Family Law Quarterly
Volume 50, No. 1 (Spring 2016)

Symposium on Gray Divorces and Silver Separations

Table of Contents

Please note that pursuant to the ABA's copyright and reprint policies, these articles may not be disseminated without written permission.

 The Challenging Phenomenon of Gray Divorces

Paula G. Kirby & Laura S. Leopardi

Divorces involving spouses over age fifty, coined gray divorces or silver separations, have increased for many reasons: the significant percentage of women working and earning their own retirement assets and income, lack of financial security and debt, empty-nest syndrome, dating websites and marital dysfunction. This article addresses challenging issues for clients age fifty-plus including spousal support, diminished earning ability and retirement, age-related health issues, specialty insurance considerations, vocational assessment of midlife spouses, and expert evaluation of financial matters.

 Other considerations for spouses age fifty-plus include client reliance on unsolicited advice; accurate lifestyle and budget analysis; marital residences; businesses; separate property issues; structuring support; equalization payments and settlements; salvaging or maintaining credit; and managing the client’s emotional needs of vulnerability, despair, anger, or entitlement. The article provides considerations, references, lists, and suggestions for professionals addressing age fifty-plus divorces.

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Representing the Elderly Client or the Client with Diminished Capacity

Robert B. Fleming

As the population inexorably ages, so do clients and opposing litigants (and, for that matter, opposing counsel). Diminished capacity is often a concern in the practice and increases in frequency with age. To be prepared to deal with clients as they age or become compromised, the practitioner should be familiar with the etiology, typical course and limitations common with dementia and other conditions commonly seen. There are, of course, both practical and ethical considerations when a client's capacity is diminished or questioned.

Age and dementia are not synonymous; the frequency of dementia among the aging is consistently overestimated by professionals. There are, nonetheless, common problems with mobility, hearing, and vision (among others) that can affect a client’s ability to understand or assist counsel. Lawyers need to be aware of those concerns and be able to provide solid legal representation, even when the client’s capacity is diminished.

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The Battle for the Biggest Assets: Dissolution of the Military Marriage and Postdivorce Considerations for Aging Clients

Brentley Tanner

The navigation through a military divorce case routinely contains pitfalls that can ensnare even the most prudent family law attorney. There is no area more perilous than the handling of the issues related to military retirement and the survivor benefit plan. To make matters even more strenuous, the United States Congress passed new federal legislation that makes significant changes to the manner in which servicemembers accrue military retirement benefits. This article will traverse the hazards associated with the military retirement system, both through the old routes as well as the new charted course under the newly enacted Modernized Retirement System.   

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Residence Roulette in the Jurisdiction Jungle: Where to Divide the Military Pension?

Mark E. Sullivan

When a member of the military is facing a divorce lawsuit in a state other than where he or she is assigned for duty, there are some difficult decisions that must be made regarding the protection of military retirement rights and related benefits.  This article deals with issues such as residence and domicile, division of military retired pay and the Survivor Benefit Plan in different states, general and special appearances, spousal support options, valuation of the pension, false residence claims, and choosing an attorney.  A domicile checklist is appended to the article.

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Family Support, Garnishment and Military Retired Pay

Mark E. Sullivan

The Uniformed Services Former Spouses’ Protection Act is not just for allocation and distribution of military retired pay in divorce and property division cases.  It also specifically provides for the withholding of family support (i.e., child support and alimony) from the pension of a military retiree.  This article gives an overview of military retired pay, an explanation of the rules for income withholding, information on starting the process, and limits on the amount garnished, tips on how to obtain military retired pay information from the U.S. government, and admission of records into evidence.  Appended to the article are a sample Retiree Account Statement, a retired pay extract, a Coast Guard records certification, and a VA business records custodian affidavit.

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Premarital Agreements for Seniors

Peter M. Walzer & Jennifer M. Riemer

Drafting premarital agreements for seniors requires both competency in family law and estate planning. In drafting the agreement, the lawyer must address the competing concerns of children, parents, and the spouse.  The attorney must be attuned to the client’s financial security, as well as his or her wishes to provide for a spouse and heirs. The article covers the problems of capacity, choice of law, spousal support limitation clauses, and the waiver of probate rights. The article also addresses how the attorney can use life insurance in conjunction with a premarital agreement to provide for surviving spouse and other heirs.   The article addresses Social Security because most seniors are close to or are receiving benefits, disability and health care costs, and how they are considered in the drafting of the agreement.  The article is an overview of the factors an attorney must consider when drafting these complex agreements.

