Special Considerations for Senior Divorces in Florida


Florida has long had a reputation as a destination for retirees. Based on 2020 census numbers, Florida is trailing only Maine in the percentage of residents who are at least 65 or older. (Hillsboro County, Florida)., which includes Tampa, one in five residents is at least 60 years old. The Sunshine State, California and Texas are home to it Almost a quarter of Americans age 65 and older.

With Florida’s large number of seniors comes more married seniors — and the odds of divorces involving those seniors. Approximately 20 percent of females age 60 or older in Hillsboro County are divorced. For males aged 60 or over, the divorce rate is 15 percent.

Senior divorce and separation generally involve the same legal criteria but represent unique facts and circumstances. If you’re a senior and facing separation or divorce, an estate settlement and alimony can affect your ability to pay for advanced assistance, health care, and deal with fixed income challenges.

retirement benefits

An equitable distribution is the process of dividing marital assets in an equitable manner. By default, each spouse receives fifty percent of the property acquired from the date of marriage until the date of separation, with some exceptions. Various factors may call for unequal division in order to obtain a fair distribution.

Florida law provides for an equitable distribution of Retirement benefits and pensions. These include the benefits of:

  • 401(k) plans.
  • Revenue sharing
  • annuities
  • Deferred compensation plans, in which the employer reserves a certain amount of wages or salaries each period for payment later, usually upon retirement
  • Insurance plans

Getting your share of retirement benefits or annuities helps you have at least one source of income beyond Social Security benefits. According to one report, nearly 40 percent of older adults have done so Social Security as the only source of income. In general, Social Security is not sufficient by itself to comfortably cover retirement expenses.

Regardless of the name that appears on a retirement account or plan, benefits or contributions accumulated from the date of marriage to the date of separation constitute marital property. Prenuptial contributions are separate property and do not become part of the equitable distribution.

To apportion retirement plan benefits, courts enter Qualified Domestic Relationship Orders (QDROs). Such an order directs the plan manager to distribute a specified amount to the other spouse. The Federal Retirement Income and Security Act (ERISA) mandates required provisions of QDROs and prohibits certain provisions of them. For example, the QDRO cannot designate anyone other than the spouse, ex-spouse, or dependent of the spouse or child of the account holder. QDROs can also serve to pay alimony.

Note that splitting Individual Retirement Accounts (IRAs) (either traditional or Roth) does not require a QDRO. This is because employers do not sponsor or fund IRAs, and ERISA only applies to employee benefits. If you or your spouse are employees or retirees of Florida local governments, your QDROs will receive recognition.


Just because ERISA does not require a QDRO does not mean you have to accept a transfer of IRA benefits without a court order. Even as a senior citizen, if you are under 59 1/2 years of age at the time of partition, you may face taxes and penalties for early withdrawals. To avoid this, you must have a court order or property settlement agreement to split the account, and the proceeds must be transferred to another IRA.

Social security

under Social security, the recipient’s spouse may receive retirement benefits as calculated on the basis of the recipient’s earnings. A divorce does not prevent you from receiving benefits based on those earnings if you:

  • She has been married to the recipient for at least 10 years
  • You are at least 62 years old
  • You will receive a lower amount based on your earnings than your ex-husband’s earnings
  • Your ex-spouse is eligible for Social Security retirement benefits

If you qualify under these rules, you may still be able to receive benefits even if your ex-spouse remarries.

division of other property

In an equitable distribution, the court does not treat your retirement accounts separately from other assets. In general, everything that you and your spouse acquired between the date of marriage and the date of separation is considered a marital asset subject to equitable distribution.

Seniors divorced or separated are likely to have significant equity in homes and other real estate. For the principal residence in particular, you or your spouse paid the mortgage in full or had a small balance at the time of the separation or divorce. Since your children have likely reached adulthood and are not living in the home, it is possible for the court to order that the home be sold and the proceeds divided. By contrast, when divorcing spouses have minor children, the desire to keep them in the home and which parents will have custody factors determine who gets the home in the divorce.

If you insist on keeping the home for yourself, the court may balance this distribution with granting your spouse leave or second homes and pension plans. Since you have reached or may soon reach retirement, you should consider your need for sources of income rather than holding on to physical assets such as homes.

Alimony for the elderly

in florida, alimony It revolves around the dependence of the spouse on the other, the ability of the spouse to provide for the other, and the duration of the marriage. With senior couples likely to have been 17 or more years of marriage, permanent alimony becomes a very likely outcome. The question of which spouse is dependent on or able to pay maintenance takes into account considerations that may not exist for younger couples. These include:

  • Live on a fixed income
  • The need for assisted living, home care, or home health care
  • Having children, grandchildren, or others to care for the elderly after separation
  • Disabilities, such as: auditory, visual, motor or cognitive disabilities
  • Long period of time worked or not worked
  • Availability of Medicare or other health insurance

Do you need a divorce attorney for seniors in Tampa?

If you are a senior citizen and need legal advice, contact us Tampa senior divorce attorneys today.

Sometimes life takes an unexpected turn. With the right approach and the representation of an attorney experienced in the nuances of Florida divorce laws, you can be confident in the outcome of your case. Attorney Robert Sparks, We take these matters very seriously.


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