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Divorce, Older Women And Alimony

In general, it is a great cause for celebration that most people today take women's professional competence, initiative and earning power for granted. There is one group of women, however, for whom this complement becomes an ironic and potentially nightmarish Catch-22. This group is composed of elderly women, women who were raised before the feminist movement of the '70's, who devoted themselves to the advancement of their husbands' careers, and who, when they undergo divorce in the 90's, are bewildered to discover that judges expect them to enter the work force at a relatively advanced age and begin to support themselves.

Husbands frequently argue that a man should not be expected to pay alimony beyond the age of 65. Even if he plans to continue working - and has recently demonstrated this intention by making living arrangements in reliance on continued work related income - the Court may order no alimony, under the assumption that the wife can and should make up the difference herself and the husband has the right to retire.

It is time to evaluate the assumptions which give rise to this troubling trend and assess them in light of the economic reality for women post childbearing years. Recent experience has shown that the awards of alimony in Pennsylvania often do not adequately reflect the factors for consideration set forth in the Divorce Code. The Divorce Code calls for an individual analysis of each case. However, many courts and Masters seem to make misinformed assumptions about the earning capacities and income potential of women past child bearing years and older and retired men. These assumptions frequently overestimate the earning capacities of older women and underestimate the income potential of older men and consequently lead the courts to less than equitable results.

The most common troublesome assumption concerns the earning capacity of older women. Contrary to what some alimony decisions imply, statistics reveal that the earning capacity for the majority of older women is quite low.

Women in midlife and older who worked full time year round earn less than two thirds the income of men in the same age group. Women after 55 up to age 64 earned 57.7% of the income of men in that age bracket, while women 64 and over earned 58.3% of the income of men. The average income for women 55 to 64 was $21,388, while men in that group earned $37,469. In the age category of 65+, a woman's average income was $19,194, while a man's income was $33,145. Higher education does not help to raise women's income levels relative to men's as the earnings for female and male college graduates were respectively $26,390 to $50,585 in the 55 to 64 age group and $23,377 to $44,424 in the 65+ age group. Furthermore, the average income for female college graduates aged 45 to 64 was only 92% of the average income of male high school graduates in that age range.

One reason that the average income of older women is so low is that they are mostly employed in the female "ghettos" of sales, service, and clerical jobs. Approximately 58% of women over 45 work in these three areas while 63.4% of women over 55 work in them. Even in a female dominated profession such as sales, older men are more likely to work in the supervisory and higher paying positions than older women. According to the United States Bureau of Census, only 22% of female sales workers over 45 acted as supervisors compared to 37.6% of men, and only 12.7% of women aged 45 to 54 worked as executives, administrators, or managers. In addition, more men often work in the higher ticket sales field, such as automobiles, which have higher commissions.

One reason that so many older women work in these professions is that they came of age and started working before the women's movement in the seventies encouraged women to have careers. As a result, they often do not have the training or education for higher paying jobs.They also lack the requisite experience as they often stayed home to raise children.

The fact that these older women stayed home hurts their future earning capacity or human capital. As one economist noted, "This reduction in human capital can occur when married women reduce their labor-market activities and increase their specialization in household production during marriage." While all displaced homemakers are hindered by a lack of recent and or paid work experience, women in their fifties are especially burdened. Frequently, they have been out of the work force for an even greater number of years and are not ever going to be able to obtain employment or to receive salaries comparable to the older women who have been working continually.

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Older women are frequently hindered in pursuing well-paid jobs in that they have to balance work with caring for elderly parents or relatives. Studies have shown that at least three out of four caregivers for the elderly are female.

Thus, the problems of older women in attaining employment can be seen as a result of the combined effects of sex and age discrimination. This connection between sex and age discrimination can be further illustrated by the fact that society and some employers judge women by their looks and consider younger women to be more desirable than their older counterparts. This form of discrimination may be another reason why women's earnings peak at an earlier age than men's. Women reach their highest earnings at age 44, while men continue to increase their income until age 55. In addition, women's earnings decline more sharply than men's.

Older women also face the prospects of lower pensions and more reduced benefits than do men after retirement. They are affected by past discrimination and inequities after they leave the workplace. Their lower earnings result in lower pensions and social security. The lack and disruptions of work of many women experienced because of child care responsibilities also hurts their chance of receiving an adequate pension. There is also some evidence that employers intentionally prevent older women from working enough hours to earn pensions as well as receive health care benefits.

In general, the pension coverage rate for women who work full time is 52% while for men it is 57%. In the retail and service industries where many older women work, the pension coverage is even lower. Today, only one in five women over the age of sixty-five receives a pension at all compared to almost half of men that age. The percentage of women who receive benefits is probably less today than when the just cited statistics were taken since the trend toward the use of temporary workers and the health care crisis have increased the number of uninsured.

With reference to the disposition of family residences, the older woman sometimes finds herself the victim of the court'sfailure to foresee the long term effects of their rulings. In particular, although courts may factor in the effect of the capital gains tax if the house is to be sold in the near future, they tend to ignore the tax effect on the sale of the residence when the house will be held for an indefinite period. The value of the house may, therefore, be substantially reduced by the unforeseen capital gains tax obligation.

Studies have also shown that elderly women are more reliant on income from Social Security than elderly men. Twenty percent or almost three times as many unmarried women 65 and older rely exclusively on Social Security for their income versus 7% of married couples in that age group. The same factors (such as low wages and reduced participation in the work force) which limit women's pension benefits also restrict their Social Security income. In May 1991, the average Social Security benefit for a working woman was $422, while the average benefit for a working man was $685. In addition, 72% of retired womenworkers draw their Social Security benefits early, thus reducing their benefits to about 80% of the amount that they would otherwise be entitled to. Low wages and lack of other sources of income (such as adequate alimony) seem to be the primary reasons why they would need to draw their benefits early. Clearly, a woman's Social Security benefits alone are not an adequate replacement for alimony. Unfortunately, many courts seem to believe otherwise, as they only award alimony until a woman is eligible for Social Security, despite the availability of other funds to the husband.

While the courts overestimate the income of older women in fashioning orders, they often underestimate the income potential of older and retired men. The courts frequently assume that every man sixty five and over is likely to be retired and no longer actively earning an income. However, many men, particularly those who are self employed, such as self-employed businessmen in small companies, manufacturer's representatives, lawyers or physicians with their own practices, have no set retirement age. Furthermore, it is a very important and almost universally ignored fact by masters and judges that even if men are retired, their social security benefits will be double that of their former wives if those former wives have not worked.

The fact that older women are likely to have a hard time earning an adequate income as well as the reality that more men can earn substantial incomes after age 65 suggest that courts should not make assumptions about these matters, but rather consider each case on an individual basis as the Divorce Code requires. In addition, the courts should not consider Social Security benefits to necessarily be an equal replacement for alimony nor cut off spousal support before age 65. Further there should be a recognization of the impact that the years a woman stayed at home can have on her retirement benefits as well as her wages. It is only under these circumstances that equitable settlements can be achieved.

Please contact Elizabeth Bennett, Esq. for a consultation.

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I conveniently represent clients in the Bucks, Chester, Delaware, Montgomery, and Philadelphia Counties, the towns of Wayne, Radnor, Philadelphia, King of Prussia, Paoli, Devon, Berwyn, Newtown Square, Villanova, Bryn Mawr, Haverford, Ardmore, Lower Merion, Media, Wallingford, and Swarthmore, and throughout Pennsylvania.


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