The 40-Year Itch: “Gray” Divorce

In recent months I’ve seen quite a few articles about “Gray Divorces,” baby boomers experiencing a “40 year itch” and filing for divorce. The most popular example noted in these recent articles is Al and Tipper Gore, who decided to call it quits after 40 years of marriage.

Whether you’re a couple experiencing a 7-year or 37-year itch, the rules of divorce under California family law are the same. Typically, the difference with Gray divorcees is their children are over or nearing the age of 18 so child support and child custody care are not issues, and usually the couple has a more mature outlook on the situation. It’s not uncommon for two people who spent the last 2-3 decades focused on the family and their kids to drift apart unknowingly throughout the years. And it’s quite common for “empty nesters” to find themselves alone, just the two of them, wondering, “Who is the person I am married to?”

The biggest challenges for these older divorcees relate to finances and support. As you can imagine, the couple has spent 30-40 years building their retirement dream together; however, with divorce on the horizon, a shift in life and retirement goals is apparent. And while the couple may have a mature outlook on the situation by wanting an amicable and fair outcome, there are still many worries and fears that come with any divorce. Here are some tips to consider when approaching a Gray Divorce:

1. Divorce vs Legal Separation: After 30-40 years of marriage and building up assets together, some couples consider filing for a Legal Separation versus a divorce. While a Legal Separation settles most issues, property division, spousal support and date of separation are areas that remain in question and there are still strings attached. Additionally, the couple is still legally married and the spouse still qualifies as a health insurance benefit. Additionally, in a Legal Separation, if one party decides to remarry down the road, a divorce is inevitable.

2. Divorce is a process and it’s difficult for any attorney to predict how long the process will take. One way to expedite a divorce is to mutually agree upon a settlement. Working with your attorney to create a settlement proposal is a good use of time and energy versus waiting for a judge or third party to decide how you and your spouses’ assets will be divided up. In one situation, I had an 80-year-old client, who had been married for 40 years officially divorced within 6 months of the filing date. Sure both parties were emotional about the process, but their realistic outlook on the situation allowed them to amicably work out a fair settlement and move on with their new lives.

3. Many Gray divorcees will continue to work beyond their expected retirement date to help regain financially stability. Once the divorce is settled it is important to work with a financial specialist to roll over a 401k, reinvest assets and manage financial income to secure a new steady retirement plan.

4. Be sure to revisit your Estate Plan and make sure it reflects your new life changes.

5. Finally, no divorce is easy and will take an emotional toll on all parties. It’s important to maintain your mental and physical health during the process. With Gray Divorces, sometimes the client is at a crossroads with what he/she would like to accomplish in their life, which can increase fears of the unknown. I always encourage all clients to seek a therapist to help them discuss the changes, eliminate the fears and help them create a plan towards a new life.

Kayla Horacek, Partner, Law Offices of Donald P. Schweitzer is a Certified Family Law Specialist and accredited Minor’s Counsel. She has extensive experience in business evaluations, complex property division and support issues, especially pertaining to high asset clients. In addition to her certification as a Family Law Specialist, Ms. Horacek was formerly a behavioral technician for children with autism—a combination that provides her with a deeper understanding for legal issues involving a special needs child.