Elderly or grey divorces are becoming more and more common. Age can be a factor in Florida divorces insofar as it impacts alimony.
In Florida people over age 65 have an extra right to speedy trial (for presumably morbid reasons). “Civil actions involving elderly parties; speedy trial.—In a civil action in which a person over the age of 65 is a party, such party may move the court to advance the trial on the docket. The presiding judge, after consideration of the age and health of the party, may advance the trial on the docket. The motion may be filed and served with the initial complaint or at any time thereafter.” Fla. Stat. Sec. 415.1115
So, a party to a Florida divorce would have his case heard “at the front of the line” if he or she so wished. Often discovery matters are going to take a while so this issue may be moot unless the parties have simple (or no) assets and are eager to get re-married.
Obviously, it is more likely for an older person to qualify for statutorily mandated permanent maintenance because it is more likely that an older person has been in a 17+ year marriage.
Age often effects income and alimony is largely determined by both parties’ incomes.
While age discrimination is illegal when hiring and promoting employees, we all know that older workers face more difficulty in finding employment than younger workers, especially if they have been out of the workforce for a long period. Florida courts are willing to acknowledge these employment difficulties when calculating alimony. Lynch v. Lynch, 695 So. 2d 843 (Fla. 3d DCA 1997)
Age often comes with various mental or physical disabilities that limit earning potential. This effects both a party’s ability to self-support or, alternatively, to pay alimony.
An advanced age makes an alimony-receiver far more likely to be awarded permanent alimony…even in a short marriage. Levy v. Levy, 900 So. 2d 737 (Fla. 2d DCA 2005)
Florida courts consider awarding permanent alimony to a party in a short-term marriage if a disability occurred during the short term marriage. At an advanced age, several disabilities can be identified as occurring during the marriage: stroke, heart attack, etc. Other disabilities associated with aging may not have a singular moment that can be said to have occurred during the marriage: dementia.
If the disability is found to have existed before the marriage, there can be no award of permanent or rehabilitative alimony if the marriage was classified as a short term marriage. Kunzweiler v. Kunzweiler, 698 So. 2d 1251 (Fla. 5th DCA 1997)
Disability is often proven via medical evidence but in the case of the broader concept of “being old.” A party’s testimony alone may suffice as evidence of an age related disability. de Gutierrez v. Gutierrez, 19 So. 3d 1110 (Fla. 2d DCA 2003)
For the alimony-payor, age definitely matters. The Florida supreme court says you are allowed to retire at age 65 and reduce your alimony on your 65th birthday. Pimm v. Pimm, 601 So. 2d 534 – Fla: Supreme Court 1992
Additionally, marital assets can be impacted by age. Often, a person’s largest asset is their 401k, IRA or other tax-deferred retirement account. A Florida court would be loath to force a withdrawal from one of those accounts if the holder of the account was under age of 59 1/2 as they would incur a 10% penalty under the law.
The division between marital and non-marital assets is more difficult when the parties are at greater ages. It is rare to perfectly isolate a non-marital asset and claim that the other party contributed nothing to the asset over 20 plus years, especially a house. Additionally, it is rare to have all the paperwork after 20 plus years to rebut the presumption that the asset is marital.
Unfortunately, with age comes illness. The possibility of terminal illness can dramatically effect a divorce. If you or your spouse die before the divorce is granted, the marital assets will be divided via the probate court not the divorce court.
Naples, Florida’s median age is 66.8 so age is often a factor in Collier County divorces and the Collier County judges will thoughtfully consider how your age will impact the outcome of your divorce. Contact my Naples, Florida family law office to learn more about what can and will happen in your pending divorce.