“Gray divorce” is a term to describe divorces for married couples aged 50 and older. And while divorce in younger populations has been on the decline, the number of gray divorces has been skyrocketing. The number of gray divorces has doubled since 1990 and is projected to triple by 2030. So let’s look at gray divorces—from understanding why gray divorces are on the rise to exploring the challenges that couples face when they’re divorcing at an older age.
Why Gray Divorces Are on the Rise
The first explanation is that gray divorces started increasing in the 1990s, just as the oldest of the Boomers were hitting that over 50 age group. Any time Baby Boomers, those born between 1946 to 1964, move into a new age category, their outsized population increases activities pegged to that age.
But then the story gets more complicated. As we said at the beginning, divorce in other age groups has declined. So what other factors may be contributing to the rise of gray divorces?
Some people point to the Covid pandemic—that couples trapped together in isolation realized they had nothing in common with their spouses. Or they even decided that they actively disliked each other.
But this isn’t a completely satisfying explanation, either. Even if this describes some couples, the increase in older divorces began 20 years ago. At best, it would explain a temporary spike coinciding with the pandemic.
Another factor with a similarly inconsistent story: the economy. Financial problems are a huge stressor on couples and can lead to divorce. But again, the timing doesn’t work since there have been boom and bust periods since it began. If anything, we might expect to see a bigger impact of economic downturns on younger couples, who are likely to have lower incomes and smaller savings. But it’s the older couples, those with more likely higher incomes and nest eggs, who are splitting up.
There’s yet another surprising twist. The age-old view of researchers has been that most divorces occur within the first few years of marriage. After a certain point, divorces rarely happen. And remarriages are more likely to end in divorce than a first marriage. So some of the gray divorce trend is likely an echo of the rate of high divorces in the 1980s—those who remarried after those first divorces are divorcing now.
But once again, the gray divorce crowd is confounding the statistics and conventional wisdom and requiring that we look further. Because the majority of gray divorces are the end of first marriages. Stunningly, most of these divorces are ending marriages that lasted 20 years or more.
Therefore, the strongest explanations for the gray divorce trend seem to be about changing views of marriage and divorce and their timing with other life events.
While still painful for those involved, divorce is much less damaging to one’s reputation than it was in the past. It has less of a social cost. At the same time, researchers say that we expect much more from marriage than we did in the past.
As the Council on Contemporary Families explained,
Being a good provider or a good homemaker is not enough. Spouses are supposed to be best friends and confidantes. Marriage should be a source of personal happiness and fulfillment. If spouses no longer derive satisfaction from their marriage, divorce is seen as a viable solution and carries far less social stigma than in the past.
At the same time, for those over 50, things that might have kept marriages intact, such as children at home, are now removed. Still, other things that might have kept a couple occupied (e.g., work) might be less of an issue as they age—even before retirement. And there may be a desire to make a late, new phase of life count to the fullest extent possible. So perhaps we should reframe the Covid theory to be more broadly:
When other aspects of life that demand a couple’s time and attention are removed, the couple is more likely to study more closely the degree to which the marriage is allowing the couple to be who they want to be as individuals. If the marriage is found lacking, divorce is more likely.
Gray Divorces Have Unique Legal Concerns
Gray divorces aren’t just exceptional when it comes to the cause of divorce. These late-in-life divorces also bring up different issues regarding divorce from the legal vantage point.
Remember that divorce is a legal proceeding that comes with its own costs. Litigation is always an option, but older couples may want to pursue an alternative type of divorce—such as mediation or collaborative divorce—that is designed for those who don’t want to spend the money or the time in an expensive court battle.
From the law’s perspective, most divorce proceedings focus on three issues: the cause of the divorce, the negotiation of child support/custody and spousal support, and the division of property.
When it comes to the divorce’s cause, all states now have a “no-fault” option for divorce. But most states give a spouse the option to file for “at-fault” divorce—when a petitioning spouse alleges that the divorce is due to the non-petitioning spouse’s wrongdoing. And in a handful of states, including Arizona, couples may have chosen a “covenant marriage.” Those in a covenant marriage must file for an at-fault divorce.
Typical reasons for an at-fault divorce include abandonment, abuse, adultery, drug or alcohol addiction, and imprisonment. And while most people choose a no-fault divorce, since it’s usually easier to obtain (there’s no required proof of the other’s wrongdoing), it’s worth noting that at-fault divorces have consequences beyond the filing itself. Once proven, a court can consider the reasons for the divorce when determining spousal support or child custody.
