If you are a terminally ill wife and going through a divorce, the issues you face go beyond normal child custody and spousal support issues. You may lose your health insurance at a time when your survival depends on it. You must consider whether you want your ex-spouse or a legal guardian to receive custody of your minor children. You can lose custody to your ex-husband because of your health problems. You must determine whether you want your property to go to your ex-spouse or to other relatives or friends.
Illness and Divorce
Two American studies, published in 2001 and 2009, done by teams headed by Dr. Michael J. Glantz of the Penn State School of Medicine, suggest that married women are more likely to be separated or divorced after a terminal illness diagnosis. A 2010 Danish study found that terminally ill married men were more likely to experience the collapse of their marriages than terminally ill married women. All three studies reflect the immense stress that life-threatening illnesses place on marriages.
If your health insurance coverage comes through your husband's job, and your marriage is not abusive or dangerous for you and your children, you may want to discuss postponing or canceling divorce proceedings, so that you will retain your health insurance. If the divorce cannot be delayed or canceled, you may request, as part of your divorce settlement or spousal maintenance award, continuance of your health insurance coverage by your husband until you can qualify for Social Security Disability, Medicare or another form of insurance or financial assistance. Some couples are compelled to divorce because they cannot afford the terminally ill wife's medical expenses, and she can only qualify for Medicaid if she is legally single again.
Your physical and mental health are factors that a judge may consider when deciding whether you should be given sole custody, joint custody or visitation rights. If you currently have custody of your children, be aware that courts generally grant custody to the surviving ex-spouse after one spouse dies unless the surviving spouse is an unfit parent. If you feel your ex-spouse is an unfit parent, state in your will or in a letter for the court why you think your ex-spouse is unsuitable. Include any documentary evidence and name the person you would like appointed as legal guardian. Give a copy of your will or the letter to your proposed legal guardian which he can use as proof of your wishes when applying for guardianship.
Your previous estate planning documents -- which can include a will, a health care power of attorney and an advanced medical directive -- may have to be revised. If you no longer want your ex-husband to determine the course of your medical treatment when you are unable to advocate for yourself, and you do not wish to leave your ex-husband any of your property, you will have to change your estate planning documents to reflect your new wishes.