My mother is getting divorced. She has been separated from my 80-year-old step-father and living with me for the last year. They were scheduled for a trial in early May that was continued. There is no new trial date. The problem is, my step-father’s children are in control. He is nearly 80 and has Alzheimer’s among other serious health issues. They are acting as his guardians, controlling the money and forcing this to trial.
My mom, who is 14 years younger, signed a pre-nuptial agreement before their marriage 10 years ago and the terms are quite different if he divorces her versus if he dies. His kids didn’t know that when they became his guardians and filed for divorce. I am worried they are now hoping they can hold out until he dies so my mom gets far less. They are contesting the prenuptial agreement on his behalf arguing that he was not competent to sign back then due to health issues. That is why a trial is necessary.
My mom is too sad to be proactive. I don’t want to see her get the short end of the stick because of the actions taken by his kids who are not at all like him. Can I do anything to keep the divorce on track?
You can. If your mother has a lawyer, ask her for permission to speak with she and her lawyer. If she does not have a lawyer, help her get one — she should not try to represent herself at trial.
You should remind her lawyer that there is a law, Massachusetts General Laws chapter 231, § 58F that states “In any civil action in any Court of the Commonwealth in which one or more of the parties at the time of commencement of the proceeding is 65 years of age or older during the pendency of the proceeding attains the age of 65, the Court shall, upon motion of such person, advance the proceeding for speedy trial so that it may be heard and determined with as little delay as possible.” Ask the lawyer to file the motion for a speedy trial because the plaintiff is 79. They are entitled to quick action here regardless of the pandemic.
The courts re-opened for trials on July 13. If, because of health concerns, either your mom or her husband cannot or do not want to appear in person, many judges are also holding trials by zoom conference. She can certainly push this to a conclusion.
As for the children’s claims of competence, make sure your mother asks them “expert interrogatories” before trial so she knows who will testify about his lack of competence and what that person will say. This will give her a chance to hire and present evidence from a competing expert. Of course, she lived with him day to day for the last 10 years so she can also testify about his capacity from a factual standpoint.