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Financial Abuse of the Dependent Elder: A Lawyer’s Ethical Obligations

Jeanne M. Hannah

Research shows that nearly half of American Baby Boomers are in “the Sandwich Generation,” and are providing care for their aging parents. No matter where a senior resides, he or she may be subject to an ever increasing amount of elder abuse, including physical abuse, sexual abuse, emotional or psychological abuse, neglect, abandonment, and financial abuse. This article addresses financial abuse of the elderly and the ethical and legal obligations of a lawyer to help prevent financial abuse if it is detected while providing legal services to a senior.

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Adverse Childhood Experiences: Implications for Family Law Practice and the Family Court System

Jan Jeske & Mary Louise Klas

A national task force found that sixty percent of American children can expect to have their lives

touched by violence, crime, psychological abuse, and trauma. Traumatic stress may interfere with a parent’s ability to interact with an attorney who represents him/her. Trauma affects what the client needs from an attorney, as well as how an attorney will interact with the client who has experienced adverse childhood experiences (ACEs). The client may be reluctant to reveal critical information that could be outcome determinative. Further, a history of traumatic stress may inhibit the client’s ability to form trusting relationships with others, such as his or her own children or court service workers. This inability could negatively impact case outcomes and may foster inappropriate judgments, such as overprotective false allegations in custody and parenting-time actions or underprotective care of the child(ren) involved which could lead to child in need of protection (CHIPS) proceedings.

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Divorce American Style

Review of Splitopia: Dispatches from Today’s Good Divorce and How to Part Well by Wendy Paris

Naomi Cahn & Jana Singer

In Splitopia: Dispatches from Today’s Good Divorce and How to Part Well, Wendy Paris seeks to provide a new narrative for the good divorce, replacing myths of contentiousness with images of cooperation and myths of depression and vindictiveness with images of personal growth and emotional stability.  Splitopia is the kind of book we would recommend to a friend considering divorce, fearful that the process would be nasty, brutish and long, and worried about what might happen to a functioning family.  The book skillfully brings together the author’s personal experience in separating from her husband, research on the psychological and emotional aspects of divorce, advice on how to cope with being single, and policy recommendation on how to improve the divorce process.  In our review, we explore why the book should be useful to family lawyers and clients, and discuss some of the book’s limitations.

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My Two Dads (and Three Moms): Balancing a Child’s Interest and a Parent’s Fundamental Right When Granting De Facto Parent Status

Jamie Bryant

This article explores the pressing legal question:  what makes a person a "parent"?  The author traces the development of the concept of parentage from the narrow view that a legal parent can arise only from a genetic connection to or adoption of a child to the recognition today that, in some families, a parent-child bond can develop between a child and an adult who has played a central, committed, care-taking role for the child, notwithstanding a lack of biological or legal relationship.

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The Unintended Consequences of Rebuttable Presumptions on Child Custody in Domestic Violence Cases

Zoe Garvin

The well-documented impact of violence on children has inspired many states to enact legislation requiring courts to consider domestic violence as a factor in making custody orders.  Some jurisdictions have adopted rebuttable statutory presumptions to restrict an abusive parent from obtaining sole or joint custody.  Enacted in 1999, there has been limited formal evaluation on California’s rebuttable presumption statute, and some commentators have raised concerns: How have judges responded and to what extent has their discretion been maintained?  Are the rebuttal factors sufficiently narrow to work in concert with the “best interests of the child” standard?  Do competing policy values conflict with the underlying purpose of a presumption statute?  This article examines the history of presumption statutes in the United States and evaluates whether they are an effective mechanism for protecting child safety in custody cases involving issues of domestic violence.  The article highlights cases in which family courts have applied statutory presumptions to resolve complex custody issues and makes recommendations for implementation challenges in California.

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When Pros Become Cons: Ending the NFL’s History of Domestic Violence  Leniency

Maleaha L. Brown

This article examines the NFL's recent domestic violence policy and reviews its efforts to eradicate domestic violence since its inception. The article also discusses state domestic violence laws, focusing on New Jersey’s proposed legislation in the aftermath of the Ray Rice incident. The author proposes that the NFL adopt a transitional compensation program for survivors of domestic violence committed by NFL players and employees, similar to the Department of Defense’s statute that provides financial support to family members who were abused by military personnel. Additionally, the author recommends that states allocate a percentage of their federal crime victim compensation funds specifically to survivors of domestic violence.

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Ordering Information

You can purchase a copy of this issue through the ABA Web Store. To order hard copy by phone, call the ABA Service Center at 1-800-285-2221 and request PC 51301005001.

Publication Date: July 2016