Imagine your father remarries after the death of your mother.  Your father is now 85 years old has been married for 5 years, to his new wife, who is 75 years old.  Your father suffers from dementia which is rapidly progressing.  His wife is healthy yet cannot (or does not want to) care for your father as his illness progresses.  Whether for financial reasons or otherwise, your father’s wife wants a divorce.

Now, consider these same facts, but the wife does not want a divorce because she is prepared to move your father to a less than desirable elder care facility while she enjoys the use and benefit of your father’s assets.  Your father is too incapacitated to understand what is transpiring, but you and your siblings want your father to divorce his wife to stop her from living off of your father’s wealth earned before he married her, so his assets are available for his own medical and living expenses. What are your options?

Late in life divorce is complicated.   For most people, the complications of these divorces surround the financial aspects of the divorce, but for a growing number, the complexities include assessing a person’s mental capacity to participate in the divorce.  Evaluating a person’s mental capacity to participate in the divorce process is the first determination to be made in these late in life divorces, about which I recently wrote.  Once it is known that a party lacks mental capacity, several choices exist, though none are necessarily easy, and some may not really be options, leaving the father in the above-described scenario, and/or his children, in a lose-lose situation.

1. Capacitated Spouse (Wife) Wants Divorce.  In the above scenario, if the wife wants the divorce (for whatever reason), the father’s lack of mental capacity will not prevent the divorce.  It is only the party who seeks the divorce (the Petitioner) who must have mental capacity to ask for the divorce.   California is a “no fault” state, so it only takes one party to ask for the divorce; the objection or consent of the responding party is unnecessary and irrelevant.  Although the father does not need capacity to consent or object to the divorce, he is not capable of making decisions in the legal action.  Therefore, a Guardian Ad Litem will need to be appointed by the court to “stand in his shoes” and act on the father’s behalf.  The divorce will proceed.
2. Capacitated Spouse (Wife) Does Not Want Divorce.  In the above scenario, it is the father’s adult child(ren) who want the divorce to preserve their father’s assets.  In this situation, a Guardian Ad Litem is not allowed to affirmatively seek the divorce for the father; a divorce is a highly personal matter and only the spouse him/herself can ask for the divorce.  Therefore, in this situation, an adult child cannot commence the divorce for his/her father, but there may be an alternative:  legal separation.   Because a legal separation will not terminate the marital status, the law appears to allow a Guardian Ad Litem to commence the legal separation.  A legal separation would allow an adult child to commence a legal action which would result in the division of assets and liabilities thereby preserving the father’s separate property assets and one-half of any community assets which may exist.  While this sounds like a potentially perfect solution, if the father has a greater source of income and assets as compared to the wife, the father risks paying spousal support to his wife.  While this may be more tolerable than leaving the wife to spend the father’s money as she sees fit, the risk of the father paying spousal support is simply something to be aware of in such a case.

In these very late in life divorces, especially where there are mental incapacity issues requiring medical care, the cost of which is offset by state benefits, it is wise for the family law attorney to work in conjunction with an elder law attorney.  An elder law attorney is important to the analysis of a divorce in these types of situations because state medical benefits can be impacted by a divorce (or the lack thereof), but also because of the state’s right to reimbursement for certain benefits it provides.   What happens to community and separate property assets in a divorce (or if a divorce does not occur) must be known and considered to determine if those assets are at risk of reimbursement to the state.

Late in life divorce is complicated and draws on several disciplines of the law.  The best decisions are made when family law lawyers collaborate to look at the situation from as many angles as possible to provide the best results possible for the client.