Question: My wife and I have been in the process of getting divorced for the past year, but the negotiations, like our marriage, have broken down over her obsession with her mother’s illness. Divorced ten years ago, her mother has suffered from Alzheimer’s Disease for six years and has been a nursing home resident for the past four. Since the disease came on after her mother’s divorce, my wife (now 55) fears she will be victimized by this disease and will find herself in the same position. In fact, her mother’s illness has been the major cause of our marital problems. My wife has been to psychiatrists and has battled depression for the past several years, and life for me has been unbearable. When I ran out of options to get her help, I even enlisted our grown children to intervene without success. So I left after more than two years seeing my wife changed into another person.

While I have been fortunate that my employer provides good health insurance which has covered most of the cost of her treatments, her lawyer wants me to agree to be responsible for all of her health care expenses and, if necessary, nursing home expenses should she need them. My company will allow her to continue coverage on the health plan for 36 months after divorce, and after that, the premium will skyrocket. Because of her treatment for emotional disorders, she has been turned down for individual health coverage, and it is unlikely that she will qualify for long-term care coverage.

I am 58 years of age, earn $85,000 per year, and we have no debt. My 401k plan contains nearly $400,000, and we have some savings. I will be retiring at age 62, and don’t feel that I can give away half of the assets and sign an open-ended agreement to provide for her future care as her lawyer suggests. I don’t believe that my wife will be able to handle her affairs without help. My lawyer tells me that the only other option is litigation which will be very expensive and will take at least another year. I have suggested that she apply for Social Security Disability so she can begin to receive Medicare in a couple of years. Do you have any suggestions for a weary prisoner of the divorce wars who wants to get a final resolution of a very difficult situation?

Answer: First of all, we do not believe that your wife will qualify for Social Security Disability. Since she has not worked outside the home, she has built up no work credits. Therefore, even though she might meet the Social Security definition of “disabled” (a physical or mental impairment so severe that she cannot work at her regular job, or at any other job for which she might qualify with minimal training which has kept her from working for at least 12 months), she will not meet the definition of “insured” based on Social Security work requirements.

Second, if your wife is not able to handle her affairs, a guardian ad litem (that is, a representative for the purpose of litigation) must be appointed for her. Otherwise, the proceedings affecting her may be declared to be a nullity.

Third, while we agree with you that entering into an open-ended agreement is very dangerous, we don’t know if litigation is the answer to your dilemma as it will simply postpone the need to revisit these difficult issues if and when your wife’s insurance becomes unaffordable after the divorce or she enters a facility, which is probably a good bet.

If you don’t get divorced, your wife may be able to continue coverage under your employer’s health plan, but a word of caution: Make sure your employer plan allows three years coverage for spouses from the “date of divorce” and not the date of separation. We have seen some companies begin counting the three years from the date of separation.

On the other hand, if you don’t get divorced and your wife incurs obligations for “necessaries,” you may be on the hook. Likewise, if she enters a nursing home and you are still her husband, after her assets are spent down for her care, you may find yourself on the hook for her care to the extent required in your state. And if you don’t get divorced now, depending on where you live, should your wife not have the mental capacity, you may not be able to get divorced ever.

Based on her condition and your situation, we suggest that you and your lawyer have a consultation with an elder law attorney who may be able to help structure an arrangement that will fit your needs and make sure your wife is cared for. It appears to us that some third person – possibly one of your children – could act as trustee for her. There are ways to utilize disability trusts that might be beneficial to all concerned. In our view, the courts are generally not in tune with these types of problems. You have a difficult situation that requires planning, not litigation.