2017 IBPA Benjamin Franklin, Silver Award Winner

Divorce After 50

A Guide to the Unique Legal & Financial Challenges of Your Divorce

A road map for late-life divorce

If you're considering divorce later in life, you'll face unique and complex situations and decisions that simply don't apply to your younger counterparts. Divorce After 50 covers these subjects and much more: 

  • ways to divorce, including mediation, collaborative law, and litigation
  • marital property: what it is, what you do with it, and how to divide assets and liabilities
  • how to survive financially during and after divorce

See below for a full product description.

  • Product Details
  • Divorce can be devastating at any time, but the emotional and financial challenges are even greater for those who divorce later in life, with complicated issues of blended families, health care concerns, and retirement planning.

    Attorney Janice Green brings over 40 years of experience as a divorce lawyer, and in particular, her skill in counseling clients over 50, to Divorce After 50. She addresses:

    • divorce options (including mediation and collaborative divorce)
    • how to receive the best guidance from lawyers and professional advisers
    • dividing marital property fairly
    • retirement plan rules
    • alimony, and
    • keeping good health care.

    The book also includes divorce survival stories that illustrate your options and provide encouragement. They got through it, and with the help of Divorce After 50, you can, too.

    “Nolo is a pioneer in both consumer and business self-help books and software.”—Los Angeles Times

    “Nolo publications…guide people simply through the how, when, where, and why of the law.”—The Washington Post

    Number of Pages
  • About the Author
    • Janice Green, Attorney · University of Texas School of Law

      Janice L. Green is a family law attorney who has practiced in Austin, Texas, for more than 30 years, the last 26 as a partner in the AV-rated boutique family law firm, Farris & Green. She is Board Certified in Family Law by the Texas Board of Legal Specialization, a Fellow in the American Academy of Matrimonial Lawyers, named to Best Lawyers in America, and a Texas Monthly Super Lawyer. She is a frequent lecturer and published author of more than 40 articles on family law.

      Green is an Honors graduate of the University of Texas School of Law and Phi Beta Kappa graduate of the University of Texas. While continuing to reside in Austin, she makes time to escape to her cabin home outside Pagosa Springs, Colorado, to garden, write, and relish mountain sunsets.

  • Table of Contents
  • Your Late-Life Divorce Companion

    1. How Did I Get Here? The Rhyme and Reason of Late-Life Divorce

    • Why Is This Happening?
    • Bitterness Is Not Your Friend

    2. Getting Guidance—The Professional Side

    • The Role of Lawyers in Divorce
    • Working With a Divorce Lawyer
    • Unbundled Legal Services: The a la Carte Approach
    • Working With Other Advisers

    3. Getting Guidance—The Personal Side

    • What You Might Hear From Your Spouse, and How to Respond
    • Family and Friends
    • Adult Children and Divorce
    • Surrogate Decision Making: When a Divorcing Spouse Needs Extra Help
    • Getting the Help You Need

    4. Your Divorce Options

    • Alternatives to Divorce
    • Litigation
    • Arbitration
    • Mediation and Collaborative Divorce

    5. Marital Property: Steps to a Fair Division

    • Four Steps in Analyzing Marital Property
    • Identify
    • Characterize
    • Value
    • Divide
    • Basic Financial Principles
    • The Next Phase

    6. The Big-Ticket Items: Your Home, Your Retirement, and Your Family Business

    • Your Home
    • Demystifying Retirement Plans and QDROs
    • Businesses and Professions

    7. More About Assets—And What They’re Worth to You

    • Liquid Assets
    • Nonliquid Assets
    • Employment Benefits: Beyond Retirement
    • Personal Property
    • A Major Accomplishment

    8. The Bad News: Debts and Taxes

    • Identifying and Characterizing Debts
    • Types of Debts and How to Divide Them
    • Bankruptcy
    • Don’t Forget the Tax Consequences
    • Taxes in the Year of Divorce
    • How Taxes Affect Value

    9. The Health Care Puzzle

    • Early Warning
    • Group and Individual Coverage
    • Health Insurance Under the Affordable Care Act
    • COBRA and Similar Military Coverage
    • State Insurance Risk Pools
    • Medicare
    • Medicaid
    • Long-Term Care
    • Bridging the Gap

