The Gray Divorce: From a Divorce Mediator’s Notebook

gray divorce

Lately, I’ve found myself working with several clients who are getting divorced after many years of marriage. In each of these cases, the kids are grown, the parents are facing retirement, and they’re done with each other. One or both people want to move on. These situations have unique features and challenges, both emotionally and legally.

One of the most obvious differences between a “gray divorce” and working with younger couples is that we do not have to talk about child support, or time with the children. We don’t have to divide up the holidays or worry about how they will pay for college. But we do have to think about retirement, and plan for illness or incapacity.

Mid- and late-life divorce are happening more often than they used to. The divorce rate for Americans over the age of 50 has doubled since 1990, and now one out of every four people going through a divorce is 50 or older. And these are not just newer, second marriages. Over 55% of these divorces are experienced by people who have been married for over 20 years.

Why is this happening? There are several contributing factors. Aging baby boomers are living longer, healthier lives than previous generations did. They have higher expectations for their quality of life than their parents did, they are often no longer content to stick out an unhappy marriage. In addition, divorce carries less of a stigma than it did previously, and people are more likely to expect and to seek enjoyment from the last chapter of their lives. Finally, women are increasingly financially independent, which may tip the balance of power. For those who are healthy and financially sound, divorce may bring a time of happiness and freedom late in life, but for those with health or financial concerns, divorce may bring a series of cascading challenges.

The AARP did a study that found that divorces in midlife or later can be particularly emotionally tumultuous, can bring feelings of loneliness, depression, betrayal, abandonment, and a sense of failure.

At the same time, some found freedom, self-identity and fulfillment by being free from the restrictions of marriage.
Divorce is always a big decision, and gray divorce brings its own set of necessary considerations. It may be incredibly challenging for couples who have been married for much of their lives to face the new reality of living alone, handling financial and medical needs alone, looking after oneself… Not only does it require an adjustment in expectations, but there may be some stark realities facing them at a time when they are less able to handle change.

Here are a few examples of financial considerations that might need to be negotiated:

  • Long Term Spousal Support. Sometimes one spouse has not been earning income and has expected to be supported by the other for the rest of his or her life. (In fact, this may be one of the sources of tension in the marriage!) While a younger divorcee has years ahead to establish or re-establish a career, an older person has less time to gear up. In addition, it may be much harder for an older person to get hired and to re-enter the work force. Therefore, it may be impossible for that spouse to ever achieve an income level that comes close to providing the standard of living the couple enjoyed during the marriage. This brings up a question of whether lifetime spousal support may be appropriate.Health Issues. The paying spouse may face health complications of his or her own. What happens if she or he gets sick and can no longer work – or is forced to retire? How will the paying spouse be able to live up to his or her obligation? What if either spouse has a health crisis? Protections must be built in to ensure that both spouses will be able to live comfortably for the rest of their lives.
  • Retirement Savings. Fewer people get a pension these days, and more people have 401k or similar retirement savings programs – so they must assess how long those funds will last, how they will be divided equitably, and whether any adjustments need to be made to support each spouse.
  • Medicaid Planning. What if one spouse needs to enter an assisted living or skilled care facility? Is there long term care insurance in place? How will it be paid for? Does the couple need to see an elder law attorney to do Medicaid planning?
  • What to do with the house? While younger divorcing couples often sell the family home and split the proceeds, that may not be feasible or desirable for an elderly couple. They must then figure out a way to equitably divide their assets to keep one spouse in the home. This can be quite challenging, because they often have quite a bit of equity tied up in the house. If the couple agrees that the children should eventually inherit the house, supports must be put in place to protect their inheritance. If not, they need to figure out how they can both keep their own equity.
  • Relying on Others. It is common knowledge that in a divorce with young children, you try to protect the children from being involved as much as possible. But in a divorce with elderly clients, adult children might have to be involved for emotional, physical or, at times, even financial support. Others might need to be included as well. That team might include home health aides or visiting nurse services, a financial advisor, a power of attorney, an elder care attorney, a geriatric care manager, or other community resources.

These are just a few of the examples of things that should be considered for couples facing divorce at a later age. Mediation or collaborative law are two processes that can provide a beautiful venue for the creative problem solving necessary to support the particular needs each spouse may face. And once emotional and financial challenges of a gray divorce are addressed, ex-spouses may find that they are happier than they expected, and are fully prepared to thrive for the remainder of their lives.

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About Joy Rosenthal

Joy S. Rosenthal, Esq. is an experienced, caring New York City-based Family and Divorce Professional Mediator and Attorney. Joy founded Rosenthal Law & Mediation in 2006 to use both law and mediation as a tool to help families as they move through transitions. Her services include Divorce Mediation and Elder (adult sibling) Mediation, Adoptions, Collaborative Divorce, and representation in custody and visitation disputes. She also offers wills and estate planning. Visit Joy at www.joyrosenthal.com.

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