The “silver split” or “gray divorce”—the phenomenon of later-in-life divorces —certainly isn’t new, but it’s becoming increasingly common. These divorces come with their own specific sets of complications including, among other concerns, unique spousal support considerations, difficult and often impossible to prove separate property claims and, for the purposes of this article, issues involving adult children.
The older the children are, the harder divorce can be for them. We often overlook not only the impact divorce can have on adult children but also the myriad issues that may arise as a result. We’re all familiar with the common issues related to minor children in a typical matrimonial matter: custody, parenting time/access, decision making/legal custody and child support. Practitioners may breathe a sigh of relief when they learn a new client’s children are no longer minors, believing that the case will be limited only to financial considerations. But when representing a client in a gray divorce, the existence of adult children may cause issues even more complex than dividing holiday breaks and paying for soccer camp.
Privilege and Legal Ethics
Clients are routinely advised to keep young children out of their divorce and to present a unified front, never encouraging the kids to choose between mom and dad. For older adults, though, their grown children may be intimately involved in the divorce process—possibly as a neutral go-between, a champion of one parent’s position or to further their own agenda. Whether stemming from a desire to protect the parent whom they perceive as the wronged party or to safeguard their own future financial interests, adult children may seek to speak with their parent’s attorney, attend meetings and even have a say in the case strategy and decision making. Likewise, the client might invite their participation, valuing the advice of their adult children during a difficult time.
For these reasons, it’s critically important for attorneys to counsel their clients as to the potential ramifications of involving their adult children in their divorce, paramount of which is the attorney-client privilege. To be protected by attorney-client privilege, the attorney-client communication must have been made in confidence and for the purposes of seeking legal advice. Clients may unwittingly waive their privilege if they permit a third party to be present during a conversation with counsel or otherwise share such communications with a third party. Not only do we need to be wary of destroying privilege (exposing correspondence and work product to potential discovery) but also of violating our duty of confidentiality to the client. While the specific rules of privilege vary by state, the general principle is that an attorney can’t reveal oral or written communications with a client regarding legal advice without the client’s consent. Stated differently, the privilege itself belongs to the client, not the attorney. Exceptions are made when a third party is essential to the attorney’s ability to provide legal services, such as an interpreter, a paralegal or an accountant. Whether the presence of a client’s child vitiates the privilege is a fact-dependent and jurisdiction-dependent question.
In Kevlik v. Goldstein, the U.S. Court of Appeals for the First Circuit held that “the key question in determining the existence of a privileged communication is whether the client reasonably understood the conference to be confidential.”1 The court noted that the “intent of the client” is determinative and the presence of a third party destroys privilege “only insofar as it is indicative of the intent of the parties that their communication not be confidential.”2 Holding that a meeting among an (adult) client, his father and his attorney was privileged, the court reasoned that the client’s father acted “in a normal and supportive parental fashion” by attending the meeting and concluded that it was the client’s intention (and that of his father) that the communications be privileged and confidential.3
However, the confidential intent of a client may not always be enough. In Weinreich v. Brooks,4 the court held that there’s only a “small circle” of “others” with whom a client may share a communication without forfeiting the attorney-client privilege. Despite the client’s claim that his domestic life partner, as his “closest confidant . . . provides him with significant [] support” and “advice and guidance on major decisions,” the court ordered the production of emails with the client’s attorney on which the client copied his partner, holding that the partner fell outside this “magic circle” and noting that courts most commonly extended the privilege only within the parent-child context.5
Whether the privilege holds in the flipped child-parent context may turn on the purpose of the child’s participation in the communication. In Stroh v. General Motors Corp.,6 a New York case, the court afforded “the cloak of privilege” to communications between the client, a 76-year-old woman, and her attorneys despite the presence of her daughter.7 Finding that the circumstances of the case required the client to recall “the most traumatic experience of her life,” the court held that her daughter’s participation “put her sufficiently at ease to communicate effectively with counsel” and that the daughter thus served as her mother’s agent to facilitate her communications with her attorney.8
Similar arguments may certainly be made in the context of a domestic relations matter. In Witte v. Witte,9 a matrimonial case, the court considered whether communications between a wife and her attorney should remain protected by the attorney-client privilege when her daughter and/or son-in-law participated in “60 to 65 percent of her communications” with her counsel.10 The case was remanded to determine whether the communications were intended to remain confidential and whether the disclosure to the daughter and son-in-law was reasonably necessary. Pertinent facts included that the wife, who was 74 years old and suffered from short-term memory loss and deafness, frequently asked her daughter to repeat the attorney’s statements and that many of the relevant financial documents were written in Hebrew, which the client couldn’t read.
