Can I divorce my incompetent husband?

I don't know how medicaid sees a separation agreement, it could be complicated so you would do well to see an attorney who is well versed in medicaid and legal separations and not just a divorce attorney. I really don't expect an answer, but why didn't you just divorce in the first place?

Your divorce will be easily granted due to prior separation. However, that does not protect you from Medicaid insisting that all assets be accounted for and fairly divided according to their rules. By divorcing him, you will have no rights to a community spouse allowance. Think it over with an attorney.

I don't know much about this one, but all I can ask is whether or not any of the assets were in both names or just one. What does your agreement say? What's this agreement notarized and signed in front of witnesses or even a lawyer? As long as you have a prenup agreement that you both signed when he was competent, I don't see where there would be a problem as long as both of you agreed and it was actually placed on file

Only an elder law attorney can tell you. It would seem like you have a good chance of getting what you want because you have lived separate lives. On the other hand, if he dies before you, you may be denied the choice of receiving his Social Security benefits in lieu of yours if you want that option. Contact an attorney now.

Consider the Social Security angle if he earned substantially more than you did. Find a Certifified Elder Law Attorney, they have extra qualifications. nelf.org for a listing.
This is a complicated issue.

What does your attorney who drew up the separation agreement say? Back in the days pre-80s, one could not divorce an incompetent person, but I am sure those laws have been updated. Does it really matter whether you are divorced since your situation has worked for eight years, or do you intend on remarrying? I would consult a divorce attorney if the previous attorney is unavailable. Remember, dementia is a terminal illness, and mother nature may take its course before you get through the legal system...

You are still entitled to SS from your spouse if you are divorced as long as you have not remarried.

Even if divorced you are still entitled to the larger Social Security award if you were married for at least ten years..
Grace + Peace,

Bob

I'll add, if you have been married to this man for at least ten years, even if you divorced him, you would still be entitled to his social security benefits (given he made more money than you). You only get a portion of it while he is living if you are getting social security benefits as well, but the minute he dies, you would get the entire amount. I know because my husband's ex-spouse is receiving a portion of his benefits, but once he dies, I will receive the entire amount. Make sure you are talking to social security in person because they made a mistake with my benefits, I bought a new car with the higher benefit, but then s.s. came back and reduced the benefit. I had to take the car back and it resulted in a charge-off with Hyundai because I could not make the payments. My credit rating is sunk, for now.

The rule is that if you were married for at least 10 years before you divorced, you remain entitled to spousal social security benefits, all the same one you would get if you were still married.

SS is something isn't it? My dad died, my parents divorced, my mother never re-married. My dad did marry again and later divorced again. BOTH ex-wives were entitled to 100% of his benefit. Wonder why SS is dwindling? I'm glad for my mom because it increased her benefit x3...But just think of a guy who had a number of wives, each married at least 10 years...All ex-wives are entitled to the FULL benefit.

The answer varies from state to state. Some states do not permit the divorce of a person adjudged to be incompetent/incapacitated, while others do indeed permit this. Thus, you need to find out the law in your own state on this issue.

Something to considder is a widows pension, where you get his social security after he passes away. You have to be married for a certain amount of time, and you need to be 60 to be eligible.

Yes, widows pension would be the right term for losing a spouse. I know someone right now whose mom gets a widows pension. She lost two relatives in one week and has never been right since.

After 8 years what is the hurry . file income tax seperate as I am sure you have. Medicare soc sec as withholding. If he is that bad now you are better off as withholding. Often older widows cohabitated without marriage because of the loss of sustainable income where term come from soc sec withholding.The lookback Im presuming will not be any different. Consult an attorney on this matter. 2 years go fast.

Yes, his guardian can disagree.

You were separated for just 2 years short of a decade so getting a divorce won't be problem. I'm not sure about joint assets. Seek out an attorney.

You might just as well go on with your Life as is, Unless you want to worry
yourself to Death, take each Day at a time. I know. Good luck.

Such a shame.

