In the typical marriage vow a couple marries for better or for worse, in sickness and in health, till death do us part. This is far from the reality as we family law practitioners know so well.
We have an aging population. In Michigan over one half of our population is now age 50 or over. Twenty five percent of Michigan residents are now age 60 or over. That is over 2.46 million people. Baby boomers constitute a major portion of our demographics.
People Get Divorced for Every Reason Imaginable
A. The Empty Nest
Many marriages end when the children are finally out of the house. Some couples will wait until the dog dies. I have had cases where a spouse will come to me and say that he wants to take an early retirement and travel. His wife wants to keep working and does not have the same desire to travel.
Children are often the glue that holds a marriage together. Once the children leave home many couples find that they were so busy raising children ad working that they now have nothing in common. If couples can communicate and discuss these issues, the marriage can be strengthened.
What if they cannot? Common interests and the ability to communicate are critical as we move into our greying years, in order to have a healthy marriage. Many people ask each other is that all there is? Is this someone who I want to spend the rest of my life with? Do I feel trapped in a loveless marriage? There are all important questions that need answers. The wrong answer can lead to the end of a long term marriage.
B. The Midlife Crisis
What is midlife? 40s? 50s? Affairs can happen at any age. With the proliferation of social media, including Facebook, LinkedIn, Tinder and numerous other sites, everyone has access to an old flame, a high school or college sweetheart. A thirty, forty, or even fifty year reunion can rekindle old passions. The impact of Facebook and other social media is now a major factor in approximately a third of all divorces.
With our population living into their 80s and 90s on a routine basis many people are stuck with each other much longer. This leads to more grey divorces.
C. What is Long Term?
I would argue it is at least 20 years. The grey divorce arena starts with someone in his or her mid to late 50s and can include couples in their 70s and even 80s.
Following are some key issues that make a grey divorce different than all other divorces.
A divorce in your 30, 40s, or even early 50s give former spouses time to recover financially. In a long term marriage from the mid fifties on, financial recovery is more problematic. Assets and debts are usually equally divided. Money planned for a couple’s retirement is now half of what it was. There is less time to rebuild economically. This is especially true if retirement is looming. The older a couple is the more difficult it is to recover.
E. The Job Market
Someone in his or her mid to, late 50s, or early to late 60s who is entering or returning to the job market is in big trouble. A stay at home spouse who raised children or even worked on a part time basis is not going to be able to recapture those lost years. People in their 50s and 60s are less employable than younger job seekers.
That is the reality. When you are in your 70s forget about it. People are working longer and retiring later but there is still age discrimination in the workplace.
Those in the grey divorce arena seeking employment are competing with youngsters in an economy where benefits, such as health insurance are much less expensive for someone younger. In addition skill sets are changing rapidly making it more difficult for someone who is not technically savvy, especially in this digital age.
F. Spousal Support
How much and how long are critical questions? Forget about the guidelines. Should a 30 year marriage result in 10 years of spousal support? No. What about a 25 year marriage? In a long-term marriage, it should be until death, remarriage or the further order of the court. Some judges have taken the position that for someone in their 60s or 70s it should be death or the further order of the court and eliminate remarriage from the equation.
Spousal support formulas do not take into account domestic violence. They fail to account for health issues and other factors such as being out of the job market for many years or the fact that with Covid we have been living in an entirely new and frightening world.
Should income be imputed? In a long term marriage where someone has not worked for many years there are strong arguments, against imputation of income.
Should we be equalizing income, taking into account pay status of any pension as well as social security? These are all issues that must be dealt with on a case by case basis.
The length of support is important in the grey divorce. Someone in his or her late 50s to mid 60s may not be working much longer. Death or remarriage may not be long term if retirement or health issues become a reality. I have had cases with people in their 70s where the length of spousal support was very short term, if at all. These are issues that we grapple with and treat differently in the grey divorce.
G. Social Security
To receive social security by virtue of a marriage there is a minimum of 10 years required before the divorce is finalized. At that point the former spouse can elect to use his or her former souse’s social security. This does not impact upon the amount that the primary wage earner receives from social security. This can be an important issue where the grey divorce occurs after a second or third marriage.
If one is receiving social security at the time of the divorce it should be factored in but cannot be divided. On solution is to set up spousal support to equalize, or take into account that in most marriages there is a disparity in the amounts of social security being received by each spouse. This can also be dealt with through property division being altered for the discrepancy in social security benefits.
