Thinking About Divorce After 50? What Gray Divorce Really Looks Like | Ep. 68

Hey friends. Today we’re talking about something that’s happening more and more, and honestly, it surprises a lot of people when they see it.

Gray divorce.

Yup, that’s the term for divorce after 50, and the numbers have actually doubled since 1990. And in our law practice, Sapere Law & Mediation in Temecula, California, we’ve even seen what I call “extra gray divorce”… couples in their seventies and eighties deciding it’s time to move on.  

Divorce later in life looks very different from divorce in your 30s or 40s. By this stage, you’ve usually built a life together over decades. There may be retirement accounts, pensions, adult children, grandchildren, and a lot of shared history. And that’s… extra tough.

So the question becomes: how do you untangle all of that without blowing up your financial future or your family relationships?

Here’s what we’re digging into today: 

• What “gray divorce” actually means and why it’s becoming more common
• Why long-term marriages create different financial challenges
• Retirement accounts, pensions, and how they get divided in divorce
• Why spousal support is often part of divorce after a long marriage
• The emotional reality of ending a relationship after decades together
• How adult children and grandchildren are affected (and they are!)
• Why mediation is often a smarter path than courtroom divorce

Divorce after 50 is not just about splitting assets. It’s about protecting your financial future, your emotional wellbeing, and your family relationships. And how divorce mediation can help you protect your retirement, reduce stress, and keep family relationships intact.

Have a listen, or share this episode with a loved one who may be facing their own “gray divorce.” 

RESOURCES

MEDIATION STARTER GUIDE: https://mailchi.mp/2939c428981d/mediation-resources
KELLY'S BOOK: Victim Is Not Your Name https://a.co/d/e4VguRk
LEGAL & MEDIATION HELP: https://saperelawfirm.com
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FACEBOOK: https://facebook.com/saperelawfirm

