029: Getting Into – and Out of – Relationships in Later Life – Richard Sperling

Marty Stevens-Heebner:
I took a poll recently on social media to find out if you'd prefer an episode on later life dating or later life divorce. And surprisingly, the vote was split right down the middle, so I decided to find an expert in family law to talk about what to do when you're getting serious of someone and what to do if things fall apart. Stay tuned to hear Attorney and Expert Mediator Richard Sperling share his expertise.
Moving your mom or your dad or yourself isn't just about moving things from one place to another. It is much more complicated than that, as are so many things having to do with later life. How To Move Your Mom (and Still be on Speaking Terms Afterward) provides in-depth conversations with professionals, older adults, and their family members who share their stories with warmth, understanding, and humor. I'm your host, Marty Stevens-Heebner, and here you'll find answers to many of your questions as well as different perspectives that I hope will inform and inspire you.
Richard, it's so lovely to have you here today.

Richard Sperling:
Happy to be here, Marty.

Marty Stevens-Heebner:
Family Law Attorney Richard Sperling works with clients throughout California who are transitioning in and out of relationships. In addition to divorce, Richard's practice focuses on relationship agreements such as pre and postmarital agreements, cohabitation agreements, and so on. Richard is a certified mediator who seeks resolution wherever possible to keep his clients out of court. His expertise in real estate and business law comes in very handy in his family law practice and at one time he served as counsel for the US Department of Housing and Urban Development. So impressive. He's also taught a multitude of law courses at both the undergraduate and graduate levels and when he is not practicing law, he loves sailing and playing his guitar. Hopefully, Richard, you're not steering and strumming at the same time.

Richard Sperling:
No, the guitar is put away, Marty.

Marty Stevens-Heebner:
Just thought we were safe out there on the water.

Richard Sperling:
I'm much better at talking than I am playing.

Marty Stevens-Heebner:
So what's your favorite memory of your grandparents?

Richard Sperling:
My grandmother was voted Beverly Hills' Mother of the Year and they had a big party for her at the Beverly Hilton and all sorts of movie stars came, so I was probably 15. I remember going to that with my family and we dressed up and it was quite an accomplishment for a woman who came over on the boat from Europe and didn't know anybody and had no education. It was a great party and then we went home and she made pickles for all of us, so it was a fun memory. She was a great questioner. If she sat you down, there would be a hundred questions. At the end of the conversation, she would know all about you.

Marty Stevens-Heebner:
That must have been great preparation for you as an attorney, watching your grandmother interview people.

Richard Sperling:
I suppose I took after my grandmother and going into that, my cousin on the other hand became a physician and you know what they say about lawyers? Lawyers are doctors that can't stand the sight of blood.

Marty Stevens-Heebner:
That's a new one on me. I like that. You're already talking about the law and family law is so complex not only in terms of the statutes but also the emotions. What kind of situations do you wind up dealing with?

Richard Sperling:
It used to be people calling me up and saying, "I've been married seven years, eight years, 10 years, and we're growing apart and I think I need a divorce." Nowadays, my practice is different and I think in family law we're seeing some new wrinkles and one of them people who are living together, moving in together with without the benefit of marriage, that's becoming very popular and there's some significant legal ramifications of that. The other situation I'm seeing a lot of are people in their sixties and seventies and even eighties who are saying, "I'm very aware of the time I have left. I'm not happy. I'm leaving my spouse and I'm going to go date or I'm going back in with my college sweetheart and we're going to get married."
I'm seeing a lot of what we call grey divorce and people just getting together in new relationships in their later years and that poses some different problems. People have estates, they have wealth put together, they have commitments to their kids and they're leaving their spouse maybe after a 30 or 40 year marriage, which is sometimes sad, but sometimes people are also relieved and we have people moving in together and that poses some new challenges also.

Marty Stevens-Heebner:
There is a lot of grey divorce going on. There have to be specific issues, one of which you brought up, that they have property, there's inheritance involved. What kinds of things go into a pre or postmarital agreement or a cohabitation agreement for people who are older?

