The numbers of older Americans divorcing, in what are often called “silver” or “gray” divorces, is on the rise. When couples who have been married for a relatively long period go through a divorce, the financial challenges tend to be more challenging than for younger couples. This article explores what are these challenges and what older divorcing couples can do to reduce the financial strain of their divorce.
When is a divorce a silver divorce?
Articles about so-called silver or gray divorces tend to mention couples who are over the age of 50, but the term really intends to focus on any relationship between a couple that has endured for a relatively long time before circumstances lead to a desire to end the marriage. So, it has obviously nothing to do with the color of the spouses’ hair or even their exact age. It is a recognition that the longer a couple are married, the more challenging it can be, emotionally, psychologically and financially, when they break up and agree to divorce.
The unique financial challenges of a silver divorce
It stands to reason that the longer a couple are married, the more their financial assets, including their family home, become intertwined, making it more difficult to make decisions about who should get what when the couple decides to become divorced. Of course, every marriage is unique and that applies to every divorce, too. For each couple that goes through the divorce process relatively stress free, there are others who find the whole process very challenging and frustrating, especially if communication between the two spouses has broken down or there are strong disagreements about the distribution of assets.
Couples may have contributed financially unequally throughout the period of the marriage. This is often because one or the other was the major breadwinner or because one spouse earned a much higher wage or salary than the other. These sorts of circumstances make it harder to come to a decision about how to divide joint assets than for couples who have been relatively equal for the period of the marriage.
Divorcing couples can come to their own agreement about asset distribution
Many couples who have jointly decided on a divorce are quite capable of coming to a mutual agreement about their joint assets. There is no state law which makes it compulsory to reach out to a court to make decisions about their assets for them. However, for such couples it is advisable to make their joint decisions about joint asset distribution and any spousal support legally binding, by compiling a comprehensive separation agreement and having it notarized by an attorney or notary. By doing so, it means that if there are subsequent disagreements about the original decision or there are allegations that one ex spouse or another is not sticking to the agreement.
For many other couples, decisions about how to divide assets up can become much more acrimonious and harder to resolve. For these couples, there are still ways to proceed without having to resort to the Family Court. Mediators can arrange for sessions with spouses, either together or separately, to listen to the differences aired by the two spouses. Mediators do not make any decisions themselves, but aim to provide a calm environment in which differences may be resolved.
When all else fails, one or both spouses can petition the court to help decide on asset distribution and other important decisions such as spousal support. When a court finally makes a decision about a couple’s divorce, it issues a binding court order which sets out the court’s decision about all financial aspects of the couple’s assets and how they should be decided. It is then expected that the couple adheres to the court order after the divorce has gone through, although modifications to the order can be made later if circumstances change, such as changes in income from a new job, inheritances, new marriages or because of the death or incapacitation of one of the spouses.
Massachusetts law as it applies to silver divorces
There are no specific divorce laws that apply to older residents of the state which are different from laws that apply to anyone else, but the length of the marriage, as well as the many factors that are associated with the length of the marriage are more important and must be taken into consideration by the Family Court when it has been petitioned to resolve a divorce dispute.
Massachusetts uses an ‘equitable division of assets’ rule when divorce asset distribution is assessed. ‘Equitable division’ of assets is not exactly the same as an ‘equal division’ of assets, but means that when the court looks at the many factors that have had an impact on the couple’s finances, the intention is to divide the couple’s joint assets fairly. Some of the major factors that the court takes into consideration include:
- how long the marriage has lasted;
- the age of each spouse;
- the income of each spouse;
- other contributions made to the marriage, financial or otherwise;
- the educational level of each spouse;
- the health of each spouse;
- the need for continued use of the family home;
- breakdown of all assets that are owned by either spouse or jointly owned;
- the future opportunities for financial self-sufficiency of each spouse, such as employability;
- health insurance and pensions arrangements made or held by both spouses;
- whether there were any allegations or history of domestic abuse within the marriage;
- whether there is a clear need for spousal support (alimony) provision for one of the spouses and whether this should be time limited.
Spousal support, when it has been determined to be a legally binding part of a divorce order in Massachusetts may be of three different types:
- transitional, meaning it has a set time limit;
- rehabilitative, which means that it ends when a certain event happens;
- general, which is determined by the length of the marriage.
Spousal support usually ends in any of the types given above on the death of one of the spouses, or one of the spouses enters into a new, intimate relationship, whether this is a re-marriage or cohabitation.
Advice from a Boston divorce lawyer is recommended for older divorcing couples
Divorce is often times an extremely stressful and emotionally charged experience and it doesn’t help when the couple’s finances are so complexly intertwined. This is when it is advisable to seek advice from an experienced divorce lawyer in Boston who understands the unique laws that can have an impact on a divorce settlement in Massachusetts.