For Better, Worse, Or Divorce Podcast

Brian Walters meets with Carolyn Grimes, partner at Wade, Grimes, Friedman, Heineken & Leischner PLLC, to discuss “gray divorces” and the complexities to consider for couples headed towards divorce after long-term marriages. Brian and Carolyn wrap up the episode by answering a few listener questions.

To reach out to Carolyn Grimes directly, visit her firm’s website: https://www.oldtownlawyers.com/

Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Our partners are experienced trial attorneys who’ve been board-certified in family law by the Texas Board of Legal Specialization.

Brian Walters: Hello everybody. I’m Brian Walters from the For Better, Worse, or Divorce podcast here at Walters Gilbreath. Today I’ve got with us Carolyn Grimes, who’s an attorney in Virginia, and we’re going to talk about gray divorce. Carolyn, why don’t we start off with a little bit about yourself? Tell us about yourself, not just the boring stuff, about where you went to law school and your professional accomplishments. Where you grew up and what you like to do. Something to show that we lawyers are actually human beings. How about that?

Carolyn Grimes: Okay. Well, I moved everything out of camera range so you couldn’t see all of my personal stuff. I’m from upstate New York. I live in Virginia now, in Alexandria, Virginia, which is outside of Washington D.C. I’ve been a divorce lawyer for 32 long years at this point in time, and I’ve only ever been practicing family law. I’m a Washington Nationals fan, so we’re not having a good season again. But we still live on having won the World Series in 2019 and won’t let that go.

Brian Walters: Good. I’ve been up to upstate New York a decent amount of times. It’s a really, really beautiful place and especially nice in the summer right now. I recommend that over Texas during the summer.

Carolyn Grimes: Y’all are having bad weather. We’re having a heat wave.

Brian Walters: We just always have bad weather. It’s called summer here. It’s a different world up there, so that’s for sure. I actually lived in Northern Virginia, kind of D.C area, quite a bit as a kid. I spent four years in Annapolis, Maryland as an elementary school student. My dad was a professor/instructor at the Naval Academy, and then twice lived in Quantico, Virginia down the road. My dad was a Marine, so there was a Marine Corps base there among other places in Quantico. So I spent quite a bit of time there. I really enjoyed Northern Virginia in that whole area, really beautiful. One of the few places you can really get four seasons. Broil in the summer and be frozen in the winter, but it’s kind of nice you get the four seasons.

Carolyn Grimes: But not as much snow as upstate New York.

Brian Walters: Yeah, exactly. Anyway, well I am calling this gray divorce, what that means to me, and you tell me if it’s something a little different to you. It’s just folks who are older and getting divorced. I think that generally means they’ve been married a long time, but it could be even folks that have been married a shorter time. Maybe a second marriage or a late marriage that they’re like that. At least with the ones that have been married a long time that generally means that if they had children, those children are now grown and out of the house. They might even have grandchildren and people still decide they don’t want to be married anymore. I think maybe in the old days people would get to a certain age and they would just figure out, “Well, we’ve been together and we’ll just stay together.” But these days that’s not necessarily the case. Is that kind of the way you see or define that term?

Carolyn Grimes: Yes. I mean technically it’s people over 50, but that’s a little too young to be a gray divorce. It’s more you run into the issues of a gray divorce of people who are over 60 or more because people are looking at retirement planning and divorce is horrible. Retirement planning, you basically lose half your assets. So, it’s in that age range. I think it’s for a lot of the reasons you say. People are living longer so they’re saying, “I want to be happy,” and ditch their spouse of all those years, making everyone else unhappy.

Brian Walters: Yeah, I first noticed it. I think for people it is kind of what I call the September divorces. The last kid would go off to college in August and they’d be in my office a week or two later. There’s always a number of those that come in and they kind of stayed together for the kids, which you can understand the thought process behind that. Then as soon as that ended that motivation ended. They were ready to move on with their lives. Also, I think exactly what you’re saying is that they’re 60 or 70 even. They’re like, “Well, I’ve got 10 or 20, 15 years,” depending on how optimistic you are, “Ahead of me, and I really have grown to the point where I really don’t like this person anymore and I want to be happy.”

I think that’s exactly right. If you’re Bill Gates or Jeff Bezos going through a divorce like that, then who cares, right? You’re going to have plenty of money and there’s no issues. But not many people fit that category. Well, tell me then a little bit about what you see, and in particular the issues that are particular are specific to a gray divorce.