    10. Your Financial Survival

    • Budgeting—The Four You’ve Gotta’s
    • Exploring Potential Income Streams
    • Being Inventive in Your Financial Life

    11. Estate Planning and Divorce

    • Before the Divorce: Beware the Traps
    • During: Watchdogging the Status Quo
    • After: Taking Care of Business

    12. The End Game: Finishing Up and Moving On

    • The Marital Settlement Agreement
    • Postdivorce Details
    • Moving On
    • You, Divorced

    13. Survival Stories

    • Survival Stories
    • Your Survival Story


    • A. Inventory of Assets and Liabilities
    • B. Assessing Your Living Expenses


  • Sample Chapter
  • Chapter 1:
    How Did I Get Here? The Rhyme and Reason of Late-Life Divorce

    Starting in middle age and even more strongly in our later years, most of us plan to pull our foot off the accelerator and begin to coast on the fruits of our lifelong efforts—in the best-case scenario, settling in to a pleasant retirement or semiretirement. It can be shocking and confusing to have this expectation turned upside down by a divorce—even if you’re the one initiating the split. You might be wondering why this is happening when you feel you are in the prime of your life and have finally reached the moment you have been waiting and working for. What you’re learning is that age does not provide immunity from divorce, nor does a long-term marriage protect you. According to Pew Research Center, about 34% of those divorcing after 50 have been married at least 30 years and 12% for over 40 years.

    You might be reading this book because you’ve recently had the shock of hearing from your spouse that a divorce is in the wind. You might be the one who wants the divorce. It’s also possible that you are considering divorce but need to gather more information before making a final decision. No matter your situation, you are probably feeling anxious and isolated, and desire to understand what is happening—and why.

    Why Is This Happening?

    Late-life divorces and long-term separations can happen for the same reasons that result in relationship breaches of younger adults: infidelity, family violence, substance abuse, financial pressures, regrets about earlier decisions, or the desire for independence. However, many of these reasons are reframed and have new meaning when they surface in the context of a graying divorce—and some late-life divorces are the result of realities unique to older adults.

    Reflecting on the “why” might be your first step in this difficult process. It can help you make decisions in the near term and can shape your negotiation strategies later. More important, understanding why and knowing that others have come before you with the same concerns, issues, and feelings can help you feel less isolated and confused. This chapter covers some of the most common answers to the question I asked new clients: “What brings you to my office?” The answers provide insight into some of the most common circumstances underlying the graying divorce.

    Grappling With the Realities of Time

    “I turn 60 in a few months. It’s hit me that I am not immortal. I want an authentic life. To get there I need to end this marriage.”

    “My parents lived into their nineties. I’m 75 and I feel like I have many more years ahead of me. My wife has given up at 70. I haven’t. We see things too differently to stay together.”

    “We’ve been separated for 20 years. I think it’s time to make it final.”

    The average American life expectancy now is 79—up from 47 in 1900. Over 13% of the U.S. population is 65 or older; at the time of the last census in 2010, the over-65 crowd numbered 40.3 million. The projection for this age group in 2040 is 21% of the U.S. population. (According to one mind-boggling statistic, 65% of the people who have passed age 50 in the entire history of mankind are still walking the earth today.)

    Aging can play a significant role in a decision to divorce later in life. Along with the reality that we are all living longer, our “can-do” culture offers incentives to tackle challenges at any age. An emphasis on individual fulfillment sometimes seems to encourage the idea that we can achieve happiness at any age if only we follow our hearts, even if that means switching partners after many years. A person staring at a 60th birthday might choose to end an unhappy marriage and make a fresh start, stepping out of marital turmoil to seek happiness and live a life that feels more authentic.

    With modern medical advances, it’s easy to believe there will soon be a cure for many of the conditions that accompany aging. Thanks to advertisements for the latest and greatest pharmaceuticals and medical procedures, we begin to think that high blood pressure, diabetes, heart conditions, cancer, and other debilitating diseases will gradually cease to exist. We are inundated by reminders that we will live longer if only we stop this bad habit, start taking that vitamin supplement, or embark on a new exercise regime. We also hear that if we laugh more often, keep positive thoughts in the forefront of our minds, and reduce stress, marital happiness and good health will follow. If it looks like divorce will help generate these elements in one’s life, then it’s not a big leap to the idea that divorce will lead to a longer and happier life.

