'Gray divorce' — people getting divorced later in life — is on the rise. Here are an attorney's insights on handling separation when you're older.

  • Nicole Sodoma is the founder and managing attorney of Sodoma Law, a family law and separation law firm in Charlotte, North Carolina. 
  • Although 'gray divorce' has only recently entered the public eye, Sodoma says she's been dealing with these types of divorces for over two decades.
  • She says the rise could be caused by a variety of factors, such as longer life expectancy and increased financial independence, which might empower unhappy couples to separate. 
  • Unlike young divorcées, older couples may have additional concerns to address, including division of retirement benefits, confusion over beneficiaries, and more complicated marital estates to divide up.
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"Gray divorce," also known as "silver splitter" or "diamond divorce," is a term used to refer to the increasing trend of late-in-life divorces. This term first became mainstream in 2004, when AARP published a study on divorce at "midlife and beyond," and is generally used to describe adults aged 50 or older who are going through a separation.

In 2015, every 10 out of 1,000 couples aged 50 and over got divorced, which was double what their divorce rate had been in 1990. And for those over 65, the increase was even higher — it had roughly tripled in 25 years. In fact, while the overall rate of divorce has continually declined since then, the divorce rate of people over 50 is increasing. 

Statistically, gray divorce is and continues to be on the rise, and not just in the United States. Canada, Japan, Australia, India, and the United Kingdom have reported increases in the last decade as well. While in recent years the discussion has become more prevalent online, this is a conversation that many divorce attorneys have grown familiar with for well over two decades. 

The rise of gray divorce can potentially be attributed to a variety of things: people are living longer, both spouses are working and are therefore becoming more financially independent, and the stigma associated with divorce has shifted significantly. If you're going through a separation later in life, here's what you need to know.

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The differences between going through a gray divorce and getting divorced when you're younger

There may be some unique issues that you'll need to address in addition to the standard concerns of a divorce at any age, such as equitable distribution and alimony. Some problems associated with "gray divorce" include division of retirement benefits, confusion over beneficiaries, more complicated marital estates to divide up, health insurance and Medicare benefits, healthcare expenses overall, and potentially more than one support obligation. Additionally, a financially dependent spouse may feel they need more support given the reduced likelihood of starting a career late in life, and a financially supporting spouse may be worried about their ability to keep up support payments as they slow down or retire.

The need for retirement benefits becomes more critical when you divorce later in life because people have less time to "make up" any losses they may face pursuant to a divorce. Understanding what benefits are available, and how they can be distributed, is paramount as you plan for a separate future. 

For example, a qualified domestic relations order, or QDRO, is one mechanism by which certain retirement plans can be divided. QDROs are often, but not always, necessary depending on the type of retirement plan being split. While you could expect QDROs to be seen in any divorce, it's much more likely in gray divorces, where retirement accounts tend to be more significant.

For many gray divorces, custody is often not relevant to the discussion because the parties' children are over the age of 18. However, there may still be issues to address to avoid involving adult children and grandchildren. 

Adult children can get dragged into late-in-life divorces and be asked to side with one parent or the other, and that can hurt the family unit (which is often exactly the reason why unhappy couples wait to split until after their children have grown up). There are various ways individuals can address these concerns, including estate planning and postnuptial agreements, which can all help lay out future expectations not just for the individual, but for their family.

Postnuptial agreements are signed after the date of marriage instead of before, and can address issues such as debt, inheritances, and any other property the couple owns — such as a house — in the event of a separation. Often, couples who feel their marriage is on shaky ground utilize postnuptial agreements because they can help remove some of the difficult conversations about finances so that the couple can refocus their energy on their relationship.

Your estate plan generally includes a will, medical and financial powers of attorney, and an advanced care directive, which all work together to legally protect your wishes for your estate and your family after your passing. 

Looking forward, you'll also need to consider new partnerships, should you decide to get married again.  Couples will need to address the impact of divorce on their children from prior relationships as well as future relationships. For example, you may need to consider how the marital estate could be impacted or challenged if you remarry — any effects on retirement, social security and pensions, and estate planning documents will need to be updated and maintained.  Maybe rather than a postnuptial agreement, a prenuptial or premarital agreement could best serve a family's future interests.  

A prenuptial agreement is a legal document signed by both individuals before they are married. Much like postnuptial agreements, prenups can address a variety of topics including, but not limited to, who gets what in the event of a split and any stipulations in regards to receiving payment of alimony. 

How to move forward

For those going through a divorce later in life, be sure to create a strong foundation and clear expectations about what you want your next chapter to look like. Identify a trustworthy and knowledgeable divorce attorney, estate planning attorney, and financial advisor. Use litigation as a last resort, and consider an alternative dispute resolution method, such as mediation, which can usually keep costs lower, take less time, and be less stressful for all parties involved.

Nicole H. Sodoma is the founder and managing principal of Sodoma Law, based in Charlotte, NC with additional locations in Union County, NC and York County, SC.  

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