Podcast: Divorce for Seniors in Ontario

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In this transcribed interview with Dale Goldhawk of Zoomer Radio AM740 in Toronto, family and divorce lawyer Lorne Fine of Fine & Associates Professional Corporation discusses what you need to know about divorce for seniors. Read the interview below, or listen to the podcast at the bottom of the page.

Goldhawk Fights Back Podcast: Recorded August 26, 2014

Dale: Twelve-thirty six, time to talk about something entirely different, and so that’s why we invited family and divorce lawyer Lorne Fine to join us today. What we’re going to talk about is the gray hair divorce phenomenon. That’s what you call it, right?

Lorne: That’s right. Thank you for having me by the way.

Dale: And you… Oh, you’re most welcome, by the way. And, by that, you mean older couples are getting divorced?

Lorne: Right, zoomers who are getting divorced. It’s the fastest growing segment of population that’s divorcing. It’s strange, but it’s…

Dale: Talk about counterintuitive. Nobody would believe that, right?

Lorne: Yes, it’s more than doubled since 1980, the rate of divorce amongst zoomers. In the US in 1990, one in ten people getting divorced were over the age of fifty; now it’s one in four. So it’s really growing fast. Why is it happening? It’s for a number of reasons. Obviously, divorce, the concept of divorce is no longer… there’s no longer any stigma associated with it, so it’s more acceptable for people to get divorced. There’s the empty nest syndrome.

Dale: Hang on just a bit. So you say 50. You’re classifying this as 50 above?

Lorne: Fifty and above, yeah.

Dale: Do you do any further classification, like 65 and above, or anything like that?

Lorne: Well, that’s a huge part of it. Now, I haven’t had the stats for 65 and above, but that’s a huge part of it is the individuals who’re 65 and above…

Dale: Really? So that’s an even bigger chunk of the population that’s… yeah.

Lorne: Right. We’re dealing with the same issues, the same legal issues, but there’re different challenges when you’re dealing with…

Dale: Well, the economic circumstances can be much more dire if you’re 65, for example.

Lorne: Right. It could be devastating.

Dale: In fact, you must have, with some people, a conversation that could go something like this, “Can you two really afford to get divorced?”

Lorne: Yes. Especially, if you’re living on retirement income. To divide that between two households is very, very difficult. You have a situation where, let’s say, it’s a traditional marriage where a wife stays home and the husband works, and then they retire. And then the wife has no ability to retrain. She’s not going to retrain. She’s not going to get a job. So there is spousal support issues. It can be very difficult financially for a splitting couple.

Dale: Well, what are the… when you are… in that group in particular, 65 and above. I think people would really find that surprising. Unless maybe you are 65 and above and divorced, and I guess you know. But what are the reasons for that happening? I mean, is it just fell out of love? You can no longer stand the sight of each other?

Lorne: Yes!

Dale: Absolute boredom? A little bit of everything?

Lorne: Everything. Empty nesters. I guess mid-life crisis is around 50, but still it’s a factor. There’s also abuse. I’ve had situations where I may get a couple of calls from an older person who is contemplating divorce because there was so much abuse, and then they decide they just couldn’t stick it through, because they can’t afford to get divorced. It’s sad, but it happens.

Dale: Well, that’s a really toxic situation where you realize the money isn’t there to get divorced so you’re going to have to somehow…

Lorne: Suffer through it.

Dale: Yeah, probably still live together but apart, if you know what I mean?

Lorne: Right.

Dale: Just for economic reasons.

Lorne: Yeah. Sure that happens.

Dale: Talk about dreary lifestyle.

Lorne: Yeah. Just living separate lives, just because financially it’s impossible, but that happens.

Dale: Well, when you get to that kind of situation where a client would come to you, and you have a look, and you listen to their circumstances, and you realize they can’t afford to get divorced, would you say that to them?

Lorne: Of course. I would say to them, “This is your potential future, and this is how much you’re likely to receive, and you have to evaluate whether it’s realistic.” And sometimes people come to me before I contact the other spouse to evaluate their situation, and sometimes they choose just to stay together. They choose not to initiate anything because it’s just not worth it.

