September 1, 2011

Senior Divorce Surge

By Robert Gordon

A mega-trend in the 21st century is the burgeoning number of divorcing seniors. The divorce rate for the “50 plus” demographic is estimated to have doubled in the past decade. National attention was riveted when Al and Tipper Gore announced their separation by email in June 2010 after 40 years of marriage. Less surprising was Larry King’s announcement the following month that he was seeking divorce for the eighth time. More understandable is the 2011 divorce petition filed by Maria Shriver against Arnold Schwarzenegger for his secret affair with their housekeeper that produced a child.

What are the seminal reasons behind the trend for seniors untying the knot? How does this impact the service strategies of senior lawyers? Many of the best and oldest clients of senior lawyers now expect to live healthy and vibrant lives into their 70s, 80s, and 90s. Some of their marriages are marked by ruby, golden, and diamond celebrations. But many are not. For younger adults, a major motive for staying together in an unfulfilling marriage is their commitment to successfully raise children. Seniors do not face this challenge.

Also, the nature of emotional and lifestyle needs changes during the passage from middle age to Boomer and senior status. One telling questionWhat are the seminal reasons behind the trend for seniors untying the knot? How does this impact the service strategies of senior lawyers? Many of the best and oldest clients of senior lawyers now expect to live healthy and vibrant lives into their 70s, 80s, and 90s. Some of their marriages are marked by ruby, golden, and diamond celebrations. But many are not. For younger adults, a major motive for staying together in an unfulfilling marriage is their commitment to successfully raise children. Seniors do not face this challenge.

Also, the nature of emotional and lifestyle needs changes during the passage from middle age to Boomer and senior status. One telling question for seniors is “Will you still love me when I’m 84?” A fourth reason for the senior divorce surge is the unfortunate unexpected consequences of the American health care system. Divorce is sometimes the only way seniors with serious medical problems can preserve, rather than “spend down” their assets to qualify for Medicaid benefits.

Divorce planning for seniors and crafting successful post-divorce plans draw upon the skills and knowledge base of experienced lawyers from various perspectives. Divorcing seniors feel most comfortable with senior lawyers who have looked after their legal issues for decades. There is a natural feeling of trust, confidence, and mutual understanding. However, the senior lawyer may ask for consultations from other colleagues to help their senior clients meet all of their needs at the time of divorce.

In addition to family law, the lawyer must consider multifaceted issues relating to health, real estate, probate, and tax law. Nationally, the multidisciplinary and collaborative domain is referred to as “elder law.” Interestingly, the elder lawyer practices in a similar way to the British solicitor. He or she represents the client as an advocate but draws on the expertise of other lawyers to do the work and accomplish client expectations and goals.

In assessing, planning, and developing a successful divorce strategy, lawyers help guide senior clients to conduct a “reality check” about their future standard of living. When younger clients divorce, there is the possibility that both spouses, over time, will increase their earnings, which allows them to return to their “marital” standard of living. However, for seniors, working years are fewer and peak earning years are more likely behind them.

Areas of concern for senior divorces are retirement income, asset protection and division, health care planning, wills and trusts, beneficiary designations, powers of attorney, and in special cases, competency. Increasingly characteristic of senior divorces is the issue of who gets Buddy the family dog.

Retirement. Seniors are likely to have substantial wealth in their retirement plans. Benefits, particularly from an employed spouse, become more important. The nonemployed spouse relies on the benefits that the other gives. Therefore, more attention should be paid to the coverage that the nonemployed spouse may have to negotiate in the settlement.

Assets. Seniors are more likely than younger spouses to have more value in their home. In many cases, there is more than one home. In a senior divorce, the disposition of the homestead is more than a matter of economic valuation. Considerations of lifestyle and proximity to children, grandchildren, shopping, and medical facilities are also relevant. Unlike with younger divorce clients, the disposition of assets to provide for retirement funds may become the paramount consideration. Taxes and tax cost consequences must be considered. Also, the relative exposure of senior spouses to lawsuits depending on their occupation is a relevant consideration.

Insurance. With the uncertainty of national Medicare benefits, private insurance for catastrophic illness and ordinary long-term care is of vital concern to seniors. When there are private policies, one spouse may be on the other’s health insurance. The carrier should be consulted about the consequences of divorce for continuing spousal coverage. In the case of life insurance, decisions must be made about beneficiary designations that may have been made in favor of the other spouse at the time of inception, confirmation of payment, and the cash surrender value of whole life policies.

Wills and Powers. Most divorcing spouses will choose to cancel powers of attorney for wills and trusts that were initially made in favor of their spouse. Invariably, this is also true for living wills, which address extraordinary medical measures in the event of end-of-life scenarios. Often this is more difficult than it may appear because the wishes of adult children may need to be considered in the process.

Diminished Capacity. A dramatic trend in senior divorces is the question of competency of one of the spouses. Most often, this issue is raised concerning the execution of documents that convey property, changing wills or beneficiaries, or powers of attorney. While every aging adult experiences diminished capacity in memory and thinking, these changes become noticeable in the senior years. There are standard psychological assessments of cognitive functioning that will likely become routine in senior divorces.

Despite the surge of senior divorces, the desire of seniors to enjoy romantic and marital relationships continues to flourish. Popular dating site Match.com boasts 2.5 million senior listings, while another, eHarmony, prides itself on 1.2 million senior listings. Because of a common base of life experience, the senior lawyer is in a favored position to offer legal counseling to senior clients who have decided to untie the knot and help them prepare for a fulfilling future.

Robert Gordon is a senior psychologist and elder lawyer who practices in Dallas and Houston. He specializes in helping seniors maintain and enhance their mental fitness.