Gray divorce is the term for a divorce between spouses who are 50 or older, usually after a long marriage. In California, the same community property and spousal support laws apply at any age, but the issues that matter most change: retirement accounts and pensions, Social Security, long-term spousal support, the family home, and health insurance before Medicare.
This guide explains how those issues work under California law, where the financial repercussions tend to be largest, and what older couples should prepare for.
What Is Gray Divorce?
The phrase describes the age of one or both spouses, not a separate legal process. A couple in their 60s files the same petition and divides property under the same Family Code sections as a couple in their 30s.
What differs is the reality of the estate. After decades together, most of a couple’s wealth often sits in retirement funds, a pension, and home equity rather than in a paycheck. There is less time to rebuild savings, and choices made at the tail end of a career can shape the remaining years of each spouse’s life.
The Gray Divorce Phenomenon and the Divorce Rate After 50
The gray divorce phenomenon is real and well documented. According to a 2017 Pew Research Center analysis of National Center for Health Statistics and Census Bureau data, in 2015 about 10 of every 1,000 married persons ages 50 and older divorced, up from 5 in 1990. Among people 65 and older, the divorce rate roughly tripled over the same period, reaching 6 per 1,000 married persons in 2015.
Younger generations moved the other way. Pew found that the divorce rate for adults ages 25 to 39 fell from 30 per 1,000 married persons in 1990 to 24 in 2015. So while divorce became less common for younger married couples, it became more common for older populations than it was for previous generations at the same age.
Baby Boomers and Remarried Couples
Baby boomers drove much of this change. Pew noted that in 2015 the baby boomer generation ranged in age from 51 to 69, roughly the baby boomers born from 1946 through 1964. Many Americans in that group are now at or near retirement.
Remarried couples are a large part of the picture. Pew reported that 48% of adults 50 and older who divorced in 2015 had been in their second or higher marriage. A high remarriage rate in a generation means more of its marriages are not first time marriages, and Pew’s data show those later marriages ending too.
Long term marriages end as well. About a third (34%) of the people 50 and older who divorced in 2015 had been married for at least 30 years, according to the same Pew analysis. Researchers at Bowling Green State University’s National Center for Family and Marriage Research also publish ongoing data on how long marriages last before divorce.
Living Longer and Other Reasons Married Couples Split Later in Life
Reasons vary for many couples. Some spouses grow apart once the kids leave home, and the Cleveland Clinic lists empty nest syndrome among the common reasons for gray divorce. A Cleveland Clinic psychologist also points to women’s greater financial stability, which makes leaving a long marriage a realistic choice for more wives than in past generations. Life expectancy plays a part for others: when spouses expect to live many years past retirement, staying in an unhappy marriage for their senior years feels like a larger cost. Others cite money, different goals for the future, or a partner’s health.
Whatever the reasons, the law does not ask for them. California is a no-fault state. The court decides how to divide property and whether support is owed, not who caused the breakdown.
The Unique Challenges of Divorce Later in Life
Gray divorce carries unique challenges that a divorce at 35 usually does not. Splitting assets that were meant to fund one household in retirement must now fund two, often on the same income. Research bears this out: a 2021 study in The Journals of Gerontology, using Health and Retirement Study data, found that women’s standard of living fell about 45% after a gray divorce, a substantially steeper drop than men’s, and that wealth fell by roughly half for both women and men. A spouse who stayed home or worked part time may have a smaller Social Security record and fewer years to build one.
Health becomes a larger factor as people age. Insurance, the cost of care in the later years, and the possibility of a spouse’s death before the case ends all need attention. Fear about money is understandable, since the time to recover is shorter.
These rules apply the same way to men and women. Whether the higher earner is the husband or the wife, the community property and support analysis is the same.
Retirement Accounts, Pensions, and QDROs
For many older couples, retirement accounts are the largest asset. Under Family Code section 760, property acquired during the marriage while living in California is generally community property, and section 2550 requires an equal division unless the spouses agree otherwise in writing or on the record in court.
How California Divides Retirement Funds
The community share of a 401(k), 403(b), IRA, or pension is the part earned or contributed during the marriage, up to the date of separation. Contributions made before the marriage or after separation, and their growth, are generally separate property, so statements from both dates are often needed.
Pensions count even if they are not yet vested. The California Supreme Court held in In re Marriage of Brown (1976) 15 Cal.3d 838 that pension rights earned during the marriage are community property subject to division. Under Family Code section 2610, the court must make orders to ensure each party receives the party’s full community share of a retirement plan, including survivor and death benefits, and it can order a plan to pay the nonemployee spouse directly.
