You’ve been married a really long time. At this point, probably almost every asset (or liability) you can think of is one that was earned, purchased, or acquired during the marriage. While it doesn’t have to be harder to end a longer marriage as opposed to a shorter one, there are often a lot more moving pieces – and the potential for one (or both) parties to be extra emotional about the process.
The real wild cards – issues in a divorce that can make it more difficult – are spousal support and child custody. But the actual process of divorce is definitely also more difficult when there are more assets to divide.
In a shorter term marriage – say, marriages of 1 or 5 or even, sometimes, 10 years – there’s a lot less to divide, especially as compared to a true long term marriage. Attorneys (and judges) often start to think of marriages as “long term” once they get to the 20+ year mark, so you’re right in that sweet spot.
In most cases (though I am definitely speaking in generalities here), a 20+ year marriage is one where the parties married on the younger side and were together through mid adulthood. That’s not to say, of course, that you couldn’t get married to a second partner in your fifties and get divorced after a 20 year or more marriage in your seventies, but that’s definitely less common.
In any case, by that point you’ve usually invested in things together, whether real estate or mutual funds or insurance policies, over the course of many years. Because of compounding interest, rising property values, and other market-related trends, what you invested may be worth substantially more now. Not only that, but every year you get a little bit older and a little bit closer to retirement age (or maybe you’re even there already), and the money you have becomes suddenly correspondingly more important, too.
How to get a divorce after 20+ years of marriage
The answer to this question is always the same, but with some nuance. There are really only two ways to get a divorce in Virginia – you either sign a separation agreement, where the two of you negotiate (and ultimately agree) about how to divide your assets and liabilities between you; or, alternatively, you go to court, litigate, and let the judge decide.
The thing about the judge is that – no offense to any judges anywhere who might read this, you’re doing great! – they don’t have time to familiarize themselves with much. They know the least about the subjects involved of anyone in the room. They also don’t have the luxury (or, frankly, the time) of coming up with complicated or specific solutions to address complex problems. That would open them up to reversal on appeal, or even to allegations of misconduct or favoritism. To the judge, it’s not worth it.
You want creative solutions? You want specifics? You want, in short, a divorce that makes it feel like you matter? Consider either negotiating your agreement, with the assistance of an attorney, or maybe even collaborative divorce, especially if you and your husband own a family business or have other complicated financial arrangements.
Alternative dispute resolution is the term we use to describe other-than-traditional methods of divorce. In a way, its really not a different goal – whether you chose mediation, negotiation, or collaboration, the end goal is the separation agreement, and avoiding litigation – but the process is different. Different road to the same place, in other words.
Special considerations for divorce after 20+ years
After more than two decades together, you probably have a lot going on. You’ve worked together to build a portfolio that includes probably pretty much everything, from cars to real estate and investments and insurance. You’ve shared a vision, even if that has more or less fallen apart recently, and worked to achieve goals.
In short, there’s a lot there to divide. And, as you age (which is not to say that you’re old, but only that you’re closer to retirement age every single year), the assets that you’ve accumulated become even more important than ever before. What you’ve earned matters, and is accounted for in terms of your vision for how the future will unfold. Only now, you’re looking at a future that doesn’t include your husband – at least, not with you, anyway.
Child Custody and Visitation
You may have grown children, or even teenagers. It’s possible, too, that you have children as young as preteens or school age, but chances are good that they’re older.
I’d consider including a provision regarding car insurance for the kids, and, if you have a disabled child, I’d try to get child support established well before the child turns 18 – that way, you’ll have an easier time continuing child support after 19 or high school graduation (something that is really difficult if you haven’t got a child support award in place before the child ages out of the system).
Though there’s no official age in Virginia where the children can choose what they want as far as custody and visitation – unless its 18, when they’re no longer children but are adults – having a Guardian ad litem in place often means that the GAL will include a recommendation that reflects the child’s preference, assuming that the child is of sufficient age, maturity, understanding, and intelligence to articulate such a position. (“I want to live at dad’s because he’ll let me eat ice cream for dinner and play video games all night,” is not a particularly intelligent or mature position.)
