From Green to Grey: Special Issues in Over-55 Divorces

From Green to Grey: Special Issues in Over-55 Divorces

A generation ago, divorce over age 55 was almost unheard of. Many couples who drifted apart obtained “Irish divorces.” These couples remained legally married but lived separate lives, often including residence in different houses. 

At about the same time Ireland legalized divorce, which was 1995, the grey divorce revolution began to accelerate in the United States. Due to a number of factors, including a longer life expectancy, divorce became more attractive to couples over 55. Today, although the overall divorce rate has declined since the 1990s, the gray divorce rate has increased significantly.

Divorce over 55 comes with some special issues that a Hoffman Estates family law attorney can help navigate. Most marriage dissolutions involve both financial and emotional issues. Grey divorces have these same features, but there are some differences.

Home Equity Division

Because of loan amortization, a home is usually a debt instead of an asset for younger divorcing couples. During the first half of a loan, most payments go to prepaid interest. Older homeowners, however, usually have substantial equity. During the second half of a loan, most payments go to the UPB (unpaid principal balance).

In many grey divorces, it is best to sell the house and divide the proceeds equitably between the parties. A clean break is often in everyone’s best interests, especially since many couples this age think about downsizing anyway. But that is not always the case. If the market is depressed, a quick sale could cost the parties thousands of dollars. Additionally, many couples over 55 still have children at home.

If a sale-and-divide approach is not a good alternative, an owelty deed for partition might be appropriate. One spouse receives outright title to the house. The other spouse receives a lien for his or her share of the equity as of the date of divorce. Later, when the owner spouse sells the house, the equity lien must be paid.

Child Custody Matters

As mentioned, a number of older couples still have children at home. Even if that is not the case, child custody issues could still affect a grey divorce.

At this stage of life, any children at home are usually teenagers. These children have different needs than younger children. Generally, parents of children this age are in more of a supporting role. Active participation in the child’s life (e.g. playing catch in the backyard) is no longer a priority. Similarly, there is less need to tell teenagers to do their homework and brush their teeth. If they have not learned healthy habits by now, it is probably too late to teach them.

So, the ideal residential parent for a younger child might not be the ideal residential parent for an older child. In fact, the opposite is true in many cases.

Even if there are no minor children, many people over 55 have grandchildren. It is common for adult children to “blame” one parent for the divorce. If that happens, adult children might retaliate by cutting off contact between grandchildren and grandparents. If their relationship had been close previously, this change could significantly alter family dynamics, and the grandchild arguably pays the price.

Limited grandparent visitation might be available in these situations. However, grandparent petitioners must overcome the parental presumption. This legal doctrine gives parents an almost absolute right to determine where and with whom their children spend their time.

Contact a Dedicated Lawyer

Divorces over age 55 are increasingly common and increasingly complex. For a free consultation with an experienced Hoffman Estates divorce attorney, contact Andrea Heckman Law. Convenient payment plans are available.