Grey divorces pose legal challenges

Divorces that happen later in life can have unique legal challenges, such as the proximity to retirement, life insurance and whether or not grown children become participants in the proceedings.

Family lawyers say these “grey” divorces can have different challenges than for those who get divorced younger in life.

Georgina Carson, a partner at MacDonald & Partners LLP in Toronto, says that, when couples are older, the future is often more predictable, which can make for an easier separation.

“If they’re at or near retirement, we know what the future holds more or less,” says Carson.

“Parties can really meet that goal of effecting as clean a break as possible and closure, but if someone’s 62 [years old] and they’re working at a firm with a mandatory retirement of 65, you can really plan around that.”

Carson says this certainty can mean that finances are easier to separate and for it to be done all at once, rather than face a review or variation by the courts in the future.

“It really is dividing a pot,” she says.

Carson says that most grey divorces deal with situations where children are grown up, which eliminates custody and access issues — one of the most intractable areas of family law.

“Parties can also really effect a clean break, because not only do you have to figure out a parenting plan for younger, separating parties, but they have to co-parent,” says Carson.

“When there are adult children, they may need to talk to each other about weddings and grandchildren, but it really is much easier to effect a clean break and have some real closure.”

Carson notes that added difficulties in older divorces are health issues, particularly if one partner is starting to show signs of dementia, even though that person may not necessarily exhibit this to the point of impairment or to require a litigation guardian.

“It can be very difficult as lawyers, because we’re not necessarily trained to assess these things, to make a judgment call whether a proper assessment should be done — and whether or not a client will be co-operative with that — and whether or not there’s someone who is appropriate to be the litigation guardian,” says Carson.

Potential impairment can be further complicated when there may be unscrupulous adult children who become involved in their parents’ separation or divorce, says Carson.

“Lawyers need to be extremely mindful and vigilant when it comes to knowing who their clients are and from whom they can take instructions,” says Carson.

“Sometimes, adult children feel that they have a personal stake and they attempt to control the outcome.”

David Frenkel, a lawyer with Gelman & Associates Family Law Lawyers in Toronto, says that, in younger divorces, indefinite spousal support agreements change when retirement comes.

Because retirement is much sooner or has already happened in grey divorces, that requires a change in these support agreements.

“The extra challenge [for lawyers] is crafting and drafting an agreement that takes that into account,” says Frenkel.

Frenkel says medical benefits of spouses are often a consideration in these cases because many insurance providers will have provisions to cover a former spouse as long as they are not divorced.

“When you’re drawing up your agreement, you should be cognizant of that [stipulation],” says Frenkel.

“At that point, you can do one of two things — that the recipient has to find their own medical coverage and pay from their pocket for the support they’re getting or if there is a provision that they’ll get a top-up from the payor.”

Another consideration for lawyers to pay particular attention to is life insurance when it comes to divorce.

In November, the Supreme Court of Canada ruled in Moore v. Sweet that a woman  who continued to pay insurance premiums on her late husband’s insurance was able to maintain the beneficiary designation, as per their separation agreement, and was entitled to the $250,000 payout.

The court recognized this was despite the fact that her late husband had subsequently designated his new common law spouse as the irrevocable beneficiary without his first wife’s knowledge.

“People have to be really careful about following up on designations and turning their minds to [future] security,” says Carson.

“As family law lawyers, we’re often thinking about the here and now and not thinking so much about the future and new families and the fact that these designations need to be followed up on.”

Carson says the fact that Moore went to the Supreme Court of Canada is a sign of how important the issue is. Frenkel says a spousal support order should also be secured against life insurance in order to maintain the payments in the event the payor dies.

“If the payor doesn’t have life insurance, in grey divorces, those premiums are going to be through the roof, so that would be another challenge in crafting these agreements,” says Frenkel.

“When couples’ finances are limited, it may be harder to tell the payor to pay for life insurance to ensure that their support is covered.”

Lorisa Stein, a sole practitioner who does collaborative family law in Toronto, says that, in her practice, she often comes across “senior separations” rather than divorces because, for some people of that generation, there is still a stigma attached to divorce.

“We have a lot of discussions, often pretty heated, about being entitled to keep the friends, too,” says Stein.

“That’s significant, because that’s a support network.”

Stein says discussions can become difficult because money and health may be very private matters for her clients.

Stein says that, in one situation where a couple was separating on friendly terms, a collaborative solution was to renovate the home into two units.

“This allowed them to stay put in a comfort zone,” says Stein.

“They didn’t have to have that psychological jarring to worry about losing their social networks.”

In situations where there has been a disparity between spouses, such as where one has always worked and the other stayed at home, Stein says a collaborative model would introduce a neutral professional such as a social worker to deal with the anger that comes from a sole provider having to share everything they have accumulated.

“Having to have to ask for money, where you didn’t before, or having to say that what you gave me over the years for the household . . . there’s a financial cost to those roles, particularly when one person wants to maintain the family home and the other one can’t afford to fight or buy out their interest,” says Stein.

Stein adds that, sometimes, it’s not just gender roles but cultural ones that require additional navigation with these separations.

“Collaborative practice is not only how we can be creative and imaginative. I also see it as ‘do no harm’ within a larger circle,” says Stein.

“The family may very well shun the individual who needs the most support.”