"Gray divorce" means divorce among people 50 and older. There is less time to rebuild savings, and decisions about pensions, maintenance, health coverage and Social Security can shape the rest of each spouse's life. This guide covers New York law, with notes on New Jersey.
How common is gray divorce?
In a 2012 study, sociologists Susan L. Brown and I-Fen Lin found that the divorce rate among adults 50 and older doubled between 1990 and 2010, from 4.9 to 10.1 per 1,000 married persons. Fewer than 1 in 10 people who divorced in 1990 were 50 or older; by 2010, more than 1 in 4 were ("The Gray Divorce Revolution," Journals of Gerontology: Series B).
Dividing pensions and retirement accounts
Pension rights and retirement savings earned during the marriage, up to the date the divorce action is started, are marital property. Savings from before the marriage can be separate if traced. While the case is pending, neither spouse may withdraw or transfer retirement funds, or apply for retirement benefits, without written consent or a court order, though a spouse already receiving payments may continue (Domestic Relations Law (DRL) § 236(B)(2)(b); see our article on automatic orders).
Pensions and the Majauskas formula
A pension is marital property to the extent it was earned between the marriage and the start of the divorce action (Majauskas v. Majauskas, 61 N.Y.2d 481 (1984)). Under the formula from that case, the other spouse receives a share of each payment when it is paid, based on the fraction of the employee's service that was earned during the marriage and before the action began.
For example, if 20 of a spouse's 30 years of service came during the marriage and before the case was filed, the marital fraction is two-thirds; if the other spouse is awarded half of the marital portion, that spouse receives one-third of each payment. Spouses can instead agree to a buyout based on a present-value calculation.
Survivor benefits need separate attention. Under federal law, a former spouse is treated as a surviving spouse for a private plan's survivor benefits "to the extent provided in any qualified domestic relations order" (29 U.S.C. § 1056(d)(3)(F)), so the order should address them.
401(k)s, IRAs and taxes
Employer plans such as 401(k)s and pensions are divided by a court order the plan accepts; for most private plans, that is a qualified domestic relations order, or QDRO. A distribution paid to a spouse or former spouse under a QDRO is exempt from the 10% additional tax on early distributions (26 U.S.C. § 72(t)(2)(C)), but it is taxable to the spouse who receives it unless rolled over (26 U.S.C. § 402(e)(1)).
IRAs are not divided by QDRO. An IRA, or part of one, can be transferred to a spouse or former spouse under a divorce decree, or a written instrument incident to it, without tax, and it becomes the receiving spouse's own IRA (26 U.S.C. § 408(d)(6)). Roth IRAs follow the same rule (26 U.S.C. § 408A(a)). The QDRO exception to the 10% additional tax does not apply to IRAs (26 U.S.C. § 72(t)(3)(A)), so a spouse under 59½ who withdraws cash from a transferred IRA may owe it.
Equitable distribution: fair is not always equal
New York distributes marital property "equitably," considering the circumstances of the case and of the spouses (DRL § 236(B)(5)(c)). Equitable means fair, not necessarily equal: a court can divide property unequally after weighing the statutory factors, and spouses can agree to an unequal split. Factors that can matter after a long marriage include "the duration of the marriage and the age and health of both parties," the loss of inheritance and pension rights, and "the loss of health insurance benefits upon dissolution of the marriage" (DRL § 236(B)(5)(d)). See our guide to equitable distribution.
The home. The spouse who keeps the house carries its costs on one income, so test that against a post-divorce budget. On a sale, you can generally exclude up to $250,000 of gain ($500,000 on certain joint returns) if you owned and used the home as your principal residence for at least two of the five years before the sale (26 U.S.C. § 121). If you received the home from your spouse in a tax-free transfer, your ownership period includes your spouse's (§ 121(d)(3)(A)). If you still own it while your spouse or former spouse is granted use of it under a divorce or separation instrument, you are treated as using it as your principal residence during that time (§ 121(d)(3)(B)).
Investments. Transfers between spouses in a divorce are generally not taxable, but the receiving spouse takes over the original cost basis (26 U.S.C. § 1041), so compare accounts after tax.
