If you're an older couple divorcing after a long-term marriage, it's referred to as a gray divorce or late life divorce.
In gray divorces, there are a number of critical issues you need to be aware of so your divorce doesn't go sideways.
If you don't want to waste money or time on your divorce, or add stress to your life, here's what to do to get the best result.
While the overall divorce rate has flattened for most age groups, there is one segment of the population where divorce rates are actually increasing - older Americans in long-term marriages.
A phenomenon known as gray divorce.
Certainly, divorce is difficult no matter how long you've been married or how old you are. But if you're older adults divorcing after a long term marriage, there's a whole lot you need to know - and watch out for!
In this post you'll learn:
What is a gray divorce;
How does your education level factor into whether or not you'll divorce;
The 8 most common gray divorce reasons;
3 reasons divorce mediation is your best option for divorce later in life;
And the 7 critical legal and financial gray divorce issues a divorcing couple needs to be aware of.
Let's get started.
What is a Gray Divorce?
When the term was first coined, it referred to men and women who divorced after 40 years or more of marriage. The assumption was that anyone married for that long must be an older adult "starting to gray," hence the name.
But these days, it's more commonly used to refer to the increased divorce rate among baby boomers, regardless of the length of their marriage or the color of their hair.
Over the past 20 years, the divorce rate in the United States has declined. But for the over-50 age group, the gray divorce rate has actually doubled according to a paper, “Gray Divorce: A Growing Risk Regardless of Class or Education” written by two sociologists at Bowling Green State University – Susan L. Brown and I-Fen Lin.
Furthering the research into the gray divorce rate, according to an April 2021 report released by the U.S. Census Department, 34.9% of all Americans who got divorced in the previous calendar year, were aged 55 or older. That's more than twice the rate of any other age group surveyed.
So why the divorce increase in this segment of the population?
8 Grey Divorce Reasons:
In my experience, there are 8 reasons for the rising divorce rate in middle age or older spouses and none have anything to do with being a baby boomer. They do, however, have everything to do with the societal shift that began in the late 1960s and continued throughout the 1970s, and the quest for personal fulfillment.
It was during that time that attitudes towards marriage began to shift and divorce became more socially acceptable. TV shows like Maude (1972) and One Day at a Time (1975) featured main characters who were divorced, and Kramer vs. Kramer (1979) was a box-office smash. Divorce had hit the mainstream and became dare I say normal.
Individuals born in the late 1950s through early 1960s grew up with the messages that life is short, happiness matters, and divorce is nothing to be ashamed about. Which set the stage for the gray divorce revolution we're seeing today.
Here now are the 8 gray divorce reasons I commonly encounter with my clients.
Reason #1: "We've Simply Grown Apart."
Some couples can pinpoint the exact cause of the demise of the marriage. But in a grey divorce, there is often no infidelity and no major blowout that led to the decision to get divorced. Instead, the spouses have simply grown apart over time.
The couple chooses to begin divorce proceedings when one of two things happens:
They have an adult child or their youngest goes off to college (aka "empty nest syndrome.")
You've spent the better part of your marriage raising kids and now you've found yourself without the kiddos to focus on. Leaving only your husband or wife.
"Who is that stranger sitting across from me?" you wonder to yourself. And suddenly you find yourself uncomfortable being around this person you no longer know. Which leads to an empty nesters divorce.
When a couple is working and/or raising kids, they're busy. Perhaps so busy that they don't notice they are growing farther apart with each passing year. But now that one or both have retired, they have a lot more time on their hands and again, realize they no longer know (or like) their husband or wife.
If you are seeking a gray divorce because you've grown apart, consider using divorce mediation.
In my experience, most couples who fall into this category are low-conflict and can successfully work together and come to an agreement, in a fair, and cost-effective manner.
Reason #2: Age
We've all got one (or maybe more) of those friends who every time we ask them how they are, they launch into:
How bad their feet hurt; or
How they pulled their back out; or
How their eyesight isn't what it used to be.
I get it - aging stinks. But being around someone who acts old can make us feel old. So for some, when they see their husband or wife aging (or repeatedly hear them complaining and being negative), it can be an unwelcome reminder that they're getting older, too.
