Seated on couch hunched old man looking desperate and lonely - Gray divorce concept

According to numerous sources, the divorce rate among couples over 50 has nearly doubled since the 1990s. The phenomenon has become so prevalent, there’s a term for it: gray divorce (or grey divorce). Gray divorce often involves couples who married young and stayed married for decades, but it may also involve couples in a second or third marriage, or couples who married for the first time later in life.

There are many reasons for the trend, from less stigma associated with divorce than in the past, to people realizing that their remaining years are precious and they don’t want to spend them with their current spouse. Of course, if you are considering getting divorced later in life, or your spouse has asked for a divorce, the only reason that matters is yours. Gray divorce is no less difficult or painful just because it has become more common, and if you are facing a divorce after 50, you will face unique challenges. The purpose of this article is to help you anticipate and prepare for them.

Challenges of Gray Divorce

Issues that arise in a gray divorce typically fall into one of three categories: relational/emotional, legal or financial. Most people focus on the financial and legal issues and underestimate the emotional impact their divorce will have on them and their families. While money certainly is important, many people are blindsided by the emotional and relationship difficulties that arise, so let’s discuss those first.

Emotional and Relational Issues in Divorce After Long-Term Marriage

Divorce is like a road trip: it works best if both people are involved in the planning and agree on the route, but that’s not always possible. If you are the spouse who is filing for divorce, you probably thought about it for months or even years before uttering the word “divorce” out loud. During that time, you’ve come to terms with the end of your marriage, and probably imagined and planned for your future.

You probably didn’t want to hurt your spouse by talking about divorce until you were sure. But keeping your ideas to yourself is like choosing a route, packing the car up before dawn, then rushing into the house to shake your spouse awake and tell them it’s time to leave on your trip. Your spouse is going to be shocked, disoriented, afraid, and probably angry. And very likely, they may dig in their heels and resist going where you’re trying to take them.

If you are considering divorce after 50, you may want to think about relationship counseling first. It may or may not save your marriage, but if it doesn’t, it will help you and your spouse get on the same page about what needs to happen next and make the divorce process smoother.

Many people “stay together for the sake of the kids” and put off divorcing until their children have graduated high school. Doing so avoids disputes over child custody and child support, but it can’t prevent child-related issues altogether. Even adult children have strong feelings about their parents’ relationship and family traditions. Your divorce may simply reflect the evolution of your relationship, but it may make your children question whether their happy family memories are even real.

If one spouse doesn’t want the divorce, or one spouse committed adultery or other misconduct that led to the divorce, adult children could feel compelled to choose sides between their parents. That could result in one parent missing out on future family celebrations, including graduations, weddings, and the birth of grandchildren, not to mention the loss for the children.

Even if children aren’t choosing sides, it’s possible that one parent may realize after the divorce that their former spouse was the one “in charge” of connecting with the children for both of them. That parent will now have to figure out how to relate to their adult children—or risk becoming estranged from them.

Similarly, in many marriages, one spouse (often, but not always, the wife) takes the lead in the couple’s social life and arranges get-togethers. If your spouse was the one who kept in touch with friends, you will now have to do your own work maintaining old friendships, building new ones, or both. It can be harder to make friends when you’re no longer in school or working, so there is a greater risk of isolation after divorce unless you make an effort to keep your social connections strong.

Child Custody Issues When Divorcing Later in Life

In most gray divorces, child custody is not an issue. Typically in these cases, the couple’s children are grown, or they did not have children together. Occasionally, though, there is a marriage between an older spouse and a younger spouse in which they share a minor child at divorce, or a couple had children in their late 30s or 40s. What are child custody issues in gray divorce?

As in all child custody matters, custody is determined based on the best interests of the child. There is a list of “best interest” factors that a court must consider when determining custody. In Maryland and most other jurisdictions, one of those factors is who the child’s primary caregiver is. To the extent that one parent is more deeply involved in the child’s care, that factor will likely be found in the caretaker parent’s favor. Remember, however, that child custody is never determined based on only one factor.

Most of the legal challenges in these divorces have to do with the couple’s assets and finances, as discussed below.

Financial Issues in Gray Divorce

Many of the most hotly contested issues in gray divorce have to do with finances and assets. Will one spouse be entitled to alimony? How will retirement accounts be divided? Couples who have been married for decades have often accumulated significant assets. Equitable distribution of these assets may be a complex process that requires the assistance of experienced family law attorneys.

Older couples are also likely to have had a more traditional division of labor, meaning that one spouse was the primary earner. Rehabilitative alimony is available to allow a lower-earning spouse time to become self-supporting. But depending on the age, health, and work experience of the spouses, it may be difficult or impossible for the lower-earning spouse to become self-supporting. When the parties’ standards of living are “unconscionably disparate,” one spouse may be awarded indefinite alimony in Maryland. What constitutes “unconscionably disparate?” Unfortunately, there is no clear definition. This is another area in which an experienced attorney can make a big difference in the outcome of your case.

Strickler, Platnick, and Hatfield: Bethesda Family Law Firm

If you or your spouse are already retired when you decide to divorce, you may have to face the reality that you will now have to support two households on an income that was originally intended to support only one. Unfortunately, funds can stretch only so far, and more than a quarter of women who divorce late in life live below the poverty line.

Last but not least, don’t forget to update your estate plan, including healthcare advance directives and beneficiary designations. In most states, a bequest to a former spouse in an estate plan is invalidated by divorce; the law will generally treat your ex-spouse as if they died before you. This is not necessarily true for a beneficiary designation. In either case, however, failing to update your plans can lead to bitter and costly litigation.

Be considerate of your loved ones and update your estate plan as soon as your attorney says you can. It is conceivable that you could become seriously ill while the divorce is pending. If that happens, your estranged spouse could still have the right to make medical decisions on your behalf and to inherit from you if you should die before the divorce is final. That is probably not something you want.

The skill and experience of your attorney has an impact not only on your divorce, but on your quality of life afterward. To learn more about protecting yourself financially, legally, and emotionally in a gray divorce, contact Strickler, Platnick, and Hatfield to schedule a consultation.

Categories: Divorce