As a family law attorney, you know that gray divorce, i.e., one between an aging couple who may have been married for a substantial period of years, is a rather surprising national phenomenon. For whatever reasons, these divorces appear to be sweeping the nation. Your CFL Designation for Divorce Practitioners gives you the requisite financial knowledge to competently and advantageously draft your clients’ property settlement agreements, including those between gray divorcees. However, in these situations, you often must pay special attention to each couple’s retirement accounts and the age and health status of both your client and his or her spouse.

These considerations are exactly the ones the Appellate Court of Connecticut faced in its 2017 decision in Richard Kent v. Florence DiPaola. In this case, the parties were ages 63 and 72 respectively when they decided to divorce. They had lived together in Ms. DiPaola’s home since 1989, had been married since 1998, and had one child who was still a minor at the time of their divorce. They kept their finances separate throughout their entire relationship, and Mr. Kent kept a detailed monthly spreadsheet setting forth all purchases so that each party could pay his or her “fair share” of the bills.

Trial Court Judgment

At the time of the divorce, Mr. Kent, age 63, was making only about $7,500 a year as a realtor, although he had earned up to $168,000 annually before switching careers in 2004. Despite the fact that he had no health conditions that impacted his ability to work, he was using his retirement accounts to pay his living expenses. Ms. DiPaola, age 72, was retired after a 44-year employment history. Her pensions provided her with a gross annual income of approximately $50,000 and she also received about $1,350 per month in social security benefits for the minor child.

Based on the above, plus additional factors, the trial court listed the following 10 considerations by which it justified its division of the couple’s marital property in a one-third two-thirds manner:

  1. DiPaola’s far greater contributions to the acquisition, preservation and appreciation of the couple’s total assets of $4,619,655
  2. Its order that Ms. DiPaola would be more responsible than Mr. Kent for the minor child’s support in the future
  3. Kent’s younger age and greater ability and opportunity to acquire post-divorce income and assets
  4. Kent’s greater contribution to the couple’s divorce
  5. DiPaola’s far greater noneconomic contributions to the marriage
  6. Each party’s career and wealth at the time of the marriage
  7. Each party’s capability of supporting himself and herself
  8. The length of the marriage
  9. The fact that Mr. Kent had provided little or no financial support of the minor child since 2012
  10. The couple’s highly unusual level of separation of finances throughout their entire relationship

The trial court divided the couple’s assets 33 percent to Mr. Kent and 67 percent to Ms. DiPaola, ordering him to distribute $300,000 to her to effectuate this distribution. In exchange, it ordered that Mr. Kent would pay no child support, even though Connecticut guidelines would have required him to pay $257 in weekly child support.

Appellate Court Decision

Mr. Kent appealed the trial court judgment, claiming that it erred in the following four respects:

  1. Failing to include all of the pensions in the couple’s marital property
  2. Failing to credit his expert witness actuary’s testimony as to the present value of the pensions
  3. Dividing the couple’s assets, particularly the value of the family home, one-third to two-thirds
  4. Failing to take into consideration his age, health, station, occupation, income amount and sources, earning capacity, vocational skills and employability

The Appellate Court found no merit in any of Mr. Kent’s contentions and affirmed the trial court judgment. The lengthy opinion goes into great detail as to the fundamental principles underlying the dissolution of marriages, the discretion of trial courts to deviate from child support guidelines, the special considerations inherent in a gray divorce and the differences between the present value and present division methodologies of pension evaluation. All of this makes for quite good reading and undoubtedly will aid you in your own handling of gray divorce cases.

For more information on financial issues you need to be aware of, how gaining your CFL Designation for Divorce Practitioners will give you the financial knowledge and skills you need to attract additional high-asset clients, and the other benefits of AACFL membership, please visit this page on our site.