So perhaps they think if they got divorced for someone younger, it will reverse time for them as well.
In these cases, mediation can work, but it will depend in large part on the mindset of their husband/wife.
Mediation requires both parties to actively participate in gathering discovery, completing forms and worksheets (the "pre-work"), and working together to negotiate the terms of their agreement.
So if your partner has an "old-fashioned" mindset, he/she may not be open to the modern concept of mediation.
Reason #3: Self-Improvement
There's a great line from the Bruce Springsteen song "Dancing in the Dark" that goes:
"I check my look in the mirror, I want to change my clothes, my hair, my face..."
After so many years of looking, dressing, or feeling the same way, some people want to make changes to the way they are living their life (lose weight, exercise, improve their appearance). But to do that, they need a spark lit under them to get them motivated to make their desired changes.
And that's where interest in a new "special someone" comes into play. Sometimes people think meeting or pursuing someone new will make them try harder in life, lose weight, dress better, etc. and help them achieve the changes they seek.
Again, in this case, mediation can work but it depends on the emotional state of your current spouse. There may be a lot of hurt feelings and resentment because you're leaving the marriage for someone else.
And your spouse may not be in a "sit down together and work through the terms of the divorce or legal separation as adults" frame of mind.
Reason #4: Money and Spending Habits
When couples are in their prime earning years, a lot of financial missteps can be overlooked. Because the money keeps flowing in, the bills somehow get "taken care of" and the overspending spouse is ignorant of the couple's precarious financial situation.
But once the income stream stops and the couple is forced to live on a fixed income, pension plan, or other retirement benefits, it can be quite sobering. Differences in spending habits become abundantly clear. And may lead to one spouse wanting to get divorced.
Mediation is ideal in situations like this. Especially if you work with a divorce mediator who has a financial background.
For example, one of the things I have my gray divorcees do to prepare for mediation is to complete a series of budgeting exercises. This helps reveal their marital spending and current financial picture, as well as what their projected (separate) spending will look like post-divorce.
This approach is quite effective in helping the "spendthrift spouse" better understand the reality of their finances and how things need to change in order to make ends meet moving forward.
Reason #5: Sex
Just like differences in spending habits, differences in sex drives can also sink a marriage.
As spouses get older, their libidos may differ, sometimes dramatically. Regardless of what you see on those commercials touting the latest ED drugs.
This can lead to frustration and ultimately the desire to divorce.
Mediation can work in these situations, but only if your spouse is not so apathetic that they do not have the motivation to actively participate in the process.
A man reaching age 65 today can expect to live, on average, until age 84.3.
A woman turning age 65 today can expect to live, on average, until age 86.6.
About one out of every four 65-year-olds today will live past age 90.
One out of 10 will live past age 95.
For couples seeking this type of divorce, it's quite possible each spouse could live another 30, 40 even 50 years. So one thinks, "Why spend the time I have left on this earth miserable in an unhappy marriage?"
Once again leading them to want to divorce their wife or husband. Mediation will be a viable option, but only if their spouse is willing to actively participate in the process.
Reason #7: Undo Past Regrets
"Try to marry a nice boy," your mother said.
"Find a woman who will be a good mother to your children," your father said.
Being the good son or daughter, you did the "right" thing and married the person you were "supposed to." And whom your mom and dad approved of. Thing is, they weren't necessarily the person you wanted to marry. And now here you are, stuck in a long-term marriage, filled with regret as you reflect on your life.
You've now decided after all these years that being unhappily married is no longer acceptable to you.
Many of our clients fall into this category and in these cases, it's usually not a surprise that a change in marital status is coming as both spouses have been unhappy for a very long time.
By the time they decide to divorce, the fighting has subsided and they're both in the camp of simply wanting to move forward separately with their lives. That's why mediation is ideal for situations like this.
8. Active vs. Passive Lifestyles
"He just wants to sit on the couch and watch TV, but I want to go on cruises, get dressed up, and dance!"
"She just wants to sit home all day doing crossword puzzles, but I want to go on vacation and see all those places we talked about going to but never did!"
When one of you wants an active retirement and one if you refer to it as "re-tired-ment," you've got a real problem. Because one of you wants to get out there and live it up, and the other has no interest.