Spousal maintenance after a long marriage
New York: amount and duration
New York's guideline for post-divorce maintenance uses the payor's income up to $241,000 (effective March 1, 2026). With no child support being paid, the guideline is the lower of: 30% of the payor's income minus 20% of the payee's income, or 40% of combined income minus the payee's income. If the payor also pays child support, the first calculation uses 20% and 25%. A result of zero or less means zero (DRL § 236(B)(6)(c)). On income above the cap, the court may award more after weighing the statutory factors.
For example, with a payor earning $150,000, a payee earning $30,000 and no child support: 30% of $150,000 ($45,000) minus 20% of $30,000 ($6,000) is $39,000; 40% of $180,000 ($72,000) minus $30,000 is $42,000. The guideline is the lower figure, $39,000 a year, or $3,250 a month. Try your own figures in our support calculator, and see our guide to the $241,000 maintenance cap.
Duration follows an advisory schedule (DRL § 236(B)(6)(f)):
| Length of marriage | Advisory duration (share of the marriage's length) |
|---|---|
| Up to and including 15 years | 15% to 30% |
| More than 15, up to and including 20 years | 30% to 40% |
| More than 20 years | 35% to 50% |
For a 25-year marriage, that is 8.75 to 12.5 years. Several rules matter after 50:
- The court "shall take into consideration anticipated retirement assets, benefits, and retirement eligibility age of both parties if ascertainable at the time of decision." If they are not, the payor's actual full or partial retirement with a substantial drop in income is a basis to modify the award.
- The court may award "non-durational maintenance in an appropriate case."
- Maintenance ends when either spouse dies or the payee remarries.
- The factors include "the age and health of the parties," earning capacity, and "the availability and cost of medical insurance for the parties" (DRL § 236(B)(6)(e)(1)).
- The court may order the payor to keep life insurance naming the other spouse as an irrevocable beneficiary for a period it sets (DRL § 236(B)(8)(a)).
New Jersey: no formula
New Jersey has no alimony formula. The court weighs the factors in N.J.S.A. 2A:34-23(b), including the duration of the marriage and "the age, physical and emotional health of the parties." The statute lists four types of alimony: open durational, rehabilitative, limited duration and reimbursement; "permanent" alimony is not among them. For a marriage of less than 20 years, alimony generally may not last longer than the marriage, except in exceptional circumstances (N.J.S.A. 2A:34-23(c)). New Jersey also presumes, subject to rebuttal, that alimony ends when the payor reaches full retirement age; orders and agreements that predate the 2014 amendments follow a different standard (N.J.S.A. 2A:34-23(j)).
How maintenance is taxed
Federally, maintenance paid under an instrument executed after 2018 is not deductible by the payer or taxable to the recipient; older instruments keep the prior treatment unless a modification expressly adopts the new rule. New York did not follow that change: for post-2018 instruments, the payer subtracts the payments and the recipient adds them back on the New York return (Tax Law § 612(w)). New Jersey allows a deduction for court-ordered alimony. Confirm your treatment with a tax professional.
Social Security after a gray divorce
You may collect benefits on an ex-spouse's work record if the marriage lasted at least 10 years before the divorce became final, you are unmarried, you are at least 62, and your ex is entitled to benefits. If your ex has not applied but is eligible and at least 62, you must have been divorced for at least two continuous years.
The benefit can be up to half of your ex's full benefit if you claim at your full retirement age, and as little as 32.5% of it if you claim at 62. It does not reduce what your ex or your ex's current spouse receives. If your ex dies and the marriage lasted at least 10 years, you may qualify for survivor benefits as early as 60 (50 with a disability), and remarrying after that age does not end them. Because the 10-year test runs to the date the divorce becomes final, timing matters for marriages near that mark.
Health insurance before Medicare
Medicare generally begins at 65. Before then, a spouse covered under the other's employer plan needs a bridge:
- COBRA generally applies to plans of private employers with 20 or more employees. After a divorce or legal separation, a covered spouse can continue the plan for up to 36 months, at a premium of up to 102% of the plan's cost, if the plan is notified within its deadline, which cannot be less than 60 days.
- NY State of Health treats divorce or legal separation, and loss of coverage, as qualifying events for special enrollment; you generally must report the event within 60 days.
- A court order can require a spouse to provide health insurance for the other for no longer than the period of maintenance, child support or a distributive award (DRL § 236(B)(8)(a)).