Richard Sperling:
Let's start with the postmarital agreements. People who are already married, sometimes it's a second marriage. Let's say a husband has a house, he marries, the wife moves into the house, and as they get older the wife starts thinking, "What happens if my husband passes away?" He's got a will and a trust, he's promised the house to his kids, he's promised the wealth to his kids, and she's thinking, "Where's my security? What happens if he passes? Am I going to get kicked out from this house we've been living in for 10 years the day after he passes away? I've been taking care of him for all this time." So we often put a postmarital agreement together with the cooperation of the children and that agreement will say something like, "If I pass away, you can live in this house for four years and then it'll go to my kids."
So we try and adapt that second marriage to the entire family and it helps the entire family get along. That would be a situation where a postmarital agreement's very helpful. Sometimes we're doing a premarital agreement for people who are older. They have their own homes, they have their own investments, and we want to clarify what's in their estate and that each party's estate's going to remain their own separate property, and is there going to be a commitment to care for the other person in the event of death or divorce? The interplay between an estate plan and a postmarital agreement or a premarital agreement is really important because if I promise certain things in my estate plan and my trust and my will to a spouse or to my children, generally, wills and trusts can be modified or canceled, but if I put together a premarital agreement or a postmarital agreement with my spouse and we sign it, that is a binding agreement and cannot be canceled or modified by just one spouse.
So a premarital agreement or postmarital agreement is a valuable estate planning tool and we often use those agreements in conjunction with estate plan and I'm frequently bringing in my client's estate planning attorney so that we can coordinate that. The premarital agreements are agreements we put together before people get married. Postmarital agreements are agreements we put together after people get married, but the difference is critical and it's a fine legal point, but we have a famous case that tell us what we need to know about those two agreements. It's the Burkle case involving famous entrepreneur from here in LA called Ron Burkle. He ended up buying Ralphs and other grocery stores and amassing a big fortune. These days, he's a movie producer and he owns baseball teams and hockey teams.
His marriage went sideways, but he wanted to reconcile with his wife, so they put together a postmarital agreement and that agreement said, "Okay, whatever we own now, we own as community property and if we split, I will pay you, my wife, a million dollars a year in support for every year that we've been married and I'll pay you $30 million cash, but should our reconciliation not work and we get divorced, whatever I earn, whatever I acquire from our divorce forward will be my separate property." Their reconciliation failed. They got divorced and the court Mrs. Burkle took the position that their agreement had to be exactly 50-50, their agreement had to be fair to both of them or it was not binding, and that litigation went all the way up to our state Supreme Court and that decision said, "Yes. If people are married and they put together a postmarital agreement, they do owe each other complete disclosure, complete transparency, and neither spouse can gain an unfair advantage in that postmarital agreement."
The court said, "This post marital agreement is fair to both parties. It may not be exactly equal, but neither party gained an unfair advantage." And what we learned from the Burkle case is that a postmarital agreement, while it can be slightly not equal, there is a duty to treat each other fairly. So postmarital agreements have to be drafted and negotiated very carefully.
In a premarital agreement, we don't have those same duties because we're not yet married, so we can put a premarital agreement together that's not 50-50, that seems to be unfair to one spouse or the other. We might have a wealthy entertainer. I'm working on one right now where one of the parties is on a popular TV show and that actor's making about a million dollars every episode. In a premarital agreement, before we're married, we don't have this fiduciary duty and a lot of times, especially in the entertainment industry, an actor will say, "Okay, let's get married, but let's have an agreement that I'm not going to pay any spousal support if our marriage fails," and it is possible to waive spousal support in a premarital agreement. We don't have a fiduciary duty in a premarital agreement we do in a postmarital agreement. So that's an important distinction between the two agreements.

Marty Stevens-Heebner:
Can you define what you're meaning by a fiduciary responsibility? Because I don't think everybody will understand.

