September 2014 Bar Bulletin
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September 2014 Bar Bulletin

Long-term Marriages and Divorce after 60 (or 80)

By Lisa DuFour and Sharon Friedrich


Often an older woman's worst fear in dissolution of a long-term marriage is that she is going to end up a bag lady. A woman in this situation can feel that she is being discarded and that her life had no meaning. Her children are grown, her husband works and the house is empty.

To be facing a divorce from a life-long partner is devastating, whether or not she is still in love with the guy. On the other hand, an older man may also feel discarded if after 50 years of marriage, the wife has an affair and wants a divorce. In either situation, the emotional issues, as well as the financial issues, in this situation are difficult for a wife or a husband to face.

What are the issues involved in a long-term marriage dissolution or a "gray divorce?" If the spouses have been married longer than 25 years, the court considers the marriage long term and different factors apply in deciding the property and asset distribution.1

The Court of Appeals recently held that separate property of a wealthy spouse can be awarded to the other spouse in the dissolution of a long-term marriage, even without a basis of need.2 Separate property was awarded to the wife from the husband's separate estate even though the wife was given millions of dollars of the community assets and was not really "financially disadvantaged." The wife did have less than the husband in total assets before the allocation of separate property, but the wife still had substantial assets. One major factor that the court considered in this case was the length of the marriage.

There also are different factors to consider regarding maintenance in the dissolution of a long-term marriage. A major consideration in determining the amount and duration of maintenance comes into play when the spouses are eligible for Social Security and the amount of benefits each will receive is at issue. The analysis of Social Security benefits and/or eligibility can be quite confusing as the law in this area keeps changing.

Maintenance factors include duration of the marriage, and the age, physical and emotional condition, and ability of the spouse seeking maintenance to meet his or her own needs.3 A spouse over 60 who has not worked outside of the family home for numerous years may never be able to find employment with compensation that would make a significant contribution to his or her monthly expenses. In a long-term marriage, the court should focus on leaving the spouses in comparable financial situations for the rest of their lives. This will likely include the division of retirement assets and retirement/pension payments.

Another consideration in a gray divorce is the receipt of inheritance. If one spouse has inherited millions from a parent or has a very rich parent in their 90s, then their need for a disproportionate property distribution and long-term maintenance may be less. However, if a spouse has inherited money and the couple spent it, that money is gone and there will be no reimbursement of the funds.

Mental health issues, including dementia, can play a factor in dissolution of a long-term marriage. It is possible to appoint a guardian ad litem for a disabled spouse.4 To determine if a guardian ad litem is necessary, the court rules do allow for physical and mental examinations of the person.5

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