Challenges of Gray Divorce


Older couples are getting divorced at a record pace, and these cases often create an entirely new set of challenges for family law attorneys.

Between 1990 and 2010, the marriage dissolution rate for couples over fifty roughly doubled+. Many of the traditional divorce complications – most notably child custody and child support issues – are absent from these cases. So, on one level, a gray divorce may be less acrimonious than a divorce between thirty or forty-somethings. On another level, however, there are a number of unique challenges in these matters.

Inheritance Matters

According to the Illinois Probate Act, divorce is the legal equivalent of death, at least for estate planning purposes. In other words, step-children may not be in line to receive a share of an inheritance.

Property Division

Simply because they have lived longer, many older people have more property than younger people. Moreover, many older people have been married at least once before, so there may be a substantial amount of non-marital property. Some typical problems include:

  • Retirement Accounts: Although these items may have little or no cash value, especially if the benefits have not vested, these accounts must still be divided just like any other asset.
  • Commingled Funds: When the parties have been married for a number of years, the opportunity for the line between marital and non-marital assets to blur increases dramatically.
  • Property Valuation: Many items may carry as much or more sentimental value than monetary value.

Grandparent Access

Just as it is not unusual for minor children to “pick sides” in their parents' divorces, adult children may do the same thing. Under Illinois law, grandparents can only obtain custody of their grandchildren under limited circumstances, but they can bring an action for periodic visitation, if such a move becomes necessary. Essentially, if the judge finds that the grandchild's biological parents are wrongfully withholding visitation and the grandparents brought the action in good faith, the judge may grant the petition.

A gray divorce can mean a unique set of family and financial circumstances. For a confidential consultation with an experienced Naperville divorce attorney, contact our office. We have been a fixture in downtown Naperville for over 40 years.

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