Should I Delay My Divorce Until After I Retire?

The decision to divorce is never easy. Coming to the determination that it is best to sever your life from the person with whom you have built your future can be emotionally and financially challenging. This is especially true in cases where parties have been married for many years and may have been planning for a joint retirement. In cases involving seniors divorcing, there are often some unique issues that are not involved to a lesser extent for young couples. When this is the case, it is not uncommon for parties to wonder whether they should wait until after retirement to file for divorce.

First, parties need to understand that New Jersey is an equitable distribution state. This means that when parties divorce, any marital property is subject to an equitable distribution. While equitable does not always mean equal, it often does. Marital property will include almost any asset or debt incurred during the marriage. Pensions, stock options, 401(k)s, IRAs, and any other investment or retirement tool is not exempt from this. When you and your spouse divorce, each of you is entitled to your equitable share of all retirement accounts that were acquired during the marriage. Retirement will not change that fact. Accordingly, waiting until retirement with an eye toward somehow shielding retirement accounts will be wholly ineffective.

Parties also need to understand that retirement could impact spousal support. Spousal support determinations are made on a large variety of factors, including the resources and property of each party, whether one party made sacrifices in his or her career to further that of the other spouse, the requesting spouse’s need for spousal support, and the paying spouse’s ability to pay support. In considering need and ability to pay, the court will absolutely consider income received from any source, including pensions or even Social Security. Just because you are not still in the work force will not automatically preclude you from having a spousal support judgment against you. That said, there are special New Jersey provisions made considering the age of retirement and its impact on stopping spousal support, including a presumption that spousal support may end when the paying spouse retires.

If you are trying to decide the best timing for your divorce, let us help you to make the right decision. Contact us today at (732) 529-6937 for an appointment.  Please also check out our YouTube channel for other FAQs about divorce topics like this one.
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