By: Sherri Donovan
I recently represented “Francine” who wanted a divorce at the age of 91. When I asked why; Francine asserted that the men are cuter in Florida!
Divorce for couples over the age of fifty have been increasing for the past two decades, especially among those couples that are college-educated. The rate of divorce amongst these couples over the age of 50 has risen from one in ten in 1990 to nearly one in four today. Moreover, divorce rates for couples that are age 65 and older have more than doubled in this same period of time. This increase in the rates of the grey divorce can be found for both couples in which a spouse has been previously married and divorced, and for single-marriage couples.
One cause of the increase in divorce for elderly couples over the past two decades include increased education. A better-educated couple has more economic opportunities and increased financial stability, resulting in less stress over their financial future. However, an increase in education has the opposite effect for elderly couples. Economic opportunities due to being better educated generally result in having the financial resources available to be economically independent each other. Thus, it is easier for a spouse to decide to divorce should one not want to remain with the other spouse.
Another factor behind the increased divorce rate for older couples is the changing role of marriage in this society. Marriage was previously seen as a partnership rather than an emotional and economic bond, with each spouse having a role in the relationship (e.g. whether it was keeping the home, being the “breadwinner”, or raising the children.) The current view is of greater expectations within the marriage, particularly of emotional and physical fulfillment. A married couple is expected to be happy with their relationship. Divorce is the primary option should that happiness not exist. Other factors behind the increasing grey divorce rates are the reduced social stigma of divorce, longer lifespans, and introduction of “no-fault” divorce.
The consequences of divorce are unique for an elderly couple.Younger couples have time to recover financially and emotionally from a divorce. However, an older divorced person does not have as much time to reenter the workforce, rebuild their savings, find a new partner, or to engage in proper long-term planning. Thus, older divorcees tend to have only a fifth of the wealth of an older married couples or even older widowers. Older divorced persons can also rely on fewer public benefits, e.g. social security, than other married persons or widowers, making it difficult financially. It is important that an elderly person seeking a divorce, have a team of professionals. A matrimonial lawyer or mediator may need to work closely with an elder care lawyer, a health care manager, and/or a financial advisor. When assets are transferred, the cost of health aides, obtaining government benefits, types of residences available, and distribution of retirement and insurance funds are critical issues in a grey divorce.
An elderly couple contemplating divorce needs to seek advice about spousal support, property division, long-term care, and the role of adult children. Usually a grey divorce involves a long-term marriage. In long-term marriages, spousal support, also called maintenance of alimony, can be awarded if one spouse has more income than the other. Income will include retirement funds that are distributed and received on a regular basis. Social Security income available will be taken into account when considering the differences of income between the spouses. For marriages over twenty years, the New York Domestic Relations Law (Section 236) recommends maintenance (spousal support/alimony) for 30% – 50% of the length of the marriage. However, lifetime maintenance can still be awarded if there is a severe medical or financial need, and resources available.
Adult children may have anxiety and a negative reaction to their divorcing parents which could increase the stress level of the separating elderly couple. Adult children may be worried about who will take care of each parent and feel the burden of creating two households out of one for their parents. Adult children who received financial assistance from their parents, may not be able to depend on the availability of those funds after a divorce. Adult children may also be concerned that a new romantic partner will utilize or be the beneficiary of the family’s assets instead of themselves and grandchildren. Sometimes adult children take the side or come to the rescue of one parent over the other. The grey divorce can trigger psychological family dynamics. A mental health professional may be needed. Seniors divorcing may need and desire to continue to grandparent together. Terms should be negotiated for future grandparenting and attending family functions. In New York State the visitation laws protect grandparents.
Once divorced, many spouses consider finding a new partner or spouse. A pre-nuptial agreement may be strongly advisable to protect funds to provide for long term care and the family’s inheritance. Lastly, a guardian may be needed to make decisions for an elderly divorcing person who suffers from Alzheimer’s or Dementia and is incapable of day to day and/or long term, responsible judgements. With that said it is important that the grey divorce be completed in a matter that provides for the most fulfillment and happiness to each senior involved. It is also important for a senior citizen to update one’s will, power of attorney, and health care declaration at the start of a divorce proceeding. During the process of the division of assets in the grey divorce, one will still be considered married. Thus, the spouse one is divorcing can be entitled to make critical medical and financial decisions if it is not legally stated otherwise. There is precedential case law that if one dies before a judgement of divorce is granted and/or a separation or divorce agreement is signed and notarized, one’s spouse could obtain all of the wealth in the marriage, even if that was not the intention.
Elder abuse by a spouse or intimate partner may be psychological, physical, emotional, economic, and/or sexual. It can occur over a long period of time due to the victim, mostly older women, being afraid to leave, a deterioration of mental and physical abilities, economic dependance, fear of institutionalization, shame, guilt, values, culture and a lack of information about alternatives. Late onset domestic violence can also occur in senior intimate relationships due to worsening illness, the perpetrator’s frustration of being burdened and frustrated with increased responsibilities, retirement, and sexual change. Signs of elder abuse in a victim include frequency and severity of injuries, attempted suicide, delay of medical assistance, missed appointments, and intensification of depression, fear and trauma. A perpetrator may minimize or deny the complaints and injuries, blame and criticize his partner, threaten harm, engage in isolation of the victim, utilize alcohol or drugs and/or attempt suicide.
Elder abuse is a crime. A spouse or intimate partner is entitled to an order of protection and police protection. Emergency shelter and support groups are available. Resources include the National Domestic Violence Hotline at 1-800-799-SAFE; Eldercare Locator at 1-800-677-1116; elderabusecenter.org; National Center on Elder Abuse at 202-898-2586.