What a QDRO Does
A judgment alone does not move money out of an employer plan. For most private employer plans governed by ERISA, the division is carried out through a qualified domestic relations order, or QDRO. According to the U.S. Department of Labor, a QDRO creates or recognizes an alternate payee’s right to receive plan benefits, and the plan administrator decides whether a proposed order meets the requirements.
The order should follow the specific plan’s rules and be preapproved where the administrator allows it. Survivor benefits need to be addressed in the order itself, or a former spouse can lose the pension share when the employee spouse dies.
The IRS lists an exception to the 10% additional tax on early distributions for payments to an alternate payee under a QDRO from a qualified plan such as a 401(k). That exception does not apply to IRAs. A spouse under 59 and a half who needs cash should check which account the money comes from before signing. Ordinary income tax may still apply.
Our article on dividing 401(k)s, pensions and QDROs in a California divorce covers valuation and the order process in more detail.
Social Security After a Gray Divorce
Social Security is a federal benefit, so a California court does not divide it the way it divides a pension. The Social Security Administration has its own rules that let a former spouse claim on the other’s work record.
Benefits on a Former Spouse’s Record
Under SSA rules, a divorced spouse can receive benefits on a former spouse’s record if the marriage lasted at least 10 years, the claimant is 62 or older and unmarried, and the former spouse is entitled to retirement or disability benefits. If the couple has been divorced for at least two continuous years, the claimant can collect even if the former spouse has not yet applied, as long as the former spouse is at least 62 and fully insured.
The spousal benefit can be as much as half of the worker’s full retirement amount, and it is reduced if taken before full retirement age. SSA states that benefits paid to a divorced spouse do not affect the amount the worker or the worker’s current spouse can get.
One timing point is easy to miss. SSA measures the 10 years from the wedding to the date the divorce became final. California measures the length of a marriage for spousal support from the wedding to the date of separation. A couple married nine and a half years at separation can still pass the SSA 10-year mark if the judgment is entered after the tenth anniversary, so timing the final judgment can matter.
A surviving divorced spouse may also qualify for survivor benefits after the former spouse’s death. SSA generally requires a marriage of at least 10 years and age 60 or older (50 if disabled), and the claimant must not have remarried before age 60. Read more in our guide to divorce and Social Security benefits for ex-spouses.
Spousal Support After a Long Marriage
Spousal support, which many people still call alimony, often matters more in a gray divorce than in any other kind. A spouse who has been out of the workforce for decades cannot realistically build a career at 60.
The 10-Year Presumption Under Family Code 4336
Under Family Code section 4336, a marriage of 10 years or more, measured from the date of marriage to the date of separation, is presumed to be a marriage of long duration. In that case the court keeps jurisdiction over spousal support indefinitely unless the parties agree otherwise in writing or the court ends it.
Indefinite jurisdiction is not lifetime alimony. The statute says the court can still terminate support later on a showing of changed circumstances. For shorter marriages, section 4320(l) sets a general guideline of about half the length of the marriage, but that guideline does not apply to a marriage of long duration.
Age, Health, and Retirement
The factors the court weighs under section 4320 include the age and health of the parties, each spouse’s earning capacity and marketable skills, and the marital standard of living. A 62-year-old spouse with a health condition and no recent work history is in a very different position than a 52-year-old with a professional license.
Support ends on the death of either party or the remarriage of the supported spouse unless the parties agreed otherwise in writing (Family Code section 4337). Because support stops at death, section 4360 lets the court order an annuity, life insurance, or a trust when it is just and reasonable. When the paying spouse retires, either party can ask the court to revisit support based on the new income.
Who Keeps the Family Home?
The house is often the most emotional asset. A home bought during the marriage is generally community property, and the court values it as near as practicable to the time of trial unless it orders a different date for good cause (Family Code section 2552).
The usual options are a sale and split of the proceeds or a buyout by one spouse. A buyout only works if the spouse keeping the house can carry the mortgage, taxes and insurance on one income in retirement.
Separate money used for the down payment or to pay down principal can be reimbursed under Family Code section 2640, without interest or appreciation, unless that right was waived in writing. Taxes also matter: the IRS allows a single filer to exclude up to $250,000 of gain on a main home and a married couple filing jointly up to $500,000, if the ownership and use tests are met. Our guide to who keeps the house in a California divorce walks through these choices.
Health Insurance Before and After Divorce
Health insurance is easy to overlook, especially for a spouse who is not yet 65. While the case is pending, the automatic restraining orders on the summons bar both spouses from canceling, cashing, borrowing against, transferring, or changing the beneficiaries of life, health, auto and disability insurance without written consent or a court order (Family Code section 2040). If a spouse asks the court to end the marriage before the property issues are resolved, section 2337 lets the court condition that request on keeping the other spouse on existing health coverage until the final judgment.
