by Kenneth G. Raggio
Have you seen James Corden’s carpool karaoke with Paul McCartney when they sang the Beatles song: “When I’m sixty four?” When the Sgt. Peppers album came out in 1967, sixty-four looked a long way away. Now, with medical and other factors dramatically increasing lifespans, divorces involving spouses over fifty (commonly called gray divorces, silver separations, or Boomer divorces) have significantly increased—accounting for about one in four divorces, according to a study by Bowling Green State University.
Although gray divorces present similar issues faced by younger couples, gray divorces do not usually involve child-custody issues. Rather, the main issues concern custody of the money, retirement accounts, and addressing towards-the-end-of-life health issues.
The parties may realize that they have outlived the original purposes of the marriage: to raise and rear a family; to be involved in the community, careers, and civic and religious activities; and then to retire or die around the age of sixty-four. Many couples are plainly outliving the “useful” part of their marriage, and for those who can overcome the often religious “until-death” commitment, they may choose to end their marriage and seek different paths for their golden years.
While competency to file for divorce might be an issue for any petitioner, this issue arises more frequently in gray divorces. When questions about a client’s ability to direct the filing of a divorce petition—and more pointedly, to enter a binding retainer agreement with an attorney—the lawyer should send the client to a general treating physician for a “gatekeeping” competency test, consisting of thirty questions and, if passed, will satisfy the “low bar” for competency to enter into contracts and, for that matter, sign testamentary documents. (The gray client definitely should have a will! And, if the other spouse is a beneficiary, change that!)
Other concerns faced in gray divorces include the potential need for special accommodations for mobility, hearing and vision loss, emotional or mental challenges, or the client’s need to rely on family or friends to “assist them” through the divorce. This reliance potentially causes confidentiality issues that must be addressed with the client, and the client must understand that attorney-client confidentiality is lost when the third party is present.
After establishing the attorney-client relationship, the older client may need continued support and assistance from family, friends, or medical and mental health professionals, in addition to whomever has been handling the parties’ finances and tax returns. If such professional help is not present, the lawyer should hire a consultant and, often, an expert to show how the parties got to their current financial situation. This need is especially important when representing the sixty-four-year-old homemaker who has never held a job.
Many gray divorces involve people who are already on Medicare and receiving Social Security. Although Social Security cannot be divided, its receipt should be considered by the court if there is a request for spousal maintenance, which may continue for up to ten years, after proving the non-monied spouse’s need and the monied spouses’ ability to pay. Further, the parties (and the court) should consider the soon-to-be-single spouses’ health needs.
After obtaining enough knowledge about the parties’ financial situation and future needs’ projections, out-of-court resolution opportunities arise, at which point competency issues should again be considered.
As in most divorces, gray divorces will usually have a “leavor” and a “leavee.” The leavee spouse may have a hard time making friends or dealing with the realities of life after divorce and may even become fond of the attorney and look to the attorney as a friend. The attorney needs to be aware of the duty to continue in the neutral-lawyer role or have a clearly-drafted termination-of-representation letter. Nevertheless, most former gray divorce clients appreciate occasional check-ins after the divorce.
Finally, sometimes there is a chance for remarriage. Many widowed parties choose to cohabitate, rather than marry, to avoid the issues with retirement, Social Security, and medical coverage. Gray couples wishing to marry will very likely consider a premarital agreement, so each party’s estate remains clear of the community property claims that will accrue if not eliminated by a properly prepared and executed premarital agreement, thereby protecting the spouses’ assets and ensuring the assets go to the spouse’s children or other intended beneficiary.
The gray divorce is here and can have special challenges. But, it can also be a liberation for one, if not both, parties. Do your part well.
Kenneth G. Raggio is a partner at Raggio & Raggio, P.L.L.C. and can be reached at firstname.lastname@example.org.