The phenomenon of “grey divorce”- the term referring to the demographic trend of an increasing divorce rate for older (“grey haired”) couples – has been in the news since 2013, when Bowling Green State University in Ohio studied this growing movement. Many of these marriages are long term marriages (i.e., often in excess of 25 years); others are not long term, but the individuals are all over the age of 50. But, that is grey divorce. What about “grey marriage”?
While I am not aware of a study coining the phrase “grey marriage”, it stands to reason that people who marry over the age of 50 have a “grey marriage” and, in the event these couples divorce, they will also face a grey divorce. To add to the complexities of a grey divorce is the possibility of Elder Financial Abuse.
The “May-December” Relationship
We have heard the story many times, in our personal lives and in celebrity tabloids, where a younger person marries someone significantly older; that infamous “May-December” relationship. Society has become somewhat accustomed to the May-December relationship, and many people are not shocked by a large age differential, especially when both people in the relationship are independent individuals with an intact mental capacity. But what about the May-December relationship where one party is over the 65, or possibly even mentally incompetent from the onset of old age, dementia or perhaps Alzheimer’s?
When one or both of the people to this relationship are over the age of 65 (with or without an impaired mental capacity), the law recognizes the person who is over the age of 65 to be an “elder”; and, an array of legal protections are provided to an elder. In many of these relationships, people often wonder if the younger person intends to take financial advantage – to exploit – the elder. Certainly, there is not always wrongdoing in these relationships, but frequently this is, in fact, the case. Indeed, financial exploitation by the younger spouse against the elder spouse occurs frequently enough that the California legislature enacted criminal and civil liability statutes to help victims of elder financial abuse recover from the consequences of financial exploitation and to seek to punish and deter such wrongful conduct.
A particularly challenging aspect of elder financial abuse is sometimes referred to as “fraudulent affection” or “fraudulent romance”. This often involves a faux-romantic relationship where a younger person becomes involved with an elder for the purpose of obtaining property transfers or rights of inheritance. This is an interesting aspect in these “grey marriages” and subsequent grey divorces, as the intention of the marriage may need to be examined if the elder has indeed been financially exploited by the younger spouse.
In any other divorce proceeding, the motive for marriage is irrelevant and is not examined during the divorce process. While it is difficult to evaluate the authenticity of a relationship, grey divorces place an extra responsibility on the family law attorney to explore whether elder financial abuse occurred. This does not mean that civil or criminal liability exists only where the intention at the outset of the relationship was to harm the elder, as the laws do not place such a limit. Instead, the laws address such wrongful conduct at any stage of any relationship, romantic or otherwise. The reason that the concept of “fraudulent romance” or “fraudulent affection” is raised within grey relationships is because of this being a potentially distinguishing characteristic from other marriages and divorces.
The Law and Use of Lawyers
Elder financial abuse is not limited to marriages and it is not limited to individuals, but also includes the commercial exploitation of elders. The civil statutory provisions are set forth in the Elder and Dependent Adult Civil Protection Act (Welf. & Inst. Code section 15600, et seq); and the criminal statutory provisions are set forth in Penal Code section 368. The reader should note that this article is not intended to be a treatise of the civil and criminal law on elder financial abuse, but instead is intended to raise the level of awareness about such civil and criminal remedies in “grey marriage” and grey divorce if elder financial abuse occurs. If it is believed that an individual is the victim of such abuse, it is important for the family law attorney to work closely with an elder law attorney to assess such potential claims before the expiration of the relevant statute of limitations in connection with the civil and criminal liabilities, but also in connection with the property and reimbursement issues within the divorce.