Navigating Grey Divorce Through Mediation: A Path to Peaceful Resolution
By Marcus M. Sixta, Senior Family Lawyer and Registered Family Mediator, and Arbitrator
When we think about divorce, we don’t often think about divorcing seniors. However, in my mediation practice I often encounter older adults near retirement age or post retirement. The reality is that divorce rates among older people are increasing. Grey divorce, a term used to describe divorces among older adults, typically over the age of 50, has been on the rise in Canada and the United States for the past several years. While the overall divorce rate has flattened for most age groups, older Canadians in long-term marriages are seeing their divorce rates increase.
This demographic shift brings unique challenges and considerations that differ significantly from divorces among younger couples. One effective method for managing these complexities is mediation, a process that facilitates a more flexible and collaborative resolution.
The Rise of Grey Divorce
In Canada, the average age for divorce has been steadily rising. In 2020, the average age of divorce was 48 years, according to Statistics Canada. The divorce rate in the United States has declined for most age groups over the past 20 years. However, for adults over 50, the divorce rate has doubled. In 2021, a U.S. Census Bureau report revealed that 34.9% of Americans who got divorced in the previous calendar year were age 55 or older, more than twice the rate of any other age group surveyed.
There may be several factors that contribute to the rise in grey divorces. When children leave home, parents may find they have lost what had kept them together. They may have no common interests, aside from the children, and their plans for retirement may differ greatly. The free time that comes from retirement can also lead to more reflection on priorities, which can sometimes spur on a desire to live life fully and move on from an emotionally draining relationship.
Like all couples, money can be the primary source of strife in grey divorces. Differences in spending habits may be more concerning when income is limited during retirement. Moreover, the financial support of adult children can lead to conflict if one spouse would rather push adult children to learn to meet their own financial needs.
Another often overlooked factor in grey divorce is the change in sexual desires, which can occur as aging adults experience shifts in their libidos. This can lead to frustration, loss of intimate connection, shame, and reduced self-esteem. Older adults who have sacrificed their sex lives to keep the marriage together for the sake of the children may seek out new relationships after their children become independent.
Impacts of Grey Divorce
Grey divorces present distinct challenges that require careful consideration in the mediation of family law disputes.
One issue is that asset division for grey divorces can be more complex. Older couples often have significant assets, including retirement accounts, real estate, corporate holdings, and investment portfolios. Dividing these assets equitably can be complex and requires careful planning, particularly regarding the tax implications of asset distribution. Assets such as real estate and corporate assets may trigger unforeseen capital gains and distribution taxes. Moreover, children are often involved in some of the decision making around asset division as they are keen to protect their inheritances.
Health concerns and insurance coverage can also become critical issues as older adults may rely heavily on a spouse's health insurance. It can be much more difficult for older adults to requalify for heath and life insurance and any such policies become more expensive with age and deteriorating health.
In addition, divorcing later in life can significantly impact retirement plans. Dividing assets and debts, along with doubling living expenses such has household costs, results in fewer funds available for everyday expenses or vacations. As a result, divorce can delay retirement and considerably change lifestyles. Spousal support obligations may also continue if a spouse is working, or even after retirement. Ensuring both parties can maintain financial stability post-divorce is a key consideration and financial forecasting with the help of experts should be considered.
The emotional impact of ending a long-term marriage can cannot be overlooked. Many older adults rely on their spouse as a source of companionship after their children have left the nest. Older men, in particular, often depend on their spouse to maintain connections with friends and family. Divorce can lead to loneliness and a loss of identity, both of which may influence the mediation process. These underlying emotions can impact negotiations in various ways.
The Role of Mediation in Grey Divorce
Mediation is a process in which the parties to a legal dispute retain a neutral mediator to assist them in coming to a resolution. Compared to court, mediation is an effective, less costly, and more timely way to settle family law and divorce issues. Grey divorces in particular can greatly benefit from mediation. Here’s how mediation can help:
- Facilitating communication - mediation encourages open communication between parties. A trained mediator helps couples articulate their needs and concerns, fostering understanding and cooperation. Also, in long-term marriages there are often many issues that have been simmering under the surface for years. A good mediator can navigate these communication land mines while providing the spouses with an opportunity to listen and feel heard.
- Customizing solutions - unlike decisions made by a judge in court, mediation allows couples to create tailored solutions that address their specific circumstances. This flexibility is particularly beneficial in managing complex financial and personal issues in grey divorces. In court, a judge is limited to providing a solution that accords with the law. However, in mediation, spouses can negotiate much more creative outcomes.
- Preserving Relationships - anyone who has been through litigation will tell you it is extremely stressful and creates conflict and animosity. On the other hand, mediation reduces conflict, fosters collaboration, and helps to preserve relationships. Families continue after divorces, and former spouses will inevitably interact at family gatherings or through relationships with adult children or grandchildren. Ensuring positive relations after divorce is in the best interests of the entire family.
- Efficient - mediation is typically less costly than litigation. Fewer steps are required compared to the court process, and I have seen very complex matters settled in one day of mediation versus years in court. Mediation can also be booked quickly, whereas delays in the court system have left many in legal limbo for years.
- Confidentiality - mediation is a private process, unlike court proceedings, which are public. This privacy can be particularly appealing for older adults who value discretion.
Older couples going through a divorce can take several steps to optimize their mediation experience.
First, select a mediator who is experienced in family law matters. Issues such as spousal support and property division can have many hidden complexities. A skilled mediator with family law expertise can guide the couple towards settlement while also highlighting possible unseen liabilities.
Preparation is key. It can be nearly impossible to come to a settlement when there is informational asymmetry. Disclosure should be exchanged with enough time to review and prepare before mediation. Moreover, any agreement reached without fulsome disclosure has the potential to be overturned or revoked by a court on grounds of unfairness.
Consider retaining a counsellor or divorce coach to assist you while you go through the process. Emotional dysregulation can result in acceptance of low ball offers or unreasonable positions that can frustrate settlement or even lead to mediation being terminated by one of the parties. On the other hand, emotional clarity can enhance your ability to participate effectively in mediation.
How to Make Grey Divorce Easier
Divorce can be a challenging and emotionally charged process, and grey divorce often involves unique considerations. However, there are some things that can be done to make the divorce process less acrimonious, stressful, and costly.
A prenuptial agreement should be considered before marriage, particularly second marriages. The divorce rate for second marriages is higher than for first marriages, and spouses in second marriages often enter the relationship with their own assets. A prenuptial agreement or marriage agreement reduces conflict upon separation as the division of assets is already predetermined. Also, many prenuptial agreements include a mediation clause, which mandates mediation in the event of a dispute over the terms of the agreement.
In the event of separation, consensual dispute resolution should be considered before going to court. This can include mediation or a hybrid mediation/arbitration process. It can also include collaborative divorce, where lawyers trained to work within the specific collaborative process, prioritize maintaining positive relationships.
Grey divorce can be particularly challenging, but through mediation, and other alternatives to litigation, older adults can navigate the complexities of divorce in a way that protects the family relationship rather than damaging them. Our experienced divorce mediators and arbitrators are here to help you find a resolution. Book your free 30-minute mediation consultation today.
