Family Law...Gray Divorce (Part 1)

Kay RhodenizerApril 2017

Separation/divorce at any age presents unique and challenging issues, but ending a relationship at or near retirement gives rise to concerns that may not be “top of mind” for younger couples.  In particular, older couples will usually have to revise retirement plans that assumed they’d continue to share one home and all savings and pensions to fund a secure retirement on diminished income.  They may now have to consider different timing for sale of the family home, cottage or other assets (and related tax consequences), one or both partners working longer or possibly a “stay at home” partner finding work.

When looking at asset division and spousal support it will also be important to consider future costs of aging such as the possible need for paid help to maintain a home and/or increased health care costs, especially if group health insurance through employment will be ending.

Older couples leaving longer relationships often have strong joint relationships with bankers, financial planners, investment advisors, accountants, lawyers, realtors and insurance agents.  It may not now be possible for these people to advise both parties due to conflict of interest, although if mediation and/or the collaborative law model is used to reach settlement, the couple may agree to this.

Older couples may need to change previous plans for adult children’s inheritances. For example, they may have planned to benefit their children through insurance that will now be needed to replace spousal support if a former partner dies. Family dynamics of a separation/divorce at this stage may become more complicated by adult children’s views.  Again, through mediation and/or the collaborative process adult children might be involved at some level if the couple believes this would be useful/appropriate.

Finally, although professionals must always be sure their clients have the legal capacity to make decisions, as clients age assessing capacity is usually a more frequent consideration since health changes and related medications can affect capacity.

My next few blogs will discuss these issues in more detail.

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