You might know an older couple who is suddenly getting divorced after being married for decades and thought, “Why now?” These “grey divorces” happen. And increasingly so, according to research conducted earlier this year [1].

What Is a “Grey Divorce”?

The “grey” in “grey divorcing” refers not to an ethical area, but rather to the color of the couple’s hair (well, stereotypically at least). To put it simply, a grey divorce is a divorce involving older couples, generally those who have been married for decades.

Why Do “Grey” Couples Divorce?

After staying together for so long, after building their entire lives around this marriage, why would older couples divorce? Many reasons. For example, a spouse may have discovered infidelity—even infidelity sixty years ago [2]! Alternatively, the couple may have had unresolvable problems their entire marriage but refused to divorce because of their children. But with children grown up and moved out, that bulwark vanished. Other times, the marriage simply fizzled out, leaving the couple no choice.

In Arizona, Is It Harder to Get a Divorce After a Long Marriage?

Short answer: No. In Arizona, the law does not require more reasons or “better” reasons to file for divorce, just because you were married longer than most other couples. The process is exactly the same. The length of the marriage does, however, significantly impact the results of divorce.

First, the length of spousal maintenance payments (also referred to as alimony) is generally much greater in longer marriages. Arizona recently enacted specific guidelines for calculating spousal maintenance and also released a corresponding calculator that estimates and suggests the appropriate amount and duration of spousal maintenance. The guidelines involve several different factors, and one that weighs particularly heavily is length of the marriage. For example, the calculator suggests about $1,350.00 of spousal maintenance per month from Spouse A to Spouse B when they earn $100,000 and $50,000, respectively [3]. For a one-year marriage, these payments are suggested to last up to one year. For a sixteen-year marriage, the calculator suggests they last up to eight years [4]. The difference can become even more dramatic, because the “Rule of 65” almost always applies in grey divorces, automatically allowing judges to deviate from the Calculator’s suggested figures [5].

Second, child support is likely not an issue. When children are involved in Arizona family court, the parties must negotiate child support payments, agree to a parenting plan, determine legal decision making, and officially establish paternity. Because grey divorces are unlikely to have minor children in the mix, they will probably be easier to navigate in this respect.

Third, though minor children are out of the picture, adult problems are not. For example, adult children may have their own agenda, and adult health issues (e.g. dementia) may plague proceedings.

Fourth, the assets that each spouse has acquired “separately” are unlikely to be treated as separate assets. Arizona is a community property state, which means that almost all property acquired during the marriage is owned by each spouse [6]. During divorce, the court equitably (as opposed to equally) distributes this “community property” between the two parties [7]. Where grey divorces might differ from younger marriages is when one or both spouses acquired property before the marriage. Normally, that is considered “separate property” for which the other spouse has no legal right to or interest in. But given the length of the marriage, “grey” couples are more likely to combine or share their otherwise separate assets into a coalescent entity. When separate property is commingled this way, it becomes community property now subject to equitable division [8].

Fifth, a divorce may significantly impact retirement planning. For example, pension accounts, 401Ks, IRAs, and social security benefits might all be affected if they need be withdrawn as part of a court-ordered division of assets. And with the new potential expense of spousal maintenance and the potential loss of some income-generating assets, what was previously a sufficient retirement income might not be enough anymore.

Conclusion

Grey divorces happen for many different reasons, and when they do, the procedure for filing and effecting a divorce are the same. Substantively, they are easier than most other divorces in some respects. But in other ways, grey divorces pose challenges not common to younger marriages.

[1] Yafit Cohen, Naor Demeter, and Chaya Koren. Why Now? Late-Life Divorce Timing Process: Dyadic and Individual Perspectives.

[2] Nick Pisa. 99-Year-Old Man Divorces Wife of 77 Years After Discovering She Had Affair 60 Years Ago.

[3] For this example, the parties have no minor children and pay a $2,000 mortgage monthly. You can use the calculator yourself here.

[4] Id.

[5] The Rule of 65 is an automatic exception to the general rule that judges award an amount and duration within the Calculator’s range. The Rule of 65 applies when the party requesting spousal maintenance is at least forty-two years old, is getting divorced after sixteen or more years of marriage, and can reach at least 65 when adding together those two figures (age and years of marriage). When it kicks in, the duration of spousal maintenance can theoretically jump from a fixed period of eight years to an indefinite period.

[6] The exceptions to this general rule, such as inheritances, are not relevant or unique to most grey divorces.

[7] A.R.S. § 25-318.

[8] See, e.g., Guthrie v. Guthrie, 73 Ariz. 423, 426 (1952).

Leslie A. Satterlee is a partner at Woodnick Law and has been practicing family law exclusively since graduating cum laude from ASU’s Sandra Day O’Connor College of Law. Her practice involves complex asset driven divorce matters.

Sam Fraser is a 2l at Sandra Day O’Connor College of Law. As a law clerk at Woodnick Law PLLC, Sam has the opportunity to assist with real cases and to research areas of interest relating to his future practice of law.