H. Assets and Liabilities
Should the typical equal division apply in a grey divorce, especially where one spouse has tremendous earning power and the other does not? Asset allocation can be utilized in negotiating spousal support, especially if retirement is looming. Being creative is very important in the grey divorce arena.
I. Pensions, 401Ks and Other Retirement Accounts
Division is critical and the ages can be important regarding withdrawal and taxes. If a spouse is 59 1/2 or has reached the age where mandatory withdrawals from 401ks are required, this should be analyzed. A pension in pay status is another issue to be scrutinized and dealt with.
J. Second and Third Marriages
Be cognizant of pre and post marital assets. Has there been commingling of assets? What if one spouse has a lot of property and the other has fewer assets but also is in no position to recoup after the divorce? Do we invade separate assets? Do we seek a greater share of marital assets? Tracing can become very important. Careful record keeping can be critical. Have your client collect as much information regarding assets and liabilities at the time of the marriage and documentation regarding growth of same during the marriage.
I had a case involving a fairly long term second marriage. Many assets had been commingled and some were still separate. Substantial assets had to be gone through and traced. Bank and brokerage account statements were critical in determining what was marital and what was premarital. Increases in value were also an issue regarding premarital assets. Both parties were in their 70s and the husband was still working.
K. Prenuptial Agreements
These are clearly relevant in both a long term first marriage as well as in subsequent marriages. Courts try to uphold a prenuptial agreement wherever possible even in marriages in excess of 20 years. The key question is whether the grey divorce factor will be important. In a 30 year marriage where someone cannot recoup arguments can be made to invade some of the separate property.
Something must be done so that one party is not left in a precarious position due to age or health issues. In second or third marriages that are short term, but where the parties are in their 60s, or 70s these issues become more problematical. Health and mental capacity can come into play along with economics.
In Allard v Allard, 318 Mich. App 583, 587, 899 NW2d 420 (2017), the court held that the parties to the antenuptial agreement cannot deprive a trial court of its equitable discretion under MCL 552.32(1) and MCL 552.401.
L. Physical Issues
As we are aging our body parts wear down. The adage that getting old is not for sissies is so true! Appropriate medical insurance can be critical. Issues can include heart problems diabetes, weight issues, knee and hip replacement surgery, cancer and a myriad of other issues. As we reach our 60s problems can start to arise. It is more so in our seventies and 80s. Aches and pains are for real. Health and insurance issues must be looked at carefully and cannot be ignored.
M. Mental Acuity
As we age we are not as sharp as we used to be. What about cognitive impairment? This must be looked at. If there are concerns, cognitive testing could be appropriate. A study by Wayne State University, under the auspices of Dr. Peter Lichtenberg the director of the Merrill Palmer Institute of Gerontology, shows that there is a direct correlation between the loss of mental acuity and loss of net worth with the result that a 10% loss of mental acuity can result in a 20% loss of one’s net worth. Thus, a 1million dollar estate can be reduced to $800,000 due to being taken advantage of by relatives or strangers, making bad investments and or not being able to manage money any more.
N. Dementia and Alzheimer’s
These are serious issues. Should there even be a divorce? If there is, then a court appointed guardian and or conservator can be critical. It should be someone who is independent or perhaps a family member. This is an area to proceed with care. If there are doubts in this area, bringing in an expert can be important. If a divorce has already been filed court intervention is appropriate.
This is an area that can be fraught with possible malpractice if ignored. The understanding of dementia and how it affects capacity is evolving rapidly. As lawyers, we need to understand the interplay between dementia and the rules of professional conduct, Michigan statutes, and caselaw on capacity and competence.
The client with advanced dementia who at the time of representation seems to have capacity to revoke a durable power of attorney or sign divorce papers may not have capacity at a later time to execute another document. For a full discussion of this topic see An Overview of Dementia and Competency by Beth A. Swagman and Caroline M. Dellenbusch in the November 2014, Michigan Bar Journal.
I had a case where the parties where married for about 3 years. The husband was in his early 70s and his wife in her early 60s. He had just retired and was becoming more and more cognitively impaired with early onset Alzheimer’s. The wife filed for divorce. She did not want the burden of being a care giver after a very short marriage. The children from a prior marriage became involved. Finances were handled so that everyone was protected. Sensitivity and compassion is important when dealing with these situations.
O. Drug, Alcohol and Prescription Abuse
Other issues include marriages where there has been a history of alcohol abuse as well as abuse of opiates or other prescription drugs. When there is substance abuse treatment can be difficult and expensive. This is another area that needs to be handled with care.