Dale: It would make a bad situation even worse, essentially, for different reasons, but it would be even worse.

Lorne: Yeah. It would be very difficult.

Dale: How does the whole process involving senior divorces, how does it differ or does it, from younger divorces in terms of how it goes?

Lorne: Well, we talk about, firstly, it’s a big impact as far as older women are concerned, as far as their dependency, as far as their being able to retrain. Spousal support’s a big factor. Obviously, children are no longer a factor, so you’re not dealing with custody access and support issues. But when you’re dealing with an older client. I guess they’re usually not interested in litigating. They don’t want to go to court and fight over the issue.

Dale: They want to be rid of each other.

Lorne: They want to try make it quick and easy and cheap as possible, and they’re concerned about their health, concerned about their future, and they’re more concerned…

Dale: Yeah, if it’s totally… if it’s uncontested that can happen, can’t it?

Lorne: Right. if it’s easy, sure. If it’s amicable, it’s easy to do. It’s more difficult when it’s not so amicable, but they’re concerned about really preserving their assets and not fighting over money, right? They’re not in the… they’re in their asset depleting years and not in their asset accumulating years.

Dale: That’s right. Not so much money coming in the front door, it’s just going out the back door.

Lorne: Exactly. I think dealing with older people, they may not be as technologically sophisticated so email may be a factor, they may need more help as far as completing forms…

Dale: What about levels of emotion? I mean you know firsthand how emotional divorces can get and how often – and you’ve spoken of this several times – you’re really called upon to be a bit of a social worker in terms of how you and other family lawyers have to deal with cases. Is there an inherent difference in the above 65 crowd getting divorced when it comes to emotional issues rather than somebody in their 30s and 40s?

Lorne: I think so. I think when someone’s in their 30s and 40s, I think there’s that thought process that they’re going to move on with their life, that there’s a future, and maybe they’ll find somebody else, and then they’ll move forward with their lives. But when there’s a long, long term marriage, it’s unlikely they’re going to find another partner, or it’s difficult to find another partner, and it may be more traumatic for the whole family, right? The kids may be adult children, and they’re involved, and…

Dale: Well, imagine their shock that their parents at age 68, or something, are deciding to get divorced after they’ve grown up and are trying to establish their own households.

Lorne: Right. And that can be even of a greater concern when you’re dealing with a second marriage, right? Let’s say that the… you’re talking about adult children involved with the second marriage of their parents and they’re concerned about preserving their inheritance. They’re concerned about their new wife, getting their share and so on. So the dynamics can be more complicated with the adult children getting involved.

Dale: The consequences can be quite deeply serious, can’t they?

Lorne: Right. No, long lasting, and they can be very serious. Yeah.

Announcer: Goldhawk fights back for you airs Monday to Friday 11:00 to 01:00 on AM740 Zoomer radio.

Dale: Family and divorce lawyer Lorne Fine is here, and we’re talking about the phenomenon of older divorces. In fact, hearing, it’s shocking, maybe, to some people that at age 65 and above there is a huge activity in the divorce department. More so than just a little…

Lorne: Yeah. It’s much more common than it was five, ten years ago, and… it raises its own important issues and different issues, challenging issues.

Dale: But is it because stigma is no longer there? Is that the reason why…

Lorne: I think so. I don’t know if there is… I’m not aware of any social evaluations as to why it’s happening, but I think it’s retirement, empty nesters, lack of social stigma… there’s all kinds of reasons for it. Yeah, it’s challenging.

Dale: With more older divorces coming your way, and the way of other divorce lawyers, does the law still hold up?

Lorne: Oh, yeah.

Dale: Are there any special considerations or would the law require a few amendments or additions because that older part of the population is now deciding to get divorced as well?

Lorne: Well, the law is still the same. It’s just that there may be different emphasis. Maybe different emphasis on let’s say spousal support. So, with an older couple, the lawyer’s going to think about what happens on retirement. What happens if the payor dies? What about insurance? That’s critical, right? Life insurance is critical. Retirement benefits. Division of pensions. These are all important issues. I have several case where a wife is sick, and she’s on the extended health medical benefits of the payor, the husband, and if they get divorced, she gets cut off, right? So it’s very important to consider what happens when they divorce, right? How is she going to pay for her medicine? These are all important factors to consider when you’re dealing with an elderly couple getting divorced.

