A guide for retirees and near-retirees navigating a golden divorce in Texas, from Hargrave Family Law

These are supposed to be the golden years, a time to enjoy what you’ve built, not spend it in conflict. If you’re divorcing after 65, the playbook is different. You’ve spent your life building assets and relationships, you now know the most important asset you have is your time, and you are not interested in wasting time and money arguing over inconsequential decisions. However, you also know that the decisions you make during divorce will impact the quality of the life you have remaining. You’re not dividing a starter house and a car loan. You’re dividing decades of retirement savings, a home you may have owned for 30 or more years, a pension you’re already collecting, and a retirement and Social Security benefit that took a lifetime to build. And let’s face it, there’s also less runway to recover financially than there was at 35.

The purpose of this guide is to provide an overview of the general framework for dividing assets, and it addresses issues common to people divorcing near or after retirement. This is not a substitute for legal advice, but is provided for educational purposes as you gather the information you need to make strategic decisions. Here are the issues that matter most for retirees going through a Texas divorce, including the questions that are worth asking early.

What Matters Most in a Texas Divorce After 65?

Key Takeaways

• Texas courts can divide pensions and retirement accounts, but a pension already being paid requires a separate court order (often a QDRO) before the plan will pay a former spouse.
• Social Security cannot be divided by a Texas court, but a former spouse married at least 10 years may qualify for benefits on the other spouse’s record.
• Selling the marital home while still married may allow up to $500,000 in capital gains to be excluded, compared to $250,000 for a single filer.
• Court-ordered spousal maintenance in Texas is limited, but it can continue indefinitely when a spouse has a qualifying disability.
• Proving separate property after a long marriage requires clear and convincing evidence, so gathering records early matters.
• Wills, powers of attorney, and beneficiary designations usually still name your spouse until the divorce is final.

Should You Sell the Marital Home in a Later-Life Divorce?

Whether to sell the marital home in a later-life divorce depends on separate property claims, capital gains taxes, and your own emotional and practical needs. Selling before the divorce is final may preserve a larger tax exclusion.

The decision on whether to keep the marital home or sell it is one of the biggest decisions many divorcing couples contemplate, regardless of age. However, when you have been married a long time and you’ve lived in the same house for many years, there are consequences you need to consider.

First, was there a separate property contribution to the home? This would involve contributing funds either prior to marriage (e.g., one party bought the house before marriage) or during the marriage (e.g., one party may have used separate funds to contribute money to the purchase or to a renovation). In either case, whether separate property was contributed prior to the marriage or during the marriage, know that if you are the one asserting separate property interests, it will be incumbent upon you to have the documentation necessary to prove your separate property claims. This can be challenging in a long-term marriage, where the transactions may have occurred more than ten years ago and the documents disposed of. It’s good to know at the outset whether this is a claim your spouse will agree to, or whether you will have to locate the records necessary to prove up your separate property claims.

Many couples who purchased real estate more than ten years ago are facing capital gains taxes. The capital gain from your marital residence is generally excludable up to $250,000 if you are single, or up to $500,000 if you are married. That means if you sell your home for $600,000 more than what you paid for it, you could be facing capital gains taxes on $100,000 if you sell it as part of the divorce (while you are still married), or on $350,000 if you keep the house and sell it after the divorce is over. This decision may result in a significant tax bill and should be considered when weighing your options. As with everything, there are exceptions, and you are wise to consult with real estate, tax, and divorce professionals to understand what this will mean in your unique situation.

Understandably, for many people the value of the marital home is more than equity or taxes. The decision to relocate from a home you’ve built a life in can also mean incredible emotional upheaval, as well as added expenses in preparing the home for sale, packing up a lifetime of memories, and finding a new place. For some, this is a welcome change, but for many it is one of the most difficult aspects of a divorce at any time, and more poignantly later in life. It’s a good idea to talk to your attorney about possible options when it comes to selling your marital home that may give you additional time to make this transition, if that’s a concern to you. There is often flexibility in the timing and negotiation of the sale of the marital residence that is worth consideration, as well as making sure you have sufficient resources to make the move. On the flip side, if your spouse is the one who wants to keep the house and you are ready to get it sold, showing flexibility on this issue may build goodwill and help you achieve other goals during negotiations that are more important to you.