Carolyn Grimes: If you have people who are getting divorced later in life, as I like to say, part of what you’re doing is retirement planning and divorce impact on it. Looking at people who basically have a finite amount of earning years left. In a typical long-term marriage still here, and even more prevalent in a lot of the country, you had a stay at home mom still with people who are in their upper sixties. They were raised a long time ago. You have a non-earning income earning spouse and then an income earning spouse. So, spousal support is always an issue. In Virginia, spousal support can be short-term or long-term. But even long-term isn’t really long-term like I’d like to tell the clients. Rehabilitative alimony is what short term alimony is and that’s more for people who need to get readjusted to the workforce. 

Lifetime alimony here, if you have a marriage that’s over 20 years, typically it’s a case for lifetime alimony, you need a disparity of income. There’s like 10 or 11 factors, but disparity of income and length of marriage is really what gets you a spell of support. But I always tell them lifetime doesn’t really mean lifetime because your spouse, the working spouse, is not going to work until they’re 80. So what typically happens here and what people need to consider is how long can they get realistically. And they don’t want to generally have another court fight when the spouse actually retires. So, that’s a big issue that’s much more urgent when you and your spouse are 60. That’s one big issue. The health insurance, if you’re on your spouse’s health insurance, when you get divorced, you lose that. And sometimes what happens with older divorces, because people can qualify for Medicare at 65, so they have the base plan, they still need a supplemental.

I often have people who if they come to agreement on the terms, they separate. They don’t get divorced until you can dovetail the health insurance with Medicare. Or just because when you divorce someone, usually if they have health insurance, you have a three-year COBRA period for continuing healthcare. But that’s incredibly expensive. So, sometimes people don’t want that. But sometimes if you’re 64, it’s like, “Okay kid, you’re going to stay married until this spouse can qualify for Medicare, so it doesn’t cost him or her $1,200 a month for health insurance, which you, other spouse, are going to have to pay.” There’s a lot you want me to go through every single time.

Brian Walters: I think you’re exactly right. Texas is the one state that really has very little spousal support or alimony, whatever you call it. It’s just as a general proposition, although there is a long-term marriage for it. I think you’re right. Let’s say you’re both 64. One’s been a stay-at-home mom, or has been working and makes one-fifth of what the other spouse does. That’s an issue even if you’ve been married 30 years because probably they’re both going to retire, or the higher earner’s going to retire relatively soon.

People don’t necessarily retire at 65, but some retire earlier. Some retire later, but it’s going to be relatively soon. You can’t expect to get that as I understand it. Is that what folks do there? Is they’ll say, “Well, I’ll just take it for three years at X dollars or five years at X dollars no matter what happens, whether you quit work or stay working forever, that way I know what I’m going to get and we don’t have to argue about whether you’re really retiring and it should be reduced.” Is that kind of what people do as a typical thing?

Carolyn Grimes: That’s what you try to do in negotiation. Virginia added kind of a caveat to the law, although this already was in effect, that people are allowed to retire when they reach normal social security retirement age. Which these days for anyways, like 67 essentially. So, often you negotiate spousal support until age 67. And if the other person keeps working, what you’re doing is buying your way out of another hearing. But typically then the spousal support is higher during the term than it would be because buying out. We call it buying out the lifetime spousal support rights. And of course spousal support varies a lot from state to state. Massachusetts enacted a dead stop at retirement because one of their judges tried to end his spousal support to his wife and got told no. Then they passed a law to cut the wives off at retirement age.

So, if you have national listeners do this, you really need to check your own state law, because spousal support is hugely different state to state. Here we have a lot of retired military who then get a second career and they make a lot more money then. Around here, nobody really retires at 65. What do they say about the difference between Washington and New York? You work to live in New York, here you live to work. All policy wonks and nerds, you get a lot of that stuff. Look at how old everyone is running the country, so nobody retires.

Brian Walters: Yeah, I was going to say that’s definitely a characteristic of the Washington D.C. ruling class. It’s funny you say that about Massachusetts. I read an article like six or seven years ago in the Wall Street Journal kind of about the same thing. It was I guess for some reason based in Massachusetts. Typically guys that were in their eighties or nineties still paying spousal support. They’ve been divorced for 40 years and they couldn’t make ends meet. They couldn’t afford to go back to court and all this stuff. You can imagine it from both directions.

