The Grey Divorce
by Ike Vanden Eykel as published on DMagazine.com
Nearly 50 percent of adults age 50 and older who have been divorced once will divorce again in their second or higher marriage. In fact, the divorce rate for adults ages 50 and older in remarriages is double the rate of couples have been married once. For many, not much about a divorce for an older couple is different from the divorce of a couple in their 30s or 40s. But for older couples who have complex estates, combined significant assets, or whose assets or earning potential greatly differs, there are some important things to consider when divorce is inevitable. It’s called the grey divorce.
Ike Vanden Eykel, partner with KoonsFuller Family Law, says while the disparity between the assets and earning power between spouses is declining, it is still present. Approximately one in four couples in the U.S. has a grey divorce. It’s something that he says probably quietly started after World War II when many families became two-income families. Women experienced more economic independence than ever before, which made divorce not only more common but also more widely accepted. As many couples have moved through the traditional stages of life—marriage, house, kids, empty-nesters—some have discovered that they no longer want to stay married during their retirement years. “There are a number of contributing factors to the grey divorce,” Vanden Eykel says. “People are living longer and working longer. The idea of retiring at age 65 is outdated. There’s a lot of life left once the kids are grown. More people are working not just because they need to, but because they want to, and their careers are still thriving. When a couple sees the ability to exist comfortably in two separate households, the possibility of divorce remains, whereas, in years past, it was a larger risk to take. When I started practicing family law in the 1970s, there was a social stigma to being divorced. This has gone away. Here we are on the verge of 2020, and these common views have definitely contributed to this phenomenon of people in their 60s and beyond getting divorced.”
Older couples don’t have many of the complications younger couples have when it comes to divorce (like child custody and large debt) and fewer assets between them. When it makes logical and financial sense to make two households out of one, a grey divorce isn’t extremely complicated. However, many couples who have been married a long time and who have shared a business or multiple assets find that a divorce isn’t as easy as they assumed. “I have worked with clients who share assets in the oil and gas industry or have intricate corporate issues to address,” Vanden Eykel says. “Some couples have one spouse who hasn’t worked outside of the home for 30 or more years and cannot get a job at a salary that could produce a livable income. That cannot be overlooked in a divorce. All of these factors will come into play when determining how to divide the estate.”
Vanden Eykel says that in a grey divorce, when the higher-income spouse decides to divorce, the court must look at how the under-employed spouse will fund their retirement years. This is a situation where history does matter. “If you get a divorce at age 40, you still have a lot of years of educational and earning capacity ahead of you to not only fund the divorce, but to fund a household,” he says. “If you are 70, there’s not enough time to fully fund a retirement or get a higher-paying job and the likelihood of affording the existing home isn’t high. In this case, you are looking at the very real possibility for a request of a disproportionate division of the marital estate to compensate for disparity and earning capacity. To be certain, it doesn’t matter what your age is; in a divorce, if you don’t have enough assets to provide for two separate households, moving forward makes matters more complicated. When an older couple is divorcing, that issues become even more serious, and this takes a lot of creativity on the part of your lawyer on how to best address them.”
If you are 50 or older and find yourself facing a divorce, KoonsFuller recommends the following tips to best prepare you for what could become a more complicated divorce than you were initially expecting.
- Become educated about your estate. Know what assets you have and what they are worth, where the accounts are held and the amounts, and the status of your spouse’s business. If you haven’t been paying attention to the financial details of your household, now is the time to start. Make copies and keep as many records as you can.
- Do your homework on available legal counsel. Start early on finding an experienced, board-certified family lawyer with experience in complex divorce. Don’t wait to find a lawyer until you are served papers because your spouse may be several steps ahead of you already.
- Have a game plan. “People don’t realize that entering into one of these cataclysmic life events, such as divorce, can cause such an upheaval in their lives, no matter how prepared they think they are,” Vanden Eykel says. “Gather as much information as you can, line up your counsel, and develop a step-by-step game plan based on your individual situation, as no two divorces are alike. If not, you’ll be flat-footed when the other side starts out.”