How Is Investment or Rental Property Handled? The 1031 Exchange Question

If your estate includes investment real estate, a Section 1031 exchange may let you defer capital gains tax, but the timing of the sale relative to the divorce can determine whether that option is still available.

If part of the estate includes rental property, land, or other investment real estate, a like-kind exchange under Section 1031 of the tax code lets an owner sell investment property and roll the proceeds into another investment property without paying capital gains tax right away, as long as strict timelines and rules are followed.

In a divorce, this becomes both a timing and structuring question. If the property is going to be sold and divided as part of the settlement, doing that before the divorce is final, versus after one spouse already owns it outright, can change who’s responsible for the tax and whether a 1031 exchange is even available to preserve. If one spouse wants to keep the investment property and eventually exchange into something else, that intention should be spelled out clearly in the settlement so it doesn’t get lost. This is squarely a conversation for your tax professional working alongside your attorney, because the exchange rules are technical and unforgiving of mistakes.

How Is a Pension Divided When It’s Already Being Paid?

A pension already being paid can be divided in a Texas divorce, but the plan will only pay a former spouse after it receives a separate qualified court order. How that order is drafted affects what happens if either spouse dies.

If one spouse is already retired and drawing a pension, dividing that pension is not as simple as splitting a savings account. Federal law generally requires a separate court order, known as a Qualified Domestic Relations Order or QDRO, before a pension plan will pay any portion of a benefit to a former spouse. A mention in the divorce decree is not enough by itself. The plan needs its own qualified order, and plan administrators will not act without one.

Because the pension is already in “pay status,” the settlement should address the specifics of what is being divided:

• Should the former spouse receive their share as a separate, lifetime payment (a “separate interest” approach), or should they share in the same payment stream as the retiree (a “shared payment” approach)?
• What happens to the former spouse’s share if the retiree dies first? And what happens to the retiree’s payment if the former spouse dies first? These outcomes can differ enormously depending on how the QDRO is drafted.
• Is a survivor benefit election available, and who pays for it?

These details are easy to get wrong and expensive to fix later. A QDRO for a pension already in pay status should be drafted by someone experienced with that specific plan’s rules, and it should be finalized and submitted promptly. Delay is one of the most common ways people lose benefits they were legally entitled to.

Can a Texas Court Divide Social Security in a Divorce?

No. Texas courts cannot divide Social Security, but a former spouse who was married at least 10 years may be able to claim benefits on their ex-spouse’s earnings record without reducing the ex-spouse’s benefit.

Texas courts cannot award a share of your Social Security benefit to your former spouse, and your former spouse’s Social Security cannot be awarded to you. Social Security is governed entirely by federal law, and it sits outside the property division in a divorce. That said, it’s still a major piece of retirement income, and understanding how it works after a Texas marriage matters:

• If you were married at least 10 years, you may be able to claim a spousal benefit on your ex-spouse’s earnings record, worth up to half of what they’d receive at their full retirement age, even though the court has no power over it.
• You generally must be at least 62 years old to claim a benefit on an ex-spouse’s record.
• Claiming a benefit on an ex-spouse’s record does not reduce what your ex-spouse receives, and does not require their cooperation once you’ve been divorced at least two years.
• You generally must be unmarried to claim on an ex-spouse’s record, and remarriage typically ends that eligibility (with some exceptions for survivor benefits later in life).
• If you and your ex were married just under 10 years, the timing of when the divorce becomes final can matter enormously to your future benefit eligibility. This is worth flagging to your attorney early, not discovering after the fact.

Because the court can’t touch this benefit, it sometimes gets ignored in settlement talks. However, it’s real potential retirement income, and knowing what you’re entitled to (or not) should factor into how you negotiate everything else.

For example, in one divorce, the wife had not worked outside the home. The husband had a pension that could be divided, and he was also receiving Social Security income. While the wife was entitled to a Social Security benefit as well, it would be half of what he received. The parties agreed that the wife would receive more of the pension to equalize the disparity in the Social Security benefit, so that they would each receive the same monthly benefit.

Just because Social Security will not be addressed in the Final Decree of Divorce doesn’t mean it can’t and shouldn’t be part of the settlement discussions.

Can You Receive Spousal Maintenance in Texas After a Long Marriage?