Once the divorce is final, a former spouse usually loses eligibility under the other spouse’s employer plan. Federal COBRA rules treat divorce or legal separation as a qualifying event. According to the Department of Labor, a covered spouse can keep group coverage for up to 36 months, the plan can charge up to 102% of the cost, and the employee or spouse must notify the plan of the divorce within the plan’s deadline, which cannot be shorter than 60 days. COBRA generally applies to employers with at least 20 employees.
Medicare generally begins at 65. SSA describes a seven-month initial enrollment period that starts three months before the month you turn 65. SSA also says premium-free Part A can be based on a spouse’s work record, including a divorced spouse, so a spouse with a short work history should confirm eligibility with SSA. A spouse who is 63 at the time of divorce needs a plan for the gap until Medicare, and the cost belongs in the support discussion.
Updating Your Estate Plan and Beneficiaries
Most married couples name each other in their wills, trusts, retirement accounts, and life insurance. California law cleans up some of this automatically, but not all of it.
Under Probate Code section 6122, a final divorce revokes gifts to a former spouse in a will, and nominations of the former spouse as executor or trustee, unless the will says otherwise. Probate Code section 5040 causes many other transfers at death to a former spouse to fail, subject to exceptions. Those state rules do not control employer plans governed by ERISA: the U.S. Supreme Court held in Egelhoff v. Egelhoff (2001) 532 U.S. 141 that federal law preempts a state statute revoking a former spouse’s beneficiary designation.
The safe course is to update every beneficiary form yourself once the court allows it. During the case, the restraining orders permit changes to a will and, with notice filed and served, revoking a nonprobate transfer such as a revocable trust, but they restrict changing insurance beneficiaries.
Adult Children, Grandchildren, and Child Support
In most gray divorces the kids are grown, so custody is rarely an issue, but child support can still come up. Under Family Code section 3901, support continues past 18 for an unmarried child who is a full-time high school student and not self-supporting, until the child finishes 12th grade or turns 19, whichever comes first. Under section 3910, both parents have a duty to support an adult child who cannot earn a living and lacks sufficient means.
Some older parents still have a minor child at home, and then custody and support work as in any California case. Under Family Code section 3042, the court gives due weight to the wishes of a child old enough to form an intelligent preference, and a child 14 or older who wants to address the court is generally allowed to. Child support follows California’s statewide uniform guideline formula in Family Code section 4055.
Adult children are affected in other ways. They may feel pressure to take sides, worry about their parents’ finances, or face new questions about holidays and time with grandchildren. Grandparents who keep the gray divorce between the parties, and out of the kids’ relationships with each parent, make the family transition easier.
Mental Health and Divorce Recovery
A gray divorce after many years of marriage changes daily life and social circles. Even a spouse who wanted the divorce may grieve the life the couple shared, a point the Cleveland Clinic makes about gray divorce in particular. Divorce recovery takes time, and many people find it helps to see a therapist, lean on friends, and keep routines that support their mental health.
A clear budget for the new lifestyle and a realistic look at retirement income can reduce the uncertainty. Many people find happiness again after a late divorce, and it usually starts with a clear picture of the money.
Working With a Gray Divorce Attorney
A gray divorce attorney focuses on the issues above: retirement plan division, Social Security timing, long-term support, the house, and insurance. Property division mistakes here can be costly to fix. Pinkham & Associates handles gray divorce cases in Orange County from offices in Tustin and Placentia.
Frequently Asked Questions
Do People Divorce After 40 Years of Marriage?
Yes. Pew Research Center found that about a third of adults 50 and older who divorced in 2015 had been married at least 30 years. California law applies the same way to a 40-year marriage, though the length of the marriage strongly affects spousal support.
How Do You Get Through a Hard Divorce Later in Life?
Get organized early: gather retirement, bank and tax records, and learn what each asset is worth. Separate the legal decisions from the emotional ones, and get support from a counselor. Contributing to a fair settlement usually costs less than a trial.
Can I Get Half of My Spouse’s Pension in California?
You are generally entitled to half of the community share, meaning the part earned during the marriage up to the date of separation. The part earned before marriage or after separation is usually separate property.
Will I Still Pay Spousal Support After I Retire?
Possibly. Retirement does not end support automatically, but a change in income can support a request to modify or end it. Support ends on the death of either party or the supported spouse’s remarriage unless the parties agreed otherwise in writing.
If you are thinking about a divorce after 50 or have already been served, you can contact Pinkham & Associates to talk through your situation with an attorney.
This article is for general educational purposes only and is not legal advice. Every case depends on its own facts, and the outcome in your case may differ. Reading this article does not create an attorney-client relationship.