Transcript

1:17

Today we're talking about gray divorce. What is gray divorce? It's something that we saw actually in our law practice surge in 2020, early 2020 at the first, I'd say third portion of the COVID Pandemic. Here's the thing, you might get the idea that gray divorce is about older couples going down to the divorce court, and you're right. There's a stat that came out that the divorce rate among people who were 50 years old and older doubled since 1990. So in the last 35 years, the divorce rate of 50 year olds plus has doubled. In COVID, I would say our office saw an increase or this big surge in what we would call extra gray divorces. What, what are extra gray divorces? Well, we're talking people who are 65, 70 years old and older. We had at least five cases of what we would call the extra gray divorce three of those cases were people over 70 and two of those cases were couples that were, are you ready for this? Yeah. They were in their eighties. Yep. So extra gray divorce was going on. So what is gray divorce? Well, the classic definition over the last 35 years is divorce among people who are 50 years old and older. Now, I don't think, it seems really like a big deal, people who are in their fifties getting divorced. In fact, it's pretty common these days and I don't think that it really strikes most of us as someone who's gray, right? Well, I think it's because we're all living longer. A lot of us are able to embrace some, what I like to call medical technology. We look younger, we're fitter, we feel younger, all of those things. Some, as someone who's in that gray divorce zone if I were to go down that road. But is class classically defined as 50 and older and there's unique characteristics of the gray divorce well beyond what you would see in the divorce of what used to be the average of folks that were in their mid twenties and up to like their mid to late forties. Right? So the unique characteristics are these in gray divorces, typically what you're seeing is long-term marriages. Now, there are some folks who have been through multiple marriages by the time they hit their fifties and sixties, but typically the marriages, even if it's like the second marriage or even the third marriage, we often see in these gray divorces folks who have been married well over 10 years, which in California is the. general rule for the court on determining if a marriage is what's called a short-term marriage or a long-term marriage. It's usually a marriage of 10 years or more in the California courts. And that is significant because it, it affects the duration of spousal support available in a case. These are long-term marriages, which typically means that spousal support is on the table in one form or another, indefinitely for the rest of, of the lives of the spouses, unless somebody dies or remarries. Okay. So they're long-term marriages, and there's a focus in these cases on dividing retirement accounts and managing your financial future. So you can imagine if you're in your seventies and maybe you're not quite retired or you're just just about to retire. Or you've been retired. Your financial future is so important because it's not like you're 35 years old and you know that if you take a big financial hit in your case that you can go out and just make the money again, right? You'll make more money. You'll just keep on in your career. That's not the case for the gray divorce. So the financial future and that picture is so, so important. The other thing that makes gray divorces very unique is clearly, and mostly, I mean, come on, there's going to be some of those cases, but not many. We're not typically dealing with custody issues, child support, all of that. But there are significant family dynamics, adult children, and grandchildren that go on. And I would tell you that in the gray divorce we see these difficulties and the awkward things that go on in the relationships with the adult children and then the grandchildren, they're exponentially larger than when we're handling the divorce of somebody who's in their, say, they're mid thirties, early forties. It's just a different ballgame. Why during the COVID pandemic did we see a surge in gray and extra gray divorce? Well, a couple of reasons. First, what people were reporting to us who were calling in, and let me tell you those 80 plus year olds were no different. They found themselves spending a lot more time together in closer quarters because of the shelter in place and the restrictions, the, the social distancing, all of that. And so when they were spending more time together, even though some of these were extra gray divorces and you know they were both, had both been retired for quite some time, doesn't mean they spent every minute together. They typically would, you know, develop their own little habits and routines that while it was partially together, you know, they still had their friend groups and they just had a little bit more space. And so as they were spending more time together, what was happening is underlying issues started to come to the surface. Because they were there looking at each other, talking about it, and noticing each other's habits that, you know, were annoying and things like this. But underlying issues really started to come to the surface quickly, and there was a lack of ability to evade or avoid those issues because there they were. The other thing that we saw happening is because during the COVID Pandemic, there were so many deaths across the United States and the world, especially among older people. And there was so much perceived threat of death and all of this huge negativity. People really started going into reevaluating their life because they had this period of uncertainty. So it caused people, and I think for the better in some cases, to really evaluate what's really important, what do I really want out of life? And if they'd been sitting in an unhappy marriage for years and years, this came to a head. So these are the reasons we think we saw this surge in gray divorces and extra gray divorces during the pandemic. Now