Richard Sperling:
In the legal space, there are some relationships between people that are relationships of trust and confidence and we call them a fiduciary duty. It comes from back in the days where the knights would pledge their lives and their total loyalty to the king and we got the word fiduciary from that historical time. I might be a doctor in a doctor-patient relationship, I might be an attorney, or I might be a spouse, and what that means is I owe total and first loyalty to the person I'm a fiduciary to. I owe complete honesty. It's a relationship of trust and I'm not going to take advantage of my fiduciary partner. And until we're married, we don't owe that fiduciary duty to the person that we may be living with, that we may be engaged to, but after we marry, we're fiduciaries at that point and that's why if spouses get into a divorce and one spouse hides income or hides assets, that's a breach of fiduciary duty and there're severe penalties for that breach.

Marty Stevens-Heebner:
That's fascinating, especially the historical part. What are some of the difference between a pre and postmarital agreement versus a cohabitation agreement?

Richard Sperling:
Cohabitation agreements are becoming more and more prevalent, especially in California because we don't have common law marriage, but we do have the Marvin case, which is a unique part of our law coming from the actor Lee Marvin and his relationship with a woman that he lived with. Her name was Michelle Triola. She was an extra on the movie set and when Lee Marvin met her, he split with his wife and moved in with her. That Marvin case gave us what we call alimony. When they split up, Michelle alleged that Lee made her a verbal promise that whatever money he earned and whatever property he acquired, while they were living together, would be half hers and that he would support her for the rest of their lives after they broke up.
They litigated that issue all the way up to our state Supreme Court and the decision tells us that if you convinced the court that a verbal promise was made, that promise is binding in California. People who move in together, maybe they're only together for a few months and maybe one of the parties is an entrepreneur or a real estate broker or agent who makes a big commission, that can create a significant claim on the part of the other party. That can be devastating. So in a cohabitation agreement generally would say, "We're moving in together. Here's what you own, here's what I own, and we're going to keep our property separate, and a verbal promise between us is not going to be binding. For there to be an obligation to support each other should our relationship end, that promise has to be in writing."
That's particularly important for people who are not only making a lot of money, but sometimes grandpa is being cared for by a caregiver and grandpa has amassed the fortune and the caregiver sometimes will move in with grandpa, so sometimes the family will go to grandpa and say, "Let's put an agreement together that says there's not going to be a verbal promise between you and your caregiver." So we're doing a lot of those.

Marty Stevens-Heebner:
You and I both have a friend who's a terrific estate planning attorney, Elise Lampert, but the way she describes what she does is, "When grandma marries the pool boy, call me."

Richard Sperling:
Or call before they marry.

Marty Stevens-Heebner:
So long as you're aware beforehand.

Richard Sperling:
Yes.

Marty Stevens-Heebner:
People may say, "Oh, he doesn't want to talk about finances." Well, the thing is, if you can't talk about finances before getting married or living together, that's a huge warning sign.

Richard Sperling:
It really is, and it's a fortunate byproduct of what we do with these agreements. It forces each fiance to sit down with each other and talk about things that they really should be talking about. "How are we going to pay our living expenses? Are we going to share our income? Are we going to have a joint account where we pool our funds?" It's difficult to think that a marriage is going to work if people can't talk about how they're going to pay their way after they get married. There are a lot of religious institutions that if you want to marry at the temple or the church or wherever, they'll put you through a process of interviewing and explore these kinds of questions and require you to talk about them. Some attorneys will say, "You have to see that your fiance is current in their taxes or you should marry them." And they'll want to put in the premarital agreement, "We've shared each other's income tax returns," and some people don't want to do that, so that can be an issue when we put these premarital agreements together.
You certainly don't want to get in a position where you marry somebody and they earn money. That money is arguably community property and the IRS will come after the other spouse if the earning spouse disappears. We urge people to think about disclosing their finances and giving evidence to the other that they're current with their income taxes.

Marty Stevens-Heebner:
So important, I think of it as a whole marital plan. You talk everything through including the possibility of the end. As you said before, all relationships end one way or another, and it's about pre or postmarital agreement, cohabitation agreement. Also, the estate plan, the trust, the healthcare directive, all of those things. I feel like they should be requirements before you really commit to each other.

