Question: Six years ago, my husband and I divorced after 48 years of marriage, and both of us remarried in short order. Unfortunately, his second wife fell on their honeymoon, was hospitalized, had a stroke, and, after spending the better part of three years in a nursing home, died. Because she had few assets and little income, my former husband wound up footing most of her nursing home bills that, with stock market losses, obliterated his share of our assets.

My second husband, who was as healthy as a horse and five years my junior, was diagnosed with Alzheimer’s disease two years ago. The illness has taken its toll rather quickly, and he is now in a nursing home because I am no longer able to care for him at home. I am estranged from my two children, who are still peeved because I divorced their father. I was pretty much at my wit’s end until my former husband and I began talking. We now talk to each other daily, see each other for dinner, and get along better than we did when we were married. In all likelihood, my second husband’s illness will devastate me financially because he refused to do any planning, and my share of the divorce settlement is in jeopardy.

My former husband and I, both in our late 70’s, have learned that we left too many questions about our relationship unanswered when we divorced and were ignorant about the pitfalls of remarriage. We now realize that our lawyers were quite oblivious to the problems that would be facing us in our waning years and did not counsel us about our long-range needs. Don’t get me wrong! I am not blaming anyone, but just stating facts. Even though my ex and I both know there is no solution to the dilemma in which we now find ourselves, I hope you will print this letter to let your readers know the grass is not always greener.

Answer: With the aging population growing by leaps and bounds, consideration of the financial risks attendant to remarriage in later years is essential, but often lacking. We believe that matrimonial lawyers who represent elderly clients, not to mention clients with elderly parents or disabled children, must take a proactive role in helping to plan for post-divorce issues -- skills that many lawyers do not have. As you have learned, it’s not just at the time of divorce that these important questions raise their ugly heads. It is also at the time of remarriage and, in some instances, co-habitation.

Here are just some of the areas where expertise and planning are needed before divorce, remarriage, or cohabitation (which is becoming more popular among seniors given the potential financial burden of a chronic long-term illness) after divorce: 1) Protection of Social Security, pension, health care, and related benefits after divorce; 2) Use of long-term care insurance as a part of the divorce package, and premarital agreements in order to try to absorb a large part of the potential cost of nursing home care; (3) Temporary and post-divorce estate planning that includes new wills, powers of attorney, health care documents; 4) Resolution of life insurance beneficiary designations and policy ownership, benefit plans, and how to handle assets that may be held in joint ownership, co-tenancy, or some other shared-ownership arrangement; 5) Remarriage, co-habitation, and long-term care issues - including the effects and risks of co-habitation agreements, prenuptial agreements, and postnuptial agreements the latter two don’t offer an ounce of protection against responsibility for long-term care expenses); 6) When to consider co-habitation as opposed to marriage or remarriage; 6) Funding alternatives for long-term care, asset preservation planning, and Medicaid eligibility - important issues for seniors even thinking about remarriage, for those with disabled children, and for those who now receive public benefits or may one day need Medicaid; 7) Planning for incapacity and disability through powers of attorney and health care documents; 8) Guardianship and conservatorship options and risks; 9) Grandparent visitation rights - an increasingly important issue as our mobile society divorces; and 10) Planning for disabled spouses and children through special needs trusts and other documents.

Clearly, there are many more issues, but these underscore the need for matrimonial lawyers to pay attention to and understand the long-term problems of their clients, and to advise them appropriately. It is also very important for those seniors who decide to divorce to educate themselves – before the fact -- about the basics and then insist that their lawyers factor these important issues into the equation to make sure those seniors receive proper advice.