    There’s even some scientific support for this idea. An American Medical Association study involving 42 married couples found that hostile marriage partners take longer to heal from physical wounds, such as surgical incisions, than nonhostile couples. (The hostile behaviors that were measured included belligerence, glowering, threatening speech, hostile tone of voice, criticism, and dramatic eye-rolling.) This study involved a relatively small number of subjects, but its conclusions mirror findings in earlier research that show troubled marriages contributing to depression, heart disease, and even death. All of these realities can act as motivation to seek what appears to be a healthier lifestyle on the other side of a divorce.

    Reacting to Illness

    “My cancer is in remission. But my life isn’t. I want to make the most of the time I have left. I’m ready to file for divorce. I’ve put it off long enough.”

    “My wife has Alzheimer’s. What happens if I divorce her? I love her dearly, but our life as a couple is over. I don’t want to die a gradual death with her, and I don’t want my estate going into bankruptcy because of her medical expenses. We talked about this before she became so ill. I think she would understand why I’m here.”

    When a married spouse becomes ill, society expects that the healthy partner will adhere to the traditional wedding vow to stick around “in sickness and in health.” But serious illness can change things in a marriage. For example, when a spouse becomes seriously ill, and especially when an ailing spouse is cognitively impaired or doesn’t recognize the healthy spouse (for example, with Alzheimer’s disease or a severe brain injury), things can shift drastically. The healthy spouse in an unhappy marriage can experience the illness as the last straw.

    Spousal abandonment after a diagnosis of cancer or multiple sclerosis was the subject of a joint research study by the University of Utah and University of Washington Schools of Medicine. They found that a woman is six times more likely to be separated or divorced soon after she receives such a diagnosis than if a man is the patient. Even spouses who aren’t alienated from their partners consider divorce when cognitive issues prevent them from having a satisfying marital relationship. These situations are loaded with abandonment issues, but many spouses come to believe that the ailing spouse would have supported the idea of divorce under the circumstances.


    Preserving Marital Assets Through Divorce
    Some spouses divorce in name only while continuing to live together, in an effort to preserve marital assets. This isn’t about greed, but about protecting Medicaid or other crucial benefits. The fear of depleting a marital estate when serious illness strikes is real—over 66% of U.S. bankruptcy filings list medical bills as the reason for seeking relief, and 80% of those are people who had some form of medical insurance.


    When your health is in jeopardy, as opposed to the failing health of your spouse, it can similarly lead you to take hold of your own fate. Facing your mortality naturally raises the question “What can I do to make my remaining time the best of my life?” This might be followed by another question: “Why should I spend my limited time with someone I no longer love?”

    Lacking Common Purpose

    “My husband just announced that he wants to end our 35-year marriage. He won’t tell me why. Says he can’t explain it. He retired a couple years ago. I’ve been a housewife our entire marriage and have never had to work outside of our home.”

    “I wanted him to find something to do with his time. So he got a computer. That was fine with me until he left me for the Internet. He avoided me until recently when he told me he wants a divorce.”

    “We didn’t divorce while the kids were young. We wanted to keep the home together as long as we could. Our youngest is graduating soon. There will be nothing to hold us together. The kids are now old enough to understand.”

    “I am afraid of being alone. Yet, as I think about it, I’m alone in this marriage.”

    Social science research is clear that spouses must make emotional adjustments when a partner retires or children leave home for college or to begin their own adult lives. Much has been written about the “empty nest” syndrome and the sound of silence that accompanies it when parents have nothing to say to each other because substantive communication has always been tied to their children. The children are gone, interests once fed by the workplace vanish, friends move away, and spouses find themselves without common purpose. Some parents who always lacked common purpose but resisted divorce because of their children give themselves permission to divorce when the children reach adulthood.

    Retirement can also have enormous impact: A retired husband might demand the same mothering as a long-departed child, and his wife might be reluctant to take on a new full-time caretaker role. Older men, too, might flee a marriage after retirement when they feel inadequate to handle the close proximity of a needy or dependent wife.

    This bleak picture isn’t the only possible outcome—many spouses return to interests shared earlier in life, like travel; and many develop new common interests and projects. But problems can arise, and even lead all the way to divorce, when one spouse blames the other for late-life tedium and decides to end the marriage instead of searching for new ways to relate.