REALLY need a lawyer to help sort out the fine points in your State.
It differs per State. Some States are Joint Property, some not, some a mix; some treat legs Separations in different ways.
==Was there a Clause in your Separation Agreement, that allows simply filing the paper to make it a Final Decree of Divorce? Some Separation Agreements have that, others don't. If it has that clause, should be able to simply File the Papers at your County offices, and it becomes final.
==Whether or not Medicaid will ignore the Separation and/or Divorce, is some fine points. But, since you have already been separated x 8 years, that might prevent them counting your income as part of his, for purposes of a 5-year Look-Back...but a lawyer should know.
==IF you have been Married 10+ years [Separation not withstanding--unless...Fine Print], Social Security has the Widow's Benefit. You should look into that, if the total number of years married = 10 or more.
==IF the Separation must be decided by a judge, due to the spouse being declared incompetent, the fact of the 8-year separation with legal agreement, should close the case fast.
Please keep us posted how this goes!

Once married always married until death do you part for better or worse. The poor man is in the nursing home and you wait until now to do this. Very poor decision!

Some states have a specific statute that addresses how you divorce a person with mental illness or is incompetent. See a Family Law attorney to obtain your rights. The attorney who prepared your Separation Agreement may be helpful.

No one can stop you from your decision, you have free will to do as you want. However, I agree with the poster who said something about this being a bad decision on your part. Some people should never get married. Before getting married, the decision should be made very carefully and some serious soul-searching should be done before saying yes because marriage is a lifelong commitment because it's designed by God between one man and one woman for life. Sadly though, so many people have taking things way out of context and treated marriage as a throwaway commodity. Your story is only one among many reasons why there are some people who should not be married without seriously considering every angle of what a couple could be facing down the road. Your older years should be taken into even more serious consideration and some serious soul-searching about this time in your life should be done well in advance before committing to marriage. When you're married, the two flesh become one, Divine design. Therefore, it's not about you anymore, it's about the both of you and also additional children that come into the picture. You chose to say yes, you could have said no and enjoyed your freedom but you said yes to more than you realize when you married him. When you say yes to someone, it's for more than just the good and happy times, it's also for the bad when health starts failing and things go wrong. The only exception I would excuse is sexual infidelity and abusive relationships from which I personally would be long gone since I'm an abuse survivor who barely survived childhood at the hands of drunken abusive parents. Anything else would be selfish, and there are plenty of selfish people out there who would throw away another human being for being rendered disabled in any way including mentally. That is your husband like it or not, you made the choice, not live up to your responsibilities and be the wife you committed to be. If you don't provide for your own, especially for those of your own household, you're worse than an infidel according to God's word. I would much rather be hated for telling the truth rather than loved for telling a lie. I stand for old values, marriage is one of them, I only stand for traditional marriage and staying with your own until the very end because this is how it should be when you make a commitment decision. Commitment means sticking through the thick and thin, not running as soon as things are no longer fun and happy. You made the decision to stay with him and he needs you now more than ever, also put on your big girl pants and take responsibility because you already made a commitment and stop running away from the responsibility of caring for someone within your own household who needs you now more than ever. Put yourself in his shoes and ask yourself if you would want to be thrown away if this were you. I don't think anyone would want to be thrown away just because they became ill in any way whatsoever. What better time to come together than when someone falls seriously ill! This is an opportunity for your family to come together in unity instead of splitting five different directions

We have no idea why the OP and her husband separated. If they were apart for such a long time, they have each established a new life. You marriage absolutists are entitled to your opinion, but marriage was designed when few people survived even to age 50. Not everyone believes that God and the Bible are the only sources of truth.
Aggie16, do what's best for you, and check with a lawyer first!

It's true that very few people survived marriage for as long as other people did, but the way I see it, to leave someone at a time they most need you only means you never loved them to start with, but on the other hand after speaking to a friend about this, she thinks it might actually be doing the demented guy a favor because there may be abuse from resentment anyway. Either way, to throw someone away because of disability is a total out rage because it only speaks volumes about the person leaving especially during a time when the other spouse most needs them. After speaking to my friend about this matter, and even she agrees no one would want to be left out of time you most need someone close to you. My friend also went on to say that for all we know the OP could end up putting her spouse in danger if she were to try to take on the caregiving only to end up abusing him. However, that's what special help was designed for, to give the families hope and help them stay together by encouraging them during this kind of trying time. One thing we must ask ourselves is how did people handle it way back in history before there was professional help to help with people with Alzheimer's? The answer is simple, study history to find out how they handled it because we could learn an awful lot from our ancestors and how they handled matters like this

1RareFind, These guys have been legally separated for 8 years. We have no idea why they separated. Judge not, that ye be not judged.