Richard Sperling:
A lot of times people will marry and they won't talk about their relatives. Maybe a spouse has a sister or a brother that needs some support, that needs some care. What are we going to going to do if, God forbid, there's an accident or an illness? To what extent are we going to help them? Are we going to subsidize them? Might they be moving into our home if they need care?

Marty Stevens-Heebner:
Thinking about it, what if you are a spouse who has no children and you marry somebody with children, you take care of your spouse who is the one to pass first, but they need care at the end of their lives and all those expenses. Who's going to take care of you? That's a big question.

Richard Sperling:
And sometimes the kids need care. Sometimes a child gets into drugs or unemployed or goes through a bad divorce and needs some emotional care. Are we going to move that child into our home for a while? Are we going to help them financially? And maybe one of the spouses might be thinking, "Wait a minute, if we pay $50,000 to this child every year, where's my security?" I did a postmarital agreement recently for an older attorney who had four sons and in his eighties, he married a woman who was in her eighties and after a while she said, "You're helping your sons. You're intending to leave your estate to your sons. What happens to me if you die?" So we had to engage an estate planning attorney. We had sessions with their four sons. Some of them were happy to make an adjustment in their father's estate plan to care for his new wife, but some of the sons were very unhappy with that and they felt, "This is my father. You shouldn't be supporting your new wife out of money that I should be inheriting." So we see a lot of different attitudes.

Marty Stevens-Heebner:
Well, when you live that long, it's not unusual, whether you're male or female, to have more than one marriage because sometimes you are widowed. My dad was widowed when he was only 65. He never remarried. Mom was the love of his life and he made it to 90, but he could have remarried.

Richard Sperling:
Wow. I think it's very interesting, especially these days where people are in their eighties and even nineties and they don't want to be alone, that they don't want to live with somebody without the benefit of marriage. So we see a lot of 80-year-old and 90-year-old people saying, "We're going to get married."

Marty Stevens-Heebner:
Love at all ages. It's all around. And speaking of love, when you're working through all these frankly difficult conversations as you're making these agreements, how do you keep the love in that as you're putting this together?

Richard Sperling:
That's part of the service that I try and provide, and that is keeping a premarital or postmarital agreement as simple and romantic as possible. That's an important factor when somebody is deciding on an attorney to work with. Some attorneys are not people oriented. Some attorneys are more aggressive. Some attorneys treat a premarital agreement like a real estate contract. I've seen real problems occur when the attorneys don't approach the situation carefully, but it's very rare to see a planned marriage not occur because of the premarital agreement. They're often very necessary. People these days are sophisticated enough to see, "This marriage is an important step we're both making and we have both of our estates to deal with." There's a lot less stigma than there used to be with premarital agreements.

Marty Stevens-Heebner:
You mentioned that there are some techniques you use to keep people from getting angry or falling out of love with each other.

Richard Sperling:
Well, a premarital agreement or a postmarital agreement can be an opportunity to express love to the other person. Sometimes we'll say, "In the event I die or we divorce, I want to take care of you and I want this to be a commitment that I'm making you in writing that you can rely on. I'm going to provide you with this life insurance policy. I'm going to provide you with this amount of spousal support every month for this amount of time in the event we divorce." So we can formulate a proposal in a way that's romantic and assures the other party, "I don't want this to be a verbal commitment that we might forget about," and the premarital agreement becomes, "I might call it an instrument of love, of care," as opposed to something that some people feel is an advanced divorce judgment.

Marty Stevens-Heebner:
It can really be a beautiful thing on both sides, and you really find out what each person's priorities are. Often that can be a lovely thing. Sometimes you see a side that you haven't seen before and may change your mind. Maya Angelou, she's so quotable. "When people show you who they really are, believe them the first time."

Richard Sperling:
If we need to take a position that seems unromantic, let's say we have a wealthy fiance and that fiance wants to say, "I want you to waive spousal support." I'll discuss this with my client and I'll say, "If you need to talk about this with your fiance that both parties are going to waive spousal support, blame it on the attorney, blame it on me."

