Understanding Elderly Divorce

By: Steven Fernandez
February 10, 2017

A generation ago, most older couples who experienced relationship problems obtained “Irish divorces.” They lived separate lives, and maybe even maintained separate households, but remained legally married.

A lot has changed since then. Older women are in much better positions to support themselves financially, largely because Congress added more teeth to the Age Discrimination in Employment Act in 1986. Furthermore, although it is far from universal, divorce is morally acceptable to many more people today than it was 40 years ago and the divorce process is far more simple. There have been lifestyle changes as well, as many people are active well into their 60s and 70s.

Irish voters legalized divorce by a razor-thin margin in 1995, and that was about the time the so-called “gray divorce revolution” began in this country. Even as marriage dissolution rates have declined in other age groups, the divorce rate for couples over 50 has doubled since 1990. A surprisingly high number of these couples are on their first marriage, bucking another common trend among younger adults.

Child Custody Issues

It’s obviously very rare for couples of this age to have minor children, but there are child custody issues nonetheless. Al and Tipper Gore became the poster couple for gray divorce when they separated in 2010 shortly after their 40th wedding anniversary; Kristen, their 34-year-old daughter, later admitted she was “really rattled” by her parents' decision. Indeed, adult kids sometimes take longer to get over a divorce than young kids. Adults are less emotionally resilient than children, and they have a lifetime of warm, family memories to look back on as opposed to a few tension-filled holidays.

These feelings often lead to resentment, since what should be precious moments, such as their own children’s graduations and weddings, become emotional hide-and-seek games because Mom cannot be in the same room with Dad for more than 15 or 20 minutes. If the marriage dissolution involves protracted property division litigation, which is discussed below, adult children may also be bitter that their perceived inheritance is being spent on attorneys’ fees.

As a result, adult children often “blame” one parent or the other for the divorce, and retaliate by halting grandparent/grandchild visitation. Grandparents have rights in these situations. To establish legal visitation, the grandparents must basically overcome the “father knows best” presumption by showing that:

  • There was an emotional bond between the grandparents and grandchildren (i.e., when the grandchildren came over, the grandparents were more than babysitters), and

  • It is in the best interests of the children for this relationship to continue.

Most judges will award visitation of one weekend per month, and perhaps a week or two in the summer as well.

Property Division

Just like there are unexpected child custody issues in gray divorce, there are often unexpected property division issues as well, and these problems nearly always require more than a good deal of emotional salve to work out. The community property/separate property distinction in California seems relatively clear-cut, but over long marriages, funds are often commingled.

For example, Husband might use funds from his paycheck (marital property) to make the payments on a rent house he purchased before the marriage (separate property). Typically, the judge will order the separate estate to reimburse the community estate, so our hypothetical husband must pay his hypothetical wife half the money that he spent on house payments. In other cases, the property is transmuted from separate to community property or vice versa. That’s important, because the increase from separate property is usually separate property.

The marital residence is often the largest financial asset in these cases, and it also has an emotional value that may eclipse the financial one. For both these reasons, selling the house and dividing the proceeds may not be the first option. One idea is an owelty lien for partition. Assume the house has $100,000 in equity, and although Husband does not object to Wife remaining in the house, he understandably wants his share of the equity, and Wife lacks the cash to buy him out. Husband could take out a lien on the house for $50,000, and when it is later sold, the lien is paid.

Retirement accounts are often significant issues as well. Typically, the non-owner spouse is entitled to 50% of the value which accrued during the marriage. If the spouses arrange for an offset (e.g., Husband gives up his share of Wife’s retirement account in exchange for spousal support) the tax consequences must be factored in. Also, special rules apply to military retirement accounts.

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