Mary Ann Burmester on Grey Divorce
The rate of couples divorcing at a later age has been rapidly increasing. According to a study published in The Washington Post two years ago, the divorce rate in the U.S. among couples who are over the age of 50 has doubled between 1990 and 2010. In this podcast, Mary Ann Burmester – an Albuquerque divorce lawyer – examines why some couples decide to divorce later in life as well as some of the unique issues they face during and after the divorce process. She also offers advice to those facing a grey divorce, including what to look for in an attorney.
Hosted By: Diana Shepherd, Editorial Director of Divorce Magazine
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Read the Transcript of this Podcast Below.
What is divorce in the golden years, or grey divorce?
There’s no consistent definition across the country, but most attorneys consider it to be a divorce where one or both of the spouses are age 60 or older. The grey divorce is a reference to the fact that most of us have our grey hairs. If you prefer to be called a grey divorcee or a divorcee in golden years, it’s up to you.
What makes grey divorce different from other divorces?
You still have to look at the same basic components of asset identification and allocation, what do you own and what do you owe, and we definitely need to consider alimony. There are other aspects that aren’t necessarily legal. First off, if you’ve been married 30 or 40 years, you don’t have as much time to recover financially if you’re now dividing the assets.
The standard of living can often go down dramatically after anyone’s divorce, but the time in which to recover is much shorter. People panic over the money aspect. Panic is not necessary, but it does need to be looked at very carefully.
The second component is, if you’ve been a couple for 30 or 40 years, how you get through your daily life is going to be radically different. I have clients call me two or three months into the divorce after one of them has moved out of the home and tell me things like, “I need someone to cut my lawn”, “I don’t know how to change the oil in my car”, “He always takes out the garbage and now I have to figure it out”, or the husband is suddenly eating out all the time because he hasn’t been preparing meals. The emotional and logistical components of getting through your daily life are quite different when you have a divorce in the golden years.
The third aspect is, sometimes the adult children get involved in the case because they see their inheritance dissipating. Now two households have to be maintained, and obviously that’s more money being spent. Sometimes the adult children stick their noses in and try to get involved in the settlement negotiations. Whereas if the children are eight years old or 10 years old, they don’t even think about the financial aspects of their future inheritance. It’s not so much the legal aspects as the family dynamics are different, and the day-to-day lives of the couple are radically different. They don’t always foresee that when they think about coming to me for a divorce.
Why do people approaching retirement – or actually already retired – get divorced?
Sometimes they waited till the youngest child is out of the home, whether it’s completion of high school or college, or maybe the last one is getting married and the couple had drifted apart emotionally. They’ve basically lived as brother and sister or as roommates in the house but they stayed together primarily for the children. Sometimes they’ve also stayed together for career purposes, but now that they’re empty nesters they realize they have 10, 20, 30 years or more of life and they don’t want to spend it together. It’s not necessarily due to infidelity or drug addiction or alcohol abuse; they’ve just genuinely drifted apart.
The other aspect is sometimes people age differently in terms of activity level. If one of the spouses is still physically very fit, very active, very social, wants to ski or water ski or travel, and the other one is more frail, has health issues, and is a stay-at-home person, they’re really going in different directions. I see the active person not wanting to be saddled with, for lack of a better term, an inactive spouse. They see that they have 10, 20, 30 years of their life and they want to grab it and not be tied down.
The other aspect is when dementia comes into play, whether it’s Alzheimer’s disease or other forms of dementia or a major physical ailment. Not all spouses can cope well when their loved one is seriously physically or mentally ill, and they can’t be there for them, so they do choose to get divorced at that time.
As an attorney, what do you watch out for, and how do you approach cases of golden-age divorce?
I have to spend a lot of time really listening carefully as to what I’m told are the reasons for the divorce and sometimes what’s not being said. I represent both men and women, but more often it’s the woman who comes to me and says my husband wants a divorce. I don’t want a divorce, I’m shocked, but I know he can get the divorce, it’s a no-fault state, but I really don’t want it.
Then I have to listen to what she thinks her life is going to look like after the divorce. It’s much more empathy driven, there’s a lot more frequent contact with the clients because they will call asking me, “How do I get the lawn mowed?” In New Mexico we have a cooling system known as a swamp cooler, and you have to have that turned on and off in the seasons. They’re calling needing guidance on how to get through the day.
I’m not a psychologist, but that’s where my Masters in Gerontology comes into play. I have taken a lot of psychology classes. I’m also familiar with various benefits that may be available to senior citizens, either free services or reduced services for just getting through the day. Also, driving is a big issue. Is my client or the opposing party unsafe to be driving on the roads? We have to look at that as another issue.
It’s a much broader picture; it’s not strictly what do you own, what do you owe, and what’s alimony going to be. If I’m representing the person who really wants the divorce, say because he cannot cope with his wife’s dementia, I have to talk to him about what do you think your life is going to look like. If there are adult children involved, how is it going to impact your relationship with your own adult children as well as your grandchildren if you’re the one who’s decided to divorce grandma at age 75? We look at the bigger family picture as well.