I had a case recently, it was a California versus Texas case and we were fighting over jurisdiction. Both sides wanted to settle it and not spend a bunch of money just on jurisdiction. One of the issues was that the husband was a senior executive at Coca Cola. He was getting ready to retire and was going to get a pretty good pension and all that stuff, which everybody said was going to be pretty easy to deal with, but he was at retirement age. He essentially could come back to Coca Cola or some subsidiary of it as a consultant, which was common for someone who was a senior executive to do and wasn’t really employed per se, but was a consultant.

That was a whole big thing about, “Well, what if he does that?” And their response was, “Well, if you try to stick too much spousal maintenance on me or alimony or whatever, I’m just not going to work,” because between California taxes and alimony, what’s the point? So, we went around and around about all that, which I’m sure you’ve probably dealt with the similar type of things.

Carolyn Grimes: People can trade assets in an unequal way too. There’s lots of ways to address spousal. Once spousal support became not a tax deduction and not taxable income. I do a lot more swapping. If people want to hold onto the house for a while, and the spouse who would be paying spousal support instead pays the mortgage, then they get some tax deduction effect of it. Because you don’t have spousal support anymore and you can’t even contract for it. That was a huge cataclysm in the industry. But in my view, it actually led to more creative solutions on different issues. 

Brian Walters: Yeah, I remember when that passed. And I remember for 20 something years being like this is about the only thing the IRS encourages you to do or allows you to do real easily. Kind of cheating on the amount of money. The high wage earner would pay a bunch of spousal support but take more assets or whatever, and everybody was kind of a winner. But sure enough they sniffed that one out and killed that one off. I think it was 2018.

Carolyn Grimes: It’s kind of funny considering how many people in Congress get divorced that they killed that. I guess they weren’t paying their alimony and didn’t want a tax deduction.

Brian Walters: Yeah, I probably can’t be cynical enough. You’re right. That probably drove a lot of it. You’re exactly right. That’s really true. So you see, I don’t have good statistics on it, but do you see an increase in the number of people kind of going through a great divorce? It seems like that to me, but I don’t have data to support it. Is that your sense of it or do you know?

Carolyn Grimes: Well, there doesn’t seem to be any stigma to getting divorced anymore and there hasn’t been for a long time. In my practice, it’s common to see people have been married more than once. That’s fairly common. You see people who’ve been married three times, that’s less so, four times. I had one gal who was getting her fourth divorce before age 35. I don’t know how you have time to do that. People don’t seem to see it as an issue that they’re getting divorced at age 65. What happens with the internet is that they all reconnect with their high school and college sweetheart because they feel young again, and they just blow up all of their lives. So, staying together forever, of course all we see are people who are getting divorced. In my personal life, I know people who’ve been married forever and they stay married forever. But I don’t think it’s atypical at all and there seems to be no impediment to it even though it is a horrible financial idea.

Brian Walters: It is. I agree with you and I think you’re right. I mean, the average age of marriage is increasing over time. The average age to have children is increasing, and probably the marriage percentages are decreasing and life expectancy has generally been going up over time. So, it makes sense just mathematically that there would be more of it. I think you’re right. I think it’s financially that if you get divorced at 35 you’re going to probably end up when you’re 65, where you would’ve ended up whether you got divorced or not, because you’d probably remarry. Then you have 30 years to kind of clean it up and prepare for the future. But if you get divorced at 65 and you’re both retiring or near retirement, that’s your one chance to have assets. And then where do you go from there?

One other thing I noticed in reading some of your comments on it was, and I didn’t even think about this, but it can affect inheritance or estate planning. If you and your spouse have got $7 million in assets, and you figure we’ve got enough to get by, “We’ll probably be able to pass on most of that to our two children.” They may end up each with $3 million, maybe we’ll start giving some of that early to them so they can make their life a little easier. Now suddenly that’s not the case. You’ve got half the assets and you’ve got more expenses.

Because now you’ve got two households instead of one, and all of those kinds of things. The problem with estate planning is nobody knows how long they’re going to live. You don’t know if you’re going to die tomorrow or in 30 years, so kind of prepare for the worst. I think that may cause problems, I would think. Not only in just being able to do it but probably your kids and grandkids expectations of it. If they were thinking, “Mom and Dad have been talking about buying my first house, and I’m really excited about that. Mom and dad divorce, and suddenly, ‘No, we can’t buy your first house because neither one of us can afford to do it.'” It seems like that would be a problem. Something that probably isn’t thought through real carefully about this sometimes. Is that sort of what you’ve seen as well?