here's some challenges. If you or someone in your family, you know, or dear friends are going through or about to go through gray divorces, there are some unique challenges. If It's not you, I want you to send this episode and encourage, your loved one or your friend to listen to this because it's really important to think about this at before you really get into the thick of it. The first main challenge is the financial complexities. First off the bat, we're going to be talking about retirement pensions and spousal support and how we divide and navigate those things. They, they get very complex and intertwined with one another. Let me give you an example on pensions. You're in retirement now you're receiving monthly retirement payments. You have a retirement account, maybe you're getting pension payments. If that's what you're living on, and it probably is not uncommon for people to live on only one spouse's retirement or pension, particularly if the other spouse worked from the home and was, you know, raised children and was the homemaker. In that situation, if one of those parties leaves and they're taking their monthly payments with them from their retirement, what's the other one going to live on? And so the issue is, is there spousal support and or do I also get half of that, that retirement account or that pension, those monthly payments? Well, if a hundred percent of the retirement or the pension is community property because it was all earned during this marriage. Then there's an argument and most likely in most of the jurisdictions, that the other spouse is entitled to half of that and half of those monthly payments that are coming in. So it's not uncommon in this situation where when a divorce gets going the party who's not receiving the payment goes in and asks for spousal support and also asks for half of those monthly payments. Well, if those monthly payments are all the income that's there from the other party and you're entitled to half, if you were to get half of those payments and you ask for spousal support based on the other parent or the other spouse getting all of a hundred percent of those pension payments, you've got a double dip going on. So there's some some sophisticated legal arguments and strategies that need to be put into play. When we have retirement accounts, when we have pensions, and we're dealing with spousal support, those are huge intertwined issues. Also, if we've got retirement accounts that maybe they were earned mostly during marriage, but perhaps they were started for the first five or 10 years of that retirement prior to marriage, so that means, your spouse who earned that has a separate property interest for the first five or 10 years that they were accumulating their retirement. So now how do you figure out what is the community interest, meaning the total interest of you and your spouse together in that retirement account? And what part of it is separate? Because now follow me on this. This will just demonstrate the complexities of this, let's say, 20% of that account was earned before marriage, so it's separate property and 80% was earned after or during marriage. So the community, meaning you and your spouse together have an interest only in the 80% piece of it. So determining how much is this 80% worth? Right? And then what is your half of that 80%? So you see where we can get into some complexities in the math, in the division of these things. And there's some other complexities that I'm not going to give you a masterclass in valuing retirement accounts and the value of the separate property versus the community property in this episode. Let me just give you a little guidance on where, what that kind of looks like. If we put 20% in at the beginning of the retirement account to get it going or the first 10 years, and then we put 80% of the time additional money in, this first 20% of the time at the beginning of the account is the basis of a lot of the earnings over the years, in addition to what you continue to put in after you got married. So, figuring out really how much the separate property is worth. It's not just an 80/20 split. There's some waiting that goes on and we have experts to that do that. If you've been through a divorce before or you've been intimately familiar with it by supporting a friend or family member who's gone through it, there's something that's called a Quadro. We refer to it as the Quadro - QDRO, and that's what that stands for a Qualified Domestic Relations Order. That means if we have a federal retirement plan, like a 401k that falls under the federal reg regulations, there are very specific statutory requirements that have to be met in order for a state family law court to make an order on the division of that retirement account. So the court typically appoints, and as family law attorneys we all know who the good neutral experts are. The court will typically appoint an agreed upon expert, which is a what, what we call a Quadro attorney who will do that high math. And they will do the calculations to figure out, what the split should be. And then if the parties want to do something a little bit differently in order to maybe give one party more of the retirement account to account for payment, like maybe buy out of a house, that Quadro attorney will do that higher math. And what they're doing is they're talking to the plan administrator of your 401k or other eligible plan to make sure that all of the requirements of the plan are being met in the proposed order that's being drafted. Every plan is different. It has its own requirements, and so you can see there is a lot of complexity and technical pieces to this situation with retirement accounts. So that's where the Quadro attorneys get involved. This happens mostly in gray divorces when there's something to argue about over long periods of time. The other financial complexity here is that there's a heightened need for really careful planning to avoid long-term financial harm.' cause look, they're older, right? So when we're older and we're going through a gray divorce, our needs could