What does a gray divorce mean? A Gray divorce in Arizona means when couples over the age of 50 file for divorce. While the proceedings are similar to any other divorce in Arizona, there are many considerations before filing for divorce.
Are you 50 or older and considering divorce? Our family law team near you has identified many common attributes of gray divorce. We can answer your questions, too.
Property Division, Spousal Support and Custody of Teenagers in Gray Divorces
With spouses retired or nearing retirement, issues raised in gray divorce proceedings tend to involve division of substantial assets and requests for spousal support. If they have minor children, then custody and child support proceedings are required as with younger parents.
In gray divorce, child custody is likely to involve a teenager. Negotiated parenting plans are often geared toward older children on a college or trade school track with upcoming educational expenses. Still, many older spouses are parenting young children. A May-December romance, by its very nature, raises child custody and child support issues unique to aging-parent circumstances.
Rise in Gray Divorce In Arizona
Family lawyer Scott David Stewart said that he’s seeing a rise in gray divorces among older Americans in recent years, especially as the coronavirus pandemic has added to stress to relationships. Longer lifespans, reduced stigma over divorce and changing views on retirement have spurred the increase. According to the Pew Research Center, the divorce rate among those over 65 has tripled since the 1990s.
Gray divorces are often more complicated because of financial issues involving retirement benefits and more complicated estates. For couples in which one spouse was the breadwinner or made substantially more money, that can lead to difficult questions about how to divide money locked in 401ks or the family home.
Divorcing couples will also need to revise their Wills and health care directives and update any trusts to change beneficiaries or update the distribution of jointly held assets. Some also choose to sign a post-nuptial agreement that spells out how to handle future financial issues.
The U.S. divorce rate is increasing among those 50 and older. Take a quick look at these statistical trends:
- While the national divorce rate continued to decline, the 50+ divorce rate doubled between 1990 and 2015 – mainly among Baby Boomers and early Gen-X. The divorce rate is expected to triple for the 50+ cohort by 2030. By then, early Millennials will also find themselves in that demographic.
- Among 50+ adults, the divorce rate is higher with second marriages and lower with first marriages. The divorce rate is higher for marriages of shorter duration (example: married 0-9 years) and lower for marriages of longer duration (example: married 30+ years).
Whether it’s called “gray divorce” or “silver splitter” or “diamond divorce,” these spouses face distinctive challenges. Keep expectations realistic.
How To Survive A Gray Divorce In Arizona
Surviving divorce “at your age” means avoiding common mistakes. Your attorney will make protecting your rights a priority and develop a legal strategy to accomplish your goals. Your job is to prepare.
Start with 6 Gray Divorce Steps:
1. Inventory All Assets and Debts for Division of Property
This is how spouses go about dividing their wealth. Identification, valuation, and classification of property necessarily precede division and distribution.
Identify and inventory all assets and debts. Your financial future depends upon it.
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Valuation of Property
Next is proper valuation of a business or professional practice, of real estate, collections, investments, and so on. This is essential to negotiating a fair settlement agreement. This is how you avoid getting shorted.
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Classify Community and Separate Property
What is your separate property? What is your community property? Can you agree to categorize certain assets one way or the other?
What you believe is yours may not be from a legal standpoint. Longer marriages tend to have more commingled and transmuted assets.
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Did Your Spouse Manage the Family Accounts?
If so, then you may not know what you have, what it’s worth, or where it is. This division of labor is not uncommon in marriage, but could raise a red flag in gray divorce.
Unfortunately, some parties may attempt to withhold financial information, refuse to cooperate with discovery, or conceal assets. These unfair tactics must be dealt with during the proceedings. A divorce attorney experienced in high asset cases will know how to bring such matters before the court.
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Will you need a financial expert?
You may. Your attorney may recommend hiring a divorce financial strategist, CPA, or other expert. A forensic accountant (CPA) can audit accounts, assist in locating hidden assets, conduct a lifestyle analysis, classify investments as marital, separate, or blended property, and much more.
2. Identify and Document All Income Sources
Income sources for mature spouses frequently include pensions, deferred compensation, military retirement pay, individual retirement arrangements (IRAs) and retirement accounts (§401k, §401a, §403b, and so on), salaries and wages, business income, investment income, annuity payments or paid-up insurance policies, trust income, and Social Security.
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Is this a military divorce?
Ask your attorney about the impact of gray divorce on military benefits and retired pay.
- Will a Vocational Expert Be Needed?
Possibly. A vocational expert can help the court determine a spouse’s employability and establish underemployment, among other things. Many seniors on Social Security continue working part-time or full-time.
How capable is the spouse of earning a living at this age, with these skills, and this education? Even with expert analysis, employment opportunities may be limited for older adults. In May-December marriages, the younger spouse could be capable of full-time employment. Every circumstance is unique.
3. Estimate Post-Divorce Living Expenses
The more advanced a spouse’s age at the time of divorce, the more compressed the time available to recover financially. Compared to a widow or widower at age 50, gray divorce brings a greater risk of financial insecurity. That’s especially true among older women. Of those 65 and older, women are more likely than men to live in poverty.
Whether you plan to live alone, move in with your adult child or friend, or remarry someday, do not underestimate your living expenses. Be realistic in looking forward. Prepare for cost of living adjustments (COLA). What you pay in goods and services today is not what it will cost in a year or two.
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Is Living Alone Really a Panacea?
