Family Law - Interaction With Medicaid Rules

My understanding of how divorce cases work allows me to provide my clients with more tools to maximize the preservation of their assets.

Skilled New Jersey Family Law Lawyer Uses Divorce to Help One Spouse Avoid Becoming Impoverished When Other Spouse Enters Nursing Home.

Although there are things that can be done to avoid the devastating cost of nursing home care, which can be as high as $10,000 or more per month, in order to avoid Medicaid's 5-year "Lookback Rule, couples generally have to make plans 5 years in advance.

Unfortunately, many couples do not think about the cost of long term care until one of the spouses is about to enter a nursing home. "Crisis planning" is never as good as planning ahead.  Couples who wait may find themselves in the unfortunate position of having to spend a lifetime of savings on nursing home care, often leaving the spouse who remains in the community with insufficient assets and income to live comfortably.

Although it may be possible to protect the marital home if the well spouse (called the "Community Spouse" in Medicaid language) continues to live in it, Medicaid Regulations say that he/she can protect half of the marital savings, but not more than $119,220. This means that a couple with $500,000 in investments must use all but $119,220 before Medicaid will start paying for nursing home care. A couple with more modest savings of $100,000.00 can protect only $50,000.

One of the possibilities is to consider a "Medicaid Divorce" as a means of saving money for the Community Spouse. If a divorce is handled properly, the Community Spouse will be awarded an equitable share of the marital assets, and perhaps alimony as well, and will have no responsibility for the nursing and other long term care expenses of the former spouse. When the time comes for Medicaid to act, only the assets of the institutionalized person will be taken into consideration. The assets of the former spouse will be protected.

This type of action raises some ethical questions. Is the part of a marriage vow that talks about "for better or for worse" inconsistent with obtaining a divorce in name only so that the ill spouse can receive treatment without leaving the well spouse on the verge of poverty? Are there different considerations for couples who marry later in life and have families from former marriages who might have to support their father or mother because his/her savings have to be spent on someone who is not their parent?

As author Randy Cohen wrote in a July 2002 advice column ( The Ethicist) in the New York Times, "People marry late in life for various reasons, but the pursuit of financial ruin is not one of them. So it is through divorce, paradoxical as it sounds, that you can best honor your marriage vow to cleave to your husband for better or worse. Preserving your small savings will be enormously beneficial to you both. I can understand his fear that divorce could be the prelude to your abandoning him, but you can help him most by offering tenderness and reassurance, not by joining him in penury. If you become loving but unmarried companions, your ethical obligations to one another will not be transformed."

Helping You Through a Difficult Time. Schedule a Conference With an Attorney.

I understand the stress and anxiety of separation and divorce, having been through it myself 30 years ago. My understanding of the issues that Senior Citizens face, along with my having represented clients in divorce matters for many years, makes me well-qualified to guide families through difficult times.  At the law office of Michael C. Rudolph, Esq., P.A., in Kinnelon, New Jersey, I have over 50 years experience as an attorney. With decades of legal practice under my belt, I know the law and I know the rights New Jersey law provides in family law cases.  I will work tirelessly on your behalf to pursue the most favorable possible outcome in your case.  Contact my office today to discuss whether a Medicaid Divorce is appropriate for your family situation.

I am available during regular business hours or by appointment. I offer appointments at my Kinnelon and Oakland offices for your convenience. Both offices are handicap accessible.

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