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Older divorcing couples face unique issues

Al and Tipper Gore made headlines in 2010 when, after 40 years of marriage and four grown children, they went their separate ways.

The Gores remain separated, but many of their peers follow through with divorce. For a variety of reasons, divorce later in life is on the rise. So-called gray divorce has been increasing for some time.

Society’s opinion of gray divorce has changed over the decades. Sharon Stiller, a partner in the Rochester office of Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf LLP, says she was the subject of “moral judgment” growing up as the child of divorced parents. That’s not the case today. People are living longer and more willing to end a marriage if they are unhappy with the arrangement. Even the pope is rethinking the Catholic Church’s position against it. Women no longer have to choose between staying in a bad marriage or living alone in poverty.

“There used to be moral judgments about it, but there aren’t anymore,” says Stiller, who has worked on divorce settlements for clients in their eighties. “A lot of people (women in particular) just want to get out of the marriage, but it’s critically important to make sure the resolution they come up with is sufficient to support them.” 

People divorcing at an older age may not be able to return to or enter the workforce. They may not have sufficient retirement funds and may find Social Security isn’t enough to maintain a lifestyle to which they are accustomed.   

When Louis Falvo was going through his own divorce in 2008, he found his

attorneys were great at fashioning legal agreements, but not nearly as adept at dealing with the short- and long-term financial implications of divorce.

Falvo, CEO of Cross Roads Divorce Advisors LLC in Pittsford, says those financial considerations are arguably the most important element of gray divorce. He recommends a divorce team approach that includes an attorney, a mental health professional and a financial professional trained in divorce finance issues.  

Since children and custody matters aren’t typical issues in gray divorce, the emphasis tends to be on finances—property, spousal support, Social Security and health benefits. Retirement assets including pensions, Social Security and marital property are unique at this stage of life, and there is less time to recoup losses. 

Some divorce venues, such as collaborative law and mediation, encourage parties to work out their own resolution. In New York, which requires an equitable distribution divorce, courts will act unless the parties can reach their own agreement. A 50-50 split may not be the best solution, experts say, and some give and take can be beneficial in the long run.  

Arriving at a mutually agreeable resolution with oversight by an attorney or mediator saves parties acrimonious courtroom battles and bench decisions on divisive issues. Stiller says divorcing couples are more likely to comply with decisions they have made themselves. Known as collaborative law, it offers a gentler and more dignified process that is suited to potentially sensitive issues such as the illness of a spouse or his inability to work and make money.  

Spousal illness, in fact, is a contributor to the increasing gray divorce rate, experts say. Older couples may divorce simply to protect marital assets from being taken to pay for the health issues of one spouse.

“If the health of a spouse isn’t good, and they need long-term care, divorce may be an option. It’s out there,” says divorce mediator Renee LaPoint, who has a background in mental health care. “It’s a sign of where we are in our health cost system.”

Elder law attorneys and financial advisers can help by creating asset-protecting trusts for health care and other issues, such as the needs of adult children. “There is a lot of collateral damage and it can be very hard to deal with,” LaPoint says.

A party can lose more than a spouse and money in gray divorce. Friends and family, including children, may take sides. Having a big support group is an important way to navigate the emotions of ending a marriage, especially after so many years.

As senior divorces are increasing, so too are remarriages—which are even more likely to end in divorce. Stiller says divorce clients commonly return two or three times. She advises clients to create an enforceable prenuptial agreement to protect their assets and the people they have worked hard to support. 

Falvo expects to guide clients before, during and after divorce to help them comply with agreement provisions and judgments, maintain a budget, stay on top of finances and guard their assets in the future.

“What happens is they’re thinking with their emotions. It’s my role to slow them down and make informed decisions,” Falvo explains. “It’s very gratifying to help people make decisions in their best interest.”

Todd Etshman is a Rochester-area freelance writer.

10/14/2016 (c) 2016 Rochester Business Journal. To obtain permission to reprint this article, call 585-546-8303 or email rbj@rbj.net.

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