If this is your situation, there's a 50-50 chance mediation will work for you.
Half of the time, the passive party simply wants nothing to do with the divorce. And places the burden of getting a divorce on the active spouse. And since mediation requires two parties to actively participate, if this is your situation, mediation won't likely be a viable option for you.
But, some passive spouses fall into the "whatever you want" camp and will go along and work with you. So if this is your situation, don't rule out mediation for your no-fault divorce just yet.
3 Reasons Why Mediation is Your Best Option for Gray Divorces
Now that I've shared the common gray divorce reasons, let's take a closer look at why I feel mediation is the best way to divorce later in life if you're an older person.
1. You Don't Want to Waste a Lot of Money on Your Divorce.
If you're like most men and women divorcing after a long-term marriage, you're in your late 50's to early 60's and may be retirement age and/or out of the workforce soon. So if you spend a ton of money on your divorce, you won't have a lot of time to recover financially and protect your retirement fund the way a younger couple might.
Yet that's exactly what can happen if you don't mediate and involve family law attorneys instead.
To give you an idea:
The average cost of a collaborative divorce is between $25,000 to $50,000; and that's if things "go well."
The average cost of a litigated divorce is between $75,000 and $150,000; provided you can settle things in your first trip to court.
If things aren't going well, and your divorce drags on for a long time, you can expect to spend $200,000 or more on your divorce.
Given where you are in life, I'd imagine you'd rather fund your own retirement account instead of your family law attorneys!
2. You Don't Want to Waste a Lot of Time on Your Divorce.
Let me be clear. I am not encouraging you to rush through your divorce.
But the simple fact is when attorneys are involved, the divorce process is not only more expensive, but can take a very long time.
All that letter writing, e-mailing, phone calling, arguing, and back and forth.
The average length of the collaborative law process is 8 months to 1.5 years.
The average length of a litigated divorce is between 2 and 3 years.
The average length of a mediated divorce is only 4 to 5 months from start to finish.
Do you really want to spend your life in a courtroom or divorce attorney's conference room wasting years hashing out alimony (also known as spousal support, maintenance, or spousal maintenance, depending on where you live), property division, and other details of your divorce?
Or would you rather get through this painful chapter in your life and spend the time you have left living?
3. You Don't Want to Add Any More Stress to Your Already Stressful Life.
At this stage of your life, you've probably got a lot of challenges and worries.
Some might be:
A demanding job that requires 60 to 80 hours of your time per week;
College tuition bills that collectively cost more than your house;
Aging parents who require more and more of your care and attention;
Children who boomeranged back home, unable to find a decent paying job;
Skyrocketing health insurance premiums and medical issues that require more to address than just "taking it easy."
And now you're adding a divorce into that mix.
Even if you're the initiator, divorce is one of the most stressful events you will ever have to endure in your life. Second only to the death of a parent or loved one.
So why then would you choose to involve divorce attorneys and pile even more stress on to an already unpleasant situation?
With the potential for years of:
And mounting legal bills that can escalate into the tens or even hundreds of thousands of dollars;
A litigated divorce process using divorce lawyers is the epitome of stress vs. mediation which is a more peaceful process.
Issue #2: Determining the Value of Premarital Assets (and Liabilities) or Proving Separate Property vs. Marital Property
In New Jersey, Illinois, Pennsylvania, New York, Michigan, and 36 other states, dividing a couple's marital assets and liabilities falls under the concept of equitable distribution. While in California, Washington, and seven others, the concepts of community property are applied.
Say you live in an equitable distribution state, you're 63, got married at 36, and have this 401(k) retirement plan that you've been contributing to since you were 25. Do you really have the statements from the day you got married to know what its pre-marital value is?
Or you live in a community property state and have owned a baseball card collection from before you were married which has appreciated significantly over the years. Can you prove this is separate property and shouldn't be included in your property division?
Because you could be giving away pre-marital property or separate assets your soon-to-be ex-spouse is not entitled to.
Issue #3: Inheritances
Inheritances are considered "separate property" and are typically not subject to distribution in a divorce. But they can most certainly have a tremendous impact on your divorce settlement and finances.
