Peter Vieth
The Daily Record Newswire
Baby boomers may remember when Elvis sang, “I’ve got a lot o’ living to do.”
Lately, many aging boomers relate to that old song – and start thinking about divorce – when their children leave the house.
Longer lifetimes mean empty nesters and retirees can expect more active years late in life, and some believe a change in partners will add luster to those golden years.
The rate of divorce among couples age 50 and over doubled in a 20-year span ending in 2010, according to a 2013 study by Bowling Green State University.
Many matrimonial lawyers now have “gray divorces” as a significant part of their law practice.
Clients give various reasons for breaking away after years of marriage. Some were unhappy, but waited until the kids were out of the house before making a change. Others are just “fed up.”
“I don’t have many good years left, and I sure as hell don’t want to spend them with her,” one client in his 80s exclaimed, according to Fairfax lawyer Matthew H. Smith.
Smith said he had seen an increase in divorce among older clients in 11 years of practice.
Lawyers elsewhere reported no recent increase, but said divorce of older couples remains a steady part of their work.
More options
Leslie A. Shaner of Chesterfield, who authored the ABA-published book “Divorce in the Golden Years,” said abuse is a prominent reason many women decide to split later in life. The abuse can be emotional or physical, she said.
“Women have more skills than they used to. They feel they can make it on their own,” Shaner added.
A more commonplace reason for divorce applies equally for older couples: One of the spouses simply falls in love with someone else.
“And Viagra didn’t help,” Shaner added with a chuckle.
Complex issues
A gray divorce often involves different and more complex issues than with younger couples. There are more assets, often structured to provide for retirement. But questions of child support and custody are absent.
“Asset management can create obstacles,” said Patrick L. Maurer of Chesapeake. The couple might own out-of-state property or timeshares, he said.
“Actualizing the value of them – that becomes a problem” he added.
“The real trick comes with the hybrid property, such as a house that was owned by one spouse before the marriage. Now you’ve got to find out what’s equitable, and that’s not always equal.”
Protecting the vulnerable spouse
Smith said spousal support can be a thorny problem, as well.
Normally, a judge would order alimony for a period of time to help a non-working spouse recover from the split.
“But if the breadwinner is nearing retirement at age 65, you don’t know what a judge is likely to do,” Smith said.
A wife may have passed up many professional opportunities to run the house and raise the children, Maurer added.
“She’s been a doctor’s wife for 30 years, plus. He’s going to retire. She’s dependent on his income,” Maurer said. “You may need to sock money away” for spousal support.
Lifestyle change
The example of the retiring doctor illustrates one aspect of gray divorce mentioned by several lawyers – few couples have the resources to enjoy the same lifestyle after a split. The income that supported one household is now going to be divided between two.
Smith often has to throw cold water on a client’s plans to keep up an expensive life. “It’s a fallacy. It’s not realistic,” he said.
Often, there is unequal knowledge about the couple’s finances. Usually, one partner has managed the money. The other may be at a disadvantage unless a lawyer can even the score.
“The attorney needs to ask tough questions and/or issue discovery to the other side, Smith said. “You need to find out what retirement assets are out there.”
Keep an eye out for interference from the now-grown children of the failing marriage, Shaner warned.
“They will take a side, and they will fight like cats and dogs,” she said.
The children have spent their whole lives observing the marriage. “They’ve got to put their two cents in,” Shaner said.
Not for newbies
Family law attorneys agree that most gray divorces call for lawyers knowledgeable about financial assets who are willing to work hard on the case.
“It’s complex litigation when you get into some of this stuff,” Maurer said. “You need to make sure to get a lawyer with the knowledge and the time to provide the attention to detail that’s required.”
Shaner said she wrote her book to help younger lawyers get up to speed on handling divorces for older clients.
She urged lawyers to dig below the surface when putting their case before a judge.
Many will simply ask the client how long they’ve been married, and stop there.
It’s important to ferret out the details and experiences, Shaner said. Did the wife have to work because the husband was drunk for three years? Did the couple have to raise a special needs child?
“Tell the story of the marriage,” Shaner urged. “Tell the judge or mediator what that person has gone through.”
Would separation suffice?
Steven L. Raynor of Charlottesville said he sometimes questions whether it makes sense for an older couple to divorce, especially if they are well into retirement.
Splitting the financial assets can be tricky when separation – without divorce – might relieve the couple’s conflict.
Raynor said he looks at what would happen to the survivor if one spouse died. “Would they have rather been divorced, or would they have been better off as a surviving spouse?”
Raynor says the law does not require a couple to divorce just because they decide to live separately. A basic knowledge of trusts and estates law will help couples arrive at the right decision, he said.
