If you’re over 50 and thinking about getting divorced in Washington, you’re not alone. According to The Journals of Gerontology, 36% of adults getting divorced in the U.S. are over 50. “Gray divorces” raise unique legal challenges. Many couples amass wealth through retirement accounts, pension plans, and through equity in a family home.
Because of Washington’s community property laws, if you’ve been married for many years, this likely means that much of your wealth is likely shared with your spouse, even if your retirement account or pension plan is just in one person’s name.
Gray divorce has the potential to change how you’ll approach retirement and how and where you’ll live going forward. It can also have negative economic consequences for both women and men. According to the Journals of Gerontology, women experience greater financial losses after a gray divorce than men, with women seeing a 45% decline in their standard of living, with men seeing a 21% decline.
Yet, gray divorce doesn’t always have a negative impact, and some older couples choose to get divorced to provide financial protection to a healthier spouse when a chronically ill spouse faces high medical costs. A gray divorce can be a strategic decision a couple makes together to protect the finances and standard of living for the healthy partner.
Divorce happens after 50 for many reasons. Sometimes one partner’s health starts to fail, while the other partner remains healthy, leading couples to drift apart. Other couples who stayed together for the sake of their children find that with an empty nest, their former reasons for remaining married no longer apply.
Retirement can bring about changed interests and priorities, with new hobbies, interests, and plans. And in many cases, the reasons for gray divorce follow many of the same reasons younger couples choose to call it quits. Infidelity, substance abuse, or domestic violence can leave a partnership irreparably torn.
Whatever your reasons for divorce, with gray divorce, time is of the essence. You have fewer years ahead of you than behind you and have fewer years to recover financially from the consequences of divorce. The collaborative divorce process lends itself well to those choosing to get divorced over 50 for many reasons. For one, you probably don’t want to spend months or years of your retirement or pre-retirement in litigation or waiting for a court date.
Collaborative divorce also affords you and your partner the option to craft creative divorce settlements that may not be available if you leave your divorce settlement up to a judge. Finally, with collaborative divorce, you and your partner can also consider alternatives to divorce that may be attractive, especially if you or your former partner is close in age to qualifying for Medicare, military spousal benefits, or Social Security benefits.
In this article, we’ll explore the benefits of collaborative divorce if you’re planning to get divorced after 50.
- Collaborative Divorce Puts the Timeline in Your Hands
- Collaborative Divorce Opens the Door to Creative Divorce Solutions
- Collaborative Divorce Can Protect Your Peace
Collaborative Divorce Puts the Timeline in Your Hands
Gray divorces can get complicated. Yes, younger couples also own homes together, share assets and property, and invest in their retirement. But because of the relative “youth” of their marriage, it is often easier to distinguish between separate property and community property. These couples might not have invested as much time and money in a shared home (nor have years of shared memories there).
And yes, younger couples might have retirement and pension plans to consider, but because of their age, younger couples have more time to recover and adjust their retirement plans in the years ahead. Of course, youthful divorce raises its own unique challenges like child custody and child support.
If you’ve been married a long time as an older couple, much of your wealth is likely to be shared with your spouse. In the eyes of the law, it’s likely that your assets like the family home, retirement accounts, and savings, will be considered community property, meaning both partners would be seen as owning 50% of these assets before divorce, and after divorce, these shared assets would be subject to equitable division of property. This doesn’t necessarily mean that each of you will leave with a 50-50 share of the estate. Instead, a judge would look at “the whole picture” and decide what’s fair given your earning capacity, health, length of your marriage, contributions to the marriage, and other factors.
Under Washington law, the waiting period to finalize a divorce is 90 days. This is known as a “cooling down” period. If both you and your spouse agree to every aspect of your divorce, the 90-day period is the minimum time your divorce will take.
The reality is that many divorces take way longer. If you don’t agree about every aspect of your divorce settlement, you’ll need to wait until the court sets a trial date. Securing a trial date can take months. Even if you wait months for your trial date, there’s a high likelihood that the judge will still send you and your former partner to mediation to work out your disagreements, drawing out the divorce process even longer.
With collaborative divorce, you and your partner agree beforehand to resolve your disagreements using the collaborative process and agree to not take your case to court. With collaborative divorce, the timeline for your divorce is in your hands. Your divorce will only take as long as it takes to negotiate a settlement in private (plus the 90-day cooling off period). No need to wait for a trial date. No risk of fighting openly in court, only to be sent to mediation anyway.
With gray divorce, time is of the essence. Few people want to spend their hard-earned retirement fighting their former partner in court. With collaborative divorce, you and your partner give each other the chance to resolve your divorce on your timeline.
Collaborative Divorce Opens the Door to Creative Divorce Solutions
When you take your divorce to court, there are limits in what a judge might be able to do for you and your former partner. Collaborative divorce opens the door to the possibility of finding creative solutions for you and your partner. It also allows you and your partner to negotiate your divorce using a values-based approach, rather than an approach that starts with a list of demands. Let’s take a closer look at what this means.
When divorce goes to court, both parties typically enter the courtroom with demands. A demands-based approach can look like this:
- I want to keep the family home and buy out my partner’s equity with money from our retirement plan.
- I want to give my partner property instead of having to give him or her a share of my pension plan when I retire.
- I was a stay-at-home mom or dad, and I want my partner to pay for my health insurance until I qualify for Medicaid in a few years.
- Our children need help with college, and I want to make sure that my partner contributes to the ongoing support of our adult children.
These demands can lead to conflict in divorce. With collaborative divorce, your collaborative attorneys can help you get to the bottom of your demands, help you understand the underlying values that drive your demands, and find solutions that honor these values while also respecting the values of your former partner.
