September 18, 2014 By Paul Wallin


If you’re divorcing after age 54, you probably have the majority of your earning years behind you, or you may already be retired. During your marriage you probably acquired joint assets, such as home equity, and some liabilities that are subject to California community property law.

The more years you spent together, the more complex these issues can get. You should speak with an experienced divorce attorney in order to safeguard your future if you are going through a divorce.

Community Property and California Law

According to California Family Code 2552, the assets earned and liabilities incurred by both parties between the time of marriage and legal separation are split evenly. Other factors can affect this split. For instance, if a dependent spouse incurs debts for necessities and for the care of minor children after legal separation but before support is ordered by the court, the court may order the spouse who has to pay child or spousal support to also pay for these debts (Family Code 2623(a)).

If you and your spouse can agree on how your property will be split, the court will honor your agreement. If you can’t come to an agreement, the court will decide on how your community property is divided.

Retirement Plans

Family Code 2610 states that retirement benefits earned during the marriage are community property and must be split 50/50. Any part of the benefits earned before the marriage are separate property. Barring an agreement, the court will decide on a settlement that divides the portion of the retirement plan earned during the marriage.

This is easier with some plans than others. Defined contribution plans such as 401ks are easily valued. For defined benefit plans such as company pensions that begin to pay out in the future, an actuary will probably need to assess the future value of the plan. Government employee pension plans are regulated by different state and federal laws.

Medical Insurance

State and federal laws allow for continuation of medical coverage by your former spouse’s health insurance provider in certain circumstances, but the coverage is usually temporary. However, premiums may be higher than you can afford. It may be better to obtain a low cost policy that will cover you until you are eligible for Medicaid benefits.

In some cases, your higher earning spouse may be required to help you pay for medical coverage. You need to consider your options carefully and get sound advice as this can be a particularly complicated area of the law.

Social Security Benefits

You can receive your former spouse’s social security benefits regardless of whether he or she remarries, provided you have been married for 10 years or longer and you are age 62 or older. In order to receive your former spouse’s social security benefits, the following must be true:

• You are unmarried,
• Your former spouse must be entitled to receive benefits,
• Those benefits must exceed your retirement benefits.

If you remarry and that marriage ends so that you are unmarried at the time you retire, you may still receive a prior spouse’s retirement benefits. If you choose to receive benefits on your ex-spouse’s social security credits, your choice won’t affect the benefits your ex-spouse receives.

Tax Benefits

Because of recent changes in federal law, married couples who have a joint income that exceeds new federal tax thresholds have to pay more in federal income taxes. This is something to take into consideration when deciding when and whether to file for divorce, especially if you are nearing retirement age and need to make the most out of your remaining years of employment.

Call the Divorce Lawyers at Wallin & Klarich Today

If you are facing a divorce, you need to consult with an experienced family law attorney who can help you navigate the complex family law process. You need a divorce lawyer who will give you the best chance at obtaining the best possible result in your case. At Wallin & Klarich, we have over 30 years of experience successfully helping our clients in divorce cases.

With offices located in Orange County, San Bernardino, Los Angeles, Torrance, Riverside, West Covina, Victorville, Ventura, San Diego and Sherman Oaks, our experienced attorneys are available to help no matter where you work or live.

Call us today at (888) 749-7428 for a free phone consultation. We will get through this together.

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