What is a Gray Divorce?

Posted on Aug 24, 2022 by Katie Carter


A “Gray Divorce” is the term that is used nowadays to describe divorces where the parties are over the age of 50. You may not prefer the term – because, hey, JLo is over 50, and she’s TOTALLY not gray – but the reality is that we often lump these types of cases together because of the similarities between them.
For the record, though, I’m not sure that I prefer the term. It’s a little too ageist, a little too narrow-minded. A little disparaging, even. But anyway, you’re here, and I’m here, so why not talk about why ‘gray divorce’ is a term, what divorces where the parties are over the age of 50 tend to have in common, and why it actually matters in the larger context of a Virginia divorce.

In a sense, a divorce is a divorce is a divorce, and they all follow a predictable pattern. You either get divorced by signing a separation agreement (which is a legal contract negotiated between the parties and ultimately signed by them) or in court, in front of a judge, who ultimately makes the decisions about how the assets and liabilities involved in your marriage will be divided.

So, to simplify: either you decide, or the judge decides.

Does the judge care, like you do? Nope. The judge wants to divide things fairly quickly, relatively ‘equitably’, and with as little fuss as possible. But what does equitable mean? It’s a fair question. (See what I did there?) Most people will say that equitable means something like fair, but lawyers (and judges) will probably chuckle if you use that word. In my youth, I used it too, and was super embarrassed when I got laughed at for my naivete.

Fairness, you see, is subjective. What’s fair to you probably would seem unfair to your husband. Equitableness is less about fairness than it is about impartiality and relative equality of treatment. “Equitable distribution,” the fancy legal word we use to describe how property is divided in Virginia, allows certain negative and positive monetary and non monetary contributions made during the marriage to influence how assets and liabilities will be divided – so, it’s theoretically possible that an ‘equitable’ distribution would be something other than 50/50. It’s probably not likely, in most cases, but it’s possible. So, it doesn’t mean ‘equal’, either – but just that the case will be looked at impartially, you and your spouse will be treated ‘equally’ (meaning, with respect to the merits of your cases, not necessarily 50/50), and that an objectively ‘fair’ result will be reached.

Objectively fair, to the court, typically means that both parties go away feeling that they’ve won some and lost some. Or, if you don’t really want your case to be left up to the ‘equitable’ but ‘objectively fair’ decision of the court, you could negotiate your own agreement. Up to you.

But, so far, I’ve only talked about how the court works, and not about anything that is particularly unique to ‘gray’ divorces. Why does it matter that you’re over 50? What’s different?

Well, typically, in divorces where the partners are over the age of 50, there are a few similarities. Usually, these are longer term marriages – ones where the parties married in their 20s, raised their children together, and then found, once they had an empty nest, that they shared very little in common together anymore. We sometimes see second or third marriages for partners in their 50s, and though they might look like they’re ‘gray’ divorces, I wouldn’t really put them in this category; I’d put them in a ‘short term marriage’ category.

For most ‘gray’ divorces, the length of the marriage means a couple of things: (1) that, primarily, we’re focused on division of the assets, which may be significant, and are almost certainly nearly entirely marital, and (2) that child custody and visitation is not involved, because either the children are grown or are old enough to where custody and visitation is relatively easy to establish.

It’s not a guarantee, but it’s also probably fairly likely that spousal support is an issue, since (sorry, sorry!) a lot of people of the ‘Baby Boomer’ generation followed a more traditional ‘stay at home mom/working husband’ model. In that case, though the marriage is coming to an end, the wife hasn’t been employed for a period of time (oftentimes a pretty long period of time) and maybe doesn’t have a real clear picture of the finances.

Removing custody and visitation from the picture is great – that’s one less thing to worry about. In litigated cases, custody and visitation is one of the big wild cards that can make a divorce take longer and cost far more than cases without custody and visitation involved. Of course, it’s also not a guarantee that a 50 year old wouldn’t have small children at home (again, JLo does!); these days, women are having children older and older! But, typically speaking, a true ‘gray’ divorce doesn’t follow this pattern.

It’s important to understand what’s at stake, and what portion of the assets you’d be entitled to receive. Whether your concern is over the marital home, the retirement accounts, or spousal support, the more information you have, the better. Especially if your husband has been the one to primarily make the financial decisions in your marriage, the more information you can gather at an early stage, the better. If you’ve stayed at home, or worked a lesser earning job for the majority of the marriage, you’re going to want to have an idea of your entitlements under the law.

In a ‘gray’ divorce, there’s a lot at stake, because we’re talking about assets that you’ve spent several decades acquiring. You’re inching closer to the retirement and social security age, too, so any division of the accounts is going to have a much bigger impact on your financial welfare later in life, too. It’s a good idea to enlist the support of a financial advisor, as well as a divorce attorney, just to make sure that the decisions you’re making now are ones that will carry you through to retirement age and beyond.

If you don’t have any idea at all about the finances, it may be time to do a deep dive. You may have to file for divorce and conduct formal discovery to get the answers to your questions, especially if your husband isn’t willing to share the information without court involvement.

If you’re scared of going to court – don’t worry, you’re in good company – maybe you want to consider alternatives to traditional litigation, like collaborative divorce.

In some ways, I hate the term ‘gray’ divorce, but there’s no question that it really defines some specific characteristics of a certain kind of divorce, which is, I think, helpful. Everyone likes to be able to find an article or something that speaks to their specific experience and helps guide them towards the best kinds of decisions they can make for their future. If you share a lot of these characteristics in common with others, why not learn about it? I don’t particularly care for the term used to describe it, but, that’s fine – I didn’t create it.

I definitely recommend that you request a copy of our divorce book for Virginia women (though you can leave the custody one on the shelf), and consider attending one of our online monthly divorce seminars. For more information, or to schedule a consultation, give our office a call at 757-425-5200.