94-Year-Old Ordered to Pay Alimony to Offset Ex-Spouse's Nursing Home Costs

A recent Nebraska case illustrates how difficult it can be to predict the outcome of aggressive last-minute planning.  In what is possibly a divorce for purposes of Medicaid protection, the domestic relations court ordered a 94-year-old to pay alimony to his 95-year old spouse in order to offset her nursing home costs, despite the fact that doing so dropped his available income below the federal poverty guideline.  The case was appealed to the Nebraska Supreme Court.  The highest court determined that a 94-year-old husband must pay alimony to his 95-year-old ex-wife in order to help offset her nursing home costs, even if doing so puts his income below the poverty level. Binder v. Binder (Neb., No. S-14-783, June 26, 2015).

Laura and Glen Binder married in 1982. It was a second marriage for both of them and they had no children together. Mr. Binder owned farmland and operated a fertilizer business. Ms. Binder did not work outside the home. In 2012, Ms. Binder moved into a nursing home. Her income did not cover the cost of care, so Mr. Binder contributed the remaining amount.

Mr. Binder filed for divorce from Ms. Binder when he was 94 years old and she was 95 years old. The court dissolved the marriage and awarded Ms. Binder alimony in order to offset her nursing home costs. Mr. Binder appealed, arguing that the amount of alimony was  an abuse of discretion because it drove his income below the poverty level in violation of state child support guidelines.

The Nebraska Supreme Court affirmed the lower court's decision, holding that the state child support law did not apply because the Binders did not have any minor children. The court concluded that the alimony award is not unreasonable because Mr. Binder has the power to dispose of farmland for his support.

To read another case regarding the unexpected consequences of alimony awards (Alimony Obligation May Require Involuntary VA Admission), go here.

Alimony Obligation May Require Involuntary VA Admission

Victor Rizzolo and Barbara Jones divorced when Mr. Rizzolo was 84 years old. The court ordered Mr. Rizzolo to pay Ms. Jones alimony. Five years later, Mr. Rizzolo's health began to fail, so he moved in with son, who hired a caregiver for him.

Mr. Rizzolo asked the court to end the alimony payments, arguing that his income -- which was limited to VA disability payments and Social Security -- was needed to pay the caregiver. The trial court ruled against Mr. Rizzolo, finding that he had not done all that he could to meet his alimony obligations; if he entered a VA facility, the court found that he would be able to receive care and pay the alimony.  Because the court did not end the alimony obligation, Mr. Rizzolo appealed.  Perhaps he wishes he had not appealed, because, although the appeals court ruled in his favor, the court remanded the case describing an ominous potential outcome- his involuntary institutionalization in order to preserve his income for payment of alimony. 

The New Jersery Superior Court, Appellate Division, reversed, holding that the trial court did not hear evidence about whether entering a VA facility was really appropriate. According to the court, "although the [trial] court may on remand conclude that it is equitable to require [Mr. Rizzolo] to enter a VA facility against his wishes in order to use his limited income to continue to pay alimony, allowing [Ms. Jones] to preserve her assets until [Mr. Rizzolo's] death makes alimony no longer available, it may only do so upon consideration of competent evidence and a qualitative analysis of both parties' circumstances."

The court ruled that the trial court must first consider all the evidence before it can order an 89-year-old veteran in failing health to enter a Veteran's Administration (VA) facility against his will in order to ensure he had enough assets to pay alimony. Sometimes one can only exclaim, "wow!"  See, Rizzolo v. Jones (N.J. Super. Ct., App. Div., No. A-1800-13T2, March 2, 2015).  

Hopefully, his son will seek to introduce evidence regarding the relative quality of care available at home versus that available in an institution, and the court will consider carefully his quality of life concerns vis-a-vis his financial obligations. See, for example my articles, "One-Third of Nursing Home Residents Harmed In Treatment," Hapatitis Infection Risk in Nursing Homes Up 50%; Infection Risk Across the Board Increases, and "Most Terminal Dementia Patients in Nursing Homes Given Pointless and Potentially Dangerous Drugs"

For the full text of this decision, go to:
http://njlaw.rutgers.edu/collections/courts/appellate/a1800-13.opn.html