Both father & step-mother have dementia. They've lived apart for more than a year. Can they get divorced?

Given the dementia and living apart, I think you'd best be served by consulting a matrimonial (divorce) attorney as there are some complicating factors to this situation.

 “There is a potential solution, and that is Judicial Separation. A Judicial Separation is a legal separation, but it is not a divorce. This will allow you to start financial proceedings and thereby protect your share of all the matrimonial assets.

A Decree of Judicial Separation has three main effects:

The spouses are no longer obliged to live together
The Court can divide the matrimonial assets (including property), just as it can in divorce
The Decree has an impact upon your Will, just as it does in divorce. This means your spouse no longer takes any benefit unless a new Will is made specifically stating that is to be the case
If your marriage has come under strain because of dementia but you do not want a divorce, a Judicial Separation could be the best way to proceed. It is a more amicable approach, which may be important if you feel the effects of dementia are not your spouse’s fault. Yet it still enables you to protect your finances.

A Judicial Separation may also be an option if you are going through a divorce and your ex-partner gets dementia, or already suffers with dementia.”

This is from a legal site in the UK. Don’t know if it would apply here.

Consult an attorney who specializes in elder affairs wherever you/they live.

I've been thinking about this. What will the advantage be if they are divorced? Can't they sell the house without being divorced?

You might try calling your Area Agency on Aging and asking if they have a resource who could give you some advice on the legal aspects of this.

sle2000, being that your Dad and your Step-Mom have dementia, it depends on how far along the dementia. If one is unable to follow a legal document, then divorce may be out of the question. As mentioned by GardenArtist above, check with a Divorce Attorney.

Ok, how are the Power of Attorneys for the couple? Time for both POA's to step in and handle the financial aspects for their own parent.

As geannegibbs had asked above, can't they sell the house without being divorced? Divorced isn't inexpensive, as both parties need to obtain their own Divorce Attorneys, and with dementia in the picture that can complicate the situation.

Hi. Such a difficult situation you are in. My heart goes out to you. I wonder if establishing a guardianship/conversatorship might help you accomplish the things you are trying to accomplish. It depends how they work where you live. As someone else suggested re: the divorce option, I do believe some legal guidance may be in order here. Wishing you strength, peace, and clarity.

I see no advantage in them getting divorced. If they are no longer able to live in their house, then the house should be sold. As long as somebody has POA and can sign the documents, the house can be sold ASAP.

As others have said, it would be a good idea to consult an elder attorney in the county where the house is located or where they currently live.

You need to see an elder care attorney as a divorce might not solve your situation. It is my understanding (I could be wrong) that even if they were divorced that issues could arise if either one needs Medicaid in the future. Medicaid will do their 5 yr. look-back which would include the ex-spouse's assets. This would mean that your father's assets might be expected to be used for his ex-wife's care before Medicaid kicks in. I would suggest the guardians or poa's for both spouses meet with an elder care attorney to establish a care plan.

DKentz, I'm sorry for the family troubles you're going through.

Um. What happens to the old man if he is still living when your mother, God forbid, passes away?

I appreciate your very natural feelings at the prospect of your steps walking off with a 50% legacy from an estate to which your mother was by far the majority contributor. Nuts to that, sure, I understand. And of course you are right to be alert to possible goings-on meanwhile.

But all self-interested motivations aside, what about the prospect of an elderly man who has been married for 24 years being left homeless and destitute on the passing of his wife? What protections would your mother have wanted to be in place for her husband should he become her widower, perhaps? (Come to that: why didn't she create any?)

I'm sure you won't, but don't let your displeasure with his children's behaviour make you callous towards him, will you?