Gray Divorce

Judge Toler talks about the nature of divorce cases after 50, with custody battles being substituted by medical issues, retirement funds and accumulated property. Read on what to expect when going through a divorce later in life

By Judge Lynn C. Toler
Updated: July 29, 2014
Advice from Judges

It used to be unusual. Rarely did you hear about long-term marriages ending. Not so much anymore. While it is not commonplace, it is a growing trend. They call them Gray Divorces or, in some circles, Empty Nest Divorces.

Divorces involving people between the ages of 50-59 have increased by 40% in the last few years. Some statistics now say that 25% of marriages lasting over 20 years now end in divorce.

As with anything else when you have a new trend, you also run into new challenges. A divorce after 59 looks a lot different than the one you would have at 29.

The reasons are fairly obvious. Typically, by the time people are in their 50's and 60's, issues of child custody and child support are no longer relevant. In their place are other challenges. Older people have had time to accumulate things. One or both may be retired. They may have issues of failing health. Or they may have a well-established business, or significant tangible assets, that simply cannot be sawed in half and handed out.

In the end, a Gray Divorce often looks very different from ones that occur earlier. Here are some of the things that are of special interest to older couples when their marriages end:

Financial Experts. Couples acquire things over time. By the time they reach their golden years they may have a fair amount of "gold": established businesses, large retirement funds, securities, land, or second homes. Valuing these can be difficult. A business' worth may not be readily apparent from its balance sheet alone. The sale or transfer of certain assets may have tax consequences. Moreover, one spouse may be much more familiar with the particulars of these more complicated assets. As a result, a financial advisor may be an important component of a Gray Divorce.

Medical Benefits. As one ages, health care becomes an ever-increasing concern. Health care is often attached to employment, or secured through one spouse. Decoupling that and demystifying Medicare are very important. In addition, with aging comes the specter, not only of diminishing health, but also declining cognitive ability. Consider both you and your spouse’s cognitive status. The court may step in if it feels that one of you has dwindling capacity to handle your affairs.

Dealing with Adult Children. While custody issues are typically not a problem in Gray Divorces, your children are still affected by it. Don't forget to acknowledge these emotional issues, even though your children are grown. When a long-term marriage ends, it changes what your children have always known. They may feel as if they are required to take sides. Family traditions, holidays and time with grandchildren also change. These issues will need to be addressed.

Long-Term Arrangements. Older couples have generally made long-term legal arrangements, such as wills and trusts. These need to be reviewed in order to make sure they reflect your post-divorce desires. Likewise, older couples may have made provisions for long-term care, such as medical directives and living wills. Often, these things are created in anticipation of spouses making critical decisions for one another. Such documents will likely change.

Retirement Plans. After 20 years of marriage, retirement plans can be quite substantial. They can also be quite complicated. They are not just pools of money that can simply be divided. Retirement plans vary in kind, and they all have different restrictions, tax consequences, distribution and vesting rules. All of these things must be considered.

Lifestyle adjustment. Younger couples have time to re-accumulate wealth after divorce. In a Gray Divorce, the spouses have less time to re-establish themselves financially. One or both may be close to or in retirement. In many cases, people going through a Gray Divorce face living on half of what they earmarked for retirement. That demands a realistic re-assessment of how your later years may look.

Of course, this is an overview of the myriad of issues that are of special interest when older couples divorce. As always, information is power. The growth of this trend has created new resources aimed at older divorcees. If you find yourself in this position, make a point to seek them out.

Judge Lynn Toler, a graduate of Harvard and The University of Pennsylvania Law School, served as a municipal court judge for eight years. She presides over the courtroom on the nationally syndicated television show Divorce Court. She is also the author of My Mother's Rules: A Practical Guide to Becoming an Emotional Genius, and co-author of Put it in Writing: Creating Agreements Between Family and Friends.

For more advice from Judge Lynn Toler, visit

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November 11, 2010
Categories:  Legal Issues

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