A “silver divorce” refers to a divorce that occurs later in life, typically involving couples who are over the age of 50 or 60. The term “silver” is used to describe the hair color often associated with aging individuals. Silver divorces are becoming more common as societal norms around divorce have changed, and people are living longer and healthier lives.

Divorcing later in life can present unique challenges. Some considerations specific to silver divorces include:

1. Financial Implications

Dividing assets accumulated over many years can be complex, including retirement savings, investments, and property. Financial planning and understanding the long-term consequences of the divorce settlement are crucial.

2. Estate Planning

Divorce always necessitates updating estate planning documents such as Wills, Trusts, and powers of attorney to reflect the change in marital status and ensure that the preferred persons will handle medical decision-making or financial management in the event of incapacity or death and that assets are distributed according to your wishes. However, for older individuals time can often be “of the essence” with estate planning. For example, if you were to become incapacitated sometime after filing the Petition for Dissolution of Marriage but before the divorce is final your future ex-spouse would likely be the one with legal authority to direct your medical care and handle financial matters for you. As an interim step, you might want to consider updating medical directives and financial powers of attorney as an interim step to designate someone other than your soon-to-be ex-spouse as Agent. After the divorce is final you would then finish by updating your Will and/or Trust as desired.

3. Divorce and Incapacity

A silver divorce might involve a spouse who lacks the capacity to due to advanced age or medical condition. In fact, some divorces happen when one spouse no longer wishes to be financially responsible for the other spouse’s long-term care expenses. When a divorcing party is incapacitated, the probate division of the Court will likely need to appoint a legal Guardian to represent the incapacitated party’s interests in the family court matter. In many instances, a Conservator will also then need to be appointed for the purpose of ongoing management of the assets allocated to the incapacitated spouse in the divorce proceeding. If long-term care is a concern, consultation with an elder law attorney familiar with Medicaid rules may be warranted for the reason Medicaid’s treatment of certain assets as “exempt” versus “countable” should be considered in formulating the plan for equitable division of assets.

These recommendations are general in nature, and your specific circumstances may require additional or different considerations or solutions. It’s important to consult with professionals who can provide personalized advice based on your unique situation, goals, and objectives.

While our firm does not handle family court matters (e.g., divorce cases), we do work with individuals and families going through “silver” divorce in the areas of estate planning, guardianship, and long-term care planning and often collaborate with family law attorneys to achieve the best overall outcomes. If you are going through or have recently gone through a “silver” divorce and would like to schedule a consultation to see how we can help you, please call us today at 480-922-1010 or email info@bivenslaw.com to schedule a consultation. We are here to help.

— Stephanie A. Bivens, Esq., CELA