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After many years of family law practice, and having earned more than a few gray hairs, I continue to find the experience of representing seniors, the elderly, and long-term marriage clients in dissolution proceedings both challenging and rewarding.
Respected authorities suggest that my years of experience at the bar as a divorce attorney should continue to increase unabated with the greying of baby boomer America. Recently, a college study found that while the statistical divorce rate in the United States is declining, there remains an exception for spouses over the age of 50.
If the published statistics and opinions of experts are to be believed, it appears one in four spouses over the age of 50 are getting divorced. The only reasonable conclusion one can draw from these unhappy statistics, and assuming the Rolling Stones are your cup of tea, “it still remains a drag getting old.”
The Rewards
Accomplishing the Mutual Objectives of the Spouses
Contrary to what many may believe, my experience in assisting clients seeking dissolution of their long-term marriages has not been either dismal or emotionally disheartening. On the contrary, I have found it is frequently possible, in what typically is characterized by some as an adversarial process, to give both spouses precisely what they both want through an amicable resolution and not a war!
This is frequently accomplished by eliminating the adversarial nature of the process at the outset, through the use of alternative dispute resolution methods such as mediation, collaborative law, selective arbitration and four-way attorney client conferences. The use of therapists as divorce coaches for either or both spouses has also proved helpful.
Is Some Form of Alternative Dispute Resolution Possible?
It should be emphasized that alternative dispute resolution outcomes, if successful, are well worth the effort and expense. Rather than the spouses looking back after the divorce with anger, regret or second thoughts, I have observed each spouse leaving the marriage with emotional balance, optimism, and plans for a bright future.
I recall one such case where the marriage had really been over for years. There were no longer minor children of the marriage and the lawyers by reason of mediation felt that all major impediments to a court granting both parties a decree of dissolution of marriage had been amicably resolved. The only step left was obtaining court approval of the parties’ Separation Agreement and having the decree signed.
Both spouses wanted exactly the same thing, even if not for the same reasons. I recall standing in front of the Colorado judge who was reviewing the final paperwork. The judge, with a puzzled expression, looked up from the file and called both attorneys to the bench. He whispered his astonishment that after 40 years of marriage, the parties were contemplating divorce as a solution for marital discord. The judge reasoned that there had to be some other rationale or a mistake.
The explanation given in open court by both the attorneys and their clients was really quite simple. Husband had purchased a new motor home. He wanted to fulfill his life-long dream and go traveling to all the National Parks on his bucket list. He desired further to go country western dancing at each and every town he passed on his travels. Wife’s wish was to forego the travel and the dancing. She simply wanted to return to North Dakota, sit on her front porch, and live out her retirement years with her family and friends.
This sensible explanation caused the judge’s face to light up. The judge, the former spouses holding hands, and the lawyers left the courtroom that day, all with smiles on their faces. Each of us felt rewarded in no small measure by what had transpired.
The Challenges
The Initial Consult(s)
The initial interview presents a unique set of challenges for both the prospective client and this attorney. Most clients wish to make a good first impression. They will endeavor to present themselves in the best possible light, often by denigrating the other spouse. By doing so, they believe I can be convinced early on of the merits or justness of their cause. However, from my perspective, all client’s cases have merit. It is not the first impressions I derive from the initial interview that are dispositive. Rather, it is the totality of the facts and circumstances of the marriage and the law of the case that factor into my final impression or evaluation of the client’s cause. Understandably, this final evaluation often takes time, effort, and hard work on the part of this lawyer and the client.
The initial interview with this attorney should be considered by the client as only one preparatory brick of a foundation making up the entire dissolution proceeding. If the remainder of the foundation as constructed by the attorney with the client’s help is solid, it will hopefully result in the outcome being sought by the client. Moreover, it often proves very helpful in the long term for the senior client to bring with them for emotional support, an adult child, a close friend or relative.
It remains essential for this lawyer’s objectivity to discover at the earliest opportunity both spouse’s physical and/or mental handicaps, if any. Omissions on the part of the client to reveal all the blemishes in the marital relationship and / or this attorney failing to recognize same, could result in the court having to set aside a divorce decree or support agreement in the future. The cost of the dissolution proceeding can be substantially increased if the client fails to provide this attorney at the earliest opportunity with full disclosure.
The Age of Retirement
Client’s at or near retirement age present a different set of challenges for the family law practitioner.
Some clients believe that their spouses’ plans to retire (or their actual retirement) was the catalyst leading to the filing of the divorce. These clients often perceive that the bread winning spouse is guilty of acting in bad faith by electing to retire early. The complained act of early retirement could simply be the act of a spouse voluntarily taking a lower paying job with less hours of employment for health reasons. Prospective clients who have an existing maintenance order arising from a prior decree of dissolution of marriage may find themselves facing the prospect of having their support ended or diminished significantly based upon a former spouse’s decision to take voluntary early retirement.
