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Family LAw J. Ron Boyd dent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, he is married to the decedent at the time of death. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section. (b) For purposes of sections 43-9-40 through 43-8-49, 43-8-55 through 43-8- 58, 43-8-70 through 43-8-76, 43-8-90, 43-8-91, and 43-8-110 through 43-8-113, a surviving spouse does not include: (1) A person who obtains or consents to a final decree of judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless they subsequently participate in a marriage ceremony purporting to marry each to the other, or subsequently live together as man and wife; (2) A person who, following a decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third person; or (3) A person who is a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.” 2) Durable Powers of Attorney The client should be quizzed concerning the existence of a Durable Power of Attorney. An unscrupulous spouse might well exercise his or her authority inappropriately or in an unexpected way during the divorce. A decision to revoke the instrument should be considered. 3) Later Life Medical Directives These are often overlooked. Should a spouse become incapacitated, or worse, it is conceivable that the other might attempt to exercise authority over what could be a critical decision concerning medical treatment, care, procedures or life itself. 4) Long Term Care Policies- This type of insurance is frequently purchased by older clients; often the parties have expended large sums on them. The client should procure a copy of the family policy and the practitioner should consider seeking advice from an elder lawyer or other qualified professional as to the options available considering the terms of the contract. 5) Life Insurance Policies- Life insurance is usually present in some form. However, it is not uncommon for older individuals to purchase term insurance early on because these policies are relatively inexpensive and therefore permit a younger person, particularly with a family, to obtain a high level of coverage. Unfortunately, these same policies come to an end unless converted to whole or universal life. In a gray divorce situation these may be an alimony obligation, but no insurance on the life of the obligor to provide a substitute fund to the surviving spouse. A further issue may arise where a divorcing spouse covered by life insurance fails to remove the spouse as beneficiary. The attorney should advise the client of the need to change the beneficiary designation immediately, assuming of course that there is no requirement in the judgement to continue the coverage. PERSONAL ISSUES AFFECTING OLDER DIVORCING COUPLES Divorces are emotionally taxing on any client, but potentially much more so among older parties; particularly if a long marriage is involved. A divorce was probably not anticipated and will probably impact this age group more severely than a younger individual. The wise practitioner should consider the need for assistance from other professionals whether they be a psychologist, licensed professional counselor, or minister. 1) The Influence of Adult Children Many of the clients will have adult children assisting and advising them. While the emotional support is probably positive, their involvement can present additional challenges in managing the case and maintaining the confidence of the client. The children are often opinionated to a fault and not likely to be objective. They will probably take sides. Many will offer the parent advice. Sometimes this is helpful, but many times it is not. The wise practitioner will set boundaries early on and stick to the plan. The client must accept that the children have a role to play, but it is not to practice law. The divorce practitioner must remain in control of the case – whether settled or tried. An early meeting with adult children to establish these roles and boundaries may be necessary in order to ultimately achieve a good result. 2) Impact of Friends and Neighbors- An all too common occurrence in the gray divorce is the interference by well-meaning friends and neighbors. This phenomenon occurs in many cases, and will be more likely with older adults who have developed many personal relationships. These friends and neighbors are quick to offer advice when they should be providing friendship and kindness. They are frequently detrimental to the attorney-client relationship by causing the client to question his or her lawyer’s advice and ability. Too often we 16 Birmingham Bar Association


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