10 Tips to Navigate Empty Nest Divorce

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NEW YORK (MainStreet) – The overall divorce rate in the U.S. may be dropping, but according to a study conducted by Bowling Green University, the divorce rate for those 50 and over has doubled in the past two decades.

Pat, a 54-year-old Minneapolis, Minn. resident, knows first-hand about empty nester divorce.

“Our two children had left home and we both just started going our own ways,” says Pat. “I think the empty nest triggered it. I was thinking that our marriage was over, but she finally said it aloud.”

For Pat, who was the higher wage earner, there were a lot of questions about the house, retirement plan and taxes.

What wasn’t in question was the first step in resolving those issues. Minnesota requires mediation before a judge will grant a divorce, a move Pat and his now ex-wife thought a good idea anyway.

The process took several months and even with mediation and an amicable split, there are some things Pat says could have been even better defined.

MainStreet talked to some experts and came up with the Top 10 things to be aware of when going through an “empty nest divorce”:

1. Kids. Custody may not be an issue at this stage, but even if the children are of age, in college or even grown up and with their own families, experts say the kids should remain a major consideration during a divorce. Nancy Fagan, a divorce mediator in San Diego, Calif., says the more you plan and detail visitation with grandkids, holidays and birthdays, the less opportunity there is for conflict later.

She suggests discussing the answers to a few questions: “What kind of relationship will you have with your kids and grandkids and how will that meet your former partner’s needs? If there are trips to see grandkids, you may have both paid when you were together, but who pays now?,” Fagan says.

Pat, the divorced father in Minneapolis says that although holidays and birthdays have gone fine up to this point, he wishes those issues would have been discussed in more detail during his process.

2. Family finances. You and your partner may have split the difference on college educations and family vacations and gifts, or those items may have come from a joint household budget. Who pays now that you aren’t together? “You have to ask yourself how much you plan on giving the kids and grandkids for holidays and birthdays and how that will be split,” says Fagan.

3. Individual finances. Michele Lowenstein, an attorney and partner with Lowenstein Brown, a law firm in San Diego, Calif., says that each partner needs to evaluate where they will be without that other income. Will they need spousal support? Fagan says that women, who may not have handled finances while they were married, should also consider budget counseling to assess their situation.

4. Important documents. Typically, a family will store copies of important documents in safes or safe deposit boxes and only one spouse may have access to that information. Make sure you have copies of everything, including birth certificates for each of you and your children, your marriage license, financial statements, bills, and copies of deeds and wills. You never know when you may need these in the future and if you wait until the divorce is in process, you may not get them.

5. Retirement. No matter if one or both of you worked, most states recognize both spouses’ contribution to the marriage. In Pat’s case in Minnesota, he says the court typically will only recognize a 50/50 split of the assets, which includes funds in retirement and 401(k) accounts. Since these funds will most likely be split, both parties will have to reassess their retirement positions and act accordingly to have the money they will need.

6. Real estate, cars, boats, recreational vehicles and other property. You may want to keep your home, but realistically, can you still afford to maintain the payments and the property? “You may not be able to maintain your lifestyle, even if you’re awarded alimony,” says Lowenstein, who recommends being prepared to accept a buy out from your partner or to sell the property. Pat bought his ex-wife out of her share of their home but agreed to allow her to remain in it until she could buy a smaller place.

7. Social Security and taxes. Both are complicated when an older couple splits up. Fagan simply recommends that people be aware of the implications of divorce on taxes and Social Security and who is allowed to collect from whom. Fagan says there is a 10-year rule, allowing one former spouse to collect off another if they were married for more than 10 years.

8. Changing beneficiaries. Fagan cautions people to remember to change the names of their beneficiaries on retirement plans and insurance policies, since divorce may mean you don’t want your ex-spouse to inherit everything.

9. Pet custody. While your human children may be grown up and on their own, you may have acquired some furry babies who still need looking after. Many states do not recognize pets as a custody issue, but because they are property, an agreement may need to be drawn up to ensure each partner gets their time, should they want to continue to see their pets. Amber Serwat, a divorce and mediation specialist in Brunsville, Minn. who also handled Pat’s and his former wife’s mediation, says she had one couple battle over the custody of their dog.

10. Set time limits. Pat says the biggest issue for him now is that due to a real estate purchase delay, his ex-wife is still living in their house, although their divorce is now final. Pat says he travels a lot for business, but it’s still “uncomfortable” when he returns home. “We’re not fighting, but at this point, I don’t think the situation is healthy,” says Pat. “I would suggest people put a firm date deadline on these types of arrangements. 

Serwat, the mediator from Minnesota, also advises couples to research the divorce processes available in their states and if possible, to speak with a mediator first and see if things can be worked out without an attorney. “Usually, the first thing people think of is hiring an attorney, but what they don’t realize is you’re also making a decision at that point of which process you want to use and you don’t even realize you had a choice,” says Serwat. “Many states have a mediation requirement anyway.”

Serwat says that mediation agreements are typically stronger because they represent a deal endorsed by both parties and they are therefore typically followed more often.

Are you an older and finding yourself single for the first time in years? If so then you must take a look at MainStreet's Gray Date: Rules of the Game for Older Daters to get up to speed!

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