With no firm rule on the issue, attorneys should be mindful of the thorny privilege issues presented by grown children’s participation in their parents’ divorce and advise their clients that including their children on communications may render the legal advice provided vulnerable to disclosure. Of course, in some cases, like Witte, age-related ailments may render the support and participation of the client’s adult children necessary.
Who’s Running the Show?
The presence of adult children may be necessary to effectively guide your client through their gray divorce. However, if an attorney believes that the client’s mental capacity is so severely diminished that adult children are acting as the ultimate decision makers in the case, other ethical concerns may arise. Lawyers must remember who their client is and beware of self-interested children attempting to manipulate the outcome of the case.
“When a client’s capacity to make adequately considered decisions in connection with a representation is diminished . . . the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”11 The comments to the Model Rules of Professional Conduct
Rule 1.14(a) expand on this notion, explaining that even if family members participate in discussions with the lawyer, “the lawyer must keep the client’s interests foremost and . . . must look to the client, and not family members, to make decisions on the client’s behalf.”12 Instead of permitting an older client’s adult child to make decisions on the client’s behalf, attorneys should consider whether a legal representative, such as a guardian ad litem, conservator or guardian is necessary to protect their client’s interests—particularly in a matrimonial case, when the financial interests of the parent and the child may not align.
Protect Your Client’s Estate Plan
Typically in a divorce, parties waive their rights in the other’s estate. That may be the end of the discussion relative to your client’s estate plan. However, if clients have concerns about the impact of their divorce on their desired disposition of assets for the children of the marriage, that conversation has only just begun.
Imagine your client was married for 30 years, and there are two adult children of the marriage. Your client wants to ensure that, despite the divorce, the two children will each receive 50% of the (former) marital estate on the death of both parties. Your client is concerned that their soon-to-be ex-spouse may not want the same thing, whether because one of the children is estranged from the other party, the other party has a child from another marriage or out of wedlock, the other party has a much younger paramour or a litany of any other possible scenarios. If the parties each receive $1 million in the divorce and your client splits their share of the estate equally between both children, but the other party doesn’t, your client’s goals will be thwarted (for example, if your client’s former spouse leaves their entire estate to one of the two children, that child will receive $1.5 million and the other child only will receive $500,000). So what can be done to make your client the master of their own (or their children’s) destiny?
Of course, if the parties’ goals are aligned, they can agree to almost anything in a negotiated settlement. After all, freedom to contract is a fundamental tenet in all jurisdictions subject to only limited exceptions.
For example, they can agree that certain assets will be awarded to their children in equal shares outright, rather than distributed to either party as part of the divorce. A conveyance during life is likely easier to guarantee than a bequest or devise. Nonetheless, doing so isn’t an option if either or both of the parties want to retain certain assets during their life. And depending on the value of the assets and the amount remaining on a party’s lifetime gift tax exemption (which presently is $12.92 million), there may be tax implications that everyone would much rather avoid.
Alternatively, the parties can each agree to grant 50% of their estate, or even of particular assets, to each of their children. However, people don’t always do what they say they’re going to do. The other party may have had no intention of following through with their agreement, thinking that after death, they won’t need to worry about it (after all, if they’re dead, it’s not their problem). If the other party doesn’t hold up their end of the bargain, which may only be discovered on that party’s death, then claims must be made against that party’s estate, which could become very uncomfortable (and costly). Children may be pitted against one another in court, which would almost certainly defeat your client’s objectives.