Court-ordered spousal maintenance in Texas is limited by statute in both amount and duration, but it may continue indefinitely if a spouse has a disability that prevents self-support. Spouses can also agree to contractual alimony outside those limits.

Texas is one of the more restrictive states when it comes to court-ordered spousal support. There’s no automatic right to it just because one spouse earned more or the marriage lasted decades. Rather, a spouse has to affirmatively qualify under specific categories set out in Chapter 8 of the Texas Family Code, and even then the amount is capped at the lesser of $5,000 a month or 20% of the paying spouse’s average gross monthly income. Duration is capped too, generally 5 to 10 years depending on how long the marriage lasted.

The exception that matters most for older clients is disability. If a spouse has a physical or mental disability that substantially prevents them from being self-supporting, court-ordered maintenance can continue indefinitely, for as long as the disability lasts, subject to the court’s ongoing review. Outside of the statutory categories, spouses are also free to negotiate their own support arrangement as part of a settlement, known as contractual alimony, which isn’t bound by those same caps or duration limits. This flexibility is one more reason a negotiated settlement often serves an older couple better than waiting for a judge to apply the statute.

What If Your Spouse’s Health or Mental Capacity Is a Concern?

A spouse’s health can affect property division, spousal maintenance, and whether they have the legal capacity to sign a settlement. If cognitive decline is suspected, raise it with your attorney at the start of the case.

We see this often enough that it’s worth naming directly: a spouse comes to us exhausted, describing a partner of 30-plus years who has become suddenly volatile, withdrawn, or is drinking far more than they used to. Sometimes that turns out to be the first visible sign of an underlying and previously undiagnosed condition, such as early dementia, Alzheimer’s, or another cognitive or mental health issue, rather than a simple change in temperament.

A diagnosis, or even a strong suspicion of one, usually doesn’t change someone’s decision to move forward with divorce, and it shouldn’t have to. But it can matter a great deal to how the case is handled. A spouse’s health and disability are factors a Texas court can weigh in dividing the marital estate, and they’re also directly relevant to some of what’s already been covered above: whether spousal maintenance is available, who should hold powers of attorney, and how urgently the estate planning pieces need to move. If dementia or another cognitive condition is suspected, it’s also worth raising early whether the affected spouse has the capacity to understand and sign settlement documents. In Texas, if a spouse is mentally incapacitated, a guardian may need to be appointed through the probate courts. This is usually a separate and fairly complicated legal proceeding, and it will require the guidance of another attorney with that specific expertise. If you believe your spouse’s mental capacity may be an issue, make sure you discuss this with your legal team at the beginning of your case so they can provide better guidance as you contemplate your options.

What Estate Planning Should You Update When You Divorce?

Until your divorce is final, your existing will, powers of attorney, and beneficiary designations likely still name your spouse. Review them with your attorney before filing, since some changes may be restricted once the case begins.

This is the piece people are most likely to skip, and it’s one of the most important for older clients. A divorce in Texas can take months, sometimes longer. During that time, you are still legally married, which means your existing will, medical power of attorney, financial power of attorney, and beneficiary designations are almost certainly still pointed at the same spouse you’re divorcing.

People do become incapacitated or pass away during a divorce. If that happens before the decree is final, your soon-to-be-ex may still be the person legally authorized to make your medical decisions, control your finances, or inherit under your existing estate plan, not because that’s what you’d want, but because no one updated the paperwork. At the very start of the case, or even before, it’s worth reviewing:

• Medical and financial powers of attorney, naming a trusted adult child, sibling, or friend instead, at least for the duration of the case
• Your will and any trust documents
• Beneficiary designations on life insurance, retirement accounts, and payable-on-death accounts
• HIPAA authorizations, so the right people can get medical information if needed

Both Texas law and your specific settlement agreement may place some limits on what you can change while the divorce is pending, so this is a conversation to have with your attorney before you file for divorce, not something to defer until the case is over.

How Do Adult Children Fit Into a Later-Life Divorce?

Adult children are not part of a custody case, but they often have emotional and financial stakes in a parent’s divorce. Deciding their role deliberately helps protect those relationships.

