Unique Issues of “Grey” Divorce

Put simply, a Grey Divorce, is any divorce for individuals over 50 years old or for individuals who have been married for more than 25 years.

Having done Grey Divorces for several years, what I found online was a lot of vague descriptions and misinformation. In reality, a Grey Divorce operates similarly to any other divorce with a few caveats.

Unwinding Property Issues

First, as with any divorce, the divorce action itself is really just a legal way to divide assets that were earned during the marriage. If have been married for a long time, then there are generally a greater number of assets to divide than in a shorter marriage. Your assets will include any real property you own; houses, and any personal property you own; bank accounts, retirement accounts, cars, pensions, televisions, couches, etc. Personal property is generally everything except for your house.

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Establishing Grounds to Divorce

Second, you are trying to put an end of the marriage. In Virginia, there are two types of divorce: limited divorce and full divorce. Limited divorce is generally pursued where there is something really bad that has happened, abuse, neglect, or desertion. A full divorce is generally appropriate where the parties have been separated for at least one year, or six months if there are no underage children and a separation agreement has been signed. There are some positives and negatives for each type of divorce and figuring out which type of divorce is best for you, is a decision you and your attorney will make.

Separation Agreements

The easiest way, meaning cheapest and quickest, is to come to an agreement regarding the division of the assets and then file for a divorce once you and your spouse have been separated for a full year. This agreement can go by many names; property settlement agreement, PSA, marital settlement agreement, MSA, memorandum of understanding, MOU, or just agreement. No matter which name is used, the purpose is the same, to mutually agree on the division of all assets.

While you may be able to come to an agreement on the division of the assets, it is important to understand how to divide retirement accounts. Each type of retirement account; pension, military retirement, 401-k, Roth IRA, or traditional IRA requires a little different strategy to divide. Pension and military retirement are both calculated as a fractional share.

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Improved health and longer life expectancy

People are living much longer than they did even 50 years ago, and they’re healthier and active.  A divorce at 55 or 60 isn’t the end.  It’s often the beginning of a new and interesting chapter of one’s life and seniors are ready and willing to take action to pursue a more fulfilling life.

According to data compiled by the Social Security Administration as of 2016:

• 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.

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Opportunities to Date

Divorced seniors are entering the dating scene at unprecedented numbers, looking for new opportunities to socialize and meet new people who share their interests.  Online dating is surging in popularity for those over 50.

Women are financially independent

Women over the last 20-30 years have been in the workforce and led more independent lives.  They’ve had or may still have a career, other than motherhood, and don’t have to rely on their husbands for money.  Husbands are no longer the sole breadwinner in the family.  Women have much more financial stability as they age.  They have good salaries, retirement accounts, pensions, 401k accounts and are much more able financially to leave an unsatisfying marriage.

Critical issues to consider in the Grey Divorce

When younger couples divorce, the main issues are usually child custody and support, visitation, spousal support (alimony), and division of property.  No matter why you’re seeking a divorce later in life, the fact is the longer a couple is married, the more complex the issues surrounding their divorce will be.  The division of marital assets can be significantly more complex and complicated during divorce proceedings.  The Commonwealth of Virginia is an equitable distribution state.  That does not mean property is split 50/50.  Equitable means fair, not even.  It is important that you speak with an experienced Virginia family law attorney to ensure that your divorce gives you the new life you are planning for.  Here are the issues and financial challenges a knowledgeable Virginia divorce attorney can work through with you:

1. Income and spousal support: How will each spouse maintain an income stream that meets their circumstances?  Will it require rejoining the workforce, delaying retirement, paying or receiving spousal support, or splitting a fixed income, like a pension, if you’re retired?
2. Division of property: If you’ve been married 20 years or more, you probably have significant assets, both marital and separate property that will need to be divided.  It may be difficult to define which is separate property after a long marriage.  There are many considerations that are unique to a grey divorce when dividing assets, such as the length of the marriage, if one or both parties are retired or close to retirement, when and how assets were obtained, pensions and retirement accounts, inheritances, and much more.
3. Social Security: In some circumstances, a spouse is entitled to benefits based on his/her spouse’s social security.  This depends on the duration of the marriage and each spouse’s income. Getting remarried will stop any spousal social security benefits.
4. Life insurance: Anyone paying spousal support is required to have a life insurance policy in the amount and for the term that is equal to the amount and duration of the spousal support decreed in the divorce.  This can impact seniors, as even term insurance policies can be extremely and sometimes, prohibitively expensive.
5. Long-term considerations: There are many issues surrounding getting older, including competency, long-term care, end of life care, and preparations for burial or cremation. This should be considered in a grey divorce. It is important to update your estate plan both during and after the divorce to protect your estate and your wishes.

As you can see, divorce issues for older couples are far more complex than issues a young or newly married couple face.  If you are considering divorce as a senior citizen, it is important that you speak with an experienced Virginia family law attorney with expertise in senior divorces.  Together, you and your attorney will carefully plan and prepare for all eventualities to ensure that you have the bright future you desire.

About Melone Hatley, P.C.

Written By Charles HatleyView Profile

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