The parties can also agree that the surviving spouse will receive a life estate in real property and grant the children each a 50% future interest on the client’s death. This is a potentially attractive option that provides more security than a contract promise because conveyance documents are recorded and would contain the specific provisions necessary to effectuate the desired transfer. The parties can also agree to move all assets they wish to be equally divided on both of their deaths in trust to be held for the benefit of the parties during their lives and then split into equal trusts for each child on the death of both parties (or distributed to children outright). However, not only are there costs associated with these potential solutions (for example, drafting and negotiating the terms of estate-planning documents and paying a trustee) but also, as discussed above, they rely on the agreement of the other party because if the divorce were to go through a trial, it’s unlikely that a court could (or would) enter a judgment that ordered the parties to remain bound to each other financially. Moreover, enforcement can be, and often is, expensive, time consuming and uncertain. Chances are that your client is bringing these issues to your attention because their spouse won’t agree to contract away their rights relative to their estate plan or because they’re concerned the soon-to-be ex-spouse has other intentions. Ultimately, the best way to further your client’s goals is to aid them in taking matters into their own hands as much as possible rather than relying on the actions of their spouse.
Your client can independently put together an estate plan pursuant to which assets remain in trust pending the death of the other party, with specific provisions to “equalize” the distributions to each child of the marriage depending on the distributions made pursuant to the other parent’s estate. Using the $1 million example above, your client’s $1 million could remain in trust pending the other party’s death, with clear provisions that if their spouse’s estate provides, for example, 75% to child “A” and 25% to child “B,” your client’s estate would provide 25% to child “A” and 75% to child “B.” This assures clients that if they predecease the other party, the children will still be treated equally, if that’s their goal (and if the spouse predeceases the other party, the surviving spouse has time to make whatever changes to their estate plan that they want). The same mechanism may be used even if your client has particular goals for the devise of a particular asset (for example, a home, business or family heirloom), rather than their entire estate, and/or wants to ensure that certain assets divided in the divorce pass to the children in a specific way. This isn’t a one-size-fits-all solution, and there are nuances that you must consider depending on the particular circumstances of each case.
Regardless of your clients’ objectives relative to their estate plan, many possible creative solutions exist to address your client’s concerns and ensure that their goals are met. First and foremost, the only way to address such concerns is to get as clear a picture as possible of the family dynamic and a comprehensive understanding of your client’s intentions. After that, it becomes a question of creative problem solving and careful drafting. In so doing, it’s also critical to consider the potential tax implications of your plan. Clients must be advised regarding the tax consequences of their estate plan. Depending on the state where you practice, there may be restrictions on your ability to provide tax advice. At a minimum, you should advise your client to consult with financial, tax and estate-planning professionals.
Does Divorce Make Sense?
It may not make sense for clients to get divorced. Considering the various concerns and potential complications outlined above, it may be that the best advice you can give your client of a certain age is to remain married. With the aid of a postnuptial agreement (which most states enforce), a legal separation (depending on the jurisdiction) and smart estate planning, it may be possible to achieve nearly all of an older client’s goals while avoiding pitfalls. For example, if one party is retaining the marital home, the other party can stay on the title and mortgage and avoid the need to refinance in a high interest rate environment. Additionally, avoiding a divorce might obviate the need for one spouse to obtain life insurance to maintain obligations, which can be prohibitively expensive (if not impossible) because of a party’s age or health. Continuing to share some accounts and assets, and responsibility for specified expenses, may also benefit a spouse who lacks financial literacy after many decades of marriage. Depending on the circumstances of the marital breakdown, a middle ground between marriage and divorce may best suit the needs of your clients.
Endnotes
1. Kevlik v. Goldstein, 724 F.2d 844, 849 (1st Cir. 1984).
2. Ibid. (internal citations omitted).
3. Ibid.
4. Weinreich v. Brooks, 2022 U.S. Dist LEXIS 127403 at *14 (D. Mass. Feb. 3, 2022), Civil Action No. 21-10496-NMG.
5. Ibid.
6. Stroh v. General Motors Corp., 213 A.D.2d 267 (1st Dep’t. 1995).
7. Ibid., at p. 268.
8. Ibid.
9. Witte v. Witte, 126 So. 3d 1076, 1077 (Fla. Dist. Ct. App. 2012).
10. Ibid., at p. 1077.
11. Model Rules of Professional Conduct Rule 1.14(a).
12. Comment 3 to Rule 1.14.