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Younger-Onset AD or Other Dementia
Divorce and Dementia
While those are legal precident in those states, an attorney would have to argue it in those states. When millions of dollars are on the line, like in this case, it makes sense to argue it. However, when divorce comes up, it is usually mutual...so if the other person also wants a divorce, he is unlikely to ask his attorney to argue to stop it.
The presiding line is capable of understanding proceedings and use reasonable judgment, so one may have to make the argument that although they have dementia, they are still capable of understanding the proceedings are using reasonable judgment.
Sadly, in family law, you really do get what you pay for...and most attorneys that are not the most expensive ones, are unlikely to be aware of many loop holes.
Thank you very much llee for posting this important topic. In my state as in many states, this is a very difficult situation. It is not easy for a person well into dementia to file for divorce where we live. NOTE: It is also extremely important to know that it is an old wives tale that "possession is 99% of the law;" that is just not accurate.
In some states, a Guardianship or Conservatorship can be established and that person can move forward in a divorce action on behalf of the person with dementia to represent the person with dementia's interests, BUT that being said, it still in many states is not accepted even with such representation.
This is not a simple matter.
Having one's own attorney to advise is extremely important. BUT in many cases, the attorney has no right of representation to act for the person with dementia. Here is a bit of writing I had from a legal group that I unfortunately no longer have the citation or name for, but it is not my writing; it comes from attorneys:
" . . . Many complications arise for the lawyers involved in these cases including knowing when to appoint a guardian ad litem or to seek a conservatorship for the incapacitated spouse; without such legal protection, the attorney may not have the authority to act on behalf of the incapacitated spouse. Also, there is a significant concern with regard to the fiduciary duties in a marriage. The spouse who is not incapacitated (i.e., the well spouse), and his or her attorney, must be hyper-vigilant to protect the well spouse from claims that he or she breached a fiduciary duty owed to the incapacitated spouse. An important way to protect against such claims is for the well spouse to seek a guardian ad litem or conservator – someone other than the spouse – to represent the incapacitated spouse in the divorce . . . " Anon.
When using Google to research this topic, one must be very cautious to find current law, because some of the information is very out of date and is no longer accurate.
I have dealt with this with my mother in regard to her wanting to divorce my step-dad and the entire process is filled with complexities. It's a two beer story and I don't even drink beer; I won't go into any detail here, but filing for divorce when significant dementia is present is not a walk in the park. It is also a VERY expensive legal process. By the way; the assets are usually divided equally and this also includes the house if both own the house or if considered marital property. The person with dementia does not automatically acquire the house in such situations.
Thank you very much again, llee,
Each state has its own way of dividing assets, California is community property 50/50 (but not always the case if someone has a good lawyer); and places like Michigan are equitable property. Most states should have joint divorce...where the couple fill out the paperwork together, file it together, and as long as one party is not unduly benefiting, the court will grant it. Then the dementia never comes into question.
I think stage 5'rs can make a good argument that they are still able to understand proceedings and be reasonable.
If you have a conservator or guardian, you probably cannot make the same argument.
Anyone can file, just submit the proper paperwork. The other party would have to raise the argument that they cannot. Courts are not about what is right and wrong (sadly), they are about what is in the rules. And, if you don't ask for something, you won't get it. So if the other spouse does not raise the objection, then the court won't consider it.
Unless there is an actual law on the books. Because courts must stay within the laws.
It could be hard to get an attorney because of the ethics, but many courts are understanding and explain things if a person represents themselves in a divorce.
No spouse should be forced to stay in an abusive marriage just because they have dementia.
Having family in California, Michigan, Texas, Oregon, Louisiana, Illinois, Minnesota, Hawaii, and Colorado, it is not an easy one-answer process. Even when couples agree and there is a "no fault," setting and all seems equitable, it is still possible and with some courts, even probable, more protection for the person with dementia is often required even if the dementia is in an earlier stage. This does not happen with everyone, but it certainly does happen. I got an earful about this from so many people when my mother, a PWD, decided she wanted to divorce my step-dad.
This is a situation where one cannot assume because something happened with one person, that it will be the same for someone else. Having the advice of one's own attorney very early on is very important. No one expects someone to stay in an abusive marriage; but the courts are very picky about protecting a person's rights if there is dementia. A court can choose to err on the side of caution for protection and law does not prohibit this. This abundance of caution can arise even if the person with dementia is very high functioning and seems to understand. The court very often wants to be sure. It doesn't mean there is no divorce, it does not mean a conservator needs to be assigned, it just means looking a bit more closely at division of assets.
So, let's leave it to the courts and the attorneys as we are neither; this is simply one more situation in which one size does not fit all.
