Legally Speaking: When considering divorce, does age make a difference?

Daniel Romano, BCL, LL.B., MA

It seems logical that as our life spans increase, the number of seniors getting divorced also increases. This is confirmed by statistics in both Canada and in the USA.

In some ways, senior divorces, or ‘grey divorces’ as they are called, can be less stressful. Child custody and support are usually no longer an issue. On the other hand, the financial impact can be more painful. The same logic that makes marriage a financially beneficial choice works in reverse when applied to divorce. For example, when you marry, you merge your incomes but you split fixed expenses such as rent or mortgage and utilities.

When you get divorced, you go back to a single income and greater expenses as, typically, one party living in a place far larger than they need, while the other is faced with the effort and expense of finding and furnishing a new place. In the case of a grey divorce, all this is more likely to occur on a fixed or reduced income. Of course the above generalizations do not apply to everyone, but they are an important consideration for many.

If one spouse is still working but the other is not, or has not in many years, then they must also consider the likelihood that the spouse with income will have to pay spousal support to the other. If both are retired but one has retirement income and the other does not, or has much less, then the couple can still find themselves in a situation where spousal support is ordered, even though both parties are on fixed incomes.

The next issue is the division of property. The longer a couple is together, more likely it is that they have lost track of what was obtained by whom, and how or when, and whether it was a gift to one member of the couple or to both – never mind finding the paperwork to prove any of the above. Remember, public and private pension plans also need to be analyzed and the proper divisions calculated. One thing that many people overlook is the change in marital laws that occurred over years.

For example, if you got married before 1980 and declared that you were making a gift to your spouse such as “When I die, you will receive $30,000 from my savings account”, that gift, known as a donation in case of death, was considered non-revocable. That law was changed in 1982. This has affected the outcome of several divorces in our practice.

Marital property until 1970 was typically governed by a regime known as the Community of Property. As of 1970, the common regime became that of Partnership of Acquests, which is not quite the same thing. The rules on Family Patrimony came into effect in 1989, and will have an impact on the division of marital property, unless of course the couple exercised their right to opt out before the January 1991 deadline.

All these changes mean that what a person understood, rightly or wrongly, to be their rights when they got married many years ago, may no longer be so if they get divorced now. As always, it is best to consult with someone knowledgeable to know exactly what to expect.

Daniel Romano is an attorney with KALMAN SAMUELS, a family law firm. We invite you to follow us in the next issue when we address the issue of Divorce vs. Annulment of Marriage – What’s the Difference and Which Should I Choose?

Dear Reader, these articles are published in order to provide you with  general information about legal topics and not as a legal opinion. Please do not try to hold the author, KALMAN SAMUELS, Attorneys, or The Senior Times liable for any consequences arising from any attempts to rely on this material. If you need a legal opinion for a specific matter, we recommend that you consult with a qualified attorney.

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