E07: Grey Divorce - Not Everything is Black and White

In this episode of It’s Only Human Nature, Let’s Boyle It Down, hosts Janet Boyle and Bob Kipnis tackle the fastest-growing segment of breakups in the United States: "grey divorce." Defined as divorces occurring among couples over the age of 50, this trend now includes a wave of Gen Xers alongside Baby Boomers.

Through real-life anecdotes from their own legal practices, the hosts peel back the layers on why couples choose to untie the knot after decades together. Far from being simple, grey divorces carry a unique set of high-stakes challenges. The discussion maps out the critical intersection of divorce, estate planning, and retirement security—proving that when it comes to long-term marriages, not everything is black and white

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Transcript

SPEAKER_00 0:00

Welcome back to another episode of It's Only Human Nature, Let's Boil It Down. And I'm here today again with my partner Bob Kipnis.

SPEAKER_01 0:12

Good afternoon. Good to be here.

SPEAKER_00 0:14

Today we're going to do a little series, a little episode, I guess, on gray divorce, which is also known as silver divorce by some people. And it is defined as divorces of people over 50. So that for years would encompassed basically just baby boomers. But now gen axers are into their 60s. So now we have gen axers and baby boomers who are considered gray divorce. And I know when I first got interested in the whole phenomenon of gray divorce, which by the way is the largest growing segment of divorces in the United States, are people over 50? And in my practice, I see people regularly in their 70s and 80s. So this is a phenomenon that is really long-lasting now and also of great interest to anybody of that generation. The question always is, why? Why, you know, when you hit 50, 60, 70, do you want to get divorced? Well, you know, part of that goes back to well, living longer these days. And when you live longer, you've got more years in front of you at those ages. And, you know, all of a sudden it's like, do I really want to stay with this person, you know, for another 10, 20, 30, 40, maybe even 50 years, more, you know, sometimes it's half your life. Think about that. So people are like, no, I don't want to do that. I want to have the second chapter and I want to start it now. The kids are generally in college or older, and it's time. Um, so it's a it's a very interesting phenomenon.

SPEAKER_01 1:56

It's amazing. It's amazing the uptick in people who have come to see me who've told me they were waiting for the children to age out and sign up. I had a lady recently come to me and say, This was back in June, my daughter graduated yesterday. I'm ready.

SPEAKER_00 2:13

Yeah.

SPEAKER_01 2:14

Didn't even wait a week.

SPEAKER_00 2:16

It's one of my favorite jokes of all time is this old couple walks into the divorce lawyer's office and the divorce lawyer looks at them and says, Why now? All the children are dead. Instead of all the children are off to college. So, you know, some people wait even longer until their their children are really married, grown up. I've had that happen where it's the last child's getting married in June. I'd like to file the day after. Can you get the papers ready? And then I'll come back and see you after the wedding. And it's like, sure. So, you know, everybody's got their thing after this vacation, after the child graduates from high school, college, when they get married, you know, whatever it is, they have a place, a like a line in the sand that they're not going to cross.

SPEAKER_01 3:03

It's amazing to me how many women have come to me who are over 50, who know absolutely nothing about their estate. Yeah. Absolutely nothing about how they're going to support themselves in the future, if there's any retirement, 401ks, IRAs. They just don't know.

SPEAKER_00 3:20

Right. Right. And, you know, I've I've seen that and I see it, I see it so often. I had one recently where the I it was the wife who came to see me, and she actually did know about their investments, about the houses, things like that, but she had no idea about his business interests, what he owned in terms of that, his retirement plans, you know, because he had been with a couple of companies and then had his own thing. So she had no idea of what their retirement looked like. Um, you know, insurance, long-term care, all those things that people in their 20s and 30s aren't that concerned about, right? That are a big deal, you know, for people who are older. What else are you seeing?

SPEAKER_01 4:02

Well, it's almost like an estate plan. After you figure out what the assets are, now we've got to make sure we can take care of our client into the future.

