Divorcing After Long Term Marriage, A Checklist of Considerations

May 1, 2018
Lynne C. Halem

“Why in the world would they divorce now? Aren’t they in their seventies? What’s the point?” (Neighbors)

Once upon a time, people who grew old (or older) together, even if unhappy in their marriage, did not consider divorce an option. Today’s world is a much different place. People who once thought of themselves as old at sixty are now active physically, socially, and sexually. Many are working longer, or even starting new careers. And, because the world and its citizens are indeed “a changing”; we are witnessing a dramatic increase in divorces among the 60+ set. The causes leading up to divorce are not the subject of this article. Our interest lies with how to fashion settlements that are thoughtful and thorough, and leave each of the involved parties facing their future with understanding and knowledge.

For couples facing divorce in their late fifties, sixties, and beyond, the questions and issues are quite distinct from those facing younger couples. In some respects, the divorce landscape is less cluttered; there are no custody issues and likely, no debates on funding children’s education.

Yet other issues arise for this group, which may well be more challenging than those facing younger couples. Older couples will have to deal, either in the present or near future, with questions of retirement, sickness, funding health insurance coverage, and the possibility of liquidation of assets to support living expenses. And the list grows from there. In going their separate ways, older couples must create a well-thought out agreement that recognizes the interconnection between moneys needed now and moneys to be safeguarded for their future.

At the Centre for Mediation & Dispute Resolution, we suggest that a skilled mediator provides the most effective guide for dealing with these often-thorny issues. No one wants to deal with an uncertain future. Because mediation is a problem-solving process, with both parties participating real time, it can be the most efficient and ultimately, the most satisfying approach for the majority of couples.  With the help of an experienced mediator, the “job” of working out settlement details can go from an acrimonious task and manageable process, resulting in an agreement that addresses present and future needs of both parties.

Here are some considerations to be addressed in a later-stage Divorce Agreement:

• Couples need to grapple with the realities involved in their future employment. How long does one want to work? Or the question may be how long is one able to work given physical constraints and/or job restrictions including imposing mandatory retirement.
• Couples need to confront acute and chronic health issues, tying cost of services to the ability to fund, including health insurance and, for some, long term care.
• Couples need to consider the budgetary needs of each party before and after retirement as part of their analysis of support obligations, if any.
• Couples need to consider the duration of support. Does the obligation change over time and, if so, how are the changes structured? When does the obligation end?
• Couples need to analyze their social security benefits and how to maximize dollars received.
• Couples need to consider their property. Should property be held jointly until death? Divorce? To a different event? When will sales and/or transfers take place?
• Couples need to consider Will provisions for their children and/or grandchildren and/or each other.

The issues raised in so called “gray” divorces can be entangled and thorny both emotionally and intellectually.  It is the mediator’s responsibility to help the couple navigate through this minefield with data and logic, perhaps even to create terms that provide contingencies for an uncertain future. The end product should provide both parties with a document that is rooted in the present and extends to the future.