Divorce dying spouse to avoid medical bills?

[justsomeguy]

Unless you are one of these two people, it is NOT your business. It is theirs. So you go and tell them that you've plastered their situation on the Internet. You apologize. And suggest that one = or both - of them come here and talk to us.

It is me, is that better? Now what is the grand advice you were withholding?

 

[ecmst12]

The affected couple should see an estate planner for help. YOU need to quit lying.

 

[justsomeguy]

When do you think i lied?

 

[CSO286]

When do you think i lied?

You were either lying then or are lying now....

In any event, we're fresh our of advice for people who choose to lie to random internet volunteers. Go pay for your advice.

 

[LdiJ]

What is the name of your state (only U.S. law)? CA

Just curious,

I know a couple who one of the two was diagnosed with Cancer. They are cosidering getting a divorce to protect the assets of the survivor.

Would that work?

In the last few years there have been some very well publicized cases in the mainstream media, in several different states, of people who divorced in order to protect the assets of the non-sick spouse. I suspect that a valid divorce, with an equitable property settlement, could not be questioned or be considered to be fraud.

However, it would be in the best interests of the parties to consul with an attorney, as has already been suggested.

 

[mistoffolees]

In the last few years there have been some very well publicized cases in the mainstream media, in several different states, of people who divorced in order to protect the assets of the non-sick spouse. I suspect that a valid divorce, with an equitable property settlement, could not be questioned or be considered to be fraud.

However, it would be in the best interests of the parties to consul with an attorney, as has already been suggested.

Really? So you're arguing that defrauding Medicare is fine?

First, it's clearly wrong and amounts to theft of assets from taxpayers.

When you get into the legalities, there are some applicable cases. For example, a court has ruled that sham divorces when used to allow employees to receive accelerated pension payouts were not legal and the pension plan could recover the money. It actually says that the divorce can not be reversed under ERISA, but suggests strongly that if Continental had filed under state courts, they could have won.:
Court Decision Denigrates Marriage - Or Does it? (What's Wrong with the World)

Or, more to the point:
Family Law Prof Blog: Sham Divorces
Read what it says - sham divorces can be vacated and the financial outcomes reversed. There are a number of cases where sham divorces have been reversed.

Now, if it's a legitimate divorce, it is perfectly legal, of course. But since OP indicates that the entire reason for the divorce is to protect assets, that almost certainly counts as a sham divorce - especially if the couple continues to live together.

So please stop advising someone to do something that's illegal and wrong.

 

[LdiJ]

Really? So you're arguing that defrauding Medicare is fine?

First, it's clearly wrong and amounts to theft of assets from taxpayers.

When you get into the legalities, there are some applicable cases. For example, a court has ruled that sham divorces when used to allow employees to receive accelerated pension payouts were not legal and the pension plan could recover the money. It actually says that the divorce can not be reversed under ERISA, but suggests strongly that if Continental had filed under state courts, they could have won.:
Court Decision Denigrates Marriage - Or Does it? (What's Wrong with the World)

Or, more to the point:
Family Law Prof Blog: Sham Divorces
Read what it says - sham divorces can be vacated and the financial outcomes reversed. There are a number of cases where sham divorces have been reversed.

Now, if it's a legitimate divorce, it is perfectly legal, of course. But since OP indicates that the entire reason for the divorce is to protect assets, that almost certainly counts as a sham divorce - especially if the couple continues to live together.

So please stop advising someone to do something that's illegal and wrong.

Your "more to the point" article contained information regarding the following case. He is the actual OUTCOME of that case:

In a case involving Continental Airlines, a federal appeals court says benefit administrators don't have the power to decide whether employees' divorces are real or fake.

Continental sued nine of its pilots, claiming that they got "sham" divorces so their ex-spouses could tap their lump-sum pensions while they still worked for the airline — then remarried the same partners.

The 5th U.S. Circuit Court of Appeals on Monday upheld a lower-court ruling that employers can't consider or investigate why employees get divorced or whether the divorce is genuine. The appeals court dismissed Continental's 2009 lawsuit, which was filed in federal district court in Houston.

And here is another quote from one of your "cites":

Medicaid even encourages the elderly to get sham divorces for the same reason. It's all perfectly legal.'"

However, in the author's opinion, it is still fraud...but only in the author's opinion.

And additional information:

July 20, 2011 (PLANSPONSOR.com) – A federal appellate court has agreed with a district court’s holding that the subsection of the Employee Retirement Income Security Act (ERISA) dealing with Qualified Domestic Relations Orders (QDROs) does not authorize an administrator to consider or investigate the subjective intentions or good faith underlying a divorce.

Bottom line Misto, divorcing for financial reasons is no more illegal than marrying for financial reasons. Unless you care to produce some actual case law, rather than attorney blogs that says differently, you need to recognize that even your own research was faulty.