Marty Stevens-Heebner:
It's all so important and complicated. It could feel overwhelming. So I see why some people become reticent about it, but I think it's so important to talk to somebody like you and get a sense of what's important and why this is so necessary, these kinds of agreements.

Richard Sperling:
And again, we can simplify it. It doesn't have to be very complicated. We can keep it romantic. Most family law lawyers will not do premarital agreements or postmarital agreements or cohabitation agreements because they are complex and they need to be done right. There's some famous cases where the fiances actually signed the wrong drafts of these agreements. There's a recent case, the Esra case, where Mrs. Esra signed the wrong draft, and nevertheless, the court imposed that draft on her after her husband died, and his real estate, instead of going to her, they discovered that they had signed a draft of a premarital agreement that actually gave the house to his daughter from a prior marriage. She filed a lawsuit and said, "We signed the wrong draft." And the court said, "Too bad, we're going to hold you to what you signed."

Marty Stevens-Heebner:
It's a contract.

Richard Sperling:
It's a contract and you should have read it before you signed it. It's important to hire an attorney who has experience with these agreements.

Marty Stevens-Heebner:
And who not only knows the emotions of a situation like this, but also knows how to navigate those and help their clients navigate those emotions and challenges.

Richard Sperling:
Very true, because again, lawyers who are good with people can help them put the agreements together and that sends them off with a lot more understanding and certainty.

Marty Stevens-Heebner:
You're a certified mediator and I know you are just splendid when it comes to understanding people's emotions. You have a gentle and wonderful sense of humor and somehow you always seem to be able to maintain calm. I'm sure there are times when you don't, but professionally certainly.

Richard Sperling:
This seems to be a calling for me because I enjoy the people aspect of it and I think that's why I transition from business and real estate into family laws. I like getting to know people and seeing what they need. That's a lot different from reading contracts and helping people via a piece of real estate or sell a business. I enjoy family law. I was in business and real estate for many years and this is something I'm comfortable doing. Sometimes at the end of the day I look forward to a glass of wine. It's true. But I enjoy people and I enjoy helping them solve problems. And these agreements avoid problems. They avoid conflict, they avoid litigation.

Marty Stevens-Heebner:
I feel like once people have put this together and talked about all the hard issues, what a relief to then go into the marriage or moving in together because you've talked about the rough stuff.

Richard Sperling:
It's often a relief. Everybody that comes into my office says, "My partner and I are never going to break up. I know we're never going to split up. I know we're not part of this 50% of people that break up, but I guess I should do this premarital agreement." And people fall in love. They put the agreement together and they move on, and it's great to help them do it.

Marty Stevens-Heebner:
And you are happily married. Your wife, Elaine, is so wonderful.

Richard Sperling:
Thank you. I do feel happily married and I do feel lucky.

Marty Stevens-Heebner:
What made you move from real estate and business law toward family law?

Richard Sperling:
When people ask me what distinguishes you from other family law attorneys, one of the things I can point to is my experience as a business attorney or a real estate attorney. I was teaching business law and real estate at Cal State Northridge. One of the local law schools called me up and said, "Would you be interested in teaching at our law school?" And I said, "Sure. I can come teach business law. I can come teach real estate." And the dean said, "The class we're hoping you'll teach is community property and family law." For some reason I was intrigued and I said, "Okay, I'll give it a try." And I came to the law school and started teaching and I realized that this is an area dealing with people and human emotion, and that's really my calling more than issues regarding buying and selling property or entering into business contracts. So this is what I do.

Marty Stevens-Heebner:
What kinds of questions should people ask a family law attorney they're considering hiring?

Richard Sperling:
They should ask the attorney how long they've been in their practice and how often they've performed the task they're asking the attorney to perform. "Is this your first post-marital agreement? How often do you work with cohabitation agreements? What is this going to cost? Are you comfortable speaking with my estate planning attorney and coordinating with her?" And then one of the questions you asked me, Marty, is a great question for your family law attorney, which is, "What strategies can we use to keep our agreement simple and romantic so we don't become angry with each other? Tell us what your approach is."

