As the remaining baby boomers turn 50 this year, we continue to see a significant increase in divorce and separation among the general population of those in that fifty-plus age bracket. People wonder why, after so many years of living together, individuals would even bother to divorce. Adult children are among the most vocal, perplexed and often angry, they decry their parents divvying up of assets after forty years of marriage. Why now, they ask? What’s the point? And, too, are we now responsible for taking care of mom? Of dad? Others, more detached from the actual divorce, worry on a national level about the increase in the elderly population living alone with assets and income already diminished by divorce.
Since mediation does not, and should not, delve into the reasons for a marital dissolution, we cannot shed any light on the causations of this trend or, in fact, help to explore its implications for society or for the delivery of social services to the elderly with diminished resources and no partners, as caretakers. Our focus is different. We, as mediators, need to consider the financial needs of the soon-to-be newly divorced and the ways in which resources can be stretched to finance living in two households. It is important to recognize that divorcing parties need to be “smart,” to really consider the impact of their financial decisions in order to structure an agreement that capitalizes on tax advantages, that analyzes the impact of future changes and options. A “cookie cutter” agreement may be quicker and even cheaper, but in all likelihood, it will not help to provide long-term protections.
Many of our clients, who divorce after long-term marriages, structure agreements, which include provisions for each other after divorce. It is not unusual to include terms for maintaining each other as beneficiary of assets. While this is clearly not the path chosen by those who plan to remarry, it may represent a choice for those who do not know if their future includes a new spouse. Indeed, a fair number of couples agree to retain beneficiary terms subject to change only in the event of remarriage. Often additional provisions are included to guarantee that the children of the marriage are the ultimate beneficiaries of assets acquired during the marriage.
Then, there are others who choose to include terms for financial assistance in the event of health-related problems. Guided by a mediator who focuses on creating an agreement that, in word and deed, demonstrates each party’s willingness to consider provisions for future needs, couples are often able to step back from anger and hurt and recognize that a long- shared history may be a compelling reason to be concerned about each other’s future well-being. Mediation can, and often does, bring out the best in people. Ultimately there is personal satisfaction and future well being to be achieved by an agreement that is reasoned as well as reasonable. Mediation, under the skillful direction of an experienced and knowledgeable facilitator, offers the opportunity to protect yourself and each other.
ADR Prof Blog In previous posts, I argued that there are serious problems with the general consensus on negotiation theory reflected most clearly in Getting to Yes. I described problems...By John Lande