 

[mistoffolees]

Your "more to the point" article contained information regarding the following case. He is the actual OUTCOME of that case:

And here is another quote from one of your "cites":

However, in the author's opinion, it is still fraud...but only in the author's opinion.

And additional information:

Bottom line Misto, divorcing for financial reasons is no more illegal than marrying for financial reasons. Unless you care to produce some actual case law, rather than attorney blogs that says differently, you need to recognize that even your own research was faulty.

True to form, you saw exactly what you wanted to see and ignored everything that disagreed with you.

All of your objections above simply restate what I said - that the ruling was very narrow and only said that ERISA didn't apply. It was clear that other remedies were available and could have applied.

More importantly, you completely ignored the second cite.
Family Law Prof Blog: Sham Divorces

There is precedent for collusive divorces being vacated for fraud

The Connecticut Post reports that federal prosecutors have requested to intervene in the divorce proceedings filed by the wife of Walter Forbes, former chairman of Cendant Corporation, who is serving prison time for one of the biggest accounting scandals in U.S. history.

And the kicker:

The majority found that the "The statutory ground of incompatibility does not permit the court to dissolve a marriage merely because its termination is desired by one or both parties.... Incompatibility must be established "by proof, objective in its character, of causes to which marital disharmony is attributed [and cannot be] bottomed on a mere subterfuge or after-thought [without] a substantial foundation." Thus, the court concluded:
The parties here colluded to misrepresent incompatibility as a ground for divorce (when they actually intended to continue cohabitating) and, in turn, used the sham divorce to deceive public agencies concerning Wife's eligibility for public benefits. It not only offends public policy for parties to obtain a divorce on a concocted ground, but it also offends public policy to use such a divorce for financial gain. Rather than leave the parties where we find them, we believe equity and justice require they be returned to the state of matrimony.

It really couldn't be much clearer than that.

Still waiting for May Day when you might get something right.

 

[tuffbrk]

Hmm...that addresses a divorce granted with grounds. Many states now have no fault divorce.

 

[mistoffolees]

Hmm...that addresses a divorce granted with grounds. Many states now have no fault divorce.

Not really relevant. Look at the case I cited above. The divorce was reversed on public policy grounds - not on lack of grounds.
(Here's the direct cite - you actually have to follow a link in the URL I cited:
http://lawprofessors.typepad.com/family_law/2009/06/sham-divorces.html)

Furthermore, even if you interpret it your way, what grounds does OP plan to use for divorce? Oh, yeah. Incompatibility. And the case cited above says that you can't simply cite incompatibility when you continue living together. It is absolutely relevant.

Correct, and it also addresses a case that has not even been heard yet by any court, let alone gone to the higher courts. (Walter Forbes) I read through a bunch of articles on the subject and Misto is clearly wrong. In his defense, what he is seeing is a lot of opinion on the fact that it SHOULD be illegal to divorce for financial reasons (which is not my opinion) but he is not picking up on the fact that the actual law does not coincide with that opinion.

I guess it was too difficult for you to read that the above case was a court decision - and, in fact, was an appeals court decision. So you're wrong. Again. As usual.

 

[Bali Hai]

Not really relevant. Look at the case I cited above. The divorce was reversed on public policy grounds - not on lack of grounds.
(Here's the direct cite - you actually have to follow a link in the URL I cited:
Family Law Prof Blog: Sham Divorces)

Furthermore, even if you interpret it your way, what grounds does OP plan to use for divorce? Oh, yeah. Incompatibility. And the case cited above says that you can't simply cite incompatibility when you continue living together. It is absolutely relevant.



I guess it was too difficult for you to read that the above case was a court decision - and, in fact, was an appeals court decision. So you're wrong. Again. As usual.

When someone divorces a spouse for nothing more than to obtain alimony and marital assets should also be considered fraudulant and illegal. Are we only concerned about tax payors?

Furthermore, people who publicly taunt alimony payors should lose their alimony. Eg; a few years ago a male fan held up a sign at a Boston Red Sox play off game that read, "my g/f's ex husband's alimony paid for my ticket to be here". With the new alimony laws in Mass., you should see less of those jerks now.

 

[xylene]

It is very possible that a person may want a divorce from a terminally ill spouse.

For sexual reasons. Abandonment...

Harsh, but real.

And not fraud.

 

[mistoffolees]

It is very possible that a person may want a divorce from a terminally ill spouse.

For sexual reasons. Abandonment...

Harsh, but real.

And not fraud.

No, it's not. No one is suggesting that divorcing someone who is terminally ill is automatically fraud. But OP is planning to get a divorce solely for purposes of protecting assets. And that CAN be considered fraud - as the case law I provided above shows.

 

[LdiJ]

I am copying the actual information directly here, so that there can be no confusion.

Case Law Development: Collusive Divorce May be Vacated for Fraud
This is just a fascinating case from Oklahoma that's been sitting on my desktop for weeks now. The case involves a request to vacate a divorce decree on the grounds of fraud.