Carolyn Grimes: That’s a multi-level problem. I am a family law lawyer. My partners, we have a family law half and then our trusted estate attorneys. One of the problems, if you have significant assets and you divorce you don’t have a spouse. You lose all those spousal exemptions to the estate law. People often put their assets now in a living trust instead of doing a will. If you’ve actually deeded everything into the living trust in order to get divorced, you have to break the irrevocable trust and deed it all back, so it adds another layer of mess.` There are no laws in the marital estate anymore. You put it in another form. We have to go through all this nonsense about tracing it through. But the kids’ expectations, adult children often feel betrayed when their parents get divorced. Like their whole life has been a lie.

Smaller minor children have a huge practical effect and everything else and they feel the same. But for adult children, the problem is they take sides even though they shouldn’t, and the parents shouldn’t involve them, but they do. You have dad left mom for a cheerleader. Mom is devastated. The adult son goes to them for comfort. When you have multiple children, usually they split between the parents. It just makes a giant mess. People never consider that because they think, “Oh, they’re adults.” No, they are kids. To you, that’s a five-year-old, and that’s how they view you. It really messes up families when people get divorced later in life. Now if it’s mutual, if both of them want it and they handle it well, you’re not necessarily going to have so many issues. But that’s not often what happens. Long-term marriages tend to be broken up, not by agreement as far as I can see.

Brian Walters: Somebody initiates and the other one isn’t in favor of it, and then there’s other downstream inheritance things. But again, statistically most people still remarry, even older folks. Now the inheritance becomes, well, does it go to the new husband, the new husband’s kids? What about that and all those other things? There’ll probably be a disparity in earnings or assets in one of the two new marriages, and that’s going to cause a whole nother set of problems. In general, it’s not a great plan if it can be avoided. I realized that half the time, as you said, I think someone’s usually initiating it. Half the time you’re representing spouses who don’t have a choice. My husband’s leaving me, there is nothing I can do about it. I may be upset, or the other way around. I don’t think anybody comes into my office and just says, “I want to be divorced for fun. And I haven’t thought about it and I’m not worried about the consequences.” I think it’s a serious decision that most people make. Whether it’s in hindsight, a good one or not.

Carolyn Grimes: It’s an agreement our courts can’t address this. Of course, when you have the issue of another spouse coming, we often try to designate certain assets that will still go to the children. Or we’ll say, “At least half of your estate is still going to go to the children of this marriage, or a third depending on.” Because if they have other children, then you always run into that. “They’re taking my kids’ money.” “We earned all this money during our marriage and you’re going to leave it to Susie Q’s kids.” That causes a lot of problems.

Brian Walters: Yeah, exactly.

Carolyn Grimes: Then you get into the survivor benefit. In this area, because you have a lot of government workers, we’re the only people who have pensions. Military government workers. Now and then I run into a private pension. Nowhere near where I ran into when I started because even the phone companies don’t have private pensions anymore. They used to have fabulous benefits. The survivor beneficiary on the pension, which one gets it? It has to be awarded in the divorce. That’s a critical issue that people sometimes miss. I had a gal come to see me yesterday. I didn’t handle her divorce, and she was just in tears because prior lawyers didn’t get her the survivor benefit on her husband’s federal pension. He’s like, “I’m retiring and getting married.” And she’s like, “What’s going to happen”? I said, “New wife’s getting it.” “What happens when he dies?” “You get nothing. You end, it ends.” And she was not a high-income earner.

Brian Walters: All right, well, that’s all we have for today. If you like what you’ve heard, do us a favor and leave a review. We appreciate all feedback, especially when it helps us better. This podcast, if you’re interested in reaching out to Carolyn directly, we’ll have a link to our firm’s website in our description. Again, thank you enough for joining us today, Carolyn.

Carolyn Grimes: You’re welcome.

Brian Walters: And as always, if you have any follow-up questions to this episode, or would like to talk to one of us directly about your family law situation, reach out to us at podcast@waltersgilbreath.com, or visit us at waltersgilbreath.com. I’m Brian Walters. Thanks for listening.

For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning into today’s episode of For Better, Worse, or Divorce, where we post new episodes every first and third Wednesday. Do you have a topic you want to be discussed or a question for our hosts? Email us at podcast@waltersgilbreath.com. Thanks for listening. Until next time.