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General Divorce

Divorced or Widowed: Incapacity or Death During your Divorce And How to Protect your Interests

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Death is a certainty for everyone. Divorce is a certainty for roughly 48% of all Californians, according to recent studies. Divorce is also the second most traumatic event a person can experience; second to the loss of a loved one. People going through contested divorces often experience significant emotional and physical stress. So, it should come as no surprise when a spouse becomes incapacitated or passes away in the midst of their divorce. In one of my high-conflict mediations, the couple had finally reached agreements, the wife had already signed the judgment, but the husband missed his signing appointment. I later learned that he had a heart attack on the drive to my office and died. What happens with the divorce?

DEATH OF ONE SPOUSE BEFORE THE MARRIAGE IS FORMALLY ENDED:

If either spouse passes away before the judgment ending the marriage is entered, the family law court loses jurisdiction (legal authority) over all issues, except for those already formally decided (prior orders signed by the parties and (or just by) the judge).

Even though the wife signed the judgment documents, since neither the husband nor the judge signed it, it’s as if the Petition for Dissolution of Marriage was never filed. Wife is not divorced; she’s widowed. Probate court takes over at this point. Husband’s assets would pass to the beneficiaries of his estate plan (most often, that’s the surviving spouse). If he did not have an estate plan, his estate would pass through probate, and wife would receive all the community property and all or a portion of his separate property. Any non-probate assets, such as retirement and life insurance plans, would pass to the beneficiaries he designated in those plans.

In another matter, both spouses and the judge signed the judgment. As part of the agreements, they postponed the date of divorce to a future date to allow wife to stay on husband’s health insurance for a previously scheduled surgery. Wife died before the date of divorce. Again, the surviving spouse, the husband in this case, was widowed, not divorced. But, since the orders dividing the property were already entered, those orders remained binding and enforceable.

DEATH OF ONE SPOUSE AFTER A STATUS ONLY JUDGMENT IS GRANTED:

If either spouse passes away after the court entered a status-only judgment (ended the marriage but did not resolve assets/ debts/ financials), the family court retains the ability to make decisions about those reserved issues, with the executor of the will standing in for the deceased spouse. When a marriage terminates, trust and beneficiary rights under retirement plans and trusts (non-probate transfers) are automatically terminated as is the right-of-survivorship interest in joint tenancies and community property. However, the surviving spouse retains their rights as a designated beneficiary under a life insurance policy. And, unless otherwise stated in the deceased spouse’s will, a judgment ending the marriage also revokes all testamentary transfers between former spouses and any provision in a will nominating the former spouse as trustee, conservator, or guardian. If there is no successor trustee, the matter goes to probate court to appoint a trustee.

HOW TO PROTECT YOUR INTERESTS DURING A DIVORCE PROCESS:

You can protect your interests in case of incapacity or death before your divorce is resolved. Before making any changes relating to your assets, consult your family lawyer to make sure you do not violate any of the automatic Temporary Restraining Orders. You should also speak with a tax advisor since some of these recommendations can have significant tax implications.

Actions you can take without notice to your spouse or a court order:

  • Change or create a health care power of attorney. This is important if you’d rather your soon-to-be ex not decide your medical care while you are incapacitated.
  • Change or create a financial power of attorney. Equally important if you’d rather your soon-to-be ex not manage financial decisions for you while you are incapacitated.
  • Create, modify, or revoke a will.
  • Create, but not fund, a new single settlor revocable or irrevocable trust.

Actions that require notice to your spouse:

  • Revoking a revocable trust.
  • Revoking a transfer to the beneficiary of a non-probate transfer. With life insurances, you cannot revoke the beneficiary if there are issues of child or spousal support.
  • Terminating the right of survivorship for real property.

