Negotiating ‘grey’ divorce comes with unique challenges

Navigating divorce in later stages of life can come with unique complexities. Taking a collaborative approach to drafting a Separation Agreement can help minimize costs, and ensure all parties feel supported.

By Tony Poland, AdvocateDaily.com Associate Editor

The collaborative process can be effective when it comes to negotiating a “grey” divorce, says St. Catharines family lawyer and mediator Sharon Silbert.

Silbert, principal of Sharon B. Silbert Professional Corporation, says couples who divorce when they are at or near retirement age are faced with a different set of challenges than those who are younger, so it’s vital to find the right approach to suit their needs.

“The dynamic is different,” she tells AdvocateDaily.com. “There is usually more to discuss in terms of finances. Coming to an outcome that is workable for both parties can be a bit more difficult, and the emotion associated with it is also quite different.”

Silbert says one “huge difference is there is less of an opportunity to rebuild” when a marriage ends later in life. A grey divorce can also come as a shock to the person who did not initiate the split.

“They are in a phase where they expected the rest of their lives to go a particular way, and all of a sudden they find out that it’s not actually going to happen,” she says. “They also realize there’s going to be a significant financial impact to deal with, and sometimes that can mean a heightened level of emotion that can lead to illogical decision-making.”

Because a person could be faced with the difficult task of starting over after a divorce, they may be “willing to do what it takes, or spend what it takes, to get the outcome they are seeking,” Silbert says.

But at the same time, she says the cost associated with going through a divorce can be “a more pressing concern” for people at retirement age.

“That can mean a greater willingness to co-operate and try to resolve things smoothly and efficiently.”

That’s where the collaborative approach is a good fit, Silbert says.

“It’s an effective way of handling separation and divorce for people who are retired or close to retirement age, because there is so much at stake. Working together and problem-solving provides excellent opportunities to identify areas where value can be created,” she says.

Silbert says she puts together a team of professionals “to address the legal, emotional and financial aspects of the separation.”

“Lawyers are not trained — at least not as part of their law school education — to help people manage the emotional consequences of separation,” she says. “There can be a lot of grief associated with the end of a long-term relationship, and lawyers may not be the best at assisting with personal coping.”

Silbert says lawyers aren’t financial experts either.

“Bringing in neutral professionals to assist with the emotional and financial aspects of a file can be invaluable for the clients,” she says.

But convincing clients of the need for a team to help with their divorce can sometimes be a challenge, Silbert says.

“They think ‘Oh, my goodness, the professional fees are going to be through the roof.’ So it’s really important to take the time to explain to them that although there will be more professionals involved, it can result in a reduction in the overall expenses because you’re choosing the right professional at the right time for the right task,” she says.

The idea is to deal with issues quickly instead of spending time going back and forth through lawyers, Silbert says.

For example, if a person is having a difficult time processing the separation emotionally, they may have problems making effective decisions — or any decisions at all — so the case could drag on and incur more expenses, Silbert says.

“If there is no professional involved who has the appropriate expertise to deal with emotional issues, the client may end up wanting to use their lawyer as a therapist. That’s a really good way of racking up unnecessary fees,” she says.

Laying the proper groundwork is essential at the beginning of the process, but in the end, success depends a great deal on the clients, Silbert says.

“Ultimately, it is a voluntary process, so you have to have individuals who are willing to work together and buy into the co-operative model. If one person is not willing to be flexible and come up with solutions that are going to be acceptable to both parties, or not willing to be open and honest with respect to financial disclosure, the collaborative model may not be right,” Silbert says.

“In the vast majority of cases, if the individuals have signed on, it’s because their goals are aligned in terms of wanting to come to an agreement without court involvement.”

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