Divorce Has Special Problems for Seniors Some Issues Supersede Premarital Agreements

By Wesley E. Wright and Molly Dear Abshire, as published in the Houston Chronicle Senior Living Section on July 21, 2010.

Divorce among older couples is not something we are conditioned to expect. However, the divorce rate among those age 65 and older is on the rise. Divorce is becoming socially acceptable in our society, even among the elderly. Couples who have been in long, unhappy marriages are more likely to consider divorce than in their parents' or grandparents' day. Also, a growing percentage of elderly couples are in second and third marriages, with many marrying at a later age. Statistics show that more second and third marriages and later marriages end in divorce earlier than first and only marriages.

Late stage divorce can be caused by a variety of factors: people are living longer and expect better relationships; women are more educated about abuse in its many forms including psychological/ emotional abuse (which was readily more tolerated in previous generations) infidelity; and financial reasons such as preservation of assets.

Whatever the reason for the increase in divorces among the elderly, the fact is divorce has a significant impact on one's emotional and financial well-being both now and in the future. The entire process causes emotional distress to all parties on multi-generational levels. Late stage divorce especially takes its toll on adult children. Often the marriage that unravels is a second marriage for the seniors and the divorce pits one set of step-children against another. Even when a second marriage is not the case, it is not uncommon for children to take sides, pitting sibling against sibling.

Christopher A. Spofford, local board certified Houston family law attorney, says that in his practice "it is common for the children to find themselves taking on a central role in the divorce case of their adult parents due to the physical or mental infirmities of the parent. Financial distress and cognitive deficits on the part of a parent frequently dictate no other viable solution but for an adult child to take a divorcing parent into their own home."

Divorce among the elderly also complicates adult children's ability to meet caregiving needs. The emotional upheaval takes its toll on children and grandchildren as well. Shouldering the responsibility of helping parents in their later years in separate locations exacerbates caregiving issues. Questions of loyalty, financial responsibility and inheritance come into play. Adult children may end up helping sustain two households instead of one.

For divorcing seniors, the breakup of the marriage can be agonizing and complex. Divorcing seniors who have accumulated substantial assets during their lives may have complicated property and tax consequences. There are certain issues that are more likely to arise in an elderly couples divorcing, such as issues involving retirement plans, tax consequences and planning for long term care. All divorce settlements involving seniors should address health and life insurance, as well as the division of retirement benefits. Under the Employees Retirement Income Security Act, if one spouse has a qualified Erisa pension, it can be divided by court order.

Getting divorced later in life is expensive. The realization sets in that two individuals apart cannot possibly live as cheaply as they did together. It is virtually impossible that both divorcing seniors will be able to maintain the same standard of living. The reality is that often one or both spouses end up suffering financially. Their ability to earn more assets has either waned or come to a complete halt. Thus a major concern of many divorcing seniors is maintaining financial stability.

This is especially bad news for women. According to an AARP article published in 2008, divorced women face significantly higher poverty rates in middle and old age. Traditionally, women in this age group were homemakers, not earning Social Security or pensions due to their own work status. A later in life divorce comes at a vulnerable time for them. Many end up trying to exist on their share of Social Security alone. Regarding the division of Social Security benefits, the rule is that the person who divorces a worker after ten years of marriage is entitled to half of that worker's benefit as long as he or she remains unmarried.

If one of the elderly spouses suffers from Alzheimer's disease or dementia, it may be necessary for the court to appoint a guardian ad litem to ensure that spouse's interests are protected. Additionally, if one spouse is totally without capacity, it will be necessary for the court to appoint a family member, attorney or professional as guardian to complete the divorce process.

For seniors who divorce, it is important to review and update beneficiaries of Wills, life insurance, retirement plans, trusts, powers of attorney and other important legal documents to be certain that the proper people are assigned to carry out their wishes.