“What comes to mind when you think about New Hampshire demographics?” was a question posed to me earlier this year. My response? “Old and white.” This certainly did get a chuckle from the group. However, my comment was confirmed by our presenter, who showed that New Hampshire’s largest age groups were 60 to 64 years and 55 to 59 years; both groups are the only groups with over 100,000 people living in New Hampshire. See U.S. Census Bureau, Population Estimate Program, July 1, 2023.
New Hampshire has an aging population. How does this impact the family law practitioner? Well, we must become familiar with the ins and outs of a “Gray Divorce.” A gray divorce is generally defined as a couple, typically over 50, divorcing after a long-term marriage. Based on my experience, here are some tips when dealing with a gray divorce.
Why: There are a few reasons for a gray divorce, but these are the most common that I’ve seen. The children have grown up and are out of the house. Oftentimes, the home is centered around raising children. Parents run here and there because of their children’s activities. Once the children are gone, the couple realizes that they have grown apart. Second, the dreaded midlife crisis; one party looks back on their life, has regrets, and wants to make a drastic change. Third, people are living longer, and they cannot be assured that death will be their way out of a bad marriage (you’d be surprised how much I have heard death is their ticket out in my life). Finally, the burden one party shoulders when caring for an ailing spouse.
Finances: Generally speaking, couples in gray divorce have more wealth. They’ve been able to save and invest throughout the marriage. Additionally, they’ve been able to pay off the debts accumulated in the early part of the marriage. However, in a gray divorce, one or both parties may not be able to recover as easily because there is less time to recover due to an impending retirement, and the retirement accounts will be equitably divided.
Long-Term Marriage: While New Hampshire has not adopted a bright-line rule that ten years or more constitutes a long-term marriage, the length of the marriage is considered in its analysis of the property settlement. In the Matter of Mackesy-Boyle, 2025 WL 263399 (N.H. Jan. 22, 2025) (quoting In the Matter of Bowman, No. 2021-0353 (non-precedential order at 2), 2022 WL 18446936 (N.H. Sept. 16, 2022). New Hampshire has also concluded that long-term marriage exceeding twenty years, during which spouses worked and lived in jointly owned homes, supports an equal division of those homes. Rahn v. Rahn, 123 N.H. 222, 224-25 (1983).
Health Issues: As mentioned, we are living longer. Although we are living longer, this leads to a different set of issues we need to be aware of. These issues would affect clients with diminished capacity. According to the National Institute of Health, the number of dementia and Alzheimer’s cases is projected to double in the coming decades because of the aging population. See 2024 Alzheimer’s Disease Facts and Figures. Every attorney should understand that our Rules of Professional Conduct play into representation when a client’s mental capacity is in question. See New Hampshire Rules of Professional Conduct Rule 1.14.
Adult Children: Any family involvement in any divorce should put a practitioner on notice. When dealing with adult children, particularly when the client has diminished capacity, I suggest being on high alert at all times. You have to remember who the client is. The worry becomes whether the child(ren) is looking out for their future inheritance rather than what is best for your client. The last thing a lawyer needs is warring children angling to be the sole or primary beneficiary of one parent’s estate.
Alimony: In my experience, alimony has been the most common battleground in a gray divorce. How do you correctly calculate a fair amount for alimony? On the one hand, you may have a party who is retired, in poor health, with limited employability, and a high need for income. On the other hand, you may have a party who is on the verge of retirement, has limited opportunities for future income or capital acquisition, and has little in terms of income amount and sources. Do you do term alimony or lump-sum alimony? There is no easy formula you can punch in to figure out alimony. However, you will have to spend a reasonable amount of time figuring out what is fair in a given case.
Retirement Accounts and Social Security: The division of retirement accounts will be just as critical as the alimony calculation. If your client or the opposing party is old enough that mandatory withdrawals from the retirement accounts are required, you must analyze them. In analyzing them, you have to understand the tax implications of dividing the retirement accounts. If you don’t know a tax attorney or CPA, I suggest getting to know one soon because the division is a problem you don’t want to overlook. In a similar vein, if a party is receiving Social Security during the divorce, you have to factor it into your analysis. With Social Security, there are two issues. Generally, it cannot be divided. See The Social Security Act 42 U.S.C. § 407(a). You may be able to address it through other avenues, such as property division or alimony. However, a party can receive a spouse’s Social Security if the marriage lasted ten years or longer before the divorce is finalized. See The Social Security Act 42 U.S.C. § 404.331.
Ultimately, these tips are, at a baseline, good practice; some will need to be explored on a case-by-case basis because gray divorce is not a cookie-cutter practice. Spend extra time getting to know your client and the opposing party. Understand the needs of the case more than the wants of the case, and you’ll be able to find a solution to the problems presented.