The pooled resources you had while married will be divided in divorce. As a single person, life after divorce may be much more expensive. You may be on a fixed income that will not keep pace with actual expenses. Projecting living expenses is particularly important because aging is not cheap. Inflation, medical expenses, assisted living, home maintenance and upkeep – expenses add up quickly.
4. Determine If You Will Receive or Pay Spousal Maintenance
Preparing to negotiate spousal maintenance begins with estimating post-divorce living expenses. Was one spouse the children’s primary caregiver while the other focused on career advancement? That is only one of many factors the court considers. (Use our FREE spousal maintenance calculator to estimate payments.)
In marriages of long duration, maintenance is almost always awarded to the economically dependent spouse. Support may be made non-modifiable, too. If the order says it cannot be modified, then even payor’s retirement will not form the basis for reduced alimony.
Whether you are receiving Social Security now or will be soon, you likely have a lot of questions about what happens to your benefits in gray divorce.
There are some hard and fast rules with Social Security benefits. Social Security retirement income is not a financial resource for paying spousal support (alimony). Nor are those benefits subject to division in divorce. But don’t discount their importance. Social Security may influence settlement negotiations and a subsequent separation agreement. You could be entitled to greater retirement benefits based on your spouse’s work record. Should your spouse pass away after the divorce, it’s still possible to receive a widow or widower benefit.
As for child support, Social Security retirement, disability (SSDI), and survivor benefits are income for purposes of child support calculations.
6. Understand Your Tax Situation
In high asset cases, hiring a CPA, tax attorney, or tax expert to work with your divorce attorney is often necessary. Know what the tax consequences will be before negotiating or mediating. Will you have to buy-out your spouse’s interest in a small business or professional practice? There may be tax consequences. See IRS Publication 504 for Divorced or Separated Individuals.
Withdrawing from an IRA as though it’s a cash savings account triggers taxation and possible penalties. A Qualified Domestic Relations Order (QDRO) dividing a qualified retirement account (protected from taxation) may be necessary to avoid early withdrawal penalties should you have to tap into your account to pay a portion to your spouse.
Mediation in Gray Divorce
Spouses with a long history together could find divorce proceedings overwhelming. Even in high conflict cases, mediation can help minimize stress in attempting to settle key issues – a parenting plan, additional child support, financial support of a spouse, property division – and avoid trial.
With complex asset division, mediation may help the parties reach agreement or move closer to a productive negotiating position. Although outstanding issues where no agreement was reached will be set for trial, good faith negotiations should continue with the attorneys’ assistance.
At Stewart Law Group, we always strive to keep divorce proceedings dignified. When age-related problems are a factor, we do what is necessary to protect our client’s rights and ensure the proceedings move forward fairly. One spouse’s chronic illness, disability, or dementia does not eliminate the right to petition the court to dissolve the marriage. However, in difficult circumstances like those, a mental health examination may be ordered.
When Elder Law and Divorce Law Cross
A court may appoint a Guardian or Conservator for a spouse. A Guardian is appointed when the adult “is impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause…” ARS § 14-5101(3). In fact, an incapacitated spouse may already have a court-appointed Guardian prior to filing the divorce. A Conservator is a fiduciary appointed to manage the incapacitated adult’s assets (bank accounts, investments, real estate, and other interests). ARS § 14-5401.
Who Stays and Who Leaves the Marital Home?
The emotional attachment to a marital residence can be very powerful. But that doesn’t mean owning it after the divorce is reasonable.
Is there a mortgage? Is it in disrepair? What are the monthly maintenance costs? Do your physical limitations preclude working on the house? Would a condo or 55+ community provide an easier lifestyle? Would regular social interaction be better than living alone? Would you rather travel? What about moving closer to your children and grandchildren?
We know this is a lot to take in. Establish a rapport with an experienced family lawyer as early as you can. This will be of enormous help to you throughout the proceedings and on Appeal if necessary.
What Our Clients Have to Say:
“My attorney, Christa Banfield, was more knowledgeable and responsive than I ever imagined a lawyer would be. The divorce process is a long, complicated, nerve-racking endeavor where you can feel that the law isn’t fair and that you might lose everything, but Christa remained a confident, calming influence throughout the entire process. From my initial consultation to the final decree, I was sure that Christa had my interests protected. She is intelligent, honest and straightforward in her advice; exactly what you need a lawyer to be. She astutely informed me about my options and guided me through tough times where I focused more on emotion than logic. I suppose no one ever really “wins” in a divorce, but I am completely satisfied with Christa’s representation and recommend her highly to anyone going through this difficult process.”
Rating: 5/5 ⭐⭐⭐⭐⭐
Robert Collison
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Stewart Law Group
202 E Earll Dr Ste 160
Phoenix, AZ 85012
Phone: 602-548-3400
Hours: 8 a.m. – 5 p.m.
Need a Gray Divorce Lawyer Near You?
Remember, the choice you make in hiring a gray divorce attorney will greatly impact the outcome of your gray divorce proceedings. We help clients navigate complicated family law and divorce issues such as unmarried step-parent rights. Contact Stewart Law Group in Arizona today at 602-548-3400.
We have many attorney offices with family and gray divorce lawyer in Phoenix and surrounding areas. Stewart Law Group has been serving Maricopa County, Pinal County, and all of Arizona since 2004. We have office locations in Phoenix, Scottsdale, Chandler, Glendale, Mesa, Peoria, Tempe, and Gilbert so please visit us at the location that is closest to you.