If your spouse has been diagnosed with Alzheimer's, then you surely understand the challenges that are a part of being in a marriage with a person whose mental faculties are not what they used to be. While you may be doing everything possible to care for your spouse or two make sure that he or she is as well as possible it is also not difficult for you to find yourself in a position where You are contemplating a divorce. This is probably a decision that you had to arrive that after a great deal of thought and consideration.
However, today's blog post from the Law Office of Bryan Fagan he's not going to get into the consideration or morality associated with divorcing your spouse who has Alzheimer's. Rather, we are going to discuss the planning, logistics, and execution of a plan regarding your circumstances in a divorce stage. When it comes to A divorce, you need to be able to think about the case in terms of the goals you have, the assets you own, and the strategy for building a well-constructed post-divorce life.
I think that most people who were married to a person with Alzheimer's or any other cognitive issue feel like they owe it to their spouse to stay in the marriage no matter what else is going on. This feeling of loyalty should be praised on many levels. Devoting your life to caring for a person who is suffering from a significant medical condition like Alzheimer's speaks to the sacrificial love that you have for your spouse. There is a lot that you are giving up remaining married to a person that has problems remembering information or even who you are on a day-to-day basis.
On the other hand, being married to someone who has Alzheimer's can also be like not being in a marriage at all. Think about how crucial it is for there to be given and take in a marriage as far as speaking to him or her, planning with him or her, or even being able to have a basic conversation. As the Alzheimer's disease worsens and progresses to the point where your spouse is unable to engage in these types of simple behaviors it would also be normal to feel like you are stranded on an island with no one to turn to for assistance or help. When it comes to that kind of situation, only you could determine whether or not the marriage can withstand the limitations of the relationship.
This can be especially true if your spouse has become hostile or even aggressive in their conversations with you. It can be bad enough to find yourself in a situation where your spouse no longer recognizes you and cannot hold the conversation any longer period however if your spouse has progressed in their Alzheimer's condition to the point where he or she cannot even speak to you without being belligerent or aggressive then a divorce may be something that you consider for your mental well-being. Of course, this will mean different things to different people. However, only you can know when it is time for you to move forward with the divorce or to again try and maintain your marriage.
Additionally, in some circumstances, your spouse may have also moved out of your marital home to live in an assisted living facility or nursing home. The amount of time that you spend by yourself can be extremely difficult especially if you find yourself worrying about your health and safety. The amount of time that you spend away from your spouse could be spent with you worrying about the future of your own life and what continuing to be married to your spouse looks like. If this is where you are in your thought process then today's blog post is right up your alley.
Texas is a no-fault divorce state
Again, there is certainly a time and a place for debating or discussing the morality associated with divorcing your spouse while he or she battles Alzheimer's. It cannot be easy to have to consider the possibility of ending a marriage to your spouse, especially regarding a condition that he or she cannot help and may at this stage be able to do even less to prevent the progression. Every one of us is different and what we can tolerate in terms of our spouse’s limitations will be different. In that way, I do not Promote divorcing your spouse by any means. That is a decision for you to come to on your own. However, given that you are reading A blog post on a family law attorney's website I can only assume that you are strongly considering a divorce from your spouse.
With that said, let's cover the basics of divorcing your spouse in Texas and what the component of their having Alzheimer's may do to the equation. Texas is a no-fault divorce state. This means that you can file for divorce from your spouse for any reason under the sun or no reason at all. For instance, you can assert that you are divorcing your spouse due to irreconcilable differences, or a conflict of personalities, and a judge can grant your divorce so long as you meet the filing requirements and follow the other rules of getting a divorce.
Where your spouse’s Alzheimer's condition may complicate the picture is that a family court judge may require additional time to make sure that your spouse understands what is happening with the case and is being guided in assisted adequately in the divorce. If he or she is determined to be incapable of making their own decisions and thinking for themselves then a guardian ad litem or another conservator of the court would likely need to be appointed so that the best interests of your spouse can be looked after. At the end of the day, this can take time and certainly lengthen your case.
By the same token, your spouse who has Alzheimer's can also file for divorce from you. The most important aspect of their doing so must be that they can show a Texas family court judge that he or she has the mental capacity to understand what they are asking for. Rather than proceeding immediately into the divorce once the filing party serves notice upon the responding party, the court would likely need to hold a hearing to determine the mental competency of the person who has Alzheimer's. Or, if it is not abundantly clear that the person has Alzheimer's from the beginning of the case, this type of hearing would almost certainly need to be held before the end of a divorce. It may make more sense for the hearing to be held at the beginning of a case so that proceedings did not occur that need to be overturned later because of family court judge determines your spouse to be mentally incapable of advocating for themselves or otherwise entering into agreements regarding the division of your marital estate.
