Estate Planning and Divorce: Incapacity, Death and Alimony Considerations

If you are considering a divorce, it’s critical to understand the impact of your divorce on what would happen in the event of your incapacity or death, either during the divorce or after.

Unfortunately, most divorce lawyers do not give any thought to incapacity or death, simply because they do not have training on these issues specifically and it’s not at the forefront of their minds when they are advising you through your divorce.

So, that means you may need to be the one to bring it up.

When you do, here are some things for you to keep in mind:

1. As soon as you file for divorce, automated “orders” go into effect that will limit what you can do with your assets during the divorce. These are generally called Automatic Temporary Restraining Orders or “ATROs” and they impact how you can change prior estate planning documents and what you can do with future estate planning decisions while your divorce is in process.
   
   Talking with your divorce lawyer about these issues (or making an appointment to meet with your Personal Family Lawyer®, if we have created your estate plan, before you file for divorce) is a wise choice.
2. If you have already filed for divorce, you may want to revoke any existing powers of attorney and health care directives giving your soon to be ex-spouse control over your assets and your medical decision-making if you were to become incapacitated, as well as execute what we call a “divorce will”, which is a “temporary” Will that would cover the disposition of your assets in the event of your death during your divorce.
   
   Again, talk to your divorce lawyer about these temporary documents that can be executed while you are in the divorce process, and then ensure he or she is coordinating with us on your behalf to get these documents prepared and signed.
3. Be sure to update your “temporary” during divorce estate planning documents once your divorce is final, and all asset dispositions have been handled, to take into account your new reality.

There are many ways to get divorced. The traditional litigation/fight oriented divorce could require years of litigation, and a division of assets based on legal rights, rather than your specific needs and desires.

Alternatively, there is a movement today towards “conscious uncoupling” in which you and your spouse collaboratively tailor the outcome of your divorce to meet each of your specific needs and desires, as well as the overall impact on your family.

With this method, instead of having a judge make all the important decisions in your divorce, you can make decisions that are right for you. This is especially helpful when dealing with alimony.

Alimony, also called spousal support or spousal maintenance depending on the state, is financial support paid to the non-income earning spouse during the divorce proceeding and after the judgment.

Alimony can be paid a number of ways. Most commonly monthly, over a predetermined period of time. Durational payments carry the benefit of a steady income for the recipient but can be modified under certain circumstances, leaving some uncertainty, but also room for continued communication about what’s needed over the non-income earners life as well as what’s possible over the lifetime of the income earning spouse.

With a conscious uncoupling process, the needs of each spouse can be revisited over time.  

Because monthly payments (and a continuing relationship) aren’t right for every family, alimony can also be paid in a lump sum. This is also referred to as alimony buyout.

Lump sum alimony either in the form of a cash buyout or a disproportionate property division is not subject to modification or termination, so it creates a finality to the relationship that isn’t there with a continuing monthly payment.

If you do decide on continuing monthly payments versus a lump sum alimony payment, it’s critical to ensure that those payments would be able to continue in the event of incapacity or death of the spouse paying alimony. In that case, please talk with us about insurance options to guarantee the alimony. As well as ensuring that the spouse paying alimony has properly handled those payments in his or her estate planning documents.

If you decide on a lump sum alimony, be sure to update your estate planning to reflect the new assets you now will have titled in your own name. We can discuss trust planning options to ensure those assets stay out of Court, if and when anything happens to you.

For the legal and financial guidance in negotiating a divorce that works for you, come in to meet with us for a Family Wealth Planning Session, if you are not already a client, so you can get clear on what you own, and what would happen to what you own, in the event of your divorce. And, if you are already a client and considering divorce, please contact us so we can help you consider your options and find the right lawyer or lawyers to support your process through the divorce.

A Personal Family Lawyer®, can guide you in creating a comprehensive financial plan that protects and preserves your wealth while meeting all your financial obligations. Before the session, they’ll send you a Family Wealth Inventory and Assessment to complete that will get you thinking about what you own, what matters most to you, and what you want to leave behind.