When a divorcing couple has been married 25, 30, or more years, the adult children aren’t caught in a custody dispute. However, as adults, they often have strong opinions, financial concerns of their own, and entrenched memories that affect how they feel about the divorce. Their influence shows up in ways younger-couple divorces don’t usually see:

• Adult children sometimes advocate strongly for one parent over the other, which can add emotional tension to negotiations that are already difficult
• They may have real financial stakes, such as an expectation of inheritance, a family business they work in, or a home they assumed would eventually be theirs
• They’re often the ones parents lean on for transportation, housing during the case, or even emotional support, which can blur boundaries around confidential settlement discussions
• Estate planning changes (see above) frequently involve naming an adult child as an agent under a power of attorney, which itself needs to be discussed as a family, not sprung on them

None of this means adult children should be excluded from every conversation, but it’s worth thinking through deliberately what role, if any, they play in the process, rather than letting it happen by default and having to do damage control in your relationships later. Also, while adult children can be an incredible support for some during the divorce process, it’s also important to make sure you have other support systems in place to help you navigate this transition, such as a therapist, friends, church community, extended family, and of course a legal team that cares about your wellbeing. Leaning solely on adult children during divorce can lead to fractured relationships and resentment with those you love most.

How Do You Prove Separate Property After Decades of Marriage?

In Texas, all property is presumed to be community property, and separate property must be proven by clear and convincing evidence. After a long marriage, tracing the records is often the hardest part.

Texas is a community property state. Under the Texas Family Code (Section 3.003), everything either spouse owns at the time of divorce is presumed to be community property, and that presumption is strong. Separate property is defined as property you owned prior to marriage, or property you acquired during the marriage through inheritance or gift (e.g., that wedding ring). If you want a court to recognize something as your separate property, you have to prove it by “clear and convincing evidence,” which is a notably higher bar than what’s required in most civil disputes.

This is where long marriages create a real problem. Proving separate property means tracing an asset’s history and showing, with documentation, when the asset was acquired or where the money came from and how it moved over time. After 25 or 35 years:

• Bank and brokerage statements from decades ago may no longer exist. Some institutions don’t keep records that far back, and paper statements get lost in moves, floods, or simple decluttering
• Accounts get merged, closed, and reopened many times over a long marriage, breaking the paper trail
• Inherited money often gets deposited into a joint account “just for convenience” and then spent down and rebuilt many times, making it hard to show what remains traceable to the original inheritance
• The institutions themselves may no longer exist. Banks merge, brokerages get acquired, and old account records don’t always transfer cleanly

None of this means separate property claims from a long marriage are hopeless, but it does mean starting early matters. A financial professional who specializes in asset tracing can sometimes reconstruct a paper trail using tax returns, old title records, and account histories even when statements are missing. The earlier this work starts, the more options there are and the better the chances for success.

One thing worth noting is that even if you don’t have every statement from every month since the date of marriage, oftentimes when we are negotiating a settlement in divorce, agreements can still be reached about what is your separate property. This is especially true when both parties came into the marriage with some assets. However, make sure you discuss this with your attorney to get their thoughts and ideas about how to assert and protect your separate property claims.

Do You Have to Go to Court? Collaborative Divorce, Mediation, and Negotiation

Most Texas divorces settle outside the courtroom through collaborative divorce, mediation, or attorney-led negotiation. A settlement allows more flexibility than a judge can order.

Not every divorce has to be resolved in front of a judge, and for a lot of the issues above, it usually shouldn’t be. Texas offers a few different paths for divorcing spouses, and which one fits best often depends on how complex the estate is and how much conflict is already in the relationship.

Collaborative divorce is a structured, out-of-court process created under its own chapter of the Texas Family Code (Chapter 15). Each spouse retains their own attorney, but instead of preparing for trial, everyone signs an agreement to negotiate together directly and works toward a settlement as a team. For couples who want it, that team can also include a neutral financial professional, who helps both spouses understand and organize complex assets like retirement accounts, business interests, or property that needs tracing, and a neutral mental health professional, who helps manage communication so the emotional baggage of a 30-year marriage ending doesn’t derail the path to resolution. Neither neutral advocates for one side. Rather, their job is to help both spouses make informed decisions together.

