look at a spouse's current income and their potential earning capacity. If a spouse is voluntarily earning below their potential, a judge may "impute" income to them and calculate alimony based on what they could reasonably earn. For instance, if one spouse quits a high paying job and takes a lower paying job a judge may order that spouse to pay an amount of alimony consistent with their previous earning potential.
Duration of Spousal Support
The duration of spousal support varies. Temporary alimony ends when the divorce is finalized. Alimony often ends when the supported spouse remarries or cohabitates. In California, if a marriage lasted less than 10 years, the length of alimony is usually half the length of the marriage.
Navigating Spousal Support and Lifestyle Changes
For those facing gray divorce, strategic planning is crucial. Here are some key steps:
- Seek Legal Counsel Early – An experienced divorce attorney can help assess your financial situation and negotiate a fair support arrangement.
- Understand Retirement Impact – Consider how asset division and spousal support will affect long-term financial security.
- Plan for Adjustments – While maintaining the marital standard of living may not be entirely possible, careful budgeting and financial planning can ease the transition.
Gray divorce presents significant financial challenges, but with proper legal and financial guidance, both spouses can work toward a stable future.