The number of people over 50 years of age filing for divorce has been increasing in recent years. It has become so prevalent that the term “gray divorce” is now used to describe such divorces. There are many reasons for this trend. Increased longevity, more social acceptance of divorce and the increase of both spouses working and being more financially independent are all likely factors contributing to couples over 50 years of age filing for divorce.

All divorces, including those of people over 50 years old, have to address numerous issues such as support and equitable distribution of the marital estate. When drafting the property settlement agreement, it is always a good idea to plan ahead to such things as retirement and health insurance. These issues become that much more important, though, the older we get. There are also additional concerns and issues that may arise more frequently when dealing with aging parties.

Before you address any economic issues, the most significant issue of all may be staring you in the face and you don't even realize it. What if you are dealing with diminished capacity of a spouse?  As divorce among older couples continues to increase it is likely that we will be seeing capacity issues of the parties more often. With this as the future, it is important to know who needs to be appointed to represent the incapacitated party.

An incapacitated person is defined by 20 Pa. C.S. Section 5501 as, “an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.” An incapacitated person is not able to make “any contract or gift or any instrument in writing.” Both powers of attorney and guardians can be used to represent incapacitated persons in different circumstances. What is the difference between them, though, and how do you know when to use each of them?

Oftentimes as people age, they will appoint a power of attorney. This is the easiest and cheapest way for an aging individual to appoint someone to act on their behalf in their financial, legal and personal affairs. The person appointing the power of attorney is referred to as the principal and the person named power of attorney is known as the agent. It is common for a parent to appoint a child as their power of attorney, but there does not need to be a familial relationship. The duties of a power of attorney are to act on the principal's behalf. The different forms of power of attorney are defined in 20 Pa. C.S. Section 5602. A power of attorney may be limited in scope as listed in 20 Pa. C.S. Section 5602(a). To the contrary, it may instead be general and assign the agent with more comprehensive responsibilities. A general power of attorney would have all the rights and duties as the principal and would be able to do such basic tasks for the principal as writing checks and signing documents on the principal's behalf.

Perhaps the most important and overlooked form is the durable power of attorney. A durable power of attorney is defined in 20 Pa. C.S. Section 5604(a) as, “a power of attorney by which a principal designates another his agent in writing. The authority conferred shall be exercisable notwithstanding the principals' subsequent disability or incapacity. A principal may provide in the power of attorney that the power shall become effective at a specified future time or upon the occurrence of a specified contingency, including the disability or incapacity of the principal.”

A durable power of attorney can be of great assistance for those who are aging and is a useful tool. It is a proactive step people can take to protect themselves and their assets before they are incapacitated and not in a position to do so. While a durable power of attorney gives the agent a great deal of authority, there are times when a guardian must still be appointed.  Additionally, one complication of any form of power of attorney is that the principal needs to have sufficient mental capacity to even appoint an agent.

Should you have a client you feel may be mentally challenged to the point of being legally incapacitated, you may be forced to have either a guardian ad litem or full guardian appointed under Title 20, the probate, estates and fiduciaries code. More specifically, when an incapacitated person is a party to a lawsuit, they must be represented by a guardian pursuant to Pa R.C.P. Rule 2053. Upon petition, the court can appoint a guardian ad litem if it finds a party is incapacitated after a hearing and a showing of clear and convincing evidence. 20 Pa. C.S. Section 5511(f) defines who may be appointed as guardian as, “any qualified individual, a corporate fiduciary, a nonprofit corporation, a guardianship support agency under Subchapter F (relating to guardianship support) or a county agency.” Similar to the power of attorney, a guardianship may be limited or more inclusive.

The Pennsylvania Superior Court first addressed the issue of whether an incapacitated person can file for divorce in Syno v.  Syno, 406 Pa. Super. 218 (1991).  The court in Syno held that being incompetent is not an outright bar to filing for divorce, but in such a case the court must appoint a guardian to represent the incapacitated person.

The issue of divorce and an incapacitated party was again before the Superior Court more recently. In Berry v. Berry, 197 A.3d 788 (2018), the court made it clear that if the capacity of either party is raised or questioned, the court must investigate further to determine if the party/parties are able to proceed or if a guardian needs to be appointed.

In Berry, the wife filed for divorce after 63 years of marriage. The wife's decision to file was based on the husband's noncompliance with taking his dementia medication causing his behavior to become irrational and the wife was attempting to protect her assets. At one point, the husband filed a motion with the court to appoint a guardian ad litem for the wife. The court did not further investigate the wife's capacity and, instead, denied the motion once it was presented with documentation that the parties' daughter was power of attorney for the wife. Later in the proceedings, the husband was too ill to be present in court and the court proceeded with the parties' son acting as the husband's power of attorney even though there was no documentation of his power of attorney presented. Ultimately, a divorce decree was entered without the court ever having a hearing on either party's mental capacity. The wife appealed to challenging the equitable distribution award. The Superior Court never got so far as to address the wife's issue, though. Rather, the court determined that the decree should never have been entered since the parties' mental capacity had been raised as an issue, but the lower court did not do anything to determine if the parties were, in fact, capable of proceeding. It should be noted that the husband passed away before the case was heard by the Superior Court. As such, the court could not send the case back for further investigation and, instead, the court vacated the divorce decree.

There are other issues other than capacity that also must be considered when dealing with a gray divorce. One such issue involves savings and retirement assets. The parties may have worked for 30 years and thought they accumulated enough for retirement, but then are faced with supporting two households, a financially dependent spouse and possible health care issues. Careful consideration must be taken when dividing the marital estate and these issues must be contemplated when doing so.

Additionally, especially if one spouse stayed home to care for the children allowing the other spouse to work and focus on career, it is important to consider an extended award of alimony. The parties may also have additional responsibilities and costs to consider, such as paying for their children's education and caring for aging parents.

Health insurance is another issue to consider. While it is important for everyone to have health insurance, it is even more necessary as health issues arise as the parties age. Costs of health insurance after divorce need to be considered before finalizing a divorce.

As people continue to live longer and no longer feel they need to be trapped in a joyless marriage, it is likely we will continue to see an increase in gray divorces. Couples may have raised families together, but simply fell out of love or no longer feel the need to remain married with their children out of the house and starting their own lives. If you are one of those people considering divorce over 50, make sure you talk to a lawyer to protect yourself and your future.

Donna M. Marcus is an associate attorney in the Norristown office of Weber Gallagher Simpson Stapleton Fires & Newby. She concentrates her practice on family law including divorce, child support and custody matters. Previously, she was an assistant district attorney in Philadelphia in the Child Support Enforcement Unit. Contact her at [email protected].