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Recent studies show that 1 in 4 divorces involve people 50 and over. Naturally, divorce for individuals in their 50’s can have very different considerations and implications than that of a divorcing couple in their 20s, 30s, or even 40s. A prime example is related to children and their involvement in the divorce. In many cases child custody, visitation, and child support are non-factors or not nearly as intergral a component of the divorce as they would be for younger couples, because the children are already grown, or close to it, and past the age where they are in need or entitled to financial support. Some other very important points of discussion and often contention include alimony and equitable distribution due to the fact that couples in their 50’s are likely to have amassed more wealth and acquired more valuable assets. In a “gray divorce”, alimony and equitable distribution are often more complex in these types of divorces, and we discuss what can be done to provide quality counsel, informed clients, and a fair resolution of these issues.


Townsend, Tomaio & Newmark is a well equipped family law firm located in Morris County. Their Divorce and Family Law attorneys have the experience to take on the most contentious divorce situations, and handle the critical issues that can arise in any divorce. Their firm has built a solid reputation by helping countless clients of all ages and from all walks of life. This Family Law Team collectively has the knowledge and resources to provide quality counsel to high profile individuals, high net worth couples, and business owners. If you are ready to move forward, they can walk you through the process of your “Gray Divorce”.


Division of retirement plans such as 401k’s is, in and of itself, are a complex and unique divorce issue. When it comes to 401k plans, courts take various factors into account when deciding if and how the plan should be divided.

Duration of Marriage

The first factor the court will consider is the duration of the marriage. The most important piece of information involves what was put into the retirement account during the marriage and by whom? In many cases dollars invested in a retirement plan prior to the marriage would not be subject to equitable distribution. In the converse situation, when monies are deposited into the 401k during the term of the marriage by either spouse, in personally held account a plan managed by an employer, those funds and profit would be factored in as division of assets under equitable distribution.  In New Jersey divorcing spouses are legally entitled to up to fifty percent of what was put into the 401k during the marriage. During the marriage is defined as being from the date of marriage until the date of the divorce complaint is filed.

Qualified Domestic Relations Order

Once this amount is finalized, the court will sign your judgment of divorce containing this information. It will then be the responsibility of your attorney to draft a Qualified Domestic Relations Order (QDRO) that tells the administrator the details of the retirement plan, and most importantly, how it should be divided in order to comply with the Employee Retirement Income Security Act. A family court judge must then approve and sign the QDRO, which will then require approval from the plan administrator, and at that point the QDRO establishes the individual who was not the “owner” of the account as an “alternate payee” on the plan.

Withdraw Against 401ks Early and be Penalized

Almost every type of retirement fund, if withdraws are made prior to the maturity date and not paid back within the legal time-frame, carries penalties that are quite aggressive. Most financial advisers strongly suggest any individual or couple avoid these penalties at all costs. With that said, certain types of retirement funds qualify for a Qualified Domestic Relations Order, which allows for penalty-free or penalty-reduced withdrawal. It is important to work with an experienced equitable distribution attorney in order to educate yourself and understand your rights as it relates to retirement plans that qualify, how to secure a QDRO, and the best ways to equitably divide retirement assets.


Another important consideration in a “gray divorce” is that of open duration alimony. In NJ, alimony can only be awarded for as many years following a divorce as the marriage itself lasted, unless the marriage lasted for 20 or more years. While not every “gray divorce” will involve a marriage of 20 or more years, many will. If a marriage lasted for more than 20 years, financially dependent spouses can petition the court for open duration alimony. Open duration alimony will last until either party passes away or the dependent party remarries.

Change of Circumstances vs Open Duration

However, if for any reason circumstances change substantially for either party after the open duration alimony agreement is reached, the agreement can be modified, either an increase in alimony obligations or a decrease can be ordered by the court, depending upon the circumstances. For this reason and others it is crucial to have an experienced and skilled attorney as your advocate.

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Disclaimer: This website and information presented are for the purposes of legal marketing and general education. No part of this site should be construed as legal advice. Please consult with an attorney regarding your specific situation. © 2018 Townsend, Tomaio & Newmark, L.L.C.