With every U.S. Census, we gain a snapshot into how the confluence of past events shapes our current Society. So to with the 2010 Census, which reveals marriage, is at a record low; and those who are marrying, are doing so, and correspondingly, starting families, later in life.
This is not necessarily a surprising development because America was founded (indeed populated) on the principal of rugged individualism; those who did not share this view probably stayed in Europe or perished. Every movement (abolition of slavery, women’s right to vote) since that time has been toward a more free and open society, full of choice. Now living single, and living to a high standard, is possible.
Specifically, Ciyou & Dixon, P.C. attorneys often face situations where this freedom comes at a higher cost to couples who are divorcing in late life. Particularly with retired couples, this may create a circumstance where the spouse may be left without the benefit of company medical insurance or pension survivor benefits, just to name a few.
This 2010 Census data suggests later-in-life divorces may become more prevalent, so long as marriages themselves do not continue to decline. A, if not the, ultimate purpose of a divorce is to separate the parties legally, financially, emotionally and the like to maximize the quality of life for each going forward.
This is problematic since our life expectancy is not increasing: there are not additional years to make up for the financial (health insurance benefits and retirement, to mention a couple) losses, as is the case when couples marry and divorce earlier in life. As a basic economic principle, it costs more to operate two (2) households than one. Retired couples are usually ill-suited to this contingency.
For these reasons, a question Ciyou & Dixon, P.C. attorneys frequently grapple with what to do if a divorce does not make sense as a way to maximize quality of life for those older parties. Is there any solution or relief? Maybe.
The traditional wisdom has always been against legal separations, which puts the world (i.e., creditors) on notice the parties are legally separated and apart, but expires after one (1) year. The argument against legal separation is simple: If the marriage can be salvaged, then a divorce action may be dismissed with a reconciliation. Where this is not possible, the divorce action may continue and expedite the ultimate separation and dissolution of the parties’ union.
On balance therefore, in late-life divorce, a sound legal case may be made for a post-nuptial agreement and/or a legal separation. While not absolute fixes (i.e., divorce), these tools may allow the parties to obtain most of the benefits of a divorce without the dramatic downside, such as by example, would occur where a spouse with a chronic illness is left without health insurance (maintenance cannot cover every expense in most cases).
However, this requires agreement between the parties and careful draftsmanship and attention to time deadlines by attorneys. Sometimes the emotions of a bad breakup can mask financial and life-style reality: Indiana divorce law (and that in most states) is no-fault and, which does not allow one spouse to hold the other hostage and not obtain a divorce; the divorce decree will be granted at some point, like it or not.
In fact, unlike almost all other types of civil litigation, there is not even a requirement that the responding party (equal to the defendant) answer or reply to the divorce petition. All that a non-consenting spouse can do is slow down the process. With cooperation, even in the dark days of a divorce, a better outcome may be achieved.
Ultimately, the take away from this blog post is that Indiana’s Dissolution Act is flexible and has a number of potential tools that may be used by litigants and their counsel to fashion an equitable remedy. This requires divorcing parties to carefully and fully articulate their concerns and needs going forward, and counsel to grasp such and create a divorce or separation plan that most effectively meets these needs.
While there are very few simple divorces, it is the breadth and complexity of the divorce statutes that also may provide a remedy in what appears to be a hopeless situation. Even though a non-cookie-cutter approach may take a bit longer and cost a little more, remember the trade off: divorce law is comprised of a vast array of tools that may be used to help you reach your objectives.
If this blog post has enhanced your thinking about divorce and separation, and caused you to view what lawyers and judges do in a more favorable or enlightened way, it has met its goal. Ciyou & Dixon, P.C. attorneys practice throughout the State of Indiana. This blog post was written by attorney Bryan L. Ciyou.