SPEAKER_00 4:11

Right. And, you know, sometimes you see these things happen because one spouse got sick and the other one, you know, wants to protect the assets. They don't even really want a divorce. What they're really looking for is that if this person needs long-term care, you know, I don't want my half of the assets being used. Okay. So that's one way that it gets used for estate planning or whatever. Also, I have seen several cases. I had a doctor years ago who he and his wife had been separated for like 20 years. And he had a girlfriend, and she, you know, she knew about it. And she would just show up on Friday at his office and say, Here's my bills, and they would pay them and, you know, give her her check for the week. And, you know, everything went on like this for 20 years. But then she found out she was sick and that she was gonna die. And she was concerned about her adult children not being the heirs to her husband's estate, but rather his girlfriend and her children being the heirs. So she wanted a divorce to protect her kids, you know, from an estate, you know, when my client died. So I've seen that so often too.

SPEAKER_01 5:27

Where Yeah, I've had something similar as well. I had a disabled elderly man come and see me, and his wife was in another state. I don't know if she had dementia or it was early onset, but she had 24-hour care and was well provided for. And the advice was stay married. There's no reason to get divorced because you're not writing her a check for half of the estate. Right. Which he probably would have had to do because it was a 40, 50 year marriage. Right.

SPEAKER_00 5:58

And I had that where the wife was had serious mental health issues, serious mental health issues, had been institutionalized for like 20 years. So the parties hadn't lived together in like 20, 25 years. And the the the wife then got diagnosed and was put in hospice. So her sister went into court, got appointed her guardian, and filed for divorce.

SPEAKER_01 6:25

Oh, and then the divorce case became against the sister. Exactly.

SPEAKER_00 6:29

And it was really how much of the husband's assets or what had been joint assets should go to the sister and her children. And, you know, my whole argument was this is crazy, you know, because if my client had died, everything would have gone to the wife. When the wife died, he anticipated that everything would go to him. And it was who knew which of them were going to die first. But, you know, the the judge gave the the sister and ultimately her children about 25%.

SPEAKER_01 6:59

Much of the time it presents interesting issues because when you're of that age, there's a greater chance you've inherited some money from your family. So there's non-marital estate components to this formula as well.

SPEAKER_00 7:12

Right. So, you know, they they're they're so interesting in the issues that they that they present because they're different. There's not custody or parenting issues any longer. There's usually not abuse, although there can be.

SPEAKER_01 7:27

I had one where they were fighting over the dog, so yeah, it was a custody issue.

SPEAKER_00 7:31

Yeah, dogs come in a lot. Dogs come in a lot, but those come in with younger people too.

SPEAKER_01 7:35

Right.

SPEAKER_00 7:35

But yeah, but older people probably because the kids are gone, you know, probably the dog is even more important.

SPEAKER_01 7:43

The case I'm thinking of, they were both very attached to the dog, so we divided it and shared custody.

SPEAKER_00 7:48

Yeah. And that that's what doggy visitation. And for those of you who don't know, Illinois now has a law about pet visitation and parenting.

SPEAKER_01 7:58

Companion animals.

SPEAKER_00 7:59

Exactly. So, you know, so there actually is this opportunity to have visitation with your dog.

SPEAKER_01 8:06

I've had that fight. I litigated it with eight by ten glossies of my guy and the dog and various poses. Yes.

SPEAKER_00 8:14

Well, I what I've seen.

SPEAKER_01 8:15

And he got visitation.

SPEAKER_00 8:16

Yeah. What I've seen so often too is, you know, where there's a third party in these grade divorces. And, you know, like we recently, you know, had a client who had been separated for a couple of years. And, you know, it looked like they were just going to continue to live their life that way. And they were, you know, definitely we're all into the grade divorce area. And then the wife found out that the husband had moved his girlfriend into the house, and she didn't like that. So, you know, they had like four or five houses, so it wasn't like she was in the house also. And, you know, so then she filed for divorce. And, you know, that is getting litigated, you know, and has been litigated on, you know, the issues of how much does everybody get in that case. But it's that third party interference in these grade divorces that really seems to trigger the filing or trigger the animosity. Have you seen that?

SPEAKER_01 9:12

I have, and sometimes I'd say to myself, this third party has nothing to lose.

SPEAKER_00 9:17

Right.

SPEAKER_01 9:18

It's not their money, it's about control and then backdooring the money later.

SPEAKER_00 9:23

Yeah. Yeah. And that's what people are concerned about so often is everything that we worked for for 20, 30, 40, 50 years of marriage is going to end up with this young girlfriend or equal age boyfriend or young boyfriend in some cases. Um, you know, so it's the idea that you those are the fears that come into gray divorces that really aren't there so much in younger, you know, um aged divorces.

