March 26, 2025

Divorce after 50 – often called “gray divorce” – is becoming more common, and it brings a distinct set of concerns. Your focus will likely be retirement, long-term financial security, and healthcare access.

1. Retirement Accounts & Long-Term Financial Planning

In Texas, retirement accounts accumulated during the marriage (pensions, IRAs, 401(k)s, and even deferred compensation) are generally considered community property, regardless of whose name is on the account.

What this means:

• Your spouse may be entitled to a portion of your retirement—even if you’re the only one who contributed.
• Dividing these accounts often requires a Qualified Domestic Relations Order (QDRO), especially for pensions and 401(k)s. For individual retirement accounts (IRAs), most financial institutions, including Fidelity, Schwab, and Vanguard, have their own transfer request forms that must be completed along with a copy of the final decree. These forms are specific to each administrator and are required to process the transfer of funds in IRAs without tax or penalty.
• If you're already retired, income streams (like annuity payments or pension distributions) may also need to be divided or offset.

It’s essential to consider not just how accounts are divided, but also tax implications, survivor benefits, and how each spouse will remain financially secure.

3. Social Security Benefits 

For many divorcing individuals over 50, Social Security is an important piece of the financial puzzle. While it's not something the court can divide, it's still important to understand what you may be eligible to receive – and how it fits into your overall strategy. If you or your spouse qualify for retirement benefits, you may be entitled to divorced spouse benefits, but the rules are very specific, and the law has recently changed.

Here’s what you need to know:

• You may be eligible to claim up to 50% of your ex-spouse’s Social Security benefit if:
• The marriage lasted at least 10 years
• You are 62 or older
• You are unmarried
• Your ex-spouse is entitled to benefits (they don’t have to be collecting yet if you're both over 62 and divorced for at least two years)

Claiming benefits based on your ex-spouse’s record does not reduce their benefit. This is an independent benefit based on their work record, and they don’t even need to know you’ve filed.

You’ll only receive the higher of your own benefit or your divorced spouse benefit, not both.

⚠️ Recent Change: The End of “File and Suspend” Strategies

In the past, some couples used a strategy called “file and suspend,” allowing one spouse to file for benefits to trigger the other’s eligibility while delaying their own payments. That loophole is now closed. Under current law, you must generally take your own benefit first, and you cannot switch to your ex-spouse’s benefit later unless it’s higher.

This makes strategic timing and comparison of benefits more important than ever. You may want to consult a Social Security specialist or financial planner alongside your divorce attorney. We can connect you with financial experts who regularly work with divorcing spouses.

 

4. Health Insurance 

This often gets overlooked until it becomes urgent. In many gray divorces, one spouse loses access to the other’s employer-sponsored health insurance upon divorce. Medicare eligibility, COBRA coverage, or private insurance plans may be necessary, and expensive.

If you’re not yet 65, make sure you explore how you’ll maintain coverage and what it will cost. This may be something you will want to try to negotiate in your divorce or present to the Court at trial as a consideration in dividing property or awarding spousal maintenance.

5. Spousal Maintenance May Be on the Table

If one spouse stayed home to raise children, supported the other’s career, or is unable to re-enter the workforce due to age or health, Texas courts may award spousal maintenance pursuant to Chapter 8 of the Texas Family Code. Spousal maintenance is not guaranteed in Texas, but it is sometimes appropriate, especially in long-term marriages or where one spouse is financially dependent upon the other.

Under Chapter 8 of the Texas Family Code, a spouse must meet specific eligibility requirements and the court must find that the spouse seeking maintenance lacks sufficient property, including the share of community property awarded in the divorce, to meet their minimum reasonable needs.

Then, at least one of the following must also apply:

1. The marriage lasted 10 years or more, and the requesting spouse:
   • Lacks the ability to earn sufficient income to meet minimum reasonable needs, and
   • Is actively trying to earn income or develop skills (unless disabled or a caregiver).
2. The paying spouse was convicted of family violence against the other spouse or the children, within two years before the divorce was filed or while the divorce is pending.
3. The requesting spouse has a physical or mental disability that prevents self-support.
4. The requesting spouse is the custodian of a disabled child of the marriage, and caring for the child makes it impossible to earn enough income.

How Long Can Maintenance Last?

If the court awards maintenance, the duration is generally limited and depends on the length of the marriage and the circumstances:

• 5 years: if the marriage lasted 10–20 years
• 7 years: if the marriage lasted 20–30 years
• 10 years: if the marriage lasted 30+ years
• Indefinite: in cases involving serious disability (spouse or child)

How Much?

The maximum maintenance a court can order is the lesser of:

• $5,000 per month, or
• 20% of the paying spouse’s average monthly gross income

The court considers a long list of factors when deciding the amount and duration, including:

• Length of the marriage
• Age and health of both spouses
• Contributions to the marriage (including homemaking)
• Fault in the breakup (though this is not always determinative)

6. Estate Planning and Beneficiaries Need a Full Review

Your divorce decree will divide property, but it won’t automatically update your:

• Will or trust
• Powers of attorney
• Life insurance beneficiaries
• Retirement account beneficiaries

Post-divorce, you’ll want to update these documents right away. You may no longer want your former spouse making medical or financial decisions for you – or receiving your estate.

7. Emotional and Social Impacts Can Hit Differently

Divorcing later in life can feel lonely and disorienting. Your routines, social circles, and long-term identity as part of a couple all change. That’s not just emotional – it can affect your health and decision-making.

Having a support system (therapist, financial planner, attorney, or even a coach) can make the transition easier and help you stay focused on protecting your future.

Final Thoughts: Be Proactive, Not Reactive

Gray divorce can absolutely be a fresh start, but it requires careful planning. From dividing retirement assets to securing health care and revising your estate plan, there’s more at stake than just who gets the house.

A divorce attorney who understands the nuance of long-term marriages, and the realities of aging, can help you protect your interests without unnecessary conflict.

Ready to talk through your next chapter? Let’s create a plan that protects your future.