A question that I have seen asked regarding situations where your spouse may have Alzheimer's is what happens if your spouse is capable of proceeding with the divorce on their own at the beginning of the case but then throughout the case becomes mentally incapacitated due to the Alzheimer's condition. This may be an especially important topic for you and your spouse to consider if your spouse's Alzheimer's condition is causing him or her to deteriorate rapidly. In that type of situation, a guardian ad litem may need to be appointed to the case to represent your spouse’s best interests.
The family court judge will be put in a position where he or she would need to decide about granting the divorce based on the best interests of your spouse as well as what he or she would have wanted in terms of an outcome for the case. All of this can be difficult to determine and is asking a lot of a family court judge in terms of deciding on best interests and their likely wishes had they not been declared to be mentally incapable of proceeding with the case.
Division of the community estate
another important topic associated with divorce and Alzheimer's is regarding dividing the community estate shared by you and your spouse. Texas is a community property state which means that all property owned by the union spouse at the time of your divorce is presumed to be owned by both of you equally. It doesn't matter whose income was utilized to purchase the property or whose name appears on the title to the property. So long as the property was acquired during your marriage in all likelihood it will be subject to division in the divorce as Community property.
This can be an incredibly important distinction for those of you who may have Alzheimer's or may be married to a person with Alzheimer's. if you or your spouse had been unable to enter the workforce due to your condition then a major concern of yours may be landing on your feet from a financial perspective after the divorce. In Texas, getting a divorce means understanding what type of property is subject to division and then creating a plan for yourself to negotiate an equitable divide. From creating an inventory of your property to devising a plan on how to have that property divided it is not enough to simply wander into a divorce case. Rather, you should consider what it means to get a divorce and how to maximize the experience for both you and your spouse.
Every spouse who goes through a divorce wants to make sure that they can land on their feet from a financial perspective once the case comes to a close. This is understandably an even bigger concern for people with Alzheimer's who go through a divorce. If you or your spouse are not able to Work independently to provide for yourself after divorce, then the division of your community estate becomes even more important.
Even more importantly, you may find yourself in a position where you need to either pay or request spousal maintenance in a divorce. Spell some maintenance can only be ordered by a family court judge after a trial. This family court judge would consider the ability of you or your spouse to pay spousal maintenance, your or your spouse’s inability to meet your minimal basic needs as a result of the divorce as well as the length of your marriage, and any other conditions that are relevant to this discussion. Based on all these factors the judge could then determine whether an award of special maintenance is appropriate.
On the other hand, You and your spouse may also be able to negotiate for contractual alimony before a divorce trial period contractual alimony is a form of post-divorce spousal support. The difference between spousal maintenance and contractual alimony is that contractual alimony is agreed to between you and your spouse in negotiations and cannot be ordered by a judge. The other main consideration when it comes to contractual alimony is that any enforcement or modification of the award would be done under contract law rather than the family code. This puts a judge in the position of only being able to enforce the terms of the order up until the point where he or she could have done so under a spousal maintenance order.
In most cases, a family court judge would prefer to award a disproportionate share of the community estate to a person who has Alzheimer's rather than two awards him or her spousal maintenance. However, you may find yourself in a position where it is unavoidable that spell some maintenance would need to be awarded due to you were the spouse or your inability to work outside the home. In this type of situation, you are specific circumstances would be looked at in terms of whether you've had a history of being able to work outside the house and generally be able to provide for yourself. If you can meet your basic living expenses without receiving spousal maintenance, then a family court judge would not award you that type of benefit.
One factor to consider when it comes to dividing up the community estate is that if your spouse has Alzheimer's then he or she may not be able to care for a significant amount of property. In that case, the property may need to be held in trust on his or her behalf or may need to be sold to pay medical bills or living expenses moving forward. Your spouse may also need to be in a position where he or she has been cared for by a guardian or other conservator after the divorce given that you would no longer be in a position where you can care for him or her as you had been able to previously.
Moving forward with a divorce whether you are the spouse with or without Alzheimer's
No matter if you have Alzheimer's or not you need to go into your divorce case with A plan and a willingness to execute that plan. If you do not have Alzheimer’s, then you need to be aware that it is very likely that your community estate will be divided in a way that is not necessarily equitable. This means that you should not expect to receive a 50/50 split of your marital estate. the reason for this is, as we have discussed, due to your spouse needs the incoming assets from your community estate more than you do. You may also have an obligation to pay special maintenance or contractual alimony that is a part of your divorce.
If you do have all simars then you will first need to determine whether you will be declared competent to represent yourself and your interest during a divorce even with the assistance of an attorney. If not, you may need to file for divorce and then submit a request to the court for a hearing before the judge to determine your competency to move forward with or without a conservator or guardian ad litem.
Whatever the case may be and whatever your situation is You should be prepared with the advice of an experienced family law attorney before you choose to move forward one way or another. Please consider speaking to one of the experienced family law attorneys with the Law Office of Bryan Fagan before planning on how to move forward with your divorce. The consultation is free in the information you gain from a meeting can have a significant impact on your life and that of your family.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as how your family circumstances may be impacted by the filing of a divorce or child custody case.