Actions that require spousal consent or a court order:

  • Funding a new trust (revocable or irrevocable).
  • Creating or modifying a non-probate transfer in a way that changes the prior beneficiary designation. Pension plans are controlled by the Employee Retirement Income Security Act of 1974 (ERISA) and the nonparticipant (non-employee) spouse is entitled to be the beneficiary under federal law.

Actions not allowed during your divorce: Cashing, borrowing against, cancelling, transferring, disposing of, or changing the beneficiaries on life, health, auto, and disability insurance when child or spousal support is at issue.

Most couples in a contested (litigated) divorce are unaware of possible issues related to death or incapacity during the divorce process, and few are given an opportunity to discuss solutions to them. Family lawyers experienced in out-of-court processes like Collaborative Divorce and/or who are knowledgeable in estate planning tend to provide information on this topic, depending on the circumstances. I am often brought in on collaborative cases as an estate planning lawyer to help couples create agreements addressing these concerns, giving a probate court clear indication of their intentions, should something happen to either spouse before they complete their divorce.

Life can change in the blink of an eye. During Covid, we saw the courts completely shut down and the continued delays and backlog; we saw people succumbing to an illness that did not discriminate between the young and elderly, or the healthy and infirm; we are all on notice.

If you don’t have an estate plan in place, get one. The average divorce in California can take three to five years to complete. Whether you have an estate plan or not, whether you are in a contested divorce or a mediation, talk to your divorce professionals about preserving your interests should you become incapacitated or die before your divorce is resolved. A lot can happen in three to five years. Are you prepared?

How to Have a Peaceful and Successful Divorce

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How do you avoid the trauma of divorce – the battle, the fighting which can endure for many months or years, and the constant argument and opposition to a partner whom you once loved or even still care about?

What does it mean to have a peaceful and successful divorce? How do you discuss and create solutions to divide your assets and debts; share the parenting of your children who are not yet adults or still in school; and calculate a fair distribution of earnings to support two households?

Mental health professionals tell us that when we are angry, in trauma, and emotional, that we are not thinking with the best, problem-solving parts of our brains. How are we able to master our emotions to think rationally and to creatively develop solutions and a new sense of purpose? How can we recreate some of the empathy that we formerly had for our spouse to create a base for teamwork, connection, and solution?

Through an out-of-court process of collaborative divorce, working with a collaborative team of professionals, it is possible to transition from battle to cooperative settlement. It is also possible to save months of court litigation by selecting a collaborative divorce alternative.

At this difficult time when court proceedings have been put on hold, and are unpredictable, resolving a divorce case out of court is generally faster because Husband and Wife control the speed of the process and are not subject to the court’s closure(s), reduced staff, and unpredictable scheduling.

Find out how you and your spouse can have a peaceful and successful divorce by contacting a Collaborative Divorce Solutions divorce professional.

Out of every ending, there is a new beginning

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Intro: The sixth phase of grief for couples and families after divorce bring meaning and renewal.

By Hiram Rivera-Toro & Karen Shipley

Entering autumn is a time of goodbyes.  Of saying farewell to summer and all the special memories the season brings:  family get togethers, backyard Bar B Q’s, beach outings, and long road trips.  September 22, 2020, however, marks the passage of a summer that never was:  cancelled proms and graduation ceremonies, June weddings rescheduled, and sheltering at home instead of hanging out.  COVID has rendered our lives unrecognizable as we come to realize there’s no going back to the way it was.  The past is lost, and the future is uncertain.

Parents facing divorce is much like facing Autumn in the time of COVID.  It produces “anticipatory anxiety”, that feeling of dread that accompanies unwelcome change.  It is part of a painful divorce experience that, in many ways resembles the type of grief associated with tremendous trauma and loss.  Professionals trained in the behavioral sciences identify this as the Grief Cycle (Elisabeth Kubler-Ross, MD),  which include five distinct emotions and thoughts: denial, anger, depression, bargaining (often experienced as wishful thinking, what if’s, and “only If I had . . .”), and acceptance.  These five stages do not arrange themselves linearly.  Any one stage can be revisited, or even cause an escapable trap.  Ideally, however, a grieving person moves through the five stages until arriving at a sense of acceptance, strong enough to prompt moving on.  However, individuals overwhelmed by the experience find themselves awash in negativity, with emotions endlessly cycling through all five stages of grief without resolution.