The dissent summarizes the case nicely:

The parties were dealing with a problem common to many middle-class Americans: How do couples preserve their marital assets in the face of a catastrophic illness? Their solution was to obtain a divorce in which Husband received virtually all the marital property, thereby qualifying Wife for government assistance when her progressive illness caused her health to deteriorate to the point that she needed nursing home care. Husband promised to care for her in the home until that time. Only after Husband allegedly breached his promise of care did Wife move to set aside the decree.

You will note that in this case the husband received virtually all of the marital property. My initial post on this subject emphasized equitable distribution of marital property.

The majority found that the "The statutory ground of incompatibility does not permit the court to dissolve a marriage merely because its termination is desired by one or both parties.... Incompatibility must be established "by proof, objective in its character, of causes to which marital disharmony is attributed [and cannot be] bottomed on a mere subterfuge or after-thought [without] a substantial foundation." Thus, the court concluded:

The parties here colluded to misrepresent incompatibility as a ground for divorce (when they actually intended to continue cohabitating) and, in turn, used the sham divorce to deceive public agencies concerning Wife's eligibility for public benefits. It not only offends public policy for parties to obtain a divorce on a concocted ground, but it also offends public policy to use such a divorce for financial gain. Rather than leave the parties where we find them, we believe equity and justice require they be returned to the state of matrimony.

You will also note that this was a "grounds" divorce it was not a no-fault divorce.

The dissent would have reversed the trial court's judgment vacating the divorce.

Thinking this case couldn't be that unique, I've looked around for other recent cases presenting similar issues but have found none. Indeed, the Oklahoma court relied primarily on precedent dating from the first half of the 1900s. I can't help but think there are plenty of couples out there contemplating divorce though they plan on continuing to live together. This case leads me to revise my lesson plan on divorce to include a discussion of collusive divorce - not as a historical artifact of fault-based divorce - but as a current strategy by couples.

Vandervort v. Vandervort, 2006 OK CIV APP 34 (April 13, 2006) bgf

As the author noted, there is no other case law available on the subject...or at least there wasn't when the article was written back in 2006.

Since then, there is new case law, federal case law, that says differently. (the Continental Airlines case)

You cannot take a 2006 case, from one single state, where the property settlement agreement was blatantly one-sided, and use that as an indication that it is illegal in all states to divorce for financial reasons...PARTICULARLY when there is a later federal case, that says differently. The federal case that says differently is even very specific that its not even permitted to investigate the reasons for a divorce.

What the OP on this thread needs to take away from this discussion is that a consult with a local attorney is needed (which I recommended in the first place).

 

[mistoffolees]

I am copying the actual information directly here, so that there can be no confusion.

You will note that in this case the husband received virtually all of the marital property. My initial post on this subject emphasized equitable distribution of marital property.

That wasn't an issue as far as the court was concerned. The court's concern was that assets were being hidden from Medicaid.

You will also note that this was a "grounds" divorce it was not a no-fault divorce.

As usual, you are wrong. In OK, even no-fault divorces have grounds. This was a no-fault divorce with grounds of incompatibility:
Oklahoma Divorce Source: Grounds for Divorce: Oklahoma

Same thing applies in CA. Even if you want a 'no-fault' divorce, you file on grounds of incompatibility.

The situation is therefore nearly identical. Furthermore, as pointed out before, the court objected at least partly due to public policy grounds, as well.

As the author noted, there is no other case law available on the subject...or at least there wasn't when the article was written back in 2006.

Since then, there is new case law, federal case law, that says differently. (the Continental Airlines case)

And, as you've been told repeatedly, the Continental Airlines case doesn't say what you're claiming at all. That case simply says that ERISA does not allow the pension plan to recover assets. It says absolutely nothing about whether the court could overturn the divorce, nor does it address Medicare fraud (which IS addressed in the OK case).

You cannot take a 2006 case, from one single state, where the property settlement agreement was blatantly one-sided, and use that as an indication that it is illegal in all states to divorce for financial reasons...PARTICULARLY when there is a later federal case, that says differently. The federal case that says differently is even very specific that its not even permitted to investigate the reasons for a divorce.

That's right. Statutorily, ERISA does not allow the plaintiff to consider the facts of the case, so the CO case is irrelevant.

There is plenty of case law showing that presenting false information to obtain a divorce is not allowed. For example:
OSCN Found Document:MEYERS v. MEYERS
OSCN Found Document:ERDMAN v. ERDMAN.

And the fact that it's a single case in a single state doesn't change the fact that you were wrong. You told OP that it would be OK to do it and that there would be no repercussions. That is not always the case.

What the OP on this thread needs to take away from this discussion is that a consult with a local attorney is needed (which I recommended in the first place).

I agree. And OP needs to not take legal advice from Ldij who is usually wrong.