Navigating Your Gray Divorce - Part II

April 25, 2012
By Andrea Vacca on April 25, 2012 12:13 PM |

"To be one, to be united is a great thing. But to respect the right to be different is maybe even greater." - Bono

In my last blog, I discussed the phenomenon of "gray divorce" and touched on some of the unique issues that older couples face when divorcing. In this post, I will share some thoughts on how effectively the mediation and collaborative law processes can meet the unique needs of these parties.

In my mediation and law practice, I have observed that unlike younger couples who are divorcing, older couples are frequently more civil toward each other and their interactions are less characterized by anger. As a mediator and collaborative lawyer, my role is to help the parties avoid court intervention and resolve their issues in a way that will keep the focus on their needs and goals, rather than their "positions." This works particularly well in cases of gray divorce. To rework a phrase popularized in the '60s, while older couples might choose to separate because they are no longer making love, it is often not because they are making war.

Mediation and Collaborative law are two cost and time effective ways to end a marriage while adding an element of grace and dignity to what could morph from a civilized discussion into volatile, emotionally and financially draining situation if not handled properly

Older couples appreciate the fact that time is extremely precious and they don't want to squander it on a lengthy and protracted court battle, nor do they wish to deplete their savings with retirement on the horizon. In addition, many find great benefit when they have the opportunity to work with mediators or collaborative lawyers trained to be creative problem solvers who can find solutions that would not necessarily be available to them if they allowed a judge to decide their fate. A particularly important issue for these couples is access to medical insurance. Additionally, as a result of the current economic climate, I have noticed that more frequently, older couples are providing some sort of support for their adult children and/or grandchildren.

I recently worked with a couple in their early 60's who, after spending the better part of a year in court with traditional divorce attorneys, came to the realization that they weren't getting any closer to a resolution. They eventually talked to each other without their lawyers and realized that they agreed on more issues than they disagreed; they then asked me as a mediator to help them to bridge their small gaps rather than continue with the long, protracted and expensive legal battle that they saw eroding the respect and care that they still had for each other after their long marriage. We reached an agreement after just two mediation sessions and in the end this couple decided that it did not actually serve their interests to divorce at this time. For them, the most viable and practical solution was to divide their assets but to stay married for another five years so that the Wife could keep the self-employed Husband on her insurance plan and then retire at a time that would maximize the amount of her pension. This solution would have been impossible in a court of law, as a judge would not be empowered to order a distribution of their assets without also ending their marriage (which would thereby end the husband's right to remain covered as a spouse under his wife's medical insurance policy).

The team approach of a collaborative divorce has also been extremely effective for my gray divorce clients where we can use a neutral divorce coach to help the couple bridge communication gaps in a non-adversarial way and we can use a neutral financial professional to help them figure out how they can utilize their assets and live on their fixed incomes in way that will allow them to both feel financially secure post-divorce.

Many later-in-life divorcing couples express to me how important it is to them to end their marriage in a way that preserves the "good times" of their long-term relationship and accomplishes the dissolution in a way that is cost effective. They might still love each other but simply want to live apart simply because they have grown apart. However, they recognize that they still have a family unit that needs to be maintained and still want to be able to share family moments as their children get married and have children of their own.

In a recent Daily Beast post about divorced couples who celebrate this next stage of their lives by jointly throwing "divorce parties," Andrew Cherlin, a professor at Johns Hopkins and author of The Marriage-Go-Round" explained that because divorce rates have been high for several decades, couples may be learning how to do divorce a little better and in a way that minimizes the pain. His theory is that happy divorces are on the rise because unlike in the past when "divorce was so stigmatized that only the most miserable left their marriages, now the 'moderately unhappy' are getting out too, which might make for some less acrimonious splits."

Divorce parties may not be every couple's goal, but neither is the desire to hate and despise each other once the divorce is over. The collaborative law and mediation processes can help these less adversarial couples preserve what was good and move into their post-divorce lives with respect for each other and dignity for themselves.