Yaffa Family Law Group
By: Doreen Yaffa

Division of Marital Assets in a “Grey” Divorce


When older couples split, their issues differ from those of younger couples as child support and custody aren’t usually involved. Dividing of the assets on the other hand, is a likely major issue. Florida is an equitable distribution state, meaning that marital property is to be divided in an equitable manner rather than a 50/50 split. Equitable doesn’t necessarily mean equal, it means fair. Because older divorcees have had longer to accumulate assets, they likely have more property, a larger savings, inheritances, and larger retirement funds or pensions than the younger generation. Life insurance is also a common issue when older couples divorce, needing one spouse to continue to carry it for the other.

1-3 Division of Marital Assets in a “Grey” Divorce

The factors that judges may consider when deciding what the division should be are:

  • The length of the couple’s marriage
  • Each spouses’ economic circumstances
  • Each spouse’s contributions to the marriage, including contributions as a homemaker or parent
  • Either spouses’ contribution to the career or educational opportunities of the other spouse
  • Either spouse’s wrongful conduct during the marriage
  • Liabilities incurred by either spouse
  • Either spouses’ intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition for divorce

When it comes to Social Security, individuals over the age of 62 who divorce their spouse after being married 10 or more years can collect retirement benefits through their ex’s Social Security record. This can be done without reducing the ex’s benefits. Once you’ve been divorced for at least two years, you’ll be entitled to benefits through your former spouse even if they are eligible but not yet receiving benefits. Former spouses might also be entitled to receive Social Security survivor benefits after their ex passes away if you were married for at least ten years, you are at least 60 years old, and you are not entitled to retirement benefits equal or greater than that of your former spouse’s benefit. Most of this is unknown to the typical adult divorcing and usually not an issue that will arise when younger adults are divorcing.

2-3 Division of Marital Assets in a “Grey” Divorce

Deciding what is marital and non-marital property can be a common issue when the couple has been together for 20+ years. Marital property is defined as assets and debt, newly acquired during the marriage, either jointly or by one party, other than by a gift or inheritance to one spouse. Non-marital, or separate property, are the assets and debts owned prior to the marriage that remain unchanged. Commingled property may also become an issue. These are the assets and debts that were nonmarital, but which were traded in to acquire new property, repaired or enhanced during the marriage with marital funds, or nonmarital debts paid with marital. These are just some of the major issues older couples may face when dealing with equitable distribution while going through the divorce process.

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