Marty Stevens-Heebner:
Is the person you're talking to, the attorney you're interviewing, receptive to what your needs are? And do you get the sense that they're listening?

Richard Sperling:
Each client should have an attorney that they're comfortable with and make sure they're comfortable with their lawyer's style. So if you're a person that wants to have a frank and close relationship with your lawyer and you go to your lawyer's office and you only meet with the lawyer's assistant and you're not comfortable with that, it's okay to switch lawyers. We have a saying in negotiation, which is, "Let's not just talk about your position, let's talk about the reasons for your position." Getting underneath and finding out why are you taking the position you're taking can be so important. Often I'll get on the phone with the other attorney and say, "I know there's an issue about who gets the dog."

Marty Stevens-Heebner:
Yes.

Richard Sperling:
And they have a divorce. People will say, "He can have the house, he can have the Ferrari, but I get the dog if we split up. Over my dead body is my spouse going to get my dog." So it's important that we get on the phone with the other lawyer and explain the reasons for their positions. We need to help them enter into an agreement they're both comfortable with that they can move forward with. And same thing in a divorce context.

Marty Stevens-Heebner:
What do you wish people knew about what you do that they probably don't know?

Richard Sperling:
It's important that people realize that a process between people that care for each other that are warming a relationship or transitioning out of a relationship need not be a battle. It need not be embarrassing or difficult, that an attorney can help them move through the process in a way that's not as expensive as they may think it might be. A lot of people are afraid, "My fiance and I are going to end up angry with each other." We can put a premarital agreement together that's going to enable you to take a deep breath and enjoy your marriage and enjoy the rest of your life. I'd like people to know that some people do get divorced. As people look around and see how difficult some of these divorces are, how much money some people spend on them, and how damaging it is for some children. We can avoid that by putting an agreement together that if they do divorce, then it becomes a simple process because all these issues have been negotiated in advance.

Marty Stevens-Heebner:
Especially when you're older, you should have a sense of what really matters in life and what your priorities are. And I would say if you're planning on cohabitating or especially getting married and your fiance doesn't want to even discuss or talk about a premarital agreement or even a postmarital agreement, that's really telling, but you talked about getting underneath. In a way, you're part therapist, Richard, helping them talk through these difficult issues. There might be something that that person who's reticent didn't even realize was dictating, they're recalcitrant. And even in my work, people want to keep things because of deeper reasons than what they're actually saying. The deeper we can go, I think the better.

Richard Sperling:
You make such an important point. When we talk about people who are older that are getting married, moving in together, or getting divorced, there are such important considerations for that. Oftentimes when we get older, we're more fragile or we're more vulnerable. A divorce or a separation can be more difficult for people when they're older. Oftentimes, there's more at stake. Sometimes people are frail or less healthy and a difficult divorce can really impact their lives.

Marty Stevens-Heebner:
What's the toughest part of your job?

Richard Sperling:
Sometimes family law lawyers are using a case or a matter to make money or sometimes they're oblivious to how much conflict they're causing. Sometimes they don't see the needs of their own client. So my most difficult part of my job is dealing with a difficult or an unprofessional attorney on the other side. Thank goodness most attorneys are okay to work with.

Marty Stevens-Heebner:
Richard Sperling, family law attorney and brilliant mediator. Thank you so much for spending time with me today.

Richard Sperling:
Marty, it's been a pleasure. I've learned a lot from speaking with you.

Marty Stevens-Heebner:
I learned a lot too. And you can find Richard's information on our website, howtomoveyourmom.com. Thank you so much for listening to How to Move Your Mom (and Still be on Speaking Terms Afterward.) Please visit howtomoveyourmom.com for more information about this episode and for additional podcast episodes featuring other extraordinary guests and conversations. Until next time, this is your very grateful host, Marty Stevens-Heebner.