be substantial in the coming years. For example. If a spouse is on the health insurance as a spouse of the other one, and you get divorced, now there's no health insurance unless we craft and come to an agreement, some creative orders to account for that, right? Or there's money to buy appropriate care. What if there's long-term care that's needed because we've got a terminal illness or something of that nature? There's a lot that goes into it. So careful financial planning must be done so that we don't have long-term harm in the future. The other challenges of a gray divorce are the emotional impacts. They are huge or can be huge. You may have been married to somebody longer than you were alive before you got married to them. I mean, if you've been married to somebody for 30, 40, 50, 60 years, that's just like a, like your twin going away, and that's really hard in most circumstances to navigate the end of that long-term relationship. You don't know what you do without that other person, even if it's not happy in life. It's just a different animal. And so you can't ignore that because if you do, you will not do well in managing the financial issues. And, uh. You know, the debt issues and the family issues that come along with this type of a divorce, so we can't ignore the emotional impact. And the other piece of this, and this is where fear and anger often come in, is there is a challenge to rebuild independence in many cases later in life. So you may have a spouse who was a stay-at-home mother and developed and ran the household and raised the children while the other spouse was working and, in developing their career in order to financially support the household. Well, for the person who's spent the majority of her life running the home and raising the children and supporting the other spouse while they built their career and is now retired. That can be a scary prospect because there is often a lot of dependence or perceived dependence that has been built into that relationship just by reason of the roles that, that the spouses chose to take on during the marriage. So recognize that rebuilding independence later in life that, oh boy, that can be a frightening prospect. And a lot of people come to the conclusion without help from therapists and a good strong inner circle, "I can't, I can't be without this person." It's not true. It can be done. However, these are huge emotional impacts that you want to recognize are going on.'cause if you don't, your fear in this area is really one of the biggest ways it comes out is anger and bitterness, and that will blow everything productive up for you as you go through this process. And then another really important challenge of the gray divorce are the family dynamics. So navigating your relationships once you're no longer with the other spouse that you've been with forever, right? Your relationships with your adult children get kind of weird, right? Or they can get weird. And human nature is to villainize the other side, victimize ourselves. That makes things very awkward for our adult children. A lot of people don't realize that a divorce impacts adult children very hard. It is just because they're adults doesn't mean that your divorce isn't impacting them, because truly it is. And so how you handle it with your adult children is very important to preserving those relationships and keeping them comfortable and not unnecessarily involving them in the situation. And then the same thing with the grandchildren. I mean, this is a really common scenario. Is where we see somebody who this is their second marriage, but they've been married 32 years or so. And your spouse has basically in a sense, just by practice, adopted your adult children and their children as his or her own. Treats them just like their children and, and like their grandchildren. And now how are we going to separate our marriage and not separate what happens with the relationships with the, the other adult children and the grandchildren. It can be really hard on grandchildren because they don't see the blurred lines, the between, they don't see the lines between grandpa and step grandpa or grandma and step grandma, that's your grandma, that's your grandpa. The family dynamics can really be challenging because boy, it can be rough when all of a sudden you're getting divorced after so many years of being married and at your age. Well, let's talk for a minute about the real danger in a gray divorce, in my opinion. Is choosing to litigate it and go all the way through the court process, the traditional court process. Mediation is a smarter option and I want to tell you why. Because first of all, it's way less adversarial. It's all about collaboration. It's not about conflict. So when you choose a good divorce mediator, you want somebody who is experienced, who is seasoned with not just the younger divorces, but with gray divorce, because all those nuances and all those complexities we just talked about are the kinds of things that need to be recognized by a crackerjack mediator who knows how to handle them. So mediation is way smarter because when we are in the litigation arena, going through a traditional court divorce, the focus is on being an adversary. The attorneys are geared up to go in and represent their client and get the most they can, which is what they're charged to do. But at this point in your life and with all you have to lose, it's not necessarily the best way to go. It's time to get collaborative. So both of you come out as unscathed as you possibly can in a divorce situation and the stress reduction, during what is already a terribly emotional time for you, is huge in mediation. You feel better as you go through a mediation session, even though you're, this may not be your favorite person in the room anymore, or you're terribly saddened that a divorce is happening. Maybe you don't want it or maybe you want it and you just want to move on, but you know you've been with this person for a long time. It's not like you don't care about them. These are emotionally draining times. But in mediation at