A generation ago, legal divorce was almost unheard of among adults over fifty. Instead, many people of that age obtained informal “Irish divorces.” Husbands and wives with marital problems, because of an empty nest, an affair, a gradual growing apart, or other issues, remained married but lived separate lives, and sometimes even lived in separate households. Divorce was much less socially acceptable then, and many wives were economically dependent on their husbands.

Times change, and over two-thirds of Americans now believe that divorce is morally acceptable. Furthermore, although the issue still stirs considerable debate, many wives are no longer economically dependent on their husbands.

So, it is not surprising that the divorce rate among couples over fifty has doubled since 1990, even though the divorce rate among other age groups has leveled off or even gone down in the last twenty-five years. These late-in-life divorces, or “grey divorces,” often involve issues and disputes far different from the ones encountered by younger couples. What is the best way to deal with these issues?

Child Custody

People over fifty rarely have minor children, but there are still child custody issues to resolve, either outside or inside a courtroom.

According to Steven Fernandez, a Los Angeles based family law attorney at Fernandez & Karney, “Adult children do not always deal with a parental divorce very well. Whereas many young children tend to heal quickly after suffering through an emotional trauma, older people are less able to quickly bounce back.” Moreover, older children have a lifetime of family memories and, as the years roll by, many of them only recall the good things that happened. Older children are also often concerned about their inheritance and what will become of future events. For example, instead of a time of celebration, a grandchild’s college graduation becomes a chess match, because Mom cannot be in the same room with Dad.

Legally, although it is technically a separate matter, grandparent access is frequently an issue in grey divorces, because adult children sometimes express anger at their divorcing parents by withholding grandchild visitation, especially if the children “blame” one of their parents for the divorce. In these instances, there is a legal presumption in California that parents always act in their children’s best interests, and if they do not allow their children to see their grandparents they have a good reason for the denial.

To rebut this presumption, the grandparents must establish that contact is in the children’s best interests. To perform this evaluation, the judge will consider:

  • Children’s health,
  • History of domestic violence and/or substance abuse,
  • Children’s preference (if over 14), and
  • Prior nature of the relationship between grandchildren and grandparents.

That last factor is arguably the most significant one, and to assist in the determination, a judge often orders a social services investigation and appoints a guardian ad litem.

Property Division

Younger couples often have practically no home equity and small retirement accounts, and the opposite is often true with regard to older couples.

Selling a home is often not an option, for emotional and/or financial reasons. If one spouse wants to keep the home, the court may divide the equity using an owelty lien for partition. Assume Husband and Wife are divorcing, their house has $100,000 in equity, and Wife wants to keep the house. If Wife is unable to pay Husband his share of the equity, the court may give Husband a $50,000 lien on the property. So, when the house is sold, he gets his share of the equity as of the date of divorce.

As a general rule, any property acquired during the marriage is community property, and that includes funds in a retirement account. Typically, the non-owner spouse of a retirement account is entitled to half the value that accumulated during the marriage. Under federal law, the non-owner spouse can usually elect a lump sum payout, retain an interest in the existing account, or roll over the balance into a new IRA or other tax-deferred account. Different rules apply in military retirement accounts.