One way is if they're co-mingled. That can be done in many ways far too numerous to get into here. A second way is how an inheritance impacts the division of your marital assets and liabilities.
For example, let's say the division of your assets and liabilities turns out to be 50-50. With each of you receiving half of the retirement assets. But your husband or wife inherited a $500,000 lump sum from their now-deceased parents. So was your distribution really 50-50?
On one hand, the assets subject to distribution were split equally. But the reality is your total asset pool is not 50-50. And does income earned from investing that inheritance count towards a person's ability to pay or receive alimony?
As you can see, gray divorce issues for an older couple can get quite complex.
Issue #4: Social Security
You may have heard that when spouses in long-term marriages divorce, one party can collect Social Security off of the other party's earnings.
So now you're in negotiations on alimony. And you're the one set to receive it. So you figure since you'll be getting $X amount per month in Social Security benefits, you agree to take a lower alimony amount. Only to find out after your divorce is final, you don't qualify to receive benefits from your ex-spouse's earnings.
And now you're out of luck and so are your finances.
Issue #5: Life Insurance
Most people don't know this, but anyone paying alimony is required to have life insurance in an amount and for a term equal to the amount and duration of alimony agreed to in their divorce decree.
So now you're 58 and your term life policy is about to expire.
Well, guess what?
You need to get a new policy with a death benefit and duration to cover your alimony obligation.
I just got my life insurance renewal today and it told me that if I decide to renew my policy when I'm 58, my annual premium will be $21, 358.
I can hear you saying, "So you mean to tell me I not only have to pay alimony, but I also have to fork over copious amounts of cash to an insurance company?"
Issue #6: Difficulty Dividing Pension Plans or Other Retirement Accounts
While many companies are moving away from pension plans in favor of 401(k)'s, state and local governments still offer pension plans to their employees. So if your wife or husband is a teacher, firefighter, police officer, or government official, chances are they have a pension.
And it's probably quite substantial.
Now that you're divorcing, how do you divide such an asset? It's not like there's money sitting in an account as with an IRA or 401(k).
A pension is a promise made by an employer to provide an employee a monthly payment (typically) until they pass away.
Notice nowhere in there does it say "provide an employee's ex-husband or wife a monthly payment."
For corporate pension plans, it's a bit more straightforward. Do a PV calculation, determine the Coverture Fraction, get a QDRO, and a separate interest can be created and the pension benefit shared between the parties.
But when it comes to government pensions, it's not nearly as straightforward. So if your husband or wife was a civil servant or government employee, be aware that it may not be as easy to value and share a pension as it would be if they worked in a corporation.
Issue #7: College
In some states where we practice, divorcing parents are required to pay for their children's college education through child support. Yet, if you remain married, there is no such requirement of you.
Maybe you're one of the fortunate few who've managed to put away enough to fund their children's college education(s). But if you're not, your ability to retire may be further away than you'd like it to be.
Bonus Issue: The Most Important of All Grey Divorce Issues!
As you just learned, gray divorce issues for older couples are far more complex than the ones a young or newly married couple will face. And if you're not careful, your divorce can become a disaster!
That's why the most important of all gray divorce issues is choosing the right divorce professional.
Choosing the right divorce professional (divorce mediator) is critical to getting a divorce outcome that's fair, cost-effective, and timely.
You can leave your future in the hands of divorce attorneys and drain your retirement savings as you waste up to $200,000 and 3 years of your life arguing as enemies, only to be forced to accept an agreement forced upon you by a judge and that neither of you is happy with.
Or you can choose to mediate your divorce, preserve your valuable time and money and work together as adults to craft an agreement you both have a say in and find fair and equitable.
When you really think about it, the choice is clear: mediation is the best way to get a gray divorce.
The choices you make before you start your gray divorce are critical.
But you can only make smart choices if you take the time to prepare and get educated first!
Joe Dillon, MBA is a professional divorce mediator and founder of Equitable Mediation Services. Joe is passionate about helping couples avoid the destruction of attorney-driven litigation and specializes in helping couples resolve the issues required for divorce -peacefully, fairly and cost-effectively. When he’s not mediating, you can find him exercising, cooking, and watching Cubs baseball.