SPEAKER_01 9:51

Right, right. The younger crowd still has the ability to acquire income and assets, and the gray crowd a lot of times doesn't.

SPEAKER_00 9:59

Right. And that's one of the big things, okay, because when you're in gray divorces, you have to divide the assets, you have to divide the liabilities like any other divorce. But then you get into how do we provide for both people in their retirement? And what does that look like? And we all know that the statistics show that women live longer than men, but you know, that that there's um the in most cases there's going to be medical issues for both parties that need to be addressed, both then and in the future. The potential of long-term care, the you know, all of those things come into it.

SPEAKER_01 10:34

Social security benefits and right, because these examples that you're throwing out there, nobody's working.

SPEAKER_00 10:39

Right.

SPEAKER_01 10:40

And if they're not working, there's no maintenance usually.

SPEAKER_00 10:42

Right.

SPEAKER_01 10:43

And so what do you do? How do you support yourself?

SPEAKER_00 10:45

Well, and the maintenance comes from, okay, so the husband may have two pensions and maxed out social security, and the wife may have no pensions and you know, uh minimal social security. So now we're trying to figure out how do we get the wife an income, you know, that's equal or equitable with the husband.

SPEAKER_01 11:05

That's why it's so important to fill out that financial affidavit correctly and with an eye towards not only the lifestyle established during the marriage, but maybe even being able to take a few bucks and set it aside.

SPEAKER_00 11:19

For those lifestyle acquired during the marriage. You know, that is something that has been banded, bandied about by everyone that walks into my office for years. Okay. I'm entitled to the lifestyle that's all required marriage. And the answer is no, you maybe not. Okay. Right. And, you know, no matter what age you are, but especially when you're two seniors going through this, because the lifestyle that you plan for for your retirement is based on the two of you together. And now when you have to do two separate, you know, expenses, set of expenses, and with some people, it's not as big of a deal. You know, I've had cases, I've got several of them that in recent years where there's multiple houses. So, you know, you've got the the Chicago home, and you've got, you know, a Wisconsin or Michigan home or a Florida home or Nevada home or whatever. And, you know, you can allocate, you know, where each party keeps one of the homes or more than one of the homes, and then the expenses really don't change that much. But that's not every case, and that's, you know, not every situation. So I mean, what do you do when they're gonna have to cut back?

SPEAKER_01 12:35

Well, you might have to sell one of the residents or both, and everyone downsize. Yeah. It's difficult, especially these days in this economy, to sustain two households when you were really sustaining one before.

SPEAKER_00 12:48

Right. And, you know, I mean, retirement benefits, you know, this is something that is true in all cases, but it becomes more important in senior cases. And that is that, you know, we can divide retirement benefits without tax consequences, okay?

SPEAKER_01 13:05

Right, but that's not the real world. Right. Unless it's a Roth IRA.

SPEAKER_00 13:09

Right.

SPEAKER_01 13:09

But, you know, so essentially.

SPEAKER_00 13:11

Yeah. But let's say the guy has a pension of, you know, uh $5,000 a month. We can get the pension company to pay $2,500 to the wife, and now she doesn't have to go to the husband every month. Um, you know, if there's a 401k, we can take out the money and transfer to the the spouse without any tax consequences. So those under quadros, quildros.

SPEAKER_01 13:35

Right. The tax consequences not when the division occurs between spouses, it's when they withdraw the money to use it to live.

SPEAKER_00 13:43

Right. So, you know, I mean, all these things come in with the senior divorces. I've had some, you know, truly unusual ones. I had the one where my client was the wife, and the husband would send her down to Florida every year. Oh, honey, you deserve to be downwards warm and everything else. And, you know, she was in this mobile home park where she had all her friends and she was happy as a clam down there. And all of a sudden the husband has a heart attack back up here. And she shows up at his sickbed, and there's the girlfriend. Okay.

SPEAKER_01 14:15

That side, great.

SPEAKER_00 14:16

Yeah, and and she didn't know there was a girlfriend. Here's the husband living in this McMansion up in Chicago area. Plus, he had a second house up in Wisconsin. Him and the girlfriend were enjoying both of those homes while my client was sitting down in the mobile home park. Gran was a nice mobile home park, but it was a mobile home park down in Florida. So she was so upset that we went after him and got her far more than she would have ever anticipated. Her lifestyle went from not the lifestyle during the marriage, but a much higher lifestyle because she got half of what she didn't even know was there.

