Bohdan Shulakewych for The Lawyers Weekly
Family Law Lawyers for Divorcing Seniors
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Below is Bohdan Shulakewych’s article for The Lawyers Weekly, where he describes the implications of seniors divorcing late into their relationships and advises family law lawyers on the best way to approach each case and unique situations.
September 24, 2010
Being a family law lawyer is a challenging and difficult endeavour at the best of times. We are faced with truculent clients, difficult lawyers, or an unhealthy combination of both. However, dealing with septuagenarian or octogenarian clients undergoing a divorce is a particularly difficult process.
The first thing to notice is the obvious age of the client and the fact that the marriage or cohabitation is coming to an end usually after a very long period of time, be it 40 or 50 years. The termination of a relationship of that length may leave a more permanent imprint than those in younger relationships.
Sensitivity must be shown toward the reasons for breakup, for example, Alzheimer's or violence. Breakups are further amplified by:
- Not working;
- Friends and social group being ill or deceased; and
- Being spiritually or medically wounded.
Counsel should consider recommending medical or other forms of counseling.
When such individuals come to you seeking a divorce, the decision is often much more traumatic and far-reaching than for a younger couple, who still have a connection through children, an active and vibrant social group or the ability to establish a new social group through employment. Some of these features are not available to the elder client.
Due to the generational divide, counsel should be particularly vigilant. For example, older clients may be embarrassed to speak to their friends about their circumstances since they do not have the same frame of reference as younger couples, and do not wish to reveal their particulars to others. Counsel must keep in mind that older clients come from a different time, where the level of trust given to professionals was far higher than that of the current generation who tend to be more educated, skeptical and questioning of professionals.
Counsel must also consider whether the client is mentally capable of providing instructions. This is fundamental in any case but, in particular, with the aging client.
Approaching the case
Although counsel must approach a case from a strategic point of view, sometimes the more cynical concepts of spending your way out of litigation or delaying the litigation prevail. These are not feasible when dealing with the older client. The concept of time for older clients is vastly different than for young and middle-aged couples. Whereas a younger couple may view themselves as vibrant and able to live a long life, the post 70-year-old couple or individual may view life as short and not to be taken for granted. They may see litigation as unnecessarily wasteful, compounding mental and physical health issues.
What counsel may regard as a minor delay may seem an inordinately long time to a septuagenarian or octogenarian: time is measured by receding years in the near future rather than the distant future. Counsel must be attentive to this change in the perception of time. Whereas we may view the resolution of a separation in one year as being speedy, to an older client it may be an eternity, ill spent worrying and fixating on a divorce.
Counsel must be "on top" of matters and reply promptly and assiduously to requests for information. Of course, this may mean dealing with a "high-maintenance client," but if managed properly (for example, quickly acknowledging the receipt of telephone calls or correspondence), it will help the client maintain reasonable expectations.
Counsel should not forget that for the elderly in these circumstances, their lawyer may be their only lifeline. More time must be spent with elderly clients as they may be technologically challenged. Phone communication may be difficult and counterproductive. They will also be unfamiliar with the plethora of forms required for a complex judicial process and may require more assistance than usual.
Counsel must also bear in mind that, although these individuals may have significant assets, they tend to view expenditures much more frugally than, perhaps, younger people who are employed. The concept of paying $500 per hour to someone no older than their child or even grandchild may cause consternation, if not horror.
It may be necessary to send the client for a medical examination to determine whether support issues will have an impact on the case.
Counsel must also determine whether this is a second marriage for their client, and be wary of adult children competing or coordinating the discussion, because any monies given or received may affect their inheritance. Similarly, counsel must be aware of the possibility of obtaining support from adult children (for example, under s.32 of the Family Law Act in Ontario
) and the impact this may have on the litigation and family dynamics.
Explaining issues completely and thoroughly in writing to older clients is helpful, since it provides them with time to think over the issues and the concepts that are in play. Sometimes merely making a telephone call to get instructions is insufficient.
Finally, just as in any litigation, counsel must manage client expectations and be realistic. Not doing this will exacerbate the litigation and extend it unnecessarily.
is the principal of Pellman Shulakewych Barristers in Toronto. He thanks Paul Pellman
for his contribution to this article.
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