Addressing the Gray Areas of a Gray Divorce

by Susan Lillis, Esquire

Susan Lillis

In recent years, there has been an increase in divorces for couples over 50. Many of these couples have been married for two or more decades. While reasons for the increase in divorces from this demographic vary, it does reinforce one school of thought: the longer you are married, the more complicated the divorce.

That’s not a judgment on the parties involved. Just common sense. The longer you’re married, the more wealth you accrue, the more possessions, the more responsibilities, the more intangibles. And, frankly, the more reasons you have for choosing a collaborative divorce.

In a gray divorce, things may appear pretty straightforward. You own a home. The kids are probably grown and moved out of the house. There’s probably a retirement fund and perhaps a second home. Perhaps one spouse was the primary earner of the two and the other was in more of a supporting role. A divorce should be as simple as a 50-50 split of the assets and perhaps an alimony arrangement. Pretty formulaic, right? Something that could easily be handled in litigation, right?

I think you know the answer to that.

The gray areas of a gray divorce make negotiation in a collaborative divorce with neutral experts a preferred option.

What are some of those gray areas? Those can vary, but let’s start with the grown children. Perhaps they are grown and out of college. Yet due to excessive student loans, the kids live in the family home. In litigation, the grown children would not enter the discussion. Yet as part of collaborative divorce, they can be.

For example, maybe the negotiation includes discussion of one of the spouses remaining in the family home so the grown children can continue to live there while working off their student loans. Although it is unlikely that this would be a permanent arrangement, there can be a time parameter put on it.

Another example might be one of the spouses is a caretaker of an elderly parent or relative. That responsibility may have had an impact on his/her level of income. Or perhaps that elderly relative was put in an assisted living facility or nursing home. Part of the divorce negotiation could include how the divorce would impact that person.

In 2013, the alimony law in the state of Massachusetts changed. The assumption with the new law is that spousal support ends once the spouse paying alimony reaches full Social Security retirement age (currently age 67). In a gray divorce, the parties may be closed to 67 or even older. A financial neutral will be able to help both parties to understand how they can pay their respective expenses after the divorce.

Lifestyle also becomes part of the discussion as part of a collaborative divorce. One spouse may have been the primary bread winner while the other stayed home and raised the family, compromising their earning power in the process. Both have become accustomed to a certain lifestyle and the financial discussion as part of the collaborative divorce can take sustaining that lifestyle into consideration.

Of course, the key component to any gray divorce is retirement funding. In some marriages, one spouse may not be aware of exactly what they have for retirement funds saved and where. This can also be a tricky matter if a pension is involved as well. Where one spouse has been the primary earner and the other spouse has a reduced earning capacity, the negotiation can be a little more involved than a 50-50 split down the middle.

For all these reasons and more, a gray divorce can greatly benefit from collaborative divorce. The intricacies of the household finances are but one area where couples can benefit from the advice of neutral professionals. Older divorcing couples can also benefit from a divorce coach, who is usually part of most collaborative divorce teams.

Ending a long marriage later in life comes with a variety of emotions, some of which can be a roadblock to coming to a resolution. The collaborative divorce approach can help keep parties focused on resolving differences to reach a settlement that’s acceptable to everyone.

Susan Lillis has been practicing family law for more than 25 years. She specializes in mediation and collaborative divorce that can help you and your family get through the divorce process and minimize the financial and emotional impact.

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