Reuters Money

There’s probably no great time to dissolve your marriage, but recent dips in the economy have especially played havoc on so-called “Gray Divorces” — break-ups between older people who have been married for decades.

Garbrielle Clemens, a Massachusetts attorney who specializes in the financial elements of divorce, says now that the economy is starting to improve she’s seeing increased filings for gray divorces from couples previously stuck in a holding pattern. And the one trend she’s seeing is women forgoing alimony in order to front-load money in case their ex-spouse can’t come up with the payments down the line.

“I’m finding a lot of women are not interested in alimony,” she says. “They don’t want to be subject to them every month being late or not paying what they should. So I’m seeing a lot of people saying ‘Give me an unequal amount of the property division and I’ll figure it out myself.’ And that’s been working basically well.”

Two of Clemens’s clients offer good case studies. Nancy Colgan, 64, wanted to avoid alimony in her split with her spouse of 38 years because she wanted to cut ties and her ex’s employment status seemed shaky. “I didn’t want him to try to get alimony from me,” she says. In fact, her husband did lose his job after their settlement went through, and she’s glad she set herself up as she did. But, she says, “The judge didn’t like it.” During the proceedings the judge told her she was making a mistake and wouldn’t put the settlement through until the next day so she could think about it some more. She doesn’t regret her decision.

Clemens notes: “You can put anything you want in an agreement but the question is, down the road can you enforce it?”

That rings true with her client Linda Powers. Powers decided to forgo alimony and just do a straight-up division of assets. But in this economy, even that kind of deal can be troublesome. She says her husband got the house and was supposed to pay her $50,000 a year for ten years to compensate her for her portion of the property. But, Powers says her ex-husband was employed in real estate and his income tanked; he started drawing on the equity in the house and stopped paying her completely. “That was supposed to be my income,” she says. Their fight continues in court. Her advice? “Settle your divorce as fast as you can. If your income is tied to your ex-husband, it’s still like you’re married to them.”

Justin A. Reckers, managing director of Pacific Divorce Management in San Diego, says the non-alimony route is uncommon in California, and it’s something that should be handled with great care based on the laws in your state. In Colgan’s case, he notes: “The court retains jurisdiction here forever, unless you tell them otherwise. Attorneys here think that the judge can always come back and modify a spousal support agreement. So, if that case happened in California, there’s a very good chance that her ex could come after her for spousal support.”

Reckers says when he sees alimony abandoned in favor of up-front payment, it’s often the idea of the person paying support. “They’re the ones who have to write the check, and they’re the ones who are going to be beholden for the rest of their lives, so they’ll try to front-load the support to get it out the way,” he says.

Again, Reckers emphasizes that where you live really matters. “In California spousal support ends upon the death or remarriage of either party,” he says. “So, in this case, with these women who want to get as much money up front as they can, the person who is supporting them on the other side is taking on a lot of risk because what if that person they are supporting gets remarried next year? They wouldn’t have to pay spousal support anymore, but now they’ve front-loaded spousal support that they wouldn’t have had to pay.”