Alternatives to gray divorce

Divorce is a challenging process for anyone, but it can be particularly complicated for older adults. The term “gray divorce” refers to couples who choose to separate and divorce later in life, typically after the age of 50. This type of divorce has become more and more common in recent years and presents unique issues and considerations that may not be present in divorces involving younger couples.

If you are an older adult considering separation or divorce in Virginia, it can help to consider alternatives to traditional divorce proceedings. Such alternatives might preserve certain financial and structural aspects of your life while still allowing you to live a separate life from your spouse, though your marriage might not be legally over.

Before making any decisions, you should always discuss your options with a Virginia gray divorce attorney.

Virginia Does not Recognize Legal Separation

Unlike some other states, Virginia divorce laws do not recognize legal separation as a formal status. This means that older spouses who wish to separate indefinitely but not divorce are not afforded all the legal protections received by couples when they divorce. If a couple obtains a final divorce, the Circuit Court will enter an order granting a divorce and may provide for spousal support, child custody and support and distribute property, including real estate, investments, retirement and other assets and debts.

Virginia couples who wish to live apart but not obtain a final divorce can file for a divorce a mensa et thoro (divorce from bed and board) if it can be proved that one party has been guilty of cruelty or desertion. The court can enter support and custody orders in a divorce a mensa et thoro but cannot permanently distribute marital assets such as real estate and retirement assets although it is possible to distribute some types of assets if the couple enters into a settlement agreement. The couple remain legally married in a divorce a mensa et thoro. If the parties are separated and neither wishes to file for divorce, there is also the option for one party to file for separate maintenance if the filing party is not at fault in the separation. As in an a mensa et thoro divorce, the court can order spousal support and child support and custody in a separate maintenance action but cannot distribute property without the agreement of the parties. Without a divorce order, most retirement assets cannot be distributed in separate maintenance or an a mensa et thoro divorce. In Virginia, a petition for spousal support, child support, custody and visitation can also be requested by a spouse and ordered by a judge in the Juvenile and Domestic Relations District Court, but the Juvenile court can’t make orders regarding property distribution. Without no fault legal separation, couples in Virginia who want to distribute their property, establish financial support arrangements, or address other divorce-related matters must either proceed with divorce (final or a mensa et thoro), separate maintenance, or consider an alternative option.

You Can Enter Into a Private Separation Agreement

One viable alternative to gray divorce in Virginia is entering into a private separation agreement. A separation agreement is a legal contract that allows spouses to live separate lives while outlining the terms and conditions of their separation. This contract covers important aspects such as property distribution, financial support, child custody, and visitation rights, among others.

This agreement is not a court order, like a divorce decree or a legal separation in another state. However, when properly drafted, a private separation agreement is enforceable under contract law principles and the Virginia Premarital Agreement Act which includes agreements made during the marriage.

By entering into a separation agreement, older adults can address their specific needs and concerns without the formalities of a divorce. This option allows couples to maintain a level of privacy and control over their affairs while still finding mutually agreeable solutions and protections.

A Separation Agreement Can Cover Property Division and Financial Support

One of the key components of a separation contract is addressing the distribution of property and providing financial support. When older adults decide to separate, they often have a lifetime of accumulated assets and finances that need to be divided fairly. A separation agreement can outline how the property is to be distributed and how any financial support, such as spousal support, will be handled. Because many retirement benefits are subject to the federal ERISA statute, distributing such retirement assets without a divorce may require creative legal options.

A separation agreement is a legally binding agreement, so it is essential to consult with a Virginia gray divorce attorney to ensure that your rights and interests are protected. An attorney can help negotiate and draft the separation agreement, ensuring that it meets all legal requirements and accurately reflects your intentions and wishes.

Consult a Virginia Gray Divorce Attorney Today

If you are an older adult considering divorce in Virginia, never hesitate to explore your options. If you are not looking to remarry and want to maintain insurance coverage or other marriage-related benefits, you might look at alternatives to a divorce.

At Culin, Sharp, Autry & Day, we understand the unique challenges older adults face. Our experienced team of Virginia divorce attorneys is here to guide and support you through the entire process. Contact us today to schedule a consultation and discuss your options.