Q: Three years ago, my wife and I divorced after nearly 50 years of marriage. We both remarried. Her second husband got sick and spent better than two years in a nursing home before he died. Because he had few assets, my ex-wife ended up footing most of his bills. My second wife has been diagnosed with dementia. My children are upset with me because I divorced their mother, and they don't speak to me. My ex-wife and I are now talking regularly and, believe it or not, are getting along. Due to our ages, we both found out quite after the fact that that we had significantly more questions to answer than were answered. We also learned again after the fact that our divorce lawyers were oblivious to the problems facing us and insensitive to our long-range needs. I know that there is nothing that you can do for me, but I would appreciate you printing this letter. My ex and I have both learned that the grass is not always greener.
A: With the aging population growing by leaps and bounds, we believe that matrimonial lawyers must begin to understand that planning for post-divorce issues concerning the elderly and those with elderly parents or disabled children requires skills that the vast majority do not have.
Here are just some of the areas where expertise and planning are needed before the divorce or remarriage:
(1) Protection of Social Security, pension, health and related benefits post-divorce;
(2) Negotiating for long-term care insurance as a part of the dissolution proceedings and premarital agreements;
(3) Temporary and post-divorce estate planning including new wills, powers of attorney, health care documents, resolving life insurance issues such as beneficiary designations and ownership, benefit plans, and assets that may be held in joint ownership, co-tenancy or some other shared-ownership arrangement;
(4) Marriage, remarriage, co-habitation, and long-term care issues including the effects and risks of co-habitation agreements, prenuptial agreements, and post nuptial agreements;
(5) When to consider co-habitation as opposed to marriage or remarriage;
(6) Social Security and Medicare benefits;
(7) Long-term care alternatives, funding alternatives, nursing homes and individual rights, asset preservation planning and Medicaid eligibility an important issue for those with disabled children and those who now receive public benefits or may one day need Medicaid;
(8) Planning for incapacity and disability through powers of attorney and health care documents;
(9) The guardianship and conservatorship options;
(10) Grandparent visitation rights an increasingly important issue as our mobile society divorces; and
(11) Planning for disabled spouses and children through special needs trusts and other documents.
Clearly, there are many more issues, but these underscore the need for matrimonial lawyers to pay attention, to understand the long-term problems of their clients, and to advise and counsel their clients appropriately.
It is also very important for those seniors who decide to divorce to educate themselves before the fact about the basics and then insist that their lawyers factor these important issues into the equation. Now, more than ever, matrimonial lawyers are associating elder law attorneys and other experts to assist in the planning process before the divorce is over. Those who do not are not properly advising their clients.