least you can work on the situation efficiently, quickly, and with as little money as possible compared to the court option and feel good that you are being productive and being honorable and respectful with the other person. It's cost effective. Mediation is way more cost effective. If you're a longtime listener of the podcast, you know, we've talked about the expenses of, court litigation court divorces versus mediation. Well, litigation is costly and in divorce court you don't get in and out like you can in mediation. And so when you are in a gray divorce situation, you need to preserve those resources for retirement and your future needs. Right. So perhaps you're not quite retired, you're in a gray divorce situation. In mediation, it helps you preserve those funds because honestly, you don't want to be working an extra five or 10 years just to make up for the money that you lost trying to get your case heard and settled with the court. Okay? So when we got fewer judges, they have more cases that they're hearing. There's only so much of them to go around. And what that means is it can take 18 to 24 months, even when you're not fighting hard about everything, to get your case to trial. What we would hope is that you would get your case settled sometime in that process between, you know, reasonable attorneys, but mediation is your fast track. And as far as cost goes, what we have found is that the mediation process is 25% or less what people typically will spend to take their divorce case all the way through a traditional court process. And it's also faster. So at Sapere Law & Mediation, when you start a divorce case with us, just to give you an example. As long as you are cooperating and you're providing the information that's required, which isn't that big of a deal, we are getting these cases done in 30 to 90 days. Okay? I mean, start to finish, all the paperwork gets filed. We do the mediation session, we get the agreement, we do the settlement agreement, we get the judgment forms prepared, we submit it to the court. All that work is done in 30 to 90 days as opposed to two years or so. The other advantage is you have customizable solutions. This is such a great part of mediation because you know, here's the thing. If there are things you can't agree on, and you go to trial and you ask the court to decide, they're not going to customize the solutions. The judge is going to hear the evidence. Look at the law and divide it according to the judge's application of the facts to the law. And that's it. That's what you get. There's no goal there in litigation and nor can there be really, because the court doesn't have the time to say, well, what's really important to you, Susie Q and John, what's, what's really important to you? And is there a way we can come up with a solution that honors both of those interests? Judges don't have time for that. Right. But in mediation we do and we are really skilled at having those conversations that get us focused off the conflict and onto the future and the needs of both parties. And how do we tailor an agreement for these complex financial situations that I described. That's beauty of mediation. We can get to it quickly and we can make the complex more simple and make sure that both sides' needs are being considered. It's so important you don't get that down at the courthouse. Now, the other advantage of mediation is, remember we talked about those family relationships? Mediation tends to preserve your family relationships rather than blow them apart because it does two things. First of all, mediation in that context, it encourages respectful communication and that is everything. When you set it out, set out on the tone of being respectful with one another, and you're not there to obliterate one another through the court process, it makes the future much more productive and the likelihood of having a civil, pleasant future with one another.'cause you're going to run into each other, right? With with your extended family, it makes it much more probable. And really what we're doing here is, the second piece of it, is we're minimizing the damage to the relationships with your adult children and with your grandchildren. They don't, won't feel like they have to take sides when you're not getting polarized into this war of the roses down at the courthouse.'cause when you do that, guess what you're, what's on your mind all the time and what's really hard not to talk about at the holidays or at the next family event when one site isn't there, because you're there or you miss it out, miss out on it because the other side is going to be there. This is really about minimizing the damage, doing that damage control, and really preserving the relationships. And then lastly, there are so many benefits to mediation. I could go on and on, but another big one here that you need to consider is the privacy factor. When we take our cases to the courthouse, you are in a public forum. So you're going to take your case in and you don't get the courtroom all to yourself. No, no, no. Never. There are too many cases. You're in a very public forum, so whenever you go in to talk to the judge, whether you're in the middle of the case and seeking some temporary orders until you can get to trial or you're at trial. All of the things you're discussing about your life, your finances, what the other side has done to you, and the claims that the other side is making about you. All of those are done in a public forum, and the public is sitting in the gallery listening. That can be very unnerving and very stressful. And oh, by the way, let us not forget. What do we have in a courtroom? We've got our judge, we've got our courtroom assistant who's running the show, behind the scenes. We've got a deputy or a bailiff who's got the gun and the badge and is keeping everybody safe and things calm. We've got the attorneys. We've got the parties. Who are we missing? We've got the court reporter, and he or she is taking down everything everybody is saying as part of the record. So it is a very stressful public forum, and