The Gray Divorce – Divorcing Later in Life


Many aspects of marital dissolutions for elderly clients differ little from those of younger couples. However, save where one of their adult children has ongoing special needs, child custody, visitation, and support don’t figure into the attorney’s or client’s considerations. The law does impose on parents the possible life-time burden of caring for the physical and financial upkeep of seriously handicapped (physically or psychiatrically) adult children. Fam.C. § 3910.


Setting aside that circumstance, the focus of most marriage termination analyses come down to two areas: Health and Wealth. When the parties are well-to-do and/or enjoy substantial income, assets will be divided roughly in half and, if one of the spouses receives materially less in wages or retirement benefits, an equitable spousal support award can be calculated to preserve the marital standard of living. Where financially sound, making a COBRA election to continue the medical coverage in place during the marriage can be put into effect. Alternatively, private health-care policies, including Medicare, can be obtained.


On the other hand, if one or both of the parties have serious health problems but there is considerable wealth or income held by the community or one of the spouses, then the one truly significant question is “How do we provide for the ongoing medical needs of the unhealthy spouse?” Of course, the first answer that comes to mind is spousal support. However, spousal support alone may not be enough. If sufficient assets and income are available, an adequate portion of the assets can be dedicated to or liquidated to provide for the estimated lifetime medical and living needs of the impaired spouse. These provisions will be determined in large part by the community property and spousal support statutes and cases. These are flexible enough to allow the parties or, if they cannot reach settlement, the family law judge, to make such support and property division decisions as will fairly cover the ill spouse, while not overly taxing the healthy one.


In the situation discussed above, where there is sufficient wealth to cover the majority or all of the health-related complications, the parties will also be able to terminate the marital status with relative ease. Where one of the parties suffers serious medical or physical hardship, though, the challenges to achieving adequate provision for the effected spouse can be daunting. Putting together the strategy and resources to care for the ill or disabled spouse will require a balanced and intelligent use of spousal support, assets, if any, and legal choices.


First, and often the most important decision, will be whether to elect formalized legal separation rather than dissolution of marriage. In most instances, parties who have legally separated, but still maintain the marital status, can continue to share the medical insurance available through the working or retired spouse’s employment-related (often extended through pension plan benefits) coverage. That would save the sometimes unaffordable cost of COBRA elections, regardless of the salutary offset delivered by Medicare benefits.


Thus, if neither of the parties are particularly set on remarriage, but no longer want to have their lives as fully integrated as during marriage, a judgment of legal separation can accomplish division of assets, spousal support awards, keeping or relinquishing of social security benefits, testamentary rights, and authentication of actual separation. Mentioned above are Social Security Benefits. This asset, its amount and availability, needs to be examined, sometimes with the assistance of counsel specializing in SSI, to determine how much exists and is still available to the divorcing/separating spouses. This is particularly true if one or both of the spouses was married before and some or all of their “spousal” SSI rights were transferred or relinquished in the settlement of their earlier dissolution.


However, the “legal separation” strategy was recently hobbled by the Supreme Court decision in Marriage of Davis, 61 Cal.4th 846 (2015). This case altered the working understanding of “separation” held by a large percentage of practicing attorneys and sitting family law judges, to require the parties to live in physically separated quarters to qualify for a finding of “legal separation”. Fam.C. § 771. While leaving open the possibility of fact patterns where some form of shared residential facility could earn the term “legally separated”, that status remains problematic.

At present, this case requires parties to physically separate their residence to accomplish legal separation. Where the parties have limited financial means, but have a home that permits truly separate existence (fully duplicate bedroom, bath, and kitchen facilities), they may have wished to remain under that shared roof, while avoiding anything more than the occasional passage out the front door (which could even be negated by inexpensive construction of a side entrance to one of the estranged spouse’s quarters).


That option will not be available to dissolution or legal separation litigants again until the Legislature amends the Family Code nullifying Marriage of Davis. Proposed amendments have been submitted by various state and local Bar Association committees, groups, and individuals. An amendment may be forthcoming in the next few months, or could drag out for much longer. However, given the fairly wide-spread antagonism to the decision, it is probable new law will be enacted sooner rather than later.


In closing, dissolution of marriage or termination of the hallmarks of community through legal separation differs somewhat from the process as applied to younger litigants. However, it remains a complicated and sensitive undertaking. Addressing the pertinent issues effectively will require thorough analysis and planning. Experienced and competent legal counsel, as with most areas of Family Law, will allow the parties to avoid excess expense, delay, and prejudicial errors.

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