Spousal Support and Child Custody/Support
Spousal support is typically determined by several factors, including:
- length of the marriage
- contributions each spouse made to the other’s career
- each spouse’s separate property
- each spouse’s own earning future potential
Factors such as the length of the marriage, contributions to the family wealth, and future earning potential are all of particular importance in a gray divorce. And it’s less likely that later events will substantially change the ex’s finances in the same way they might for younger couples.
Gray divorce cases involving child custody (or parental decision-making authority) are less likely to occur. But these issues should not be automatically dismissed, especially as more Americans live in multigenerational homes and many grandparents provide regular care to their grandchildren.
Division of Property
While married older couples are often in a stronger financial position, gray divorcees tend to be less financially secure. So take care when dividing property.
Arizona is known as “community property” state. In a community property state, married couples share ownership of all property they acquired during the marriage (i.e., community property), so—upon divorce—they must divide the community property equitably.
When it comes to gray divorces, long-held assets make this division more complicated. One of the exes may want to keep the family home but can’t afford it, given its increased value over time. But if they sell it, they might both end up paying a large tax bill. For other items, like a family-owned business, it may be difficult to determine the value of the company’s reputation and non-tangible assets that go along with real estate and related property.
But the real challenge for gray divorces will usually be determining what is “separate property.”
While the presumption is that most property acquired during a marriage is jointly-owned, separate property is owned by one spouse who retained sole ownership during the marriage. Although there are a few ways to acquire separate property during a marriage—probably the most common of these is to inherit property—most separate property is what a spouse owned before getting married.
A further twist in the community vs. separate property determination is that, depending on the facts, separate property can be converted to community property. Alternatively, courts can determine that an asset’s underlying value is separate property, but if the couple worked together to increase its value, that increase is community property.
All of these decisions pose problems for those involved in a gray divorce. Couples married for decades may not have original ownership documents or agreements. They may never have kept records that show clear title or that tracked their contributions to the household. And without evidence to the contrary, the assumption will be that an asset is community property.
Additionally, couples in a gray divorce need to take special care to address pension funds, investment accounts, life insurance, and retirement benefits. In some cases, a divorcing spouse may be entitled to retain the other’s benefits, while in other instances, they may not. The divorced spouse of a retired military service member may be entitled to a portion of the veteran’s pension; they can be named a beneficiary for survivor’s benefits. And an ex-spouse may be entitled to Social Security benefits or disability payments.
Separating spouses may want to be mindful of how acquiring and disposing of assets can impact their eligibility for retirement benefits. For instance, Medicaid benefits for long-term health care are means-tested. To determine eligibility, the state examines your assets—including those you’ve had (and disposed of) over a period of time.
Prenups and Postnups
Generally speaking, states enforce prenuptial agreements (“prenups”) where an engaged couple has a written agreement that lays out property ownership and spousal support in the event of a divorce. However, couples involved in a gray divorce should know that states differ depending on these agreements’ enforceability. A couple who moves to another state for retirement might not realize this could impact their prenup’s enforceability.
Of concern to gray divorces: States have different requirements for what constitutes a valid prenup, while some states void a prenup after a specific length of marriage or another life event, such as the birth of a child. And others differ on the enforceability of out-of-state created agreements.
Given the complexity of property division, couples involved in a gray divorce may see a postnuptial agreement (“postnup”) as an attractive alternative. In a postnup, an already married couple agrees to divide their property. But keep in mind that postnups are less common than prenups, and not all states recognize them. All relevant states’ laws should be examined before entering into a postnup.
Planning for the Future:
If you’re pursuing a gray divorce, make sure that planning for the future is a core part of your decision-making. When negotiating a divorce settlement, evaluate your future needs for retirement, health insurance, and long-term medical care. Carefully analyze how property division would impact your current liabilities and any estate planning you may have in place. Review all succession plans you have in place for a family-owned business or other assets.
And importantly, start working on your post-divorce plans. Be concrete for at least the first few actions you’ll take. Begin your new phase of life with a sense of purpose.
If you are considering a gray divorce, contact our office (by phone at: 602-548-3400) for a confidential consultation with one of our family law attorneys. Don’t wait. Call today.
Amy Dohrendorf is a partner with Stewart Law Group, an Arizona law firm with offices in Chandler, Phoenix, Scottsdale and Peoria. Stewart Law Group has helped many clients navigate the legal complexities of divorce, child custody, spousal support, property division, parental visitation, and child relocation disputes.