During the case, neither spouse may remove the other from existing health insurance (DRL § 236(B)(2)(b)). Before the judgment, the court must make sure both spouses know they may lose coverage under the other's plan, and a settlement agreement must address each spouse's health coverage (DRL § 255). If either spouse has long-term care insurance, the agreement should say who will own and pay for it.
Update your estate plan and beneficiary designations
During the case, the automatic orders bar either spouse from changing the beneficiaries of existing life insurance and require both to keep existing policies in force (DRL § 236(B)(2)(b)).
After the judgment, unless a document expressly provides otherwise, a New York divorce revokes revocable provisions for the former spouse, including gifts in a will, transfer-on-death registrations, life insurance and (to the extent permitted by law) retirement plan beneficiary designations, and revocable trusts. It also revokes the former spouse's nomination as executor, trustee, guardian, agent or attorney-in-fact (EPTL 5-1.4). A spouse's appointment as health care agent is revoked by divorce or legal separation unless the proxy says otherwise (Public Health Law § 2985).
Employer plans follow their own documents. The U.S. Supreme Court has held that federal ERISA law preempts a state statute revoking a spouse's beneficiary designation on divorce, as applied to ERISA plans (Egelhoff v. Egelhoff, 532 U.S. 141 (2001)), and that a plan administrator properly paid the former spouse named in the plan documents despite her waiver in the divorce decree (Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, 555 U.S. 285 (2009)). After the judgment, file new beneficiary forms with each plan, unless your agreement requires you to keep your former spouse as beneficiary.
Is an uncontested divorce a good fit after 50?
When spouses agree, an uncontested divorce lets them decide these issues themselves, though the pension order and maintenance terms still need careful drafting. Our guide to uncontested divorce in New York walks through the steps. Neuhaus & Yacoob's fixed fees are $1,500 with no children, $2,000 with children, and $2,500 with real estate; court filing fees are not included, and payment plans are available. Timing varies by county and court workload. The clerk and judge review the papers before the judgment is signed, and many uncontested cases are completed within several months of the papers being submitted.
Frequently Asked Questions
How long does spousal maintenance last after a long marriage in New York?
New York's advisory schedule sets post-divorce maintenance at 35% to 50% of the length of a marriage of more than 20 years, 30% to 40% for more than 15 up to 20 years, and 15% to 30% for up to 15 years. The court may depart from it after weighing statutory factors, must consider anticipated retirement assets when known, and may award non-durational maintenance in an appropriate case.
Can I collect Social Security on my ex-spouse's work record?
Yes, if the marriage lasted at least 10 years, you are unmarried and at least 62, and your ex is entitled to benefits. If your ex has not applied but is eligible and at least 62, you must have been divorced for at least two continuous years. The benefit can be up to half of your ex's full benefit at your full retirement age, and it does not reduce your ex's benefit.
How is a pension divided in a New York divorce?
Pension rights earned between the wedding and the start of the divorce action are marital property. Under the Majauskas formula, the other spouse can receive a share of each payment based on the fraction of service earned during the marriage before the action began. The division is carried out by a court order the plan accepts, such as a QDRO, which should also address survivor benefits.
Will I keep health insurance through my spouse's plan after the divorce?
Usually not as a spouse, but COBRA generally lets a former spouse keep coverage under a private employer plan with 20 or more employees for up to 36 months, at a premium of up to 102% of the plan's cost, if the plan is notified in time. New York courts must make sure both spouses know they may lose coverage under the other's plan before the judgment is signed.
Does divorce automatically remove my ex from my will and beneficiary designations?
In New York, a divorce revokes many revocable provisions for a former spouse, including gifts in a will, revocable trusts and many beneficiary designations, unless the document expressly says otherwise. But employer plans governed by federal ERISA law pay whoever is named under the plan's documents, so file new beneficiary forms after the divorce is final.
Joel Yacoob represents spouses in New York and New Jersey in divorces after long marriages, including pension orders, maintenance and health coverage, and he handles every matter personally. If you agree on terms, see our fixed-fee uncontested divorce service; if support is disputed, see child support and spousal maintenance. To get started, complete our online intake form or call (718) 975-1123.
This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. The law changes and every situation is different; consult a lawyer about your own circumstances.
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