    Divorce filings driven by a lack of common purpose frequently come as a surprise to the abandoned spouse, who soon learns how many complaints have been stored in the other’s memory bank. When the loss of purpose drives a divorce, it is often coupled with another reason, such as recognizing one’s own mortality or discovering (or rediscovering) a romantic connection outside the marriage.

    Rediscovering Sexuality

    “He’s got a Sweet Young Thing he wants to marry! He’s 72. At his age? How can this be happening?”

    “I just discovered that my wife is having an Internet affair on a senior citizen dating site. I had no idea that’s why she was spending so much time on our computer! I had no idea that kind of thing even existed.”

    “He went to his 40th high school class reunion and met up with an old girlfriend who is widowed. Now he wants to pick up where they left off, and our marriage is going to end as a result of this foolishness.”

    “Our father wants to marry his secretary, who is many years younger. Our mother is devastated. And I’m so angry that I want you to nail it to him. I’ ll pay your fees. Just take care of our mother.”

    Infidelity can be a cause of divorce in itself, or it can be symptomatic of another problem in the marriage. A late-life divorce is no exception. Research tells us that sexual drive does not stop at some predetermined age. A 2001 survey of 1,300 Americans over the age of 60 found that nearly half reported having sexual relations at least once a month, and 40% of those wanted to have relations more often. The first comprehensive national survey of sexual attitudes, published in 2007, concluded that most active people ages 57 to 85 experience only a slight decline in the frequency of sexual activity from the 50s to early 70s, and that many men and women remain sexually active well into their 70s and 80s. These attitudes were again reflected in the 2018 National Poll on Healthy Aging by the University of Michigan: 40% of adults aged 65–80 are sexually active, and 54% say sex is important to quality of life.

    It turns out that older Americans cheat more than younger Americans. According to University of Utah sociologist Nicholas Wolfinger, who noticed these age differences when reviewing the General Social Surveys, “[p]eople born between 1940 and 1959 report the highest rates of extramarital sex. These are the first generations to come of age during the sexual revolution.”

    When intimacy with a spouse has been dormant, it is not unusual for desire to start clamoring for expression outside the marriage. Class reunions, Internet chat rooms, and social media are prime arenas for that expression. There’s no data on the frequency of infidelity in the lives of older adults, but we do know that older spouses frequently report lack of sexual relations as the reason for wanting to leave the marriage (or the justification for an affair).

    In my view, the power of sexuality—and the corresponding fear of losing it—can cause people to act in ways that seem surprising from an outsider’s view. Time and again, I have seen older clients who are ready to walk away from a long-term marriage because of an affair or new relationship (or the corresponding client who is shocked to discover a spouse’s affair). As these cases progress, extramarital acting out is often explained by revelations of weak or nonexistent common interests, problems with communication, or health conditions interfering with sexual relations.


    The Possibility of Reconciliation
    When an older divorce client in a long-term marriage is experiencing a marital crisis sparked by a single act of infidelity (rather than a pattern in the marriage), there might be merit to waiting or stretching out the divorce process to give the spouses time to work through the impact of the event. I have seen many such situations that ended in reconciliation, with the infidelity serving as a wake-up call rather than a death knell.


    Social and Cultural Forces

    “For almost 40 years I’ve taken the abuse. My friends tell me it is time for me to end this charade. But I am afraid to try to get out. He’ll be enraged if I even mention divorce.”

    “My divorced daughter has been urging me for years to leave her father because of how he treats me. I’ve always thought of divorce as a young person’s option, not something for someone my age to seriously consider. But what if I were to take the plunge after all these years? ... I can’t believe I’m thinking about this.”

    “I have lived with an alcoholic for over 40 years. Don’t ask me why, but I just woke up and realized that I am not going to spend the rest of my life tiptoeing around him. I thought he would mellow with age. But it’s getting worse.”

    Just as every divorcing spouse is responding to conditions within that person’s own marriage, nearly everyone is also driven by social forces. Significant cultural transformations can be particularly powerful for a spouse divorcing later in life, suggesting new options and ways of living.