These financially disadvantaged spouses, already faced with a significant standard of living reduction by reason of the divorce, argue that the court should impute for maintenance purposes pre-retirement income to the spouse, whose early retirement plans must be in “bad faith” (i.e. primarily motivated by a desire to decrease or eliminate spousal support).
One often heard argument to the contrary by the bread winning spouse is that he / she has worked most of his or her adult life, has devotedly supported the former spouse and children over many years of marriage, and that for a court to force continued employment past the working spouse’s elected but undoubtedly reasonable date of retirement is patently unfair and tantamount to involuntary servitude.
In Colorado, there is no fixed statutory age of retirement at which a spouse can foreseeably retire and be absolved of paying spousal maintenance. Each case stands on its own. The judge will look at the age and health of the spouse seeking to retire and determine what is customary retirement age in the given industry affording employment to the spouse.
The attempt by courts and counsel to equitably balance the foregoing hardships between the former spouses, where the motives behind a spouse’s retirement remain at issue, present real challenges.
Grandparent Visitation (Parenting Time)
As a new grandparent, the time I spend with my grandchild is precious and irreplaceable! The legislature has concluded that similar feelings must be shared by all Colorado grandparents who are unjustly faced with a denial of access.
To rectify a perceived injustice, the legislature enacted grandparent visitation legislation. This legislation establishes a formal process involving the court. The process can be independently initiated by grandparents who have been unfairly denied access or parenting time with their grandchildren. The statutory remedy can ultimately lead to the grandparents having court-ordered parenting time rights. These court ordered rights however may come with a serious price of family disharmony since the grandchild’s parents have to be joined in the litigation as necessary parties.
The challenge of course for the attorney representing one or both grandparents is to try and find an amicable resolution without court involvement. Sometimes it is incumbent for success that the attorney become a counselor or problem solver to the family as a whole rather than simply an advocate.
Retirement and Executive Compensation Plans (Division and Valuation)
In Colorado, how something is titled is not dispositive in a dissolution proceeding on how it will ultimately be divided between the spouses by a court. This simple rule includes retirement plans and non-qualified executive compensation plans where the titled owner is one of the spouses. Moreover, in the absence of enforceable provisions in marital agreements to the contrary, another simple rule to remember is that any property acquired by a spouse during the marriage other than by gift or inheritance is presumed to be marital property, which is subject to division by the court.
If the asset was acquired before the marriage, then in most cases the asset maybe characterized as a separate / premarital asset of a spouse and allocated entirely to that spouse. However, it is quite common with these type of assets that there exists both a separate and marital component to the asset. When this occurs, forensic experts need to be engaged to value the separate and marital portions of the retirement assets.
Moreover, if either spouse owns a 401(k) account, IRA, 403(b), or any other retirement account, there are serious adverse tax considerations that may need to be considered and addressed by the court in dividing these accounts. In addition, if either spouse has attained the of age 70 ½ or does so while the divorce is pending, divorce counsel may need to reach an agreement on quantifying the amount of “Required Minimum Distributions (RMD’s) from the retirement accounts to avoid adverse tax consequences to the marital estate.
The Harris Law Firm is aware of these minefields and when appropriate is able to refer the client to tax and ERISA knowledgeable counsel for assistance.
The Spouse With Diminished Capacity
It is not uncommon for challenges to arise before or during a dissolution proceeding surrounding the on-going ability of elderly clients to work productively with their attorneys. Sometimes this difficulty arises by reason of some degree of cognitive impairment and or serious memory loss on the part of one or both spouses. This impairment may not be tantamount to legal incompetence and the impaired spouse(s) may be able to function quite nicely without assistance in most day to day situations.
Nevertheless, in order to protect the innocent spouse with some degree of diminished capacity from an unfair result in a legal proceeding, and to assist in the client’s representation, the court’s have established a process where a third-party fiduciary can in some instances be appointed by the judge to work with the attorney on behalf of the client. This person can be either a “special conservator” or a “guardian ad litem” whose appointment ends when the divorce is concluded. Frequently, this third party can be a trusted family member of the spouse with the diminished capacity.
As noted above, it is important for the client to share with this attorney at the earliest opportunity information surrounding physical or mental health limitations that may exist as to either spouse.
Conclusion
I have found there is nothing magical that replaces hard work and patience when representing the elderly in a dissolution proceeding. As noted, there will be challenges and rewards as in any case.
As envisioned by most fair-minded clients, a successful outcome in the divorce is a just result for both spouses. Therefore, a sensitivity to that objective is of paramount importance throughout my representation. This objective must be coupled with an awareness of the client’s reasonable concerns articulated to me throughout the proceeding. One frequently expressed concern relates to the fear that there will not be adequate financial resources left to provide for the client’s reasonable needs following the divorce. It is not uncommon for the client to voice a feeling of dread in having to ask their grown children for financial assistance following the divorce.
To overcome that concern requires not only a just result, but instilling in the client the belief that there is in fact a life following the divorce, regardless of age.
As the playwright George Bernard Shaw observed:
“You don’t stop laughing when you grow old, you grow old when you stop laughing.”