Ending Alimony for Terminally Ill Patients Part 2 – The Assisted Spouse – Divorce

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In October 2013 I blogged about the loss of a dear friend and client, Bill*, after his long battle with brain cancer and unfortunately also after a long battle with his ex-wife over his continued child support obligations to her.

Over the past few months, I’ve received many emails from people who read the blog and were touched by Bill’s story. They, or someone they loved, were also struggling with health issues and yet continued to pay alimony that they simply could not afford given their involuntarily reduced income. They empathized with both Bill and his lovely wife, with whom I am still in contact to this day.

However, a few days ago I received an email from someone who had read the blog; but this time it was written from the perspective of the supported spouse. I have received permission to publish the email anonymously here:

Mrs Bear,

I came across your blog while researching this topic for my sister. She’s on the other side of her boyfriend “Bill,” and that sure is a moral dilemma. In the case of my sister, she was awarded life alimony by the Delaware court three years ago after 25 years of marriage to her ex-husband. She is unemployed due to various mental and physical issues, but we hope she will find some kind of part-time job soon. Her three sons are all over 18, so child support is not an issue. Last September, her 52-year-old ex was diagnosed with stage 4 glioblastoma brain cancer. He continued to pay child support to my sister as he was temporarily disabled by his employer, a large pharmaceutical company. About a month ago her ex’s new wife (married less than 3 years) who has power of attorney texted my sister saying they would not pay alimony as the employer stopped paying the ex. She said they were living on Social Security until long-term disability set in, which she said would pay 60% of the ex’s previous salary. And now they couldn’t afford to pay for health care for my sister and also the ex. FYI, there are other sizable assets including the payout distribution from the marital home the ex received a very sizable sum from. But there are obviously changed income conditions. The dilemma for us is what to do next, and it’s not an easy decision. Your ex-husband could potentially die soon, making the alimony argument moot. As you present in your blog, it seems nonsensical to burden the last days of a dying person with worries about maintenance. But on the other hand, if he lives for some time, the alimony is there and the need to receive alimony is there too.

I am not writing to you for legal advice. I am pointing out another side of this very sad situation. In my opinion, my sister received very poor legal counsel during her divorce, so we want to avoid further legal fees. We try to work amicably with the new wife, get an alimony amount that they (ex and wife) will agree to if/if the long-term disability occurs along with Social Security, and submit a request for alimony reduction to the judge (provided the ex is still alive) without representation by a lawyer.

Both situations indicate the need to consider worst-case scenarios when formulating rules on divorce, alimony, life insurance and asset sharing.

Of course, because every case has its own unique set of facts – which is why family court judges are given such wide discretion when making these types of decisions – the case presented in the email is very different from the situation Bill was dealt with, particularly in Referring to his ex-wife’s ability to earn an income well in excess of what was allocated to her at the time of the divorce and, in fact, far in excess of Bill’s reduced income.

However, the person who wrote this email is absolutely right. When one is diagnosed with a terminal illness, the consequences are not easy for anyone who depends on that person for love, guidance, financial support, or emotional support. I genuinely feel for both the ex-spouse and the new spouse, and of course the person who is at the center of it all, the person who may soon be losing their life to cancer.

For this reason, in situations like the ones described above, I always try to take an objective view and ask myself: What would these parties do if they were still married? Would the spouse who normally made the bulk of the money during the marriage continue to do so? Or would the unsupportive spouse seek a job, contribute more to the family pot, and weather the storm with his or her ailing spouse? Often, especially in Bill’s case, it would have been the latter.

Still, this kind of common-sense analysis usually goes in the semantics of Lepis v. Lepis — the landmark alimony amendment case — is lost when judges opt for strict compliance, calling for it to engage in extensive investigations, hold hearings and act as if the supporting spouse simply chose a less lucrative career rather than involuntarily to face an incurable disease.

Family and support issues are never easy. But it’s interesting to see the true human emotions that exist on both sides of the coin. I would like to thank the author of the email for his contribution to this sensitive issue.

*Name changed to protect customer trust.

The content of this article is intended to provide a general guide to the topic. In relation to your specific circumstances, you should seek advice from a specialist.

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