What is Gray Divorce and Why is It Different?

by Elisa Reiter

Divorce at 50+

A “gray” divorce does not refer to a down day in the face of the end of a long marriage.  The term “gray” divorce refers to the rising divorce rate among older folks, often stemming from long term marriages. Said simply – divorce is hitting the older generation.  No mid-life crises here; instead, Baby-Boomers are deciding they have had it, and want to move on.

How does a gray divorce differ from the typical divorce? 

Consider the following:

Retirement funds take a hit.

Many individuals who are party to a gray divorce at 50+ are retired, or at least nearing retirement.  Dividing long saved funds means potentially facing end of life issues with a smaller nest egg than anticipated, and less ability to recoup.

Lifestyle vs. true needs.

If one spouse continues to work, and the other has been out of the work force, how would alimony help or hinder settlement?  Those out of the work force may want the benefit of the cash flow, while those continuing to work may want some type of escape clause in the event of a disability, or some unforeseen circumstance impacting the wage earner’s ability to work and to pay alimony, spousal support or maintenance.

Streamlining –

If it’s taken both incomes to maintain a couple’s lifestyle, what assistance will the parties need in learning to budget once that joint income stream is no longer available?

Home is where the heart is.

One party may have an emotional connection to a home, a city or a State, while the other may be looking for a fresh start, closer to children, grandchildren, an old flame or assisted living facilities in a new environment.

How can you best prepare?

Consult with an experienced family lawyer.

 In Texas, you can surf to tbls.org or to www.tafls.org to find an attorney who is Board Certified in Family Law by the Texas Board of Legal Specialization.  You can also find attorneys through the State Bar, or through www.AAML.org or www.IAFL.org.  Sometimes, it takes more than one consultation to find an attorney with whom you are comfortable.

Make sure your estate planning is up to date.

Do you want someone you are enmeshed in litigation with to hold a durable financial power of attorney for you, or to make end of life decisions for you if you need surgery during the pendency of your divorce?

Gather documentation.

The ability to see the lay of the land—the metes and bounds of your estate – is very helpful. Look for the last two years’ tax returns including K1s, 1099s and W2s, the last three paystubs for each party, deeds, insurance policies (life, health, car), and two to three years’ of statements for retirement, pension, savings, checking, stock options, brokerage accounts and similar holdings.Separate Property.  While all property in Texas is presumed to be community property, should your estate involve separate property claims, the burden of proof is squarely on the shoulders of the party claiming something as separate property to prove their claim.  What did you bring to the marriage?  What have you inherited or been gifted during the marriage?  How can you prove those claims?  Hunt and gather information and documents in support of your claims

Credit Check.

You may have some surprises; not to be gender laden, but I’ve had more than one case where one spouse has hidden credit card debt at a luxury store, and the other spouse is suddenly bankrolling other family members or others to the peril of the spouses.  Use Dunn and Bradstreet or Experian to run a credit check.

Mental Health Check.

Divorce at 50+ is taxing financially, emotionally and in terms of time.  Consider availing yourself of a mental health counselor and a financial counselor as sounding boards to help you make informed decisions.  The settlement of your divorce is one of the biggest decisions you will ever make – be fair, but be driven by good business sense, not by emotion, and certainly not by vindictiveness. This also translates to sometimes conceding some items, if your mental health is at stake, and you simply wish to remove yourself from a toxic relationship.

Trial, Mediation, Collaboration. 

Most family law judges mandate mediation as a condition precedent to granting a trial setting.  97% of cases settle out of court, either via mediation or direct negotiation.  Most cases do not proceed to trial on a first trial setting – instead, it takes two or three settings, typically 3-4 months apart, for a judge to be amenable to a “special setting,” when the case will be guaranteed to proceed to trial. Do you want to enter into a collaborative law agreement? In Texas, those taking a collaborative law approach get up to two years after filing their original petition to finalize their case. A case to be tried to a jury should be resolved (in theory) within 18 months of filing, and a case to be tried to the court should be resolved (in theory) within 12 months of filing. 

If you are a Baby Boomer, you’ve lived through…

• The Kennedy Assassination

• Vietnam

• The Sexual Revolution

• The Gulf War

• 9/11

• Afghanistan

• COVID

The bottom line

What’s a divorce?  A blip.  Some legal fees and related costs.  Potentially a new home.  Freedom from a relationship that no longer works as it once did. What is the price of freedom for you?

“What is the price of freedom for you?”

ABOUT THE AUTHOR

Elisa Reiter is an attorney, Board Certified by TBLS in both Family Law and Child Welfare Law.  She practices with Underwood Perkins, P.C., a proud member of the MSI Global Alliance. See more about Mrs. Reiter and UP’s top-notch fleet of lawyers at www.underwoodperkins.com. UP offers services in litigation, family law, bankruptcy, transactional work and estate and probate.  Mrs. Reiter writes, and you may find many of her articles on family law, elder law, child welfare law and related matters at www.ResearchGate.net.