really, do you want your sensitive and private life in the public record? Well, most of us really don't want to do that. Now let's turn to navigating a gray divorce through mediation. How do you be successful in mediation with a gray divorce? Well, first of all, you want to be prepared to discuss very transparently, your finances, and why is this such a big deal? So in family law, the rule is full financial transparency. That's what the code requires, right? We've gotta be very clear about, and and transparent about all finances, assets, and debts of the parties. And sometimes other assets and debt sitting out there that aren't, that may be just one party's through separate property or assets or debts. Anyway. So in this scenario, sometimes we've got a spouse who has traditionally been the one that's handled all the finances in the marriage. And it may be by choice of the other spouse who's busy either running a career and the one that's not got as challenging runs the household, has traditionally been the one that's handled all the bills and the finances. Where it really gets tricky is where we've got one person who's handled all the bills and the finances and has made the majority of the financial decisions, either by default and the other side just wasn't interested or by control. And so in all these scenarios I'm giving you what has developed, what's developed here is a habit and it's a habit of not being transparent. And regardless of the motives, it's a habit. And so now you, you need to know that it is time to openly discuss finances, not to hide the ball on anything. Or it very well could be you were raised in a household where you really didn't discuss finances, and maybe that's the habit that you brought into this marriage. But in mediation, you gotta talk about the finances because. We gotta get agreement on all of these issues. So mediation is very successful where you come into it with an open mind saying,"Hey, there's nothing to hide here. The mediator will help us." During some of these hard conversations about finances, because look, money tends to get people riled up no matter what, and that's what a good mediator does is helps you navigate the conversation and keep it on the productive path and stop it when it's getting non-productive and guide you. You're also going to be very successful in a gray divorce mediation when you focus on the long-term goals and not on short-term wins. This isn't about winning and losing. You all have heard me say this, say this many times before in these podcasts about mediation and family law and divorce. There's no winners. When there's losers the losers are usually either the children and or the parties who have decided to go the unproductive route and try to wait Holy War against each other. And what are you losing? You're losing your retirements, your nest eggs, and your financial future and security. So we want to focus together on the long-term goals in mediation, and that is how are we going to divide this household and we can both meet our bills and live in safe, secure environments and all the things that are in your long term you know, cross hairs, what's important to you, not short term wins. And then involving the right professionals at the right time. Going through gray divorce mediation. Clearly you want a great mediator who knows what they're doing right? Involving attorneys at the right time. A lot of people come through mediation without attorneys, and I'm not advocating one way or the other, but what I am saying is the reality of it is people are trying to avoid running up a lot of attorney's fees. We mediate cases with and without attorneys. You can bring your attorney with you if you want. There's nothing wrong with that. Attorneys usually do a pretty good job representing you in a mediation. However, the truth of the matter is most people and family divorce mediations, seek out an attorney mediator who helps them navigate it without attorneys present at the mediation. But what you do want and what we always require, and I require as a mediator, is when we get to the end of the session and we've got an agreement and we then we draft up your settlement agreement. We send it to each of you, and what we say is, now it's time for you to go, at the very least, pay for an hour of an attorney's time to review this agreement. Go over your rights, make sure this is exactly what you want to do, make sure you understand what it means, what the impacts are before you sign it. So having an attorney at the right time is really crucial. Same thing on your finances. Get financial advisors involved because you don't want to mess around with this. This is the rest of your life, and we don't want these to be cloudy, gray years after a gray divorce. We want these to be golden years. Get estate planning experts and estate planning attorney involved so that you can tee this up and come to an agreement in a way that meets the goals of what you want to do from an estate planning point of view. I just want you to remember the advantages of mediation for a gray divorce far exceed in 99% of the cases. And I would say the big caveat is if we've got domestic violence going on, those are not good cases for mediation. But in the far majority of these cases, mediation is the way to go, for your emotional stability, to reduce your stress, to preserve your assets, and to get through it swiftly so you can get onto a happier future. Remember, focus on the future, not the past. It's hard to do sometimes when you've been married for a very, very long time, but that's how you will navigate this gray divorce arena in the best, most productive manner possible. I want you to really think about and consider mediation for the, its benefits for both, not just your finances, but also your emotional wellbeing. Don't forget your emotional wellbeing. That really needs to be playing into a part of this. It's not just about the money. You need to look at the whole package. Well, that's all for now, friends, and so until next time, please remember, resolve conflict with intelligence and split smart.