Navigating a 'gray divorce'

The divorce of Bill and Melinda Gates made headlines recently, not only because of the size of the marital estate, but also because they were married so long. Many people were astounded that after 27 years of marriage, a couple, such as the Gates, who seemingly had it all, would divorce. What is even more surprising is that it is becoming increasingly common for people to divorce after many years of being married, raising children, and readying themselves for their golden years.

This situation even has a name—it is known as a “gray divorce.” Couples who divorce after a long-term marriage, typically when they are over the age of 50, fall into the category of a “gray divorce.” For many, after their children have grown and moved from the family home, the couple is left behind to re-evaluate their relationship and, particularly, with whom they wish to spend the rest of their lives.

No longer consumed by raising children and child-related activities, or climbing the corporate ladder and establishing successful careers, many couples come to the realization that they would rather live the remainder of their lives separately than remain together. While the overall divorce rate has been dropping, the number of divorces for people over age 50 is surging. The recent global pandemic has only increased the number of couples over age 50 reconsidering their future and the state of their marriage.

A gray divorce is often not a simple divorce, as it requires the unwinding and division of a marital estate built over many years. There are often many assets to value and complex issues to tackle. Since many couples are starting to think of retirement at this stage of life rather than building their careers, the division of assets takes on an even greater importance because there is less time to recoup assets that are lost in a divorce.

In some instances, the parties are already retired. Pensions and other retirement assets may be in pay status and thus a division of same may be more complicated than by simply utilizing a qualified domestic relations order. Selling a marital home may make sense for both parties, neither of whom, may want to be saddled with the expense and upkeep of maintaining a home with more space than needed. However, disposing of a vacation home that was contemplated as a retirement home or a place for extended family to gather and enjoy becomes more emotional and difficult.

Those who are still employed may be reaping greater benefits, bonuses, perquisites and income as a result of achieving their greatest career potential. This also results in more assets to consider, value, divide and dispute in a divorce.

There are also specific issues to be considered in determining alimony in a gray divorce. For instance, the breadwinner during the marriage may be at or nearing retirement age, meaning that there is a limit to the earnings on which to base an alimony award. In many situations, a party who may have contemplated early retirement will find his or her plans derailed because of an ongoing alimony obligation to his or her former spouse.

While it is true that many people are working longer, a spouse who forfeited career aspirations to raise children and maintain a household, may find obtaining employment sufficient to maintain the marital lifestyle after the divorce is not possible and thus, alimony is needed. Unlike those who divorce in their 30s and 40s, spouses in their 50s or older who left their careers at the start of the marriage to care for the home and children face more challenges in returning to the workforce and thus may require more substantial alimony awards than their younger counterparts.

There is also the issue of securing health insurance, as a party may be too young to qualify for Medicare, but unable to find a job offering benefits. Social Security payments may also be a factor in a gray divorce, as a party is entitled to Social Security benefits based on his/her ex-spouse’s earnings so long as the marriage lasted at least 10 years. The parties in a gray divorce may already be receiving social security payments, as well as payments from a pension or retirement asset.  Both of these income sources could impact whether or not alimony is awarded, and the amount and term of same.

Securing an alimony payment by a life insurance policy on the life of the payor spouse can also be more challenging in a gray divorce as it may not be possible, or prohibitively expensive, for a new policy to be obtained when a party is at an advanced age or has preexisting health conditions.

While it is clear that gray divorces are increasing because of longer life expectancies and healthier lifestyles, the advanced age of some parties in a gray divorce cannot be ignored and thus, certain legal precautions become even more critical. Procedurally, parties may want grounds for divorce to be established as soon as possible to ensure that the divorce will proceed in the event of the death of either party. If the divorce is resolved by the way of a settlement agreement, the agreement should specifically provide that if one party dies after the execution of the agreement but prior to the entry of the final decree of divorce, all terms of the agreement shall remain in full force and effect and all obligations assumed by a party to an agreement, shall be borne by the party’s estate, heirs, assigns, etc., in the event of the party’s death.

Custody may no longer be an issue in a gray divorce, but adult children are certainly still impacted by their parents’ divorce, perhaps more so than younger children, as older children have a better understanding of the issues that may result in the divorce. Some adult children will feel a sense of relief for a release of the tension that may have been brewing for years and others may be blindsided by the situation that they never saw coming.

Nonetheless, the divorce can take an emotional toll on adult children, and they can also influence the outcome of same since they are able to vocalize their opinions to each party. The divorcing parties may rely on their children to assist them with their case, and the children may have a vested interest in the division of assets between the parties as it relates to future inheritances. These types of divorces can also be emotionally charged as the parties’ have to navigate various life milestones, e.g. starting college, graduations, weddings, and grandchildren, oftentimes while litigating their divorce.

While a gray divorce may present more unique issues and require more time and effort to complete, being aware of these issues involved at the outset of the case can ensure that the interests of the parties are properly addressed and protected as they move into the next stage of their life.

Jennifer A. Brandt is chair of Cozen O’Connor’s family law group. She has significant experience representing parties in divorce, custody, and support/alimony matters throughout both Pennsylvania and New Jersey. She is a frequent commentator for national and local media, appearing on outlets such as Fox News, CNN and Court TV. Brandt also regularly contributes to national and local publications and is the author of a legal blog, Family Law Focus, at www.familylawfocusblog.com.

Megan K. Feehan is a member of firm’s family law group. She devotes her practice to educating and guiding her clients through the complexities of divorce, custody, support, and related family law issues in Pennsylvania and New Jersey.