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by Susan Myres, Board Certified Family Law Attorney
Divorce Advice for Seniors
Whenever people ask me why so many older people are getting divorced these days, I always think of my client in her 80s, married for many years, who told me, “I just don’t want to die married to that man!” It took her awhile to get there, but she was absolutely fed-up.
“Silver splitters” , just like other clients seeking a divorce, come with all kinds of backgrounds and experiences. In some cases, the couple now seeking a divorce never got along very well. It is curious that people would stay together unhappily for a large chunk of their lives “for the kids” or for business, social or financial reasons.
In other cases, the couple was reasonably happy at one time, but perhaps retirement turned out to be a problem. I know one man who retired, but then rented a small office and kept working on a less demanding schedule. His wife just didn’t like having him underfoot all the time. That seemed like a thoughtful adjustment to maintain a longtime relationship in good health.
What’s really going on when couples divorce late in life?
At times, when interviewing a potential older client considering divorce I’ve thought, “There is something else going on here.” Perhaps the client seemed confused, or a description of a partner’s recent behavior appeared concerning. It’s a good idea, particularly with seniors, to get a thorough physical and mental health examination done if one partner–or sometimes both–don’t seem to function at normal levels.
Perhaps the culprit is some form of encroaching dementia. Or it could be a matter of too many doctors and different medications that no one coordinated properly. It also might be something as simple as the effects of dehydration on an older person who isn’t drinking enough liquids. I see all three problems in my practice.
Why is the divorce rate increasing for older couples?
The overall rate of divorce in the US is dropping – because the rate of marriage is declining! Yet, ironically, the divorce rate among adults aged 50 and older roughly doubled since the 1990s. According to data from the Pew Research Center and other sources, in 2015, for every 1000 married persons, age 50 and older, 10 couples divorced versus five in 1990.
Boomers now make up the majority of this group. It seems that they are simply not willing to put up with an unsatisfactory marriage as an older generation often did. Society changed over the years, as well. There is less stigma now attached to divorce at any age. And because many women are now in the workforce in large numbers, it is less likely today that an older woman divorcing will face utter destitution. It’s still true though, the partner who made less money or who never worked may face a reduced standard of living after a divorce. This situation seems to favor the higher earner, which is still most often the man. If both are retired, they are on a more level field for division purposes.
On the other hand, it’s American men, not women, whose life expectancy dropped a full year from 2020 to 2021, as documented by the CDC’s National Center for Health Statistics (NCHS). COVID was responsible for a large portion of that drop, but other factors included unintentional injuries, suicide, chronic liver disease and cirrhosis, and homicide.
Recent Pew Research Center analysis of census data concluded that men are now more likely to be “unpartnered” than women. Additionally, the unpartnered tended to have worse health outcomes and worse economic outcomes than married or cohabiting adults.
Concrete advice for “Senior Splitters”
For any older person considering divorce, it is absolutely essential for him or her to understand the many unique financial implications involved. When two younger people divorce, the higher earner might be generous knowing they have many more years to do well and make up the difference. An older couple knows that what they have now is pretty much all they will ever have. They may therefore worry more about the future and not provide as well for the spouse.
Divorce advice for seniors: Real estate
The house is usually a major issue. A standard approach is to sell the house and split the income. But one partner may have a greater attachment to the house. Or perhaps they want plenty of space for children and grandchildren to visit. It could also be simply that they just don’t want to leave a familiar and treasured home. In that case, that spouse must compensate the other spouse in some way equivalent to splitting the proceeds of a sale. The tax implications are very different, depending on whether the owners sell the house as a couple or one divorced partner sells it alone.
Divorce advice for seniors: Social Security
Social Security is another issue. If one party was on Social Security for less than two years, or if the couple was not married for at least 10 years, the spouse bringing in less income has no claim on the other spouse’s Social Security. Otherwise, the lower-earning spouse is likely entitled to about one-half of the other’s Social Security without reducing the payment received by that party. That income is an important consideration. Retirement packages, 401(k) plans, pensions—the consequences of divorce with regard to all of these need to be analyzed.
Divorce advice for seniors: Insurance
Another major issue is insurance. Consider this possibility: one partner helped to pay for life insurance, long-term care insurance, and health insurance for years. What if a new spouse receives the life insurance when the insured person dies? Maybe a divorcing spouse cannot afford to pay premiums anymore on the life insurance and long-term care insurance previously paid for by both spouses. An older spouse may also have difficulties finding new, affordable policies. Insurance costs and medical expenses all need to be examined closely.
Divorce advice for seniors: Estate Planning
Estate planning is another important factor in divorce. With today’s changing and blended families, there may be children, grandchildren, even great-grandchildren. In some families there are his descendants, her descendants and their descendants. An older divorcing couple needs to take into account not only which partner gets what today, but who eventually gets what in the future.
The bottom line
Often a big part of the problem between an older couple divorcing is that their mutual interests perhaps dissipated over the years. Partners are sometimes left profoundly irritated by the other’s behavior. They either end up doing everything alone or unhappily putting up with a partner who is perpetually in a bad mood. Maybe one partner just wants to stay home, sit by the fire and tend to a stamp collection, while the other partner wants to cruise the Caribbean. The goal is to try to achieve “golden years” that will be happier and reasonably comfortable for both of them. This divorce advice for seniors outlines essential considerations for older folks thinking they may be better off leaving their marriage.
About the Author
Susan Myres is a board-certified family law attorney at Myres & Associates. She has been practicing in Houston for over 40 years and has served in leadership positions locally, statewide and nationally. She is a past president of the American Academy of Matrimonial Lawyers (AAML).
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