P. The Medicaid Divorce
Is there a way for elderly clients to use divorce as a tool to avoid losing all of their assets if one of the spouses ends up in an assisted living facility due to physical or mental impairment? We are an equitable division state which means that property in a divorce does not have to be divided equally. In a Medicaid divorce situation there can be an unequal division of assets and liabilities to save as much of the marital estate as possible.
The problem is that it has to be carefully constructed. In Michigan the look back period regarding the transfer of assets is 60 months. A Medicaid divorce would be problematical unless you are more than 60 months away from the period where a nursing home or similar facility becomes necessary. This is an area where there should be a merger of legal skills between a family law attorney and one who specializes in the area of elder law.
Q. Abusive Marriages
Abuse, whether physical or psychological can occur at any age. Someone in the grey divorce arena may have been victimized for many years. Recognizing issues of abuse and anger are important. Therapy in these situations is critical to change the equation and help someone move forward. This is so important in a long term abusive marriage where a spouse is in his or her 60s or 70s and is trapped. It is extremely hard to break out of this cycle of abuse after years of conditioning, and brain washing.
R. Adult Children
Adult children can become involved with aging parents in their divorces. In one case I would meet with my client and the adult children who were in their 40s. The marriage was one of 50 years, with the husband being 72 and the wife close to 70. In one meeting I asked my client why she was getting a divorce after so many years. She responded that she wished that she had ended the marriage 30 years earlier.
In another case involving a long term second marriage of over 20 years. The case was high conflict with a lot of money. Both sets of children from the first marriage were involved. There was a lot of acrimony between the warring families. My client was in assisted living and a guardian had been appointed by the courts. At the end of the trial the judge ruled on the record and granted the divorce.
My client’s children were unhappy with the ruling and refused to approve the written judgment for a couple of weeks. During this delay my client passed away. The judge had not ruled that the court decision was to take immediate effect resulting in the divorce becoming a nullity. The wife/widow became the heir of everything. This is a lesson for acting quickly and also making sure that the record is complete because death can change everything. The ruling should state that the divorce is final and that the terms of any property division and or spousal support are to take immediate effect.
A key question regarding adult children is whether they have a parent’s best interest’s at heart. Greed can become a factor. We are representing the elderly client. We have to tread carefully because there is often family involvement.
S. Powers of Attorney
Where competency is an issue this is inadequate. A guardian and or conservator is the appropriate remedy. A power of attorney will not work in a divorce.
T. Moving On
We have discussed the economic and legal impacts of the grey divorce. What about the next chapter of our client’s lives? Think of dating in your 60s and 70s? It is difficult. Loneliness can be an issue. Much of your support system may be gone, especially if friends and relatives are aligned with one side or the other in the divorce. It is more difficult to move on and form new relationships, whether romantic or social. Therapy and seeking solace through groups or organizations can be important.
It is also important not to leap into a new relationship. We live in a world filled with scams, especially through the internet. The elderly are often the target.
As we are advising elderly clients whether in a short or a long term marriage, it is important to look at all of these issues. A team can be helpful to navigate them. Consider working with therapists, accountants, financial planners and even medical personnel to help your client navigate the many issues of a grey divorce.
The purpose of this article is to raise issues and provoke thoughts and questions. There may be other issues that you may think of in addition to these. These are ones that I have dealt with over the years:
1. The Empty Nest
2. The Midlife Crisis
3. What is Long Term?
5. The Job Market
6. Spousal Support
7. Social Security
8. Assets and Liabilities
9. Pensions, 401Ks and Other Retirement Accounts
10. Second and Third Marriages
11. Prenuptial Agreements
12. Physical Issues
13. Mental Acuity
14. Dementia and Alzheimer’s
15. Drug, Alcohol and Prescription Abuse
16. The Medicaid Divorce
17. Abusive Marriages
18. Adult Children
19. Powers of Attorney
20. Moving On
About the Author
Henry has practiced family law in the Metro Detroit area for over 50 years. He is a former Chair of the family law section of the State Bar of Michigan, former President of the Michigan chapter of the American Academy of Matrimonial Lawyers, and a former Chair of the long-range planning committee of the National American Academy of Matrimonial Lawyers.
Henry is known as an expert in understanding social media’s role in divorces and has authored several books including Divorce Demystified-Everything You Need to Know Before You File for Divorce and Child Custody-A Complete Guide for Parents. Henry is a graduate of Wayne State University and has his law degree from the University of Michigan.