    Gender Equality. Greater gender equality in recent decades, both in the workplace and in the home, has precipitated many graying divorces. The increase in opportunities outside the home has led women to seek fulfillment and independence later in life and to reject the traditional woman’s role of caretaker, especially once children are grown and gone from home. As more women establish successful careers, they also create their own sources of retirement income, removing a barrier to divorce. Women who remain more financially dependent on husbands might be slower to initiate a divorce.

    Economic Climate. Economic conditions affect the timing of divorce, too. During short-term economic downturns, spouses sometimes put divorce on the back burner. During longer downturns, divorce can be perceived as a remedy to ease financial stressors— or can be rendered impossible by the reality that there’s simply not enough money to get divorced. This is especially present when the economic outlook includes a poor real estate market, rendering a couple’s most valuable asset less flexible.

    No-Fault Divorce. A no-fault divorce can be filed and finalized when only one spouse believes that the marriage is broken and irreconcilable. No-fault laws do not require proof of cruelty, infidelity, or abandonment, the traditional grounds for divorce. The growth of no-fault laws in the 1970s—a reflection of society’s changing attitudes toward divorce—gradually made divorce less stigmatizing, as the increasing divorce rate has done as well. This social change can have an effect on older spouses, who see acceptance of divorce around them. And if an older adult’s grown child gets divorced, the parent might look differently at marital disharmony and see divorce as a real possibility. No-fault divorce is now available in every state in the United States.

    Spousal Abuse and Substance Abuse. A study by the American Association of Retired Persons (AARP) cites verbal, emotional, and physical abuse as a primary reason for divorce in couples between 40 and 79 years of age. More than 20% of the 1,147 men and women surveyed cited drug or alcohol abuse as a major cause of the divorce. Substance abuse often goes hand in hand with physical and emotional abuse.

    Despite increased public awareness of the prevalence of spousal abuse and the development of better intervention and prevention services, it is not easy to shake off entrenched aggressor-victim roles that have been played out for decades in a long-term marriage. It takes tremendous courage to break this abusive cycle later in life. These are some of the most difficult cases to see to completion, because frequently an abused partner abandons the process and returns to the familiar. Nevertheless, my experience is that more and more long-term victims are deciding to stop the abuse.

    The Revolving Door of Serial Divorce

    “Hello, again. I should have listened to you the last time you represented me. Marrying my girlfriend back then was not a smart move. You told me to wait a couple years before I married her. I should’ve listened.”

    “This is my third marriage, and I learned not to waste any time when it is clear that things are not working. I can recognize a mistake when I see one. Let’s get the ball rolling and file.”

    Divorced persons tend to remarry—and, statistically, to divorce again. About two-thirds of divorced women and 75% of divorced men give marriage another try. And those who have a history of divorce appear to be less willing to stay in a subsequent unhappy marriage—the divorce rate for second and subsequent remarriages is higher than for first-time divorce—60% or more. Of people over age 50 who divorce, 53% have divorced at least once before. For those aged 50 to 64, having been previously married doubles the risk of divorce; for those 65 and older, the risk quadruples.

    According to the anecdotal observations of family law attorneys, older divorce clients who are repeat customers are typically one of two types. The first is the older adult who has the financial means to marry and divorce repeatedly. The second is the client who remarried within the first few years after a previous divorce. Psychologists describe the two years following a divorce as a crisis period during which the divorced person experiences intense emotional upheaval, continuing conflict among family members, and difficulty adjusting to a new lifestyle. When in the throes of such turmoil, it is natural to seek solace in a new relationship. Unfortunately, the solace is often short-lived.

    Again anecdotally, this pattern seems to affect men more than women. With the clock ticking loudly, men seem eager to extricate themselves from struggles on the home front so that they can move quickly into new relationships that they expect to be more peaceful. Women, on the other hand, seem more adept at creating postdivorce support systems instead of remarrying quickly: circles of friends, formal counseling groups, and involvement with family members, particularly grandchildren.

    Motivating Loss

    “This is my second marriage. I’m 82; she’s 34. I was widowed the first time around. It was a mistake to marry her so quickly after my wife died, but I was lonely.”

    “When we married he was a Silver Fox. Handsome, wiser. He is 15 years older than me. I honestly do not know what happened to his looks. Despite the financial security he offers, I can’t shake the image of his aging body and aging attitudes. I feel guilty about this, but I don’t want to be married to a father figure.”

