“Gray Divorce” – Concerns for Divorcing Couples Over Fifty


Posted on May 24th, 2016, by Livesay & Myers, P.C. in Divorce, Family Law. Comments Off on “Gray Divorce” – Concerns for Divorcing Couples Over Fifty

DivorceDue to modern medicine and a societal focus on healthier lifestyles, people are living longer than ever before. According to the Centers for Disease Control and Prevention’s National Center for Health Statistics, the average life expectancy in the United States for men is now 76.4 years, and 81.2 years for women. It makes sense then that Americans over the age of fifty are headed toward divorce at an unprecedented rate. Sociologists at Bowling Green State University found that one-quarter of all divorces in America involve spouses over the age of fifty—the “gray divorce”—a rate which has doubled since 1990. One in ten divorces now are between spouses over the age of sixty-five.

In addition to the fact that people are simply living longer, we can speculate on other reasons why individuals over the age of fifty are seeking divorces at such a high rate. Divorce has become commonplace in America, with the divorce rate approximated between 40-50%. The stigma of divorce has largely faded. People have witnessed family members, friends, work colleagues, and public figures go through divorces, so the process does not seem as daunting as it once was. Of course, another compelling factor for many older individuals is not having minor children as an incentive to remain married.

Although divorce is common today, there are unique financial concerns for spouses considering gray divorce. First and foremost, the parties’ retirement assets will generally be divided between them. When determining the equitable distribution of assets in divorce, Virginia courts categorize marital property as any property acquired from the date of the parties’ marriage through the date of their last separation (with exceptions as stated in Virginia Code Section 20-107.3). This includes defined contribution plans and pensions. If one or both spouses are already retired or close to it, they may not have the opportunity to earn more funds to be allocated toward retirement savings. Therefore, the parties’ retirement budget will be effectively cut in half. This has far-reaching repercussions. If there is still a mortgage on the marital residence, it is unlikely that either party will have the financial resources to maintain living there. Both parties are looking at significantly downgrading the standard of living enjoyed during the marriage.

If the parties have not retired yet, it may seem like the only option is to postpone retirement and continue working. Virginia courts categorize income earned after the date of separation as separate property, so one or both spouses may feel pressure to continue earning for as long as possible after separation. This may, in turn, affect a determination of spousal support. The longer the duration of marriage and the greater the income disparity between parties, the more likely the court is to award spousal support. For example, if one party has been the primary earner of the family for many years and plans to continue working after the divorce, while the other has taken on the traditional homemaker role and earned comparatively little or no income, it is very likely that the court would award spousal support to the stay-at-home spouse. Suppose that the primary earner does not continue working, and instead retires within the normal age range. If the parties have already divided their retirement assets in an equitable manner, it is unlikely that the court would also order spousal support because the parties will probably have comparable incomes upon the primary earner’s retirement.

Another very real concern for couples contemplating gray divorce is the issue of health insurance. In general, a former spouse cannot remain on the insured spouse’s policy after the date of divorce. If the former spouse is eligible for Medicare, then medical insurance may not be as much of a concern when divorcing. For those not eligible for Medicare, the options are usually paying for a private health insurance policy or remaining on the insured party’s plan through COBRA, both of which are expensive ramifications of gray divorce.

Gray divorce is rising in America, and with it comes new challenges for those individuals over the age of fifty seeking divorce. No matter your age, it is in your best interest to consult with a family law attorney to help you through the divorce process.

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Livesay & Myers, P.C. is a law firm with offices in Fairfax, Manassas, Leesburg and Fredericksburg, Virginia.



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