In truth there is little about divorce that can be described as anything but easy, but it does not have to be traumatic.  It may be devastating, but it does not have to be destructive.  It reshapes the family system, but it does not have to annihilate it.  Exchanging the ideal of what was supposed to be for the reality of what is does not have to be perceived as a loss of dreams, an endless loop of grief and loss, but as an opportunity for a new beginning.  David Kessler, grief expert and colleague of Dr. Kubler-Ross, understood grief as a six stage process, wherein the last step  lifts us up and out of the grieving cycle to a place of resolution and inner peace, which he terms as “finding meaning” (Finding Meaning: The Sixth Stage of Grief, 2019). In turn, Tedeschi and Calhoun, in their book Trauma and Transformation (1995), took another look at Post Traumatic Stress as an opportunity for Post Traumatic Growth – a process by which individuals emerge from trauma stronger, better, built up rather than beaten down.

Navigating this process requires a focus that constructively steers the family toward a positive outcome.  Your collaborative team draws from a bedrock principle grounded in the child’s perspective: Mom and Dad are, have been, and always will be Mom and Dad, and the role of parent, unlike the role of spouse, cannot be dissolved by a legal document.  Even as the marriage you once had is drawing to a close your children’s development continues forward. As our colleagues, Bruce Fredenburg and Carol Hughes, say in their recently published book, “Home Will Never Be The Same Again”, 2020, this holds true at any age, and adults may be as affected by parents’ divorce as their younger counterparts.

The collaborative team works from the standpoint that parenting is really coparenting – it is a shared endeavor that joins two individuals in a common goal of raising secure, confident, and productive individuals.  Even in the most ideal situation, where the external shape of the family unit remains relatively unchanged, coparenting is a challenge.  But when the ideal is no more, and the family finds itself torn apart, effective coparenting is more necessary than ever. In the storm of uncertainty, it is the one immutable factor that children, as well as parents and extended family members can hold on to.  In the spirit of this philosophy, the team assures that visitation schedules, financial agreements, residential arrangements take place in an environment of mutual respect rather than acrimony.  And, as actions unfold on the principle of respect, you and your children will once again experience mother and father interacting as a team.

This is possible because the collaborative process teaches the importance of communicating to be understood, and hearing to understand the other parent.  It teaches resolution in a peaceful manner.  It teaches us that we don’t have to become entrenched in the negatives of divorce, but to focus on the positivity of new beginnings. So, we end with the title of this blog, “Out of every ending, there is a new beginning.”

Dealing with the Fear in a Divorce

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By Bart Carey | Originally posted on https://familypeacemaker.com/fear-dealing-with-divorce/

All of the emotions that we see during the course of the breakdown of a marriage and the divorce process boil down to fear. I do not say that from my own expertise but from what I have heard over and over again from my colleagues in the mental health profession.

The first victim of any marriage that is going south is communication. As communication breaks down, people cannot solve problems together anymore. So, what they do is out of frustration and they start taking unilateral action.  However, because we are in a relationship, what you do affects me.  This is when the fear sets in. You lose control and you do not know what’s going to happen next and you don’t understand why your spouse is doing this to you.

This is when the fears arise and what it leads to is a tit for tat situation. It leads doing something that will make me feel like I am back in control of the situation. This back and forth starts to happen and it evolves. All of this happens before the client comes to us in the family law arena. This goes on because of their fear of loss of control, their fear that they can get along, or protect themselves for what is going on. They do not know what is going to happen next.  Their trusted advisors tell them, “You need to talk to an attorney. You need to protect yourself.”  A lot of them use words like you need to attorney up.

