Florida’s reputation as a retirement haven combined with record numbers of baby boomers retiring has resulted in senior communities springing up all over the state. According to an analysis of recent U.S. Census Bureau data, more seniors flocked to Florida than any other state in 2023. This report also stated that a record 21% of all Florida residents are over 65. While divorce rates overall have fallen in the United States, the divorce rate among those 65 and older has tripled in the past 30 years. As a result of this dynamic, my divorce practice has evolved from representing parents with children to spouses with retirement assets and no kids. I’ve become an expert in valuing and distributing pensions, 401Ks, IRAs, annuities, employee stock plans, homes, real estate and family businesses. The following is a list of concerns and recommendations for seniors who want a divorce or those confronted with a spouse seeking to dissolve the marriage.
- Educate Yourself About Divorce Law in Florida. The first step in the divorce process is to educate yourself. Whether reading blogs or articles online or books from the store, you need to determine what you’re up against. Each state has its own divorce laws. If you got divorced previously up north before you moved to Florida, chances are the laws are different. You need to read up on issues such as division of assets and liabilities, social security and alimony. You may have a prenuptial agreement or need to know who gets to keep the marital home. It’s a good idea to research your particular issues before speaking with an attorney. Being educated will make your consultation with the attorney more productive.
- Residency Requirement. Florida requires you or your spouse be a resident of the state for at least six months before filing. Determining whether Florida has jurisdiction can be complicated if the parties or one of them spends half the year here and the other half in another state. Also, a party’s mere physical presence in this state for six months without the intention to remain may not qualify as residency. In the typical case, however, both parties live together in Florida and thus residency is not an issue.
- Where in Florida can you File for Divorce. If married people are living separate in two different counties, a question arises as to which county is the proper venue for the divorce. Florida’s venue statute allows a person to sue for divorce in the county where his or her spouse lives or in the county where both parties last lived as husband and wife with the common intent to remain married. The spouse filing the divorce has the choice of venue, and it can’t be changed by the other spouse unless the other can prove it’s an inconvenient forum. This is inconvenient forum principle is much harder to prove than it sounds.
- Florida is a No-Fault Divorce State. The days of having to prove adultery, mental or physical abuse or abandonment as grounds for your divorce are long gone. In Florida, all that is required is for one party to allege that the marriage is irretrievably broken. Periodically I get prospective clients in my office who tell me that their spouse “won’t give them a divorce.” It only takes one to tango in Florida. Your spouse cannot prevent you from getting a divorce if you want it.
- Speak with a Family Member or Other Confidant. While you should get your legal advice from your divorce lawyer, it’s important to have a family member or friend to confide in about your situation. About half of my prospective clients bring someone with them to the initial consultation. This person should be a steady voice of reason not someone full of vitriol and hatred for your spouse. If you’re older and have children from a previous relationship, one of them could be a good candidate. Otherwise, a sibling or longtime friend might best fill this role. It’s important that you not feel alone in this process and that you have someone who is clear eyed and level headed to help you make critical decisions. If, for example, you’re not good with numbers, then enlist someone who can help you understand your marital finances and the proposals being made to divide them.
- Be Prepared to Get a Divorce. Before you discuss divorce with your spouse or as soon as you learn that you spouse intends to divorce you, you should start gathering documents and information. These documents include but are not limited to birth certificates, marriage certificates, prenuptial agreements, bank, investment and retirement account statements, tax returns, deeds to property, insurance policies, titles to autos and boats, credit card statements and records regarding a family or closely owned business. Personal financial statements prepared for the bank are a great source of information. Ideally, you should secretly make copies of the above documents and return them to the file cabinet. The task of marshalling these documents can be complicated if your spouse maintains most of them on his or her computer to which you don’t have access.
- Have a War Chest. Your previously generous spouse may all of the sudden tighten the financial screws when divorce gets mentioned. The number one thing you should do to prepare for divorce is get your hands on some money. Contested divorces can be expensive. The process can sometimes last up to a year. During that time, you spouse may try to put the economic embargo on you. A good rule of thumb is to make sure you have enough money to pay your monthly bills and legal expenses for up to six months. If you have joint accounts, I recommend only taking half of the account balances and placing the funds in an account in your name alone with a new bank. If all of the marital monies are in your spouse’s name alone, you might consider taking money from a home equity line or getting a cash advance on a credit card.
- Secure Your Accounts and Credit Cards. As mentioned immediately above, I suggest you take 50% of all joint funds and put them in a new account in a completely different bank. I recommend this because banks nowadays “link” accounts so your spouse might be able to claw back some or all of the money you moved. I also suggest you move all of the funds from your individual accounts to another account. The point of all of this isn’t to hide the money, but to secure it so you can pay your bills during the pendency of the divorce. If your spouse is an authorized user on your credit card, it’s a good idea to cancel the authorization or simply close the credit card. I understand the inconvenience of all of this if your paycheck or social security is being auto deposited in the account or if you have bill pay set up. However, in my forty years of practicing, I’ve seen all kinds of nightmare scenarios with misbehaving spouses.
- Protecting Your Valuables and Personal Effects. The annals of divorce history are replete with stories of dysfunctional people who destroyed their spouses baby pictures, high school year book or family heirlooms. While this is the exception and not the rule, I strongly recommend you take possession of your important documents and personal effects and move them to another location to which your spouse has no access. This advice applies to jewelry and cash as well. These inanimate objects have a way of disappearing. And your spouse allegedly has no idea what happened to them.
- Videotape the Contents of the Home. As discussed above, items of tangible personal property, that is your stuff, have a way of disappearing when the crap hits the fan. It’s a good idea to use your cell phone to video the contents of the home and its condition before things get heated. You should videotape furniture, paintings, artwork, sporting equipment, tools and anything else of importance.
If you’re thinking about getting divorced or if your spouse has announced that he or she wants a divorce, you should consult with an experienced divorce attorney in Daytona Beach, Ormond Beach, Port Orange, Flagler Beach, Palm Coast, Deland or Volusia or Flagler County. I’ve been representing spouses over age 55 in east central Florida for years. Whether you call it a senior divorce, silver divorce, gray divorce or over 55 divorce, older couples face far different challenges than younger people in a Florida divorce. You need an attorney who is well versed in divorce law regarding social security, pensions, retirement accounts, marital homes, long term care and wills, trusts and probate. I’m board certified in divorce and family law, which means I’m one of only four such board certified lawyers in Volusia and Flagler counties. Let my experience work for you. I can be reached at PaulRice@RiceLawFlorida.com or at 386-257-1222.
Paul E. Rice, Jr., Esquire
Board Certified Divorce & Family Law