SPEAKER_01 14:54

Sometimes the circumstances dictate how we're gonna act, and an amicable letter in that instance probably would not suffice.

SPEAKER_00 15:02

Yeah, that's true too. But um have have you had any of those kind of I've had a few, yes.

SPEAKER_01 15:10

Where the husband here usually uh has a uh significant other that the wife didn't know about. You learn a lot about a person when you go through a divorce with them. You really do.

SPEAKER_00 15:22

Yeah, and some people are are surprised. I mean, there was one I had relatively recently where they didn't end up going through the divorce, despite the fact that the husband he had a severe drinking problem and had actually accidentally burned down their second home in Wisconsin. Okay. And my but my client just ultimately couldn't pull the trigger. You know, she'd been married to him for 50 years.

SPEAKER_01 15:50

Yeah, I had a gray divorce come into the office. The woman came in and the husband had his hand in a bunch of business deals that had not come to fruition yet. So instead of a divorce, we drafted a what's called a post-nuptial agreement. It's like a prenup, but it's while you're already married. And it basically said to the husband who had the significant other, you're stopping this relationship. If you don't, I get everything. And it wasn't unconscionable, it wasn't overreaching, but it was close. Right. To grant her, I think it was 80%, 90% of the estate. And last I heard, he was on the straight and narrow and they were still together.

SPEAKER_00 16:34

So I had one where we did get divorced, but what happened was is is that they tried the postnuptial route, and it was the wife turned out to have a gambling problem. So she had asked the husband to transfer money to her in her own name.

SPEAKER_01 16:47

I wanted slots?

SPEAKER_00 16:48

Pardon me?

SPEAKER_01 16:49

Slot machines.

SPEAKER_00 16:50

She's going to the casinos. I think it was more in the slots. But she she so he transfers like a million dollars to her, and it was supposed to be so she had money in her own name. The next thing she knows, she's coming back for more. And that's when he discovered that she had this gambling problem and she couldn't, wouldn't give it up. Okay, so we ended up getting divorced. She was charged with dissipation on all the gambling. So she got less than 50% of the estate. You know, my client had a business and all that. But it was truly tragic how some of these um the the these gambling, um, a substance abuse, all of these uh that come into play.

SPEAKER_01 17:32

Yeah, and it raises the issue of when was the irretrievable breakdown of the marriage? Because sometimes these spouses are just going along in their daily lives not knowing that their husband or wife is having a full-blown affair. Right.

SPEAKER_00 17:48

A full-blown affair. The gambling issues, especially these days with the computer gambling. You see that going on with the video gambling, and it's become a real big thing, mainly with younger people. But with the older people, it's casinos, you know, and that that they that they're going to and I mean, she blew through a million dollars in six months at the casinos. Okay. Not very good at what she was trying to do. No. So I mean, these are all things that come into play that in senior ones, you know, what do you do when one of the spouses has a, you know, like a truly um debilitating illness? They're going to be institutionalized or things like that.

SPEAKER_01 18:28

Um give them a disproportionate share of the estate.

SPEAKER_00 18:32

But do you get them divorced or do you do a legal separation?

SPEAKER_01 18:35

Right, or you don't go through with it if you can get her the relief elsewhere.

SPEAKER_00 18:40

Sometimes I've seen these senior divorces where they've had to get divorced or at least do a legal separation, because otherwise the person who is being institutionalized, okay, or put into care, won't qualify for benefits. So they can't have the assets. So I've done divorces throughout my career where we get people divorced so that the person who needs the medical care can get it and get benefits for it. You know, so you know, these are things to take into consideration too, because maybe a legal separation will work, you know, where you get you don't get divorced. So the spouse can still be part of the insurance coverage, but at the same time, anything you acquire after the date of the legal separation is now yours. So there's a lot of things we can do if we're strategic, if you tell us all of the information, and if we can be a little savvy and get the other side to cooperate with us, there's a lot that can be accomplished to make sure that both parties in these gray divorces really, really, really have equal or equitable lifestyles moving forward. Am I right?

SPEAKER_01 19:52

Yeah.

SPEAKER_00 19:54

And that's a little bit about gray divorce. We will probably come back to you with that topic and a little bit more information in the future, like we will with a lot of these topics. But in the meantime, have a great day, and I'll see you next episode.