As you probably are already aware, there’s no provision in Virginia for child support that extends beyond 19 or graduation from high school – and, as a result, no official legal provision for college fees, like in, say, New Jersey. It’s kind of like private school; at some point, you either agree to share costs in a particular manner or you foot as much of the bill as you can yourself because you want to – but you don’t have to, and you can’t make your ex.
Custody and visitation is always modifiable based on a material change, but I do find that a lot of clients and prospective clients let it go a little during the later teen years. It’s not that anyone cares less, really, but, once the kids are driving it starts to become difficult to keep them in a place where they’d prefer not to be. (Also – have you ever tried to keep a miserable teen somewhere they don’t want to be? Mmmm, better not.) Though I do recommend that you and your soon-to-be ex at least maintain cordiality where the kids are concerned, because you’re going to want to make sure you both know where the kids are, so that they can’t tell you they’re at the other parent’s house when they’re really not.
Spousal Support
At some point, the possibility of longer term spousal support becomes a possibility, though, for most people, it stops when the payor spouse retires. At that point, the assumption is that retirement money will offset the spousal support, and, in any case, the retiree/payor spouse can’t pay support AND a portion of the retirement to an ex spouse while living on a fixed income.
Also, even if you stayed at home during the marriage, these days there’s much more pressure on lesser earning spouses to either get a job (if they didn’t have one), get a new job (if they are able to earn more), or work more (if possible and the potential spousal support doesn’t cover their expenses). We see a lot more employment experts deployed in intense spousal support cases, and it is possible that, depending on your education and training, income could be imputed to you.
The court can’t make you go out and get a job, but, if income is imputed to you, that basically makes it like you’re responsible for earning that amount – regardless of whether you choose to. The court could find that you really should work at almost any age, even if you’ve been out of the workforce for a long time.
You probably won’t get support without an ending date, though; that’s sort of an antiquated notion anymore. Keep in mind, too, that social security is an option, especially if he earns far more than you have during the marriage, so that’ll help offset your costs as well.
Health Insurance
After 20 years, if you’re a military spouse, its possible that you’re either a 20-20-20 or a 20-20-15 spouse.
Basically, it takes at least 20 years of marriage and 20 years of active duty service. If those 20 years overlap – meaning that you were married during his active duty service (or him married to you during yours) and a full 20 of those years overlap, you’re a 20-20-20 spouse. That means that, for military purposes, you take on a status like a retired service member, keeping your TriCare and other military benefits.
A 20-20-15 spouse, on the other hand, is the same – 20 years of marriage, 20 years of active duty service, but only 15 of those overlap – or somewhere between 15 and 19. That means that you’ll be eligible to keep your TriCare for 1 year following entry of the final divorce decree.
There’s no such provision for civilians; you’ll be responsible for your own healthcare immediately upon entry of the final divorce decree.
Retirement
At some point, it becomes a non-issue. You have enough wealth tied up in retirement that nobody can waive their share. The party who earns more knows they earn more, but so does the lesser earning spouse – so they’re not likely to waive, anyway.
Each take their own is really only possible in the event that you’re both very similarly earning, but its still possible that what you’ve got invested for retirement is different.
I do get some questions about what happens when one spouse is a saver and the other is a spender, but, in general, the marital share of each account will be divided. It’s not like the court generally punishes anyone because their spouse thinks they’re too spendy. At any rate, if it worked for 20+ years, well, you set up a pattern of behavior.
The law on this point is pretty well established – you each get 50% of the marital share. You should remember that 50% of the marital share doesn’t mean that you’re entitled to a flat 50%; after all, he could have worked prior to your marriage, or go on working after your divorce. Still, your 50% is what we call an entitlement in the sense that the law basically guarantees it to you, unless you do something ill-advised, like waiving your interest entirely. He’s not doing you a favor by giving you your marital share of the retirement; you’re not doing anything to him or taking any aggressive action by accepting it. It’s not a bargaining point; it’s, like I said, an entitlement.
A 20 year marriage is a long one, and there are a lot of details to work out. Still, that doesn’t mean that it’ll be way more difficult than a shorter term marriage, its just that there’s often a lot of moving pieces.
For more information, or to schedule a consultation, give our office a call at 757-425-5200.