Kelly Frawley and Emily Pollock, Contributor
Sept. 27, 2021
People often ask whether it’s easier to divorce at one time or another in a marriage. In general, the answer is no: Barring marriages of durations at either extreme on the spectrum, the timing doesn’t necessarily make a divorce more or less complicated; the issues are just different.
Divorces on the shorter end of the spectrum often focus primarily on child custody issues while those that occur later in life tend to lean more toward financial negotiations involving assets like your business or house, spousal support and retirement.
Of course, the parties’ ages at the time of divorce can make a difference as well, but for the most part, we have found the following considerations to be top of mind with spouses who are separating after 10, 20 and 30 years of marriage.
Divorcing at the 10-Year Mark
Custody matters are likely to take center stage for couples with young children, which is often the case for marriages that end after around 10 years. If you have kids, ensuring their well-being should be top of mind for both parents, and there are many areas to consider in crafting a custodial arrangement that makes the most sense for your family. For example, what will their daily schedules look like? If the family requires non-party childcare, will you share a nanny post-divorce? Who will be responsible for getting the children to and from soccer practice, music lessons or other extracurricular activities? Will they go to summer camp? How will vacations work?
While you may strive to stick to routines established during the marriage, some restructuring is likely, especially if one of you needs to go back to work or increase the hours you spend at work versus being at home with the children if that was the arrangement during the intact marriage. Both parents need to be realistic and fair, keeping in mind the best scenario for the kids. Some young parents, especially those with a child under the age of 2, opt for a phased-in custody schedule that enables the primary parent to provide the bulk of care initially, with the nonprimary parent taking on more responsibility as the child grows.
Financial considerations play a role, too. How much child support will be paid—to which parent and for how long? —and how often will cost-of-living adjustments be made? If the kids go to private school, how will those costs be divided? In addition to hashing through the family’s current financial circumstances, it’s prudent to address college savings at this time: Perhaps both parents agree to make monthly contributions to a 529 account and to revisit each party’s contributions to the college expenses when the children get older.
Although couples tend not to have a tremendous amount of accumulated wealth at the 10-year mark, asset distribution is also a consideration. A prenup can ease this process; however, if you don’t have one, prepare for most property acquired during the marriage to be considered marital (subject to division) and for debts accumulated while married—even student loans or other debt that may be in only one of the parties’ names—to be considered a shared liability.
… the 20-Year Mark
Divorcing after 20 years brings different considerations to the forefront. If there are children in the marriage, they are likely to be older at this point, so while establishing a parenting agreement may still be necessary, the focus will probably be on the kids’ financial well-being. Living expenses and college costs will be the centerpiece of discussions. As when the children are younger, the overarching goal is to ensure they can continue the lifestyle they’ve become accustomed to and when the children are older, the benchmarks of that lifestyle are more established as a status quo: attending private school, having their own bedroom, commitment to specific extracurricular activities.
Spousal support becomes more central to the divorce conversation after 20 years, since length of marriage influences the court’s determination of the appropriate level and duration of alimony. After two decades, a lesser-earning spouse may have foregone career opportunities to facilitate the management of the family or to support the higher-earning spouse and, in doing so, has become reliant on the resources of their partner. The court will look to help that lesser-earning spouse transition into self-sufficiency—finding a job (or a higher-earning job), getting established in a new residence, etc.
At this stage in a marriage, there is typically more to go around in terms of assets, so it may be easier for the parties to manage the financial impacts than it might have been earlier on. An important consideration where there is a lesser or non-income earning spouse is that they will be disadvantaged post-divorce in terms of their ability to accumulate additional assets, whereas the higher-earning spouse will likely continue to earn for at least another decade and likely at their highest salary levels. So ensuring that how marital assets and liabilities are distributed to maximize investment income and growth for the lesser-earning spouse post-divorce should be considered.
… the 30-Year Mark
At 30 years, spouses’ finances have been intertwined for decades and couples are less likely to have a prenup to help sort things out, since prenups weren’t as common 30 years ago. This means that nearly all assets are subject to being split, with the exception of a few carve-outs for inheritances, personal injury payouts or other assets statutorily categorized as the separate property of one party or the other.
Retirement is more important to the divorce discussion at this time. You may need to postpone your retirement to meet your support obligations or build your retirement funds back up after they’ve been distributed in the divorce. If you still have minor children, your custody agreement may limit where you may retire. Additionally, while couples who stay together typically try to wait as long as they can to start withdrawing from their retirement funds, the spouse who is seeking support in a divorce will be expected to withdraw at the earliest age without penalty. Each of these scenarios has the potential to influence how you draw up your divorce agreement.
Regardless of when you divorce, it’s important to consider the potential impacts to your lifestyle, as well as your children’s; your finances and other assets; and your plans for the future. Sorting out your priorities and negotiating in good faith will lead to the most positive outcomes for both parties.
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