A agree with that...however, everything offered seems like the person being protected is the spouse without dementia, and the attorneys from taking it on. That is a bit lopsided in my opinion.
I haven't seen anything offered to protect the person with dementia.
So far everything seems to be pointing to not letting PWD divorce or even speak to their spouse taking advantage of them. That is scary, really, really scary.
By the by, Minnesota has joint divorces...and the issue of dementia or illness need not even come into it.
I am sorry Llee08032, I feel that you are upset with me for some reason...but I don't read between the lines well.
You posted the article in a section and time when one of the members has been actively talking about this in many posts...you have responded to her posts, so I assume you are aware of the situation. Maybe you can separate these two things, but not all of us can or do...I, for one, did not...to me they are connected, and I really did not want her to get the wrong impression from this article...does that make me bad?
Were you meaning "anyone that was interested"...or "anyone, but me"? I ask because you have said that twice now. Because I was interested...and I responded...was that not ok? And I responded with the knowing that someone on here IS dealing with this very issue right now. And I wanted to LESSEN the negative impact this article may have had on her...was that a bad thing?
I am also interested because it is generally harmful to ALL pwd...and I wanted to LESSEN the negative impact by providing other legal possible solutions...is that a bad thing? And I did work in the legal field, for what it is worth...which provided a third area of interest in this...is it not ok for me to be interested in the legal issues, or provide insight into them??
Am I doing something wrong, if I do not just accept the way the world is heading towards negative treatment of PWD and I say something about that?
I am admittedly without the memos on the progressions of internet culture in forums the unwritten rules, so invariably I will fail to meet them...I write what I speak...and I speak to write. I am clearly not a perfect speaker.
Anyways, if you meant this towards me...you can always discuss in private as well, you have my phone number and email.
No one said it was bad of you to post the article, it was very eye opening...but can you at least see how people may have felt about the issue it brought up (even if I am the only one saying it)?
Hey! Are we dividing up my household trash yea!!!!!! Bring the boxes!
I take no offense to people talking about divorce in general with regard to PWD.
Let's say for sure, I want my husband to be some one else and stay. But since he can not, and I can not endure him all tensed up, and there is no big prize but the house I own outright from before marriage and the Dog, it looks like a better deal if we divorced. He is much nicer unmarried!
What I want to bring to this discussion is that, when we are diagnosed, and told to get our affairs in order, I think BEFORE the wills are drawn up if we are in a marriage or partnership we should have a discussion with 3rd party support on what we expect of each other, what are the odds we can deliver on those expectations, and what would be helpful to note should it become a living hell for one or both. A post nuptial dementia accord. People need to have some frank discussions BEFORE wills are drawn up.
And give it some time to percolate. If the spouse or partner has no experience with dementia, let them visit some PWD, read a couple CGvr posts, you know have a sampling of different ways to handle the responsibilities.
We had every intention of being the Jimmy and Rosalyn Carter of dementia marriages, gung ho Orthodox style. But I was shocked to find my husband was really not at all equipped to adjust to my changes and has no imagination for making this fun.
Since I have no other family support and all my friends are dead, it is really an odd place to be. I am seeing a lawyer next week and will share what I learn there.
If I can sell my house to pay for some of my care I might give myself that terminal illness celebration of life vacation I wanted. If husband decides to fight to inherit the house - that will be very icky. But he seems to be feeling better knowing he will not have to pretend to be in this as sole CGvr, and who knows what will happen. Orthodoxy calls for "what is most merciful for all concerned" but frowns on divorce. darn it.
maybe I should file just to see how courts work. Then again, small town, private conference with judge, attorney who handles all cases for women being taken advantage of, and it may be pretty easy and cheap.
Basically I want the house to be used for my welfare, or to go to my daughter for her to sell after my death.
I do NOT want to be stuck with his credit card or medical bills while we are not even friendly and suffer over that. Otherwise we would just separate and not divorce.
I remember a certain woman I know whose husband had dementia and became very amorous every afternoon and then would roll her out of the bed and yell at her to go! get out before his wife comes home! Stuff like that makes it hard to sling his hash in the morning but if it was still good sex she might not want a divorce, and he had money so...
Divorce is nothing to be ashamed of. It can be incredibly helpful. Are we allowed? Maybe only if there is physical violence + police + somebody willing to care for PWD.
Now enough about me for awhile.
**********************God I love you Iris.
I make lots of plans but the carrying them out part is more and more iffy to not going to happen.
Ever notice how close "as sole caregiver" is to "asshole caregiver"?
my husband gave me the link about using Improv techniques that I added to topics today, segment from NPR's This American Life.
love to all of you!
We love you too alz+ ; I read your line about, "as sole caregivers," and the commentary and started to laugh so loud and heartily it came out in guffaws . . . it is 6:30 in the morning here, I am sure I have just startled my husband awake; what better way to wake up than to the sound of deep laughter? That was a good one.
