Dallas Bar Association

When Seniors Divorce

by Robert Gordon

A megatrend in the 21st century is the growing number of divorcing seniors. The divorce rate for the “50 plus” demographic is estimated to have doubled in the past decade. National attention was riveted to the news that Al and Tipper Gore announced their separation by email in June of 2010 after 40 years of marriage. Less surprising was Larry King’s press release the following month that he was seeking divorce for the eighth time. What are the reasons for the trend of seniors untying the knot?

Due to advances in health care, seniors expect to live into the 7th, 8th and 9th decade of life. For younger clients, the major motive for remaining in an unhappy marriage is their commitment to successfully raising their children. Seniors do not face this challenge. Also, the nature of emotions and needs change from the passage of middle age to senior years. A fourth reason is an unintended consequence of the current American health care system. Divorce is a way seniors with serious medical problems can preserve their assets rather than having to “spend down” their assets in order to qualify for Medicaid benefits.

Divorce planning for seniors includes designing successful post-divorce arrangements. This draws on the skills and knowledge of lawyers with different perspectives. In addition to family law, perspectives include health law, real estate, probate and tax law. Bar associations across the country offer CLE programs that integrate these views under the domain of “elder law.”

In developing a successful divorce strategy, lawyers should guide senior clients to conduct a “reality check” about their future standard of living. For younger divorce clients, there is the possibility that both spouses, over time, will increase their earnings. This allows them to forecast a return to their previously higher standard of living. For seniors, however, working years are fewer. Peak earning ability is likely behind them.

Areas of concern for senior divorces are: retirement income, asset protection and division, health care, wills and trusts, beneficiary designations and powers of attorney. Special areas of concern may include competency. Increasingly characteristic of senior divorces is the issue of who gets the family dog.

Retirement. Seniors are likely to have substantial wealth in their retirement plans. Benefits, particularly from an employed spouse, therefore, become more important. The non-employed spouse may rely on the benefits that the employed spouse receives. Thus, more attention must be paid to the benefits that a non-employed spouse will have following divorce.

Assets.Seniors are more likely to have value in their homes. In some cases, there is more than one home. In a senior divorce, the disposition of the homestead is more than a matter of economic valuation. Considerations of lifestyle, proximity to family, shopping and medical facilities are also relevant. Unlike younger clients, the two paramount issues of a senior divorce may become disposition of assets to provide for retirement funds and taxes. Also, the relative exposure of each spouse to lawsuits should be considered. An example is the situation where a physician is married to a teacher.

Insurance. With the uncertainty of national Medicare benefits, available private insurance for catastrophic illness and ordinary long term care is important. In private policies, one spouse may be carried on the other's health insurance. The carrier should be consulted about the consequences of divorce for continuing spousal coverage. In the case of life insurance, decisions must be made about beneficiary designations that are usually made in favor of the spouse at the time of inception. Confirmation of payment and the cash surrender value of whole life policies should also be reviewed.

Wills and Powers.Most divorcing spouses will wish to cancel powers of attorney that were initially written in favor of their spouse for both wills and trusts. Invariably, this is also true for living wills that address extraordinary medical measures in the event of end-of-life scenarios. Often this legal change is more difficult than it may appear because the wishes and concerns of adult children are also considerations.

Diminished Capacity. A dramatic trend in senior divorces is to question the mental competency of a spouse. Most often, this issue is raised concerning the execution of documents that convey property, change wills, or alter powers of attorney. Every adult experiences diminished capacity with aging. Normal problems in memory and thinking become more noticeable in the senior years, as does the early onset of dementia. There are standard psychological assessments of cognitive functioning that will likely become routine in senior divorces.

Despite the increase in the rate of senior divorce, the desire to enjoy marital relationships continues to flourish. The popular dating site, Match.com, boasts 2.5 million senior listings, while its chief competitor eHarmony prides itself on over 1.2 million senior listings.

 

Robert Gordon is a clinical psychologist and attorney. He is a member of the senior lawyers division of ABA. He served as president of the Texas Psychological Association. He can be reached at drbob@drbob.com.

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