By: Mike Gora
Q My father, who is 65-years-old, married three years ago after divorcing my mother. At the time of his divorce, my brother and I believed that he was acting peculiarly, but attributed it to the fact that our mother chose to divorce him after a 45-year marriage.
Their divorce seemed to go well, at least from a distance, as I live in New York, and my brother in Atlanta. We were surprised when, a year later he remarried a woman he met after the divorce. Shortly after they were married, we were told by his new wife that our father had early stage Alzheimer’s disease. At that point, we became more involved and very concerned.
Our father had saved a large amount of money, including several million that he received when he sold his business in New York and retired. He and his new wife own a home, which was bought with his money, after they married
He is now much further into his disease. His new wife just filed for divorce against him, and served him. We do not know what to do, and how his disease will affect the proceedings, or whether his wife can claim part of his money or get alimony. Can you explain what happens next?
A Whether or not your father’s wife will be entitled to a share of his property, and if so what share, will be determined by the usual rules that govern dissolution of marriage in Florida. Their home, and other assets he put in joint names, will be presumed to be marital, and subject to equal division.
There are defenses to such a result, such as a claim for an unequal distribution. Florida statutes contain several bases for an unequal distribution and your father’s condition when the house was bought may help you. If you can prove that transfers were made based upon undue influence because of his mental condition, transactions might be reversed.
His new wife’s alimony claim would be limited because of the shortness of the marriage. However, because of certain restrictions delaying the dissolution of the marriage of an incompetent person for three years, and other Florida law regarding a duty of support, she might be able to receive alimony for the three years.
If the wife is successful in having your father declared incompetent, a guardian will have to be appointed by the probate court judge. The wife will not be allowed to be the guardian because of the dissolution of marriage preceding, which she has filed.
No dissolution of their marriage can take place, after such a determination for three years. The appointed guardian can negotiate a marital settlement agreement for him. If the guardian is an attorney, that attorney can proceed as his guardian and his attorney. He or she could, theoretically, negotiate such an agreement, and sign it for him. If the guardian is not an attorney, an attorney can be hired for the dissolution case.
Regarding the distribution of his property, if your father put his new house or anything else, in joint names, the rights to the property could be negotiated to a conclusion, and, if approved by the court, transferred in completion of the agreement. The guardian and your father’s wife could conclude an agreement on alimony or any other aspect of the case, and conclude those agreements, with the approval of the Court.
The only thing that the judge cannot do during the three-year period described above, is to terminate the marriage. You have not said whether or not your father and the woman entered into a prenuptial agreement, or if they had developed an estate plan that conformed to the agreement.
What rights the woman might have to your father’s estate, should your father die before the divorce could become final, during the three-year period, would depend on whether or not there was such a valid agreement. If there was no valid agreement, and no will, or a will leaving her nothing she could make a claim to 30% of your father’s estate under Florida statutes. Speak to his trust and estate lawyer at once.
Michael H. Gora, Boca Raton Divorce lawyer, has been certified by the Board of Specialization of The Florida Bar as a specialist in family and matrimonial law, and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton. Questions may be submitted to Mr. Gora atmhgora@sbwlawfirm.com.