Recent academic studies in both the United States and France show that so-called “gray divorce” —divorce of couples over 50— is on the rise. Indeed, a recent study from researchers at Bowling Green State University reveals that between 1990 and 2012, divorce has doubled for those 55-64, and tripled for those 65 and older. See graph (source: http://www.bgsu.edu/content/dam/BGSU/college-of-arts-and-sciences/NCFMR/documents/FP/FP-14-16-age-variation-divorce.pdf).

The statistics reveal that this phenomenon derives not so much from the dissolution of second marriages or late-in-life marriages, but divorces of couples who have been married for two or three decades —long term marriages. Often the process is driven by women, who increasingly are financially independent.

At Keil & Siegel, LLP we are seeing many older couples who thought of divorce as “taboo” in the past. Perhaps it was not acceptable in their community, regardless of whether the marriage was failing. Social norms have evolved over time, and divorce is more commonplace and accepted. (Take a look at the rampant frequency of celebrity divorces and reporting thereon.) Older individuals, in an age when “50 is the new 40”, often arrive at the realization that they are in good health, and want and deserve to be happy. The idea of ending a marriage that, in reality, was emotionally dissolved years prior, can be empowering.

Because gray divorces tend to involve long term marriages, there are

Special considerations to take into account in a gray divorce:

1. FINANCES: While a financially secure couple can better weather a divorce, divorced individuals in general are much less financially secure than married individuals. A couple that has been together for a long time tends to have thoroughly interwoven finances, as well as a mindset that all property is joint property. In a divorce marital property needs to be equitably distributed and, the longer the union, the greater the likelihood that division of assets tends towards a 50/50 split. Of particular concern is the marital home and retirement accounts. As couples age, their earning capacity tends to diminish. How the couple will outlive their financial resources becomes of paramount concern.

2. CARETAKING: Most caretakers of the elderly in the United States are women, who also tend to outlive men. As people are able to live longer, they are also susceptible to additional ailments that often accompany aging, including both physical and mental frailty. Ensuring that a caretaking plan is discussed and in place should be a priority of any couple contemplating divorce in later years. The discussion involves a thorough evaluation of finances.

3. HEALTH INSURANCE: Perhaps the biggest concern is healthcare benefits. In long term marriages, it is not unusual that one spouse has a health insurance plan that the other has relied on for decades. Couples often decide to become legally separated (and not divorce) until Medicare/Medicaid benefits are available, or social security benefits and pension benefits are distributed. How to manage healthcare is the driving factor in many “gray divorce” negotiations.

Couples may decide, after the children have grown and their lives have taken different paths, that divorce is appropriate for them. Older individuals would do well to divorce with open eyes, and carefully assess the special challenges facing older individuals who will no longer have a spouse with whom to share some of the financial and other challenges of aging.

Helpful links on Gray Divorce

• Brigid Schulte, Till Death Do Us Part? No way. Gray Divorce on the Rise, Washington Post: http://www.washingtonpost.com/blogs/she-the-people/wp/2014/10/08/till-death-do-us-part-no-way-gray-divorce-on-the-rise/
• Tara Fass, Grey Divorce and Conscious Aging: 7 Ideas to Consider, Huffington Post: http://www.huffingtonpost.com/tara-fass/grey-divorce-what-to-cons_b_6129132.html
• Cheryl and Joe Dillon, Divorce After 30 Years of Marriage. Now What?, Huffington Post: http://www.huffingtonpost.com/cheryl-and-joe-dillon/30-year-marriage-divorce-_b_5708367.html