Out of fear they hire an attorney.  The process that they choose can make all the difference.  The Collaborative Divorce process offers is a safe space, a structure where they can rely on the supportive professionals that they can trust.  It gives clients a sense of gaining some control back in their lives. That is huge for allaying their fears. It provides a way to reestablish communication that has been lost, which allows them to start making agreements about their divorce. Something they haven’t been able to do for a long time is to agree and solve the problem together.

Suddenly they can start doing that with the structure and the safety of the process and the support that they get from the collaborative team. They start to get a little more assurance and a little less fear and start working more from the problem-solving part of their mind instead of the fight, flight, or freeze part of their mind.  Plus, then the kids start to see them doing this. The kids have seen them fall apart. Now they see their parents working together to create a safe space for the kids and structure in the parenting and the co-parenting that kids depend on.

There is a legacy in this.  You enter into a process that teaches you the skills and tools to be able to solve your own problems to co-parent together, to make agreements about what to do, even when you’re not on the same page about why to do it but what to do. The parents have a competency that allows them to have a more successful future. As parents, the kids see the parents solving one of the biggest life crises that they will ever face and they start to believe that there is no problem too big that you cannot solve it. Collaborative Divorce builds resiliency for both the parents and the kids to deal with future challenges. A future that is not overwhelmed by fear.

Does COVID-19 Cause Divorce?

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By Leslee Newman, Family Law Attorney, CDSOC Member

The pandemic of COVID-19 has swept us up and dramatically changed the way we live in just a matter of weeks.  Our existence has become restricted, regulated, and different than we’ve ever known.  We have all become isolated in our own homes.  The freedom to come and go as we wish has been greatly altered.  We cannot go to restaurants, to our offices and work sites, and to many public places.  We cannot enter places of religious worship, attend lectures, professional meetings, go to the theater, to concerts, to movies, or even personally meet with friends.  And our children cannot go to school.  How traumatically sad for those students in the Class of 2020, graduating from high school and college.

With children now at home full-time, who cares for them, who teaches them, who keeps them busy, and prepares their meals?  We are all prisoners of the Covid pandemic, isolating ourselves to avoid this terrible, and often deadly disease, especially for mature and older adults.

And as we sacrifice and struggle to remain healthy, most of us are restricted from our work places, or worse, furloughed, laid off from work, or even permanently terminated.  Thus, without the expected household cash flow, how will we maintain our residences, and way of life?  How long can we hang on, even with some promised government assistance or unemployment checks?  If the disease doesn’t make you ill, the worry about paying the bills and trying to maintain a standard of living is enough to make you sick.

Although we have suffered many tragic events in the “golden state” due to diasastrous fire storms, and earthquakes, this silent pandemic is not limited to certain areas or neighborhoods.  It doesn’t respect boundaries, and will spread wherever it can.  All we can do is to isolate ourselves from carriers of this terrible disease.

How are families bearing through these troubled times?  Are spouses respecting one another, working more closely with one another?  Are spouses acting more lovingly to one another, with greater patience and understanding, or are they pebbling apart?  Are thoughts or threats of divorce making this crisis even more unbearable?

To make matters worse, courts are closed, with no cases to be heard right away.  No court orders or final judgments are being filed by the court.  What can be done?

Right now, we have no choice.  If divorce appears inevitable or necessary, it’s time to slow down, obtain information, and to carefully learn about the different options of divorce.

One of the most caring ways to do this is to learn how to stay out of court by utilizing a divorce process like mediation or a simplified collaborative divorce.  Not only are these methods faster, more respective and caring, but generally speaking, much less expensive than the traditional litigated divorce.

To learn more, contact Orange County collaborative professionals in your areas from the member’s page of Collaborative Divorce Solutions of Orange County.  Obtain information up front about better alternatives to divorce or separation from experienced legal, mental health, and financial professionals who are compassionate and experienced in their respective areas of divorce and separation.