As Baby Boomers enter the elderly population and advances in medical science continue to extend our lives, the elder population is now booming.

A generation ago, it was uncommon to see elderly divorce between couples over 60. That is no longer the case. Divorce is becoming common for couples in their 60s and 70s and even in their 80s.

Divorce Property Settlement

The primary concerns of the elderly in divorce differ from their younger counterparts. Couples seeking divorce after 60 are likely to be at or near retirement. Typically, this means that you are dealing with an estate that is as large as it will ever be. There will be little or no time after the divorce for the parties to earn sufficient income to recoup assets awarded to the other spouse in the divorce property settlement.

Capacity and Decision Making

One of the first issues to be considered in elderly divorce is whether a person has mental capacity issues that may interfere with their ability to understand the divorce process or grasp the myriad issues involved in the division of assets in their estate. As we all know, dementia and Alzheimers are real issues facing the elderly in our society. Always remember that an Elder must approve any settlement that might be reached in the divorce. If an Elder lacks the capacity to understand the settlement, then they lack the capacity to approve such a settlement.

Also, the Elder must have the capacity necessary to assist in the trial of their case. From a strictly legal standpoint, an attorney’s client is presumed to have capacity unless there is a court order to the contrary. Nevertheless, if one clearly is having trouble understanding the issues facing them in the divorce, then it becomes critically important to determine if that difficulty is due to some capacity issue. If a client may have capacity issues, then they should be evaluated. Even if you are the one reading this blog, you may wish to be evaluated just to make sure that there is nothing that will interfere with the handling of your divorce.

Family and the Attorney-Client Privilege

Elders generally have support people to rely upon, who may be a sibling, a friend or, as is often the case with an Elder seeking a divorce, an adult child. The Attorney-Client privilege does not apply when you have one of these individuals in the room with you when you are meeting with your lawyer. Texas Rules of Evidence 503

The Attorney-Client privilege does apply when a client is meeting with their attorney and anyone else employed by the law firm or even another lawyer working on the case, even if from another firm. If the Elder does not wish to meet with a lawyer without their support person to listen in, comment, and assist, what you can suggest to the lawyer is that if they have something they want to tell the lawyer that they want to keep privileged, then the other person can be asked to step out of the room during that conversation. In such an instance, be sure that the lawyer makes a notation that this was a discussion between only the two of you (or the client and possibly another member of the law firm, such as paralegal or other attorney).

The Attorney-Client privilege is very strong and most everything that is covered by the privilege cannot be found out by the spouse or anyone else. There is one exception and that is if the Elder discloses that there has been elder abuse or child abuse. In such an instance the lawyer is required to report this or ensure that someone else has reported it.

Nondisclosure and Elder Abuse

It is important for an Elder to understand that they do not have to talk to their spouse during this proceeding just because the spouse wants to communicate. In situations where historically there has been a significant imbalance of power and an Elder feels powerless in the marriage, it may be best that they have limited or no contact with their spouse. In such a situation the spouse with the power may try to use that power to either get the other to agree to a division of the estate that is not in their best interest or to attempt to coerce the other into a reconciliation when that is not really what the Elder wants.

Sometimes, one of the parties has a history of being emotionally or physically abusive. In this situation, no contact with the other spouse is recommended. Also, as was pointed out above, if the history gives rises to the level of elder abuse, as that term in defined by law, the lawyer must see that it is reported to the proper authorities.