If an older person is considering divorce, what should they look for in an attorney? Are there any special characteristics or attributes the attorney should have?
I do think they need to look for an attorney who has a fair amount of experience dealing in grey divorce or divorce in the golden years for some of the reasons I’ve already discussed. A good competent attorney can identify property and debt, talk about alimony, and, even if there is still a teenager or minor child involved, discuss visitation and child support.
But I view my role as not strictly here’s the law, here are your options, let’s go. I view my role as both attorney and counselor of law. A person in the golden years is not just looking at where am I today, but where am I going to be five, 10, 20 years from now and am I going to be okay? You need to have an attorney who is willing to go down that path with you. You need an attorney and support staff that’s going to take your frequent calls, they’re going to listen to you, they’re going to guide you to the right resources to help you get answers to your questions or help you with the logistics of life.
Some attorneys have the patience for that and some don’t. I do, I make sure my staff does, and it’s really important because this is going to be the last life event other than your own demise. You have to have the right fit, you have to have the right personality compatibility, but the lawyer also has to have the knowledge not just of the law but of all the other aspects of how you’re going to continue to live.
What specific advice would you give someone in their 60s or 70s who is considering divorce?
I generally ask all my clients to think long and hard, is divorce the only viable option of them? In my state, you can also do a legal separation but you go through the same exact steps. There’s no difference in the process for a legal separation as there is for a divorce. The only difference is you’re still technically married at the end of a legal separation and you can’t marry someone else.
When there’s no alternative to divorce, I talk to them about possibly doing what we call a postnuptial agreement. Many people have heard the term prenuptial agreement, but we can also do a postnuptial agreement, which identifies the property and the debt and deals with support issues. You’re still legally married, you’re still able to participate in making medical decisions for your spouse, you can still live in the same household, you can still even operate out of the same joint bank accounts and joint credit cards. If the fear is your spouse is going to be in a nursing home and you have enough assets that you don’t qualify for the state to pay for it but you don’t want all of the assets to be depleted in caring for your spouse, doing a postnuptial agreement is one possible way to keep you married but protect the assets to a degree.
Other times if a client is in their 60s and 70s, I do spend a fair amount of time saying, well, how do you think you’re going to get through the day without the assistance of your spouse? Or, how do you think you’re going to get through the next 12 months? How do you take care of the home? How do you take care of the cars? How do you travel? How do you handle your finances? Are you ready at this age to go through a huge learning curve to do all of these things on your own?
Then I get into, why are you getting divorced? It’s not my job to talk anyone into a divorce or out of a divorce, but sometimes they come to me because there’s been some events, they’re very frustrated, they’re tired, they just see out as where they want to go, but they haven’t thought about the consequences. I generally will not let a potential client retain me at that initial consultation until they’ve really thought through what their life is going to be like. Then if they come back to me, and I’ll follow up about a week or two later, and say, I’ve thought about your questions, I think I have a plan in place, I still want to proceed with the divorce, then I will go ahead and take on representation.
If a person is getting married later in life, possibly a second marriage, and they want to protect their assets for their children from their first marriage, do they need a prenuptial agreement or could a will suffice?
Not every couple needs a prenuptial agreement even in that scenario. I’ll return to the benefits and disadvantages of a prenup in a minute. But the problem with a will is that you can change it at any time and your spouse does not know about it or does not need to know about it.
For example, a couple is in a second marriage and they have children and grandchildren from prior relationships, they get together in their 60s or 70s and everything is happy and they’re doing well, and they go and revise their wills. The husband and wife think that each is leaving the other one whatever property it may be, maybe circumstances change in the marriage, maybe the adult children get involved. The husband can change his will, for example, and the wife has no idea.
The will is not the way to protect your assets, and it’s also not the best way for husband and wife to really know what’s going on with the property. In order for a prenuptial agreement to be valid, both spouses have to have full knowledge of all property and debt. They should also be privy to current wills and trusts. They should have their own independent attorney to advise them. You’re not allowed to sign the prenuptial agreement so close to the wedding in New Mexico that it seems like coercion. We don’t have a minimum number of days prior to the wedding, but if someone were to say here’s the prenup and we’re getting married in two days, that’s generally not going to be enough time. A prenuptial agreement is a valid and binding contract if you had enough time, you had full disclosure, and you voluntarily and knowingly signed that agreement.
What a prenup can do with regards to prior children is it identifies what is the community property of the couple and what is the separate property. In New Mexico, you can convert community property to separate property. For example, wages or income that you accrue while married is typically considered community income. But in a prenuptial agreement, you can say all wages and earnings are still going to be the separate property of the person earning it. If that’s the case, if you want the benefit of your separate property and separate wages to go to your own children of a prior marriage, you can do that in a prenuptial agreement. The one thing you can’t do in a prenuptial agreement in a New Mexico law is waive alimony. You can’t say in advance neither party will pay spousal support or alimony to the other, because you don’t have the right to alimony until after you are in fact married.