Mediation is a different tool, and it is where the large majority of cases, collaborative or not, end up getting resolved. A neutral mediator meets with both spouses, usually alongside their attorneys, and helps them work through the issues that are still contested. It’s typically less formal and less expensive than trial, and it gives both spouses a direct hand in shaping the outcome rather than leaving it to a judge who is meeting the family for the first time. In Dallas and across North Texas, it is customary for the parties to set aside a full day with the mediator. The parties are usually separated, with each having a separate room (or “Zoom room” for virtual mediation) where they are with their respective attorneys. The mediator goes back and forth between the rooms, which usually allows each party to feel more at ease than they would sitting in the same room with their spouse and opposing counsel.

Attorney-led negotiation is another option, where each spouse’s attorney handles the negotiations, presenting proposals back and forth as issues are narrowed down and an acceptable settlement is reached.

The reason we bring these up is that when a case settles, whether through collaborative divorce, mediation, or straightforward negotiation between attorneys, there are far more options on the table for dividing the estate than a court can order. A judge is limited by what the law allows. Two spouses who reach their own agreement can structure the house sale, the pension, the maintenance, and all the rest of the issues in a way that actually fits their specific situation. For the issues covered in this guide, that flexibility is often exactly where the real value is: the freedom to craft a solution that works for both of you.

Where to Start

Every one of these issues is better resolved with a solid strategy built with someone experienced in bringing these types of cases to a conclusion. If you’re thinking about divorce during your golden years, or are already in the middle of one, it’s worth having a conversation with a skilled divorce attorney about which of these issues apply to your situation before decisions get made that are hard to undo.

These Are Still Your Golden Years

Whether you made the decision to divorce or your spouse did, this is a door that opens a new chapter, not the end of your story. You’ve spent decades learning what actually matters: you know which battles are worth fighting for, and which ones are okay to let go of, even when it’s hard. That clarity is worth quite a bit, and it will guide you well. It’s what lets you protect the house, the pension, and what’s important to you, without losing yourself in the process.

Make these days count. The time and energy you don’t spend on conflict is time and energy you get to spend on the people and pursuits that make this stage of life worth living. Handled well, this change can open up real opportunities for owning the decisions about how you spend your time, who you spend it with, and what the next chapter looks like. All on your own terms.

Frequently Asked Questions About Divorce After 65 in Texas

Can my ex-spouse get part of my Social Security in a Texas divorce?

Texas courts cannot divide Social Security, as Social Security benefits are governed by Federal law. However, if you were married at least 10 years, your former spouse may be eligible for their own benefits based on your record, and their claim does not reduce the social security benefits you will receive.

How long do you have to be married to receive Social Security on an ex-spouse’s record?

Generally at least 10 years. The claiming spouse typically must also be at least 62 and currently unmarried, and if the ex-spouse hasn’t yet claimed social security benefits, the divorce must usually be at least two years old.

Can a pension be divided if my spouse is already retired?

Generally, the community property portion of a pension earned during the marriage can be divided even after payments have started. The defined benefit plan requires a separate qualified court order, and options (such as electing survivor benefits) may be more limited once the pension is in pay status. Plans vary widely and it is important to make sure you have your plan documents reviewed by an expert who can advise you regarding the specifics of the pension plan in your matter.

Is property always split 50/50 in a Texas divorce?

Not necessarily. Texas courts divide community property in a way that is “just and right,” and courts may consider factors such as each spouse’s age, health, earning capacity, and separate estate.

Is alimony available in Texas for older spouses?

Court-ordered maintenance is available only in limited situations and is capped in amount and duration. A qualifying disability can extend court ordered maintenance, and spouses can also agree to contractual alimony as part of a settlement. In most situations, it is preferable to first see if you can accomplish the support necessary through the division of assets as opposed to a monthly payment post divorce, as this provides more economic independence. When that’s not possible, then court ordered maintenance may be necessary.

Should I update my will and powers of attorney before filing for divorce?

It’s wise to review them with your attorney before filing. During your divorce, there may be restrictions on changes that can be made once the case is pending.

Hargrave Family Law helps high-earning spouses in the Dallas area navigate divorce with an eye toward minimizing conflict and protecting long-term financial security. If any of this resonates with your situation, we’d welcome the chance to talk it through with you. Schedule a complimentary case evaluation at HargraveFamilyLaw.com. We’re here to help.