Gray Divorce: Separating a Lifetime of Property

on Feb 15, 2018 in Divorce

What is Gray Divorce?

Gray divorce is the term for the trend of an increase in divorce rate for older couples in long lasting marriages.  According to the Pew Research Center, the divorce rate for couples over 50 has nearly doubled since the 1990s.  For aging couples, considering entering the next phase of life with someone you dislike can be awful.

The study cites many explanations for this trend.  People in this country live longer than before.  They want happiness throughout their entire lives.  Sometimes, marriages exist to raise children and once the children are gone, the marriage feels empty.  Couples see that they have decades ahead and want to be happy.  

The stigma surrounding divorce has continued to decline.  This includes both societal and religious stigma.  Older couples know many divorced couples.  Those people moved on with their lives and gray couples often express wanting this for themselves.

A rise in gray divorces means a rise in single people over 50.  More people are single and available in the dating world.  One party sometimes develops a romantic interest outside the marriage.  This, combined with other factors, encourages older Americans to consider divorce where it once seemed likely to result in a lonely existence.

Gray couples have more money.  Financial obligations reduce when the children are gone.  Particularly when both partners have successful careers of their own, the parties are less financially dependent on each other.  This makes divorce more readily available.

Further, an increase in divorce at a younger age makes gray divorce more likely.  Specifically, second or subsequent marriages are more likely to end in divorce.  Statistics show remarriages tend to be less stable than first marriages.

Property Division in Maryland Divorces

The law in the state of Maryland requires property division be equitable and fair.   While this often means evenly, it does not always.  Courts consider numerous factors when dividing property during a divorce.

The first consideration in property division is determining whether the property is marital or non-marital.  In general, property acquired during the marriage is characterized as marital property and is subject to division.  Property acquired prior to the marriage or by gift or inheritance during the marriage may be characterized as non-marital, and not subject to division as part of the marital estate.  Dividing property acquired prior to the marriage that increases in value during the marriage adds complexity.  For a gray divorce, this most commonly impacts pensions and other retirement benefits.  For example, if one party began a job prior to the marriage and continued the job throughout the marriage and the job has a pension benefit, dividing the property becomes extremely complicated.  This is an issue that requires an experienced, qualified family law attorney.

Be advised, the name on the title of a piece of property does not determine the status of the property.  If a pension is in the name of one spouse, that does not mean it is “his.”  This is frequently a cause of a great deal of conflict in a gray divorce.  One party mistakenly believes a court is taking away his property when instead the court is equitably dividing the marital estate.

The parties may not waste marital property.  For example, marital infidelity does not necessarily impact the division of marital assets.  However, a judge considers one party taking his new love on exotic trips using marital assets when determining a property settlement.

Financial Considerations in a Gray Divorce

While assets are divided equitably, future expenses are not split in half.  It is more expensive for two individuals to live separately than for a couple to live together.  Two rent or mortgage payments exceed the couple’s single payment.  Car payments replace a paid off car.


Retirement considerations take on greater importance in a gray divorce.  Parties that divorce when younger have time to make up for losses to their retirement accounts.  For example, it may be practical to keep the marital home in exchange for giving up retirement benefits when a party is in her 20s or 30s.  The parties expect to work for decades and make up for lost retirement benefits.  However, when parties divorce in their 50s or 60s, retirement is an immediate issue.  Parties have very little time to rebuild retirement accounts after a gray divorce.  When it is your dream to travel the country, visiting grandchildren and your sister Sally in Florida, let your attorney know so they may plan your property settlement accordingly.

The Family Home

A gray divorce couple needs to carefully consider selling the family home.  Simply put, a single person needs less space.  When the couple lives in the same home a long time, it represents a significant portion of the marital estate.  The value of the home has increased over the years and the amount of the mortgage has gradually reduced as a percentage of income over time.  

Home maintenance issues become more complicated.  Are you really able to do the day to day upkeep of your home yourself or will you need to pay someone to do it?  Perhaps the other spouse enjoyed working outdoors, in the yard.  Do you want to start mowing the lawn now?  Depending on the season, snow removal will be an issue.  Do you have a snow blower or only a shovel?  Home maintenance represents just some of the issues with the family home.

Do not attach yourself blindly to the family home.  Remember, retiring couples that remain married often sell the family home because it is an expense they no longer need to bear.  However, if you are still contemplating keeping the family home after a divorce, consult a tax expert to discuss possible tax consequences.

Considering Divorce?

If you are considering divorce, contact the firm of Fait & DiLima.  We have offices in Rockville and Frederick to serve you.