- For example, “I want to keep the family home and buy out my partner’s equity with money from our retirement plan” might reflect the fact that you value your family home, either because you have a sentimental attachment to it, or because owning the home gives you a sense of financial security. With collaborative divorce, you and your divorce attorneys can explore alternative solutions that allow you to preserve your values, without clinging to a specific result. For example, cashing out on a retirement plan early could have serious tax consequences, thus leading to a reduction in value to a shared retirement plan. Through the collaborative process, couples can find creative solutions, like continuing joint ownership of the property while the other spouse saves up money to eventually buy the other out, waits for an expected inheritance, or waits until the children graduate from college. If the home gives one spouse a sense of financial security, the collaborative process can allow both partners to explore whether selling the house and downsizing, or choosing another solution altogether could leave both parties feeling more financially secure.
- You and your collaborative divorce lawyers can explore how the demand of “I want to give my partner property instead of having to give him or her a share of my pension plan when I retire” might really come a place of not wanting to have ongoing financial ties to a former partner for the rest of your life. There might be ways to set up automatic payment distributions or other financial arrangements that can help you achieve this goal.
- If you want your partner to continue to pay for your health insurance because you are concerned about cost of entering the marketplace at this stage of your life, the collaborative divorce process opens the door to unique solutions. For example, if you’ll qualify for Medicare or Social Security in a year or two, you and your partner can agree to postpone your divorce until you qualify and put in place a robust separation agreement or postnuptial agreement in the meantime. If you take your case to court, a judge won’t be able to offer you this solution, but with collaborative divorce, this option could be a major bargaining tool if other aspects of your divorce agreement are causing difficulty.
- Once a child turns 18, the court doesn’t have authority to order either parent to support the children and doesn’t have the authority to order either parent to include the children in their estate planning. One parent might be concerned that he or she would end up being responsible for paying for college, paying for ongoing support for an adult child that needs extra help, or paying to support a disabled adult child. According to the book, Divorce After 50 by Janice Green, collaborative divorce gives you and your partner the freedom to include ongoing support of your adult children in your divorce agreement. For example, divorcing couples could outline each parent’s yearly or monthly commitment to continue supporting an adult child who is disabled, a child while he or she is in college, or a child who is not yet self-supporting. Couples who take their divorce to court take this option off the table, because a judge can’t order a parent to support their adult children. Parents can also commit to establishing a trust to ensure that adult children are taken care of after divorce or agree to set up their wills to ensure that adult children inherit a portion of both parent’s assets, regardless of whether you remarry in the future. If you go to court, a judge can’t order you or your partner to include your children in your estate plan, but in collaborative divorce, this could be an important bargaining tool when working with a former partner.
- Collaborative divorce could also offer couples dealing with chronic illness solutions that protect the standard of living of the healthy partner. Some gray divorces are medical divorces, meaning couples make the difficult decision to divorce to separate assets and help the sicker spouse qualify for benefits and assistance.
Collaborative divorce gives you and your former partner the freedom to find creative solutions to your gray divorce that may not be available if you take your case to court. The collaborative divorce attorneys Washington at Truce Law work with couples as they navigate some of the toughest problems that can arise with divorce and separation. We can help you and your partner reframe problems, brainstorm solutions, and find creative ways to move forward when you get divorced after 50.
Collaborative Divorce Over 50 Can Protect Your Peace
Collaborative divorce offers couples a peaceful alternative to a contentious divorce in court. When you’re getting divorced after 50, it’s likely you and your former partner have a long-shared history, and possibly lots of “dirty laundry.” Rather than exposing your private conflicts to the public docket and exposing your private financial lives to the public record, collaborative divorce allows you to resolve your issues in private, and off the record. Some couples choose to get divorced because one partner becomes sick and doesn’t want to burden his or her spouse with his or her medical expenses or nursing care. For couples in this situation, a collaborative divorce can offer privacy and dignity in this delicate time.
Even if your children are grown-up, divorce can still have an impact on your adult children. According to Divorce After 50 by Janice Green, “it is a myth that adult children escape the effects of parental divorce. Research shows that older children can be as unsettled by the divorce of their parents as younger children.” Adult children might experience stress when their older parents’ divorce because they might find that their older parents can no longer support them due to changed financial circumstances, or they may be concerned about how their parents’ divorce might affect their inheritance.
According to a study performed by the Johns Hopkins School of Medicine, researchers found that divorced parents provided less financial support to their children than couples that stayed married. Divorce can lead to strained relationships, and divorced elderly parents may receive less personal and financial support from their adult children. Preserving the peace and finding creative solutions during your divorce can help preserve cherished family ties.
Collaborative divorce gives you and your partner the option to enjoy the benefits of mediation, while also ensuring that you each receive the benefit of being represented by your own attorney who also has your interests in mind. Some divorcing couples might think about choosing mediation as an option, but when you only hire a mediator, this individual cannot provide you with legal advice or represent your personal interests during the mediation, even if he or she is a lawyer. A mediator often works with couples and their attorneys to help them reach a settlement. With collaborative divorce, you agree to negotiate a solution outside of court, but receive the benefit of being represented by your own attorney.
Final Thoughts
This is in no way a comprehensive account of all the issues that can arise with gray divorce. And while collaborative divorce can be a great option in many situations, it isn’t right for everyone. For example, if you’re trying to leave an abusive relationship, or a situation where domestic violence was a factor, collaborative divorce or mediation might not be the safest or best path forward.
If you want to explore whether collaborative divorce is right for your gray divorce, reach out to the collaborative divorce attorneys at Truce Law today.
This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.