    “My first wife died about five years ago. She was the love of my life. But soon after losing her, I knew I didn’t want to go it alone. We had such a wonderful marriage that I was sure I could find someone else like her. Then I met my second wife and she seemed like she was going to be another perfect partner. Was I ever wrong about that! Maybe because we dated for only four months and I didn’t really know her and her kids. They never approved of me, and I didn’t particularly like them. She always sides with them, and we always seem to be at war. I can’t handle this tension any longer. Anyway, this was all a big mistake. I married her too fast.”

    “Both of my parents are now deceased. While they were alive, I never would have considered divorce. It would have destroyed them. Now I feel free to do so.”

    We all know people who have remarried too soon after losing a spouse, when the grief and loneliness felt too great to face alone. Remarriage is a way to end isolation and loneliness—but it can be unwise if it’s too soon after the loss. The grief process from the first marriage—whether it ended in death or divorce—must run its course.

    The death of a parent can also be a motivating loss precipitating divorce. What had served as a buffer between self and death is removed when a parent dies—thus it is yet another opportunity to confront one’s mortality and open the door to contemplating divorce. The death of a parent can also be a trigger if the parent’s approval was important: When that parent was alive, the adult child—even as an older adult— might have rejected the idea of divorce because it would draw the parent’s disapproval and judgment. When the parent dies, the option of divorce becomes more real.

    Finally, there is the loss of youth and health. Try as we might to surgically lift our sagging parts and tuck our folds away, age catches up with us. Youthful appearances start to recede, and unhappy spouses begin to look anywhere and everywhere to recapture them, blaming the loss of youth on an unsatisfactory marriage and assuming that good times will roll again if the marriage ends.


    COVID-19’s Effect on Divorce

    As this book goes to press in late 2021, it’s too early to know what the long-term impact of the pandemic will be on divorce rates and rationales. During the height of the COVID scenario, many couples who would otherwise have filed for divorce instead hunkered down. The number of divorce filings dropped. But as the pandemic moves into our rearview mirrors, change is afoot.

    “For couples over 50 in particular,” counselors say, “the pandemic has amplified the soul-searching that often hits people at this age,” according to a May 5, 2021 Wall Street Journal article, “Bill and Melinda Gates Divorce Highlights Rise of Older-Age Splits.” This article cites findings from The National Center for Family and Marriage Research at Bowling Green State University, which suggest that the pandemic suppressed divorce rates in 2020 in five known states (Arizona, Florida, Missouri, New Hampshire, Oregon). Nationwide divorce statistics are not yet available, but divorce attorneys report that divorce consultations and filings are now on the upswing.

    It makes sense that the close proximity of spouses and lack of social interaction during the pandemic would exacerbate many of the underlying rhymes and reasons for divorce highlighted in this chapter, especially for those couples lacking common purpose.

    Other by-products of the pandemic are a heightened sense of vulnerability, watching a society in flux, and a daily reminder of mortality—all of which play into the themes behind gray divorce.


    Bitterness Is Not Your Friend

    Have you found elements of your own story here? There is often overlap, sometimes a great deal, among these themes in the late-life divorce; rarely does a marriage fall apart due to a single cause. Any divorce has the potential to create feelings of bitterness, self-righteousness, and victimization. This is normal, and especially likely in a late-life divorce, where the very length of the marriage can give rise to an intense sense of betrayal. You will need time to work through these feelings, but work through them you must. If you don’t, they will make your inner life more difficult and painful for a longer time. They’ll also stand in the way of your divorce process. Bitterness interferes with sound judgment and makes it harder for others to listen to what you have to say during negotiations. And many judges discount the testimony of a bitter and angry witness.

    This is not to say that finding your way out of bitterness is easy; you may well need help. Consider reading some of the excellent books available, either on divorce specifically, on grief or loss, or simply about handling life in general. Join a divorce support group, or start or resume counseling. Make sure you keep up your friendships with the people who really support you, and take good care of your physical health. In other words, try any and every constructive avenue that will help you be calm and focused as you ride the emotional and legal rollercoaster of divorce.

    We hope you enjoyed this sample. The complete book is available for sale here at Nolo.com.

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