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Marital Issues When Medical Problems Arise

Legal Separation

Many questions arise about whether a couple can obtain a legal separation instead of a divorce, and what the differences may be in those two proceedings. Generally, separations are informal, that is, the couple simply decides to live on their own under some informal agreement with respect to property, alimony and/or child support and custody. These are often the most problematic from a legal standpoint, because there is usually no written agreement about any of the items such as support of the spouses, property ownership, child support or custody. Thus, when something goes wrong, it is often difficult to determine a proper resolution. However, many couples decide on this type of arrangement as it offers the best prospects for reconciliation.

Legal separation is becoming less frequent since many states have determined that formal separations are to be treated as if they were divorces in reality. Thus, the separation agreement or process is required, which involves court or legal filings, waiting periods and usually agreements addressing divisive issues. The result is that there is really no advantage to a formal Legal Separation, except in some complicated tax or related cases.

In each case, spouses are encouraged to make determinations with their attorneys as to which legal proceeding, if any, might be best for their situation. Remember, the lawyers are not marital counselors, and ought not be depended upon to offer such advice or counseling.

Our Hypothetical: What happens if after the accident the husband is paralyzed and the wife files for divorce, since supporting her husband for 30 or 40 more years was not in her plan? This sounds cruel, but court houses are full of these types of cases, some much worse than this. The paralysis of the husband will affect the divorce decree in a very large way, that is, the care of the husband will almost certainly be on the mind of the judge in this case. The fact that the wife did not work would also play a large role in this case. If the couple had very little to divide, the property settlement agreement might contain a variation of a simple division and the marriage is dissolved.

But what if the husband had a job that paid some $75,000 a year and a pension fund that had already accumulated $150,000? The arguments on both sides as to the pension fund would be as follows: The husband would argue for a larger share because of the necessity to care for his medical needs for the rest of his life. The wife would argue that her efforts allowed the husband to accumulate the retirement fund, and she ought to have a larger portion of this fund. Needless to say, this would be a difficult decision for any judge.

In deciding this issue, judges would likely examine factors such as the income of the parties from other sources, if any, the expenses incurred by each of the parties, especially those unrelated to the family or medical necessities, the age of the parties, the earning ability of the parties after the divorce and the age and number of children. Especially important in our hypothetical situation might be the future earning capacity of the parties. While the father would not be able to work, the mother would be deemed by the court to have some earning capacity.

As we have indicated, predicting results in these cases without the benefit of all the facts, witness testimony and evidence is almost impossible. This discussion is simply meant to highlight the major issues in each case.

Another Hypothetical: What if a wife with two children is divorced and remarries? Her new husband has two previous children from his first marriage. After three years of settling in and growing as a family, one of the wife's new step-children contracts leukemia. This blood disease becomes a degenerative condition. While the medical insurance of the husband covers 70% of the costs, the other 30% must be paid by the family. The $35,000 co-pay portion of the medical insurance is putting a severe limit on the resources available for the other three children and the mother and father.

Are the step-mother's assets from the first marriage required to be used to help pay these bills for her step-child, even if this leaves less money for the care of her two biological children?

Also, can the wife's first husband require that money be used for the care of his children and not the care of his ex-wife's new step-child?

Marital Issues When Medical Problems Arise
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