Dale: Yeah, a lot of health care issues that you might otherwise not have.

Lorne: Right. Before, most couples would consider that if they got sick in their old age, their other spouse would care for them, but when they get separated, who’s going to care for the spouse that gets sick? So what happens in the event that one spouse gets sick and requires treatment? How’s that going to happen? So there’s all kinds of factors that have to be considered that wouldn’t otherwise enter into the equation for a younger couple. So it’s important to have a state planning in place, and it’s important for people realize what their insurance benefits are. It’s also important… you know, I always find it amazing when an older couple comes to me and, it’s usually the wife, has no idea about their finances, no clue about what the husband owns. So, it’s important for – I would say women – to be informed about what the assets of the family are…

Dale: Well, sometimes the husband is hiding those assets, too, or just not talking about them.

Lorne: Right, but they have to investigate. They really have to try to be informed about what the financial situation is of the family. And you’re right, sometimes it’s hidden, and usually it may be as a result of just the roles assumed by the family, right? The husband works, and the wife stays home, and they don’t trade information. But it’s important for people to educate themselves.

Dale: Well, that’s very generational, isn’t it? I mean, that’s…

Lorne: Yeah, it applies across the board.

Dale: Hopefully that’s changing a bit, and spouses now are more aware of each other’s finances. Although I don’t necessarily believe it even as I’m saying it, for crying out loud.

Lorne: You know, I’m amazed that it’s still out there that people still don’t have a clue, but it happens all the time.

Dale: Yeah. In these enlightened and aware times, maybe we’re not that enlightened and aware.

Lorne: Yeah. Well, it’s easy to get the information, because everything is very accessible. You go online and you can get the information, but it’s important for people to take an active role in state planning, retirement planning, looking at their finances, and just being aware.

Dale: Do you often find that the grown children try to insert themselves into this whole process as well?

Lorne: Yeah, I think that it happens inevitably, and I actually have a case where he is 75, she is 72, and basically he worked very hard during his whole life and accumulated a big estate, and they’re fighting and fighting. I said to my client, I said, “You really got to get the kids involved because they don’t want to be involved.” I said, “This is going to go to a trial, and the estate is going to be diminished considerably. Really, maybe the kids could assist in mediating. The kids are adults. They’re 40s. Let them get involved, and maybe have a family pow-wow and see if you can work things out somehow.” But the kids don’t want to get involved. So there’s different family dynamics.

Dale: And what’s the compelling reason for that marriage going off the rail? What feeling do you get there?

Lorne: Well, they just didn’t like each other for a long time, you know. I think he found someone new.

Dale: Oh, at 75 he found someone. Well, of course, at 75 he found somebody else.

Lorne: He doesn’t look 75, but he found someone new.

Dale: All right. Okay. Well, I think I get that one, 4163-6007-40, 8667-404-740. We have Linda on the line from Keswick. Linda, do you have a question for Lorne Fine?

Linda: Yes. Thank you for taking the call.

Dale: Sure.

Linda: Mr. Fine, I was married for 26 years and we were together for 32. My husband passed away last year. His ex-wife would not… we took her to court in 2000, and she wouldn’t… we have to give her half of his company pension. Now, can I take… because I have a piece of paper from the company that he filled out with me as a beneficiary. Can I use that and go to court to stop her from claiming half of his pension?

Lorne: So how long was he married to the first wife for?

Linda: Twenty-four.

Lorne: Okay. So he was married to his first wife for 24 years. And how long were you married to him for?

Linda: Twenty-six.

Lorne: Oh, wow!

Dale: Oh! Right down the middle! Yeah.

Lorne: So he accumulated a pension during his first marriage, and she is entitled to that pension. She’s entitled to an interest in that pension during the first marriage. He had two long term marriages. So I’m not sure how you would go about stopping her from getting that claim. Is that what you want to do? Stop her from getting that interest in the pension?