Have you told that one to the husband yet?
Thank you for that; heck, I'm still chuckling . . . . you are da bomb!
I didn't take your words as an attack...
I took you as being upset with me, as it seems you are.
The article says that PWD CANNOT divorce...I simply offered that yes they can. When you got upset about that, I mentioned that I added that because I did not want anyone here getting the wrong message. There was nothing for A;z+ to defend.
We are all part of the same family here. To the extent that has been shared, we know each others stories. To pretend that we don't, because it is a new thread, is odd to me...and I am not capable of turning on and shutting off information like that.
I asked, was it a bad thing what I did? You don't answer...but you keep acting like it was. This has me very confused.
Now everyone is in support of Alz+ and her right to divorce (which was my point all along)...so I will conclude, despite how you are acting (like I did a bad thing), that what I did was indeed a good thing.
I didn't feel any attack, just confusion and asked for clarification...you don't seem to want or care to, so...
No worries Alz+...but now I am even more confused. I never felt any attack. Those were Llee's words. "Confused" was what I felt. No one wanted to answer my questions to clarify or help me make sense of it, and that is fine...chalk up to more stuff lost along the way. Not a big deal. Life moves on, too much other stuff on my plate to stop and sort out stuff no one wants to explain anyways.
I still write just as freely on the forum...just more in the other sections than this one. I am really enjoying a lot of the discussions with CG's and Spouses...there are some very interesting threads and I am learning a lot. I post my reflections and on what life is like with dementia in the Alz section.
PLEASE, yes lets move forward. There has been radical confusion and misunderstanding in this thread.
EVERYONE NEEDS TO STOP TAKING THINGS OUT OF CONTEXT HERE, AND PLEASE...GO BACK AND LOOK AT THE WHOLE PICTURE...if for no other reason than to restore some sanity here.
Unforgiven, yes...if you read back in the thread, I had mentioned that. All my posts had been concerning ways that divorce could still be had...I used to work in the legal field so have some insight in the matter.
LLee, to this day I have no idea *what* you disagreed about (but appeared to be that you were disagreeing that people with dementia could still divorce since that is what my posts were about)...you actually quoted me where I said that 'dementia need not even come into it'...adding to my confusion as to *what* you are disagreeing with. I don't care if you and I disagree...that is the beauty of forums...so many differing ideas, right? However, you keep phrasing me as feeling attacked...I never felt attacked. Then Alz+ picked that up...so I again, state that I do not feel attacked.
I still feel like I have upset you...and do wish we could resolve that (without more confusion).
That said, beyond all that has been said here...I still can see that eventually, though all this confusion/despite all the confusion, that everyone is in agreement (not disagreement) that PWD can divorce...which had been what I was saying all along...so I will conclude (beyond your words)...that we ACTUALLY all agree. And that my bringing up that we can still divorce was a good thing. I have not read any deeper or further into it than that...nor am I going to.
Welcome to the world of dementia.
I am, however, still concerned that I have somehow upset you...and as much as I wish we could resolve that, I do not wish for any more confusion...so I let it go. Hope you will too...and move on.
You can always just delete the thread too, by the way.
My DW is 76 and for the last 18 months has had severe depression. I won't go into all the details of her treatment, but she doesn't want to try to get well, and has cut herself off from all social relationships, travel, hobbies, preparing meals, driving, and taking her meds. She won't tell me or her psychiatrist why she won't take her meds. I am 65, and would still like to enjoy the rest of my life as much as possible. I don't know that I want a divorce, because I think DW's presence helps keep me from being lonely, but I could have friends come over, go out more, travel, and not feel resentful if there was another option. DW is coherent, and probably suffers from normal age-related memory loss or possibly MCI. Do you all think I should have someone like Home Instead or Visiting Angels come in and spend time with her, or should I consider assisted living? She won't offer an opinion, even though I told her that she needed a plan in case I should expire.
Welcome rhf. If you post on the Spouse/Partner board, more members will see you and respond to you. You have landed on a thread from 2015.
rfh, your Profile certainly tells more of the background that is important.
NOTE: Iris is correct, you are lost on a very, very old Thread from the year, 2015.
It would be best for you to go to the Spousal/Partner Forum and Post your Thread and questions there, you will get much more input and support from so many other Members.
Just go to the Spousal/Partner Forum and Post the title of your Thread in the narrow box at the top that says, "Add Topic," then go to the next box under that which is just like this one and enter your Thread/Post; then wait for the responses to come. Have patience and check over a few days. You will get quick responses, but will also get more, later responses from Members who are not on the site every single day.
Hope to see you there,