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Family LAw or pension plan. Typically, this individual would have based his or her planning on a one household retirement, perhaps combining these retirement assets with each of the parties’ social security benefits. Ordinarily this would have provided for a very comfortable budget. In a divorce situation, however, this pool of money may be inadequate. Certainly a requirement for one of the parties’ to pay alimony to the other is problematic. Therefore, alimony is not at all a certainty for either spouse in this situation. 2. It is very common for older people to have obtained life insurance at some time during their lives. During the period from 1960 to the present many males, and some females, secured term life insurance to provide income to the family should death of the insured occur during the middle portions of their lives. Term life insurance either ends according to its “terms”, or becomes prohibitively expensive in the insured parties’ later years. Of course, many people also secure wholelife insurance, but it is entirely possible the older client would have allowed the term life insurance to expire and would have little or no life insurance coverage. With no coverage in place to secure a payment obligation, the receiving spouse would have no insurance for protection. 3. Providing health insurance coverage, which is often an obligation of one spouse or the other in a divorce agreement, will not likely be available. It is unlikely that group health coverage would be available in that both parties are probably retired. Each would have to depend on Medicare as their primary coverage. Medicare has limitations and high associated costs which means each of the parties might have to secure supplemental coverage, therefore adding an additional burden to their individual budgets. 4. The parties may have purchased long term care policies which are expensive and will need to be funded into the future. These are expenses not typically encountered in divorce matters and pose an additional burden on the parties’ budget planning. 5. Health issues may be problematic with this age group. It is probable that neither party will be able to re-enter the work force and may even require special care such as nurses and/or caretakers. This complicates matter significantly. These are certainly not issues ordinarily encountered by divorce attorneys. 6. Many individuals in this age group might have sufficient retirement benefits available to them because of their prior planning, good job benefits, or just their good fortune. However, there may be cases where there are insufficient retirement benefits available because of the parties’ lack of sufficient planning, bad luck, lack of focus on retirement requirements, or a myriad of other reasons. This is exacerbated by the requirement to maintain two households. Likewise, Social Security, which is usually viewed as a cornerstone of a retirement plan, will suddenly be inadequate. The spouse who is drawing off of the other spouses’ social security, or who has qualified at a lesser level, might suddenly find that social security is grossly inefficient to fund a budget. LEGAL ISSUES UNIQUE TO OLDER COUPLES In addition to these fundamental economic considerations, the matrimonial lawyer must become acquainted with those challenges familiar to elder lawyers. In fact, an early decision must be made as to whether to seek assistance from an elder lawyer, estate and trust practitioner, tax lawyer, mental health professional, certified public accountant, financial planner or a combination of the above. Of course, financial constraints may well limit the scope and size of the team, but a brief consultation on specific issues may be feasible even in lower income or lower net worth cases. 1) Estate and Trust matters- An often overlooked issue is the client’s level of preparation for later life issues, particularly those associated with an unexpected dissolution of a marriage. a) The practitioner should inquire as to whether a will has been executed, its location and availability. A stop-gap will might well be appropriate, depending on the overall estate plan revealed. Ala Code Section 43-8-137 provides the following: “If after executing a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, or guardian, unless the will expressly provides otherwise.” b) The Code of Alabama at §43-8- 70 provides the surviving spouse an elective share of the deceased spouse’s estate. A question arises as to the impact a divorce action may have on this right. The answer lies in §43-8-252, Code of Alabama which, in pertinent part, states the following: “§ 43-8-252. Effect of divorce, annulment or separation. (a) A person who is divorced from the decedent or whose marriage to the dece- Birmingham Bar Bulletin/ Summer 2017 15


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