Linda: Yes.

Lorne: I’m not really sure how you…

Dale: Isn’t that dictated by law?

Lorne: Yeah. She has an interest in the pension accumulated during the course of the marriage. They had a long term marriage, and you had a long term marriage. So I think that it would be very difficult to deny her that right.

Linda: Okay.

Lorne: I don’t know the basis. I don’t see the basis for denying her that right in the pension. But you really should consult a lawyer to see… I’m not sure why you have that belief, but maybe you should consult a lawyer to go through the facts with the lawyer as to what…

Dale: But, at first blush, it doesn’t look very hopeful, does it?

Lorne: No, no. I don’t think so.

Dale: Yeah, yeah.

Linda: Okay. Well, thank you very much for taking the call. Have a great day.

Dale: Thanks. Thanks very much, Linda, for the question. Yeah, that’s all set down, is it not?

Lorne: Yeah, the first wife has a claim on the pension. Strange to have two very long term marriages, but I don’t know how she would deny the first wife of the interest in the pension.

Dale: Yeah. How do judges handle the situation if, in fact, the divorce gets to court, and the participants are, say, in their 70s or even dare I say older than that. What’s the oldest one you’ve ever had?

Lorne: Well, I think the one I just mentioned was pretty…

Dale: Seventy-five?

Lorne: Seventy-five.

Dale: Okay.

Lorne: Around 75. I think I had one that was 78.

Dale: How do the family court judges handle all this? Is it pretty all same or…?

Lorne: Well, I think that if the parties are in court and it’s hotly litigated, I think that… I’ve had a situation where a judge would say like, “Let’s have a wake-up call here. Let’s sit down and let’s see if we could talk this out, and it’s in everyone’s best interest to try to preserve your assets and not spend it on litigating with each other.” And, you know, judges… the family court system is geared toward a resolution in any event no matter what party is litigating, but especially when there is an older couple, a judge will say, “I don’t know what you’re doing, but if you really want to litigate, fine, but otherwise I think it’d be best for everyone to meet and see if we can…”

Dale: Well, because you’re just blowing away the combined assets the more you carry on with this, right? And then if you actually go to court, well that’s a very expensive part, isn’t it?

Lorne: Yeah. And like we said, you’re not in the asset accumulating phase of your life. You’re preserving, so if somebody wants to litigate, they can litigate. Somebody wants to go to court, they can go to court. It takes two people to tango, right? It takes two people to want to make a deal, but certainly judges try to encourage people to make deals.

Dale: Yeah. Yeah. And in most cases, do they manage to do that? I mean, some still are fought to the bitter end, aren’t they?

Lorne: Sure. It just takes one person to be unreasonable, right? [chuckles]

Dale: You know, in all of it somebody says, “No,” and then you continue to the next part of the process.

Lorne: You need people to want to make a deal. Like the example I gave before of this older couple, there should be a deal. We try to make a deal. It’d be great to have the family get together to make a deal. So that’s something that everyone can live with. Everyone walks away not completely happy, but those are usually the best deals, right?

Dale: Well, if everybody has a problem with the settlement, it’s probably the right settlement, right? Isn’t that usually what it means?

Lorne: That’s right. That’s the same, right. Yeah. If both people walk away unhappy it’s a good settlement.

Dale: Right. Or at least it’s a fair settlement. It may not be good from their point of view whoever it is. Well, we can understand why the grown children wouldn’t want to be involved. That’s pretty… even if you’re, say, in your 40s and your 75-year old father is getting divorced, that’s kind of traumatic, isn’t it?

Lorne: Sure. Listen, they’re adults but they’re still… it’s their mom and dad.

Dale: Good grief, it’s mom and dad that are splitting up, you know?

Lorne: It’s very traumatic, and I guess they don’t want to choose sides. They want to try to remain neutral. Sometimes you have kids choosing sides, right? They hate the father or the mother but you would hope that they would try to calm things down and negotiate a resolution.

Dale: Lorne, thanks very much for giving us this insight into some of these older divorces, and thanks very much for coming in. That’s our family divorce lawyer, Lorne Fine.

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