There are 80 million Baby Boomers and they are getting divorced in record numbers. Recent and newsworthy divorces in this demographic involved Al and Tipper Gore, and the unforgettable daily onslaught of Frank and Jamie McCourt splashed across the television, Internet and newspapers.  These are good examples of people getting divorced after decades of marriage; however, they may not be good examples of the real life legal issues mere mortals, like you, me, our parents and grandparents face when divorcing. The financial stakes involved in these high-profile divorces should not trivialize some of the issues we – the mere mortals – would face in the ending of a long-term marriage.

Baby Boomer divorces are often referred to as “grey divorce” or “elder divorce” and, like so many things, raise issues unique and new to this generation.  The reason these divorces are unique is simply that they are more complex – financially, emotionally and physically – than divorces of younger people.    Here are some of the major issues one must be aware of in divorces that end lengthy marriages of Baby Boomers and other older couples:

 Capacity.  Particularly if a late-in-life marriage is involved, there may questions about whether one or both of the spouses have the mental capacity to divorce – or even had the capacity to enter into the marriage.

Prenuptial Agreement.  Many people who marry late in life (often as a second marriage after the divorce or death of the first spouse), enter into a prenuptial agreement, which can raise special legal problems. 

Unexpected Death. It is always possible that one of the older divorcing parties may die during the divorce proceeding.  To prepare for this possibility a review of the existing estate plan is critical. Either spouse should also consider revoking the existing plan if it does not represent their current wishes now that a divorce is imminent, and replacing it with a new one.

Unexpected Incapacity. Existing Power of Attorney and Health Care Directives, like estate plans, must be reviewed and often revoked so that the soon-to-be-former spouse is not left in a position to make decisions in the event of incapacity during the divorce.

Division of Assets and Spousal Support.  Careful consideration must be given to these issues in light of the age of each spouse, their abilities to continue working and how these impact the most financially advantageous property settlement for each person. The goal is to take into account each party’s need to be as financially secure in the future as possible.

The season of love is over for many Baby Boomers.  For those former California dreamers, while it may seem “all the leaves are brown and the sky is grey,” it is time to stop dreaming and instead plan carefully and thoughtfully for the second season of life as a new California dream.