In the old days few people lived long enough to get dementia, and if they became incapacitated, they did not live for decades. They usually died from pneumonia. In the old days, some people "exposed" their infants if they had too many, or if it was deformed or sickly.

Elderly Eskimos would decide when enough was enough, and would walk out onto the ice and never return. Death is a natural part of life. I am caring for my husband carefully while he is still "here." I will not be trying to prolong his life when he has become unaware of his surroundings.

From Aggie16: Thank you all for your comments and suggestions. The reason why my husband and I separated 8 yrs ago was because he was an abusive alcoholic.i suffered his abuse for almost 18 years before making the decision to leave. Every year I would hope that he will change and stop his drinking.He has lost all his friends and relatives because of his bad behavior when he is drunk. Even though we agreed to go our separate ways, I found myself returning to his rescue whenever he found himself in trouble. To this day i am still his only friend. Divorcing him does not mean i will stop helping or visiting him but i need to take care of my assets and this was one of the ways my lawyer suggested. i feel a lot of compassion for him and it really saddens me to see him waste his live and lose his mental capacity due to alcohol.

Aggie16: I, for one, pass no judgment on you whatsoever. After reading the back story, I completely understand. I am disappointed in others who feel it's their place to preach and judge you. (Shame on them!) You ought to live out the remainder of your years any way you see fit. Living with an alcoholic can be a living h*ll. My dad and my brother essentially drank themselves to death. That being said, you can decide for yourself whether it's "worth" it to wait to become eligible for the SS Widow's Benefit (btw, if you ever re-marry you lose that benefit) or what you have to lose if you divorce him. Just be sure you learn what all your options are and decide what's best for you. If he's going to go for Medicaid, you may be worse off divorcing him as I believe you forfeit your own financial "protections" as a legal spouse. I presume you don't particularly want to walk away from all your assets. Thus, I think you would be wise to speak with an attorney to cover all your bases. Wishing you the best ~.

If you have lived an extended amt of time and assets are already judicially seperate and he has a guardian. The you are not involved in the care giving. Even though he has dementia that is not grounds for divorce states so in marriage vows.. You still cannt evade the 5 yr look back. Pending seperation of property.
Possibly filing. But he is entitled to his day in court by law. Seeing he might not be competent to appear in court.
Then I dont know if you can be acused of desertsion with him incopetant.
An estate/divorce possibly elder law attorney. Would probably be best to answer that question. And then his wishes even if not competent count. I hope you two are on good terms.
He has a guardian and you are not living together and finances have been legally seperated you can file for legal seperation if you haven't already done so. And certainly have a attorney familiar with medicare medicaid. Unless our lurking attorney showes with better idea. An attorney needs consulting. Obviously you have but are unsure of his advice. Maybe this is the second opinion you should get since evidently you are hesitent.
Probably an estate planning experence with elder law would be appropiate. You didn't say what type of attorney you consulted. I would think one that does like medicaid paydown experience with estate planning would be a consult such as an elder affairs. I would obtain morethan one opinion.
Evidently you still care. I'm sorry for you plight and pain. Not to be mean nor judgemental Im assuming his incompetancy is from alcholic psychosis from liver disease etc. As a veterans advocate I have seen this toll throughout my life and the predjucial trap of the stigma for those who have the similar disease process without the alcohol induction.
Bless you for your journey.

Jinx4740, It doesn't matter that they've been separated eight years. People seriously frown on those who throw someone away who have become ill or disabled through no fault of their own, and I for one am one who seriously frowns on someone who will just throw someone away just because they became ill or disabled and that's where I firmly stand because if that were me being thrown away just because I became ill or disabled, there are no words to describe how angry I would be. I pity those people on judgment day one when they must all answer to God for throwing people away just because they became ill or disabled, doing so speaks volumes about those kinds of people. This kind of thing really angers me. I really look up to people who have more strength to stand up and plowed right through the challenges like my friend who had a special needs daughter right up to the end. They could've chosen to institutionalize her and wash their hands of her but they didn't, and she was severely handicapped. I honor people like her parents who did what many people out there would rather not, and I have higher on her for them than I do people who cast out someone for their illness or disability. No I'm not sorry for being harsh because that's the way it is, I have no honor whatsoever for shallow people who would rather throw someone away just because they fell ill or became disabled, I just don't honor that. I have better values than that and I strongly look up to the parents of the disabled daughter who could've easily thrown her away for her severe disabilities.