News and Articles

Listening To Understand Is Key for Effective Coparent Communication

March 9, 2026 By Eric Sachs

This blog has been adapted from Dr. Carol Hughes’ article published in Psychology Today, February 28, 2026

The biggest communication problem is we do not listen to understand. We listen to reply.

~ Mahatma Gandhi

Key Points

Misunderstood feelings can fuel conflict and distance after gray divorce

Understanding does not mean agreement. It means listening without judgment.

Feeling understood brings security, relief, and stronger bonds between parents and adult children.

Listening to understand, not to reply, can reduce conflict in families of gray divorce.

When couples 50 and older end their marriage, known as gray divorce, parents and their adult children may have painful feelings about what’s happened in the family and in their relationship. When they lack the tools to communicate effectively, misunderstandings abound, and estrangement can result.

Lorraine, 58, and her husband divorced four years ago. Lorraine and her 33-year-old daughter Stephanie began conjoint therapy for help in having difficult conversations and to heal their pain-filled relationship. In preparation for their upcoming session, their assignment was to read a handout that contained the following information.

People in conflict are often mired in misunderstood feelings.

Feeling misunderstood impedes our ability to understand another person. Neuroscience found that when people feel understood by others, transformative shifts occur.

Feeling understood evokes three predominant emotions that are the antithesis of fear and anxiety:

Satisfaction – Security – Tension Relief. Feeling understood helps us relax and mollifies defensiveness.

Listening to understand is crucial to communicating effectively.

In Zen Mind, Beginner’s Mind, Shunryu Suzuki says that true listening emerges from what he calls “beginner’s mind,” which isthe mind that is willing to remain receptive and open without preconceptions and judgment. Looping utilizes the concept of beginner’s mind.

Looping is short for “closing the loop of communication.” It is a technique that helps develop listening to understand. There is a speaker and a listener. The speaker must speak about only one topic at a time for no more than two to three minutes. Here are the steps for looping:

1. The listener listens carefully to the speaker, does not interrupt, and does not focus on their own thoughts.

2. The listener repeats as closely and carefully as possible what they heard the speaker say. The listener refrains from expressing their judgments, reactions, and assumptions.

3. The listener repeats to the speaker the speaker’s words as accurately as possible and then asks if what they repeated is accurate and complete.

4. The speaker confirms that what the listener repeated is accurate and complete, adds what the listener left out, and corrects anything the listener got wrong.

5. The speaker repeats what the speaker said in number 4.

6. When the speaker says the listener heard them accurately, the loop of communication is closed.

The listener cannot speak until they have demonstrated that they have listened accurately.

The purpose of looping is not to convince or contradict, not to take exception, nor to explain away. It is to understand. People are much more willing and able to understand one another when they feel understood.

“Being heard is so close to being loved that for the average person, they are almost indistinguishable.” ~ David W. Augsburger

Understanding is not the same as agreement.

Looping requires that each person genuinely wants to understand and listen from the heart to how they are experiencing a situation. The inner desire to understand is critical.

Stephanie and Lorraine sat diagonally across from each other on the love seats in my office.

Stephanie: Since our last session, Mom and I decided to practice the steps of looping. It isn’t easy, but we made some progress. Do you agree, Mom?

Lorraine: I agree that it wasn’t easy. Instead of listening with a non-judging mind, I kept falling back into thinking that what Stephanie was saying was wrong and that I was right. We need your help to improve.

Stephanie: Let’s practice. Mom, you be the speaker, and I’ll be the listener.

Lorraine: Stephanie, I’m very hurt that you said you did not want me to bring Joe, my significant other, to your rehearsal dinner and wedding.

Lorraine then turned to Carol and said, “I’ve learned to leave out, ‘How could you do that to me?’ I now understand that I’m blaming and attacking Stephanie. I’ve also learned that I need to be brief and speak about only one topic at a time. I tend to talk in ongoing paragraphs.”

Stephanie: Mom, you’re very hurt that I said I did not want you to bring Joe, your significant other, to my rehearsal dinner and wedding. Did I get that right?

Lorraine: Yes, you did.

Carol: Stephanie, since you accurately heard what your mother said, now it’s your turn to speak.

Stephanie: I want to lecture Mom about how she should respect my feelings. I have learned that’s not listening to understand, so I’m not going to say that. Mom, I want you to honor my feelings that our wedding is about Joshua and me, not about what you want.

Lorraine: You want me to honor your feelings that your wedding is about Joshua and you, not about what I want. Did I get that right?

Stephanie: Yes, you did.

Lorraine: Is there anything else?

Stephanie: No, you got it right.

Carol: What was your experience doing that exercise?

Stephanie: It felt so good that Mom didn’t launch into telling me how I should feel. I felt she finally heard me.

Lorraine: I felt the same way. Stephanie didn’t tell me how I should feel. I felt understood. It’s amazing how simple it seems, although it’s difficult to break my old patterns.

During the session, Stephanie and Lorraine continued practicing looping. Sometimes they had difficulty. They will need more practice and are committed to doing so.

When you talk, you are only repeating what you already know. But if you listen, you may learn something new.” ~ The Dalai Lama

Patient names and details changed to preserve confidentiality.

References

Suzuki, S. Zen Mind, Beginner’s Mind. (2007). Hartford, CT: Weatherhill Distribution Inc.

Friedman, G., and Himmelstein, J. Challenging Conflict: Mediation Through Understanding. (2009). Chicago, IL: American Bar Association

Why Some Adult Children Become Estranged from Parents During and After Divorce

January 30, 2025 By Dr. Carol Hughes

The estrangement of adult children from their divorcing parents is a complex and emotionally charged phenomenon that arises from a mix of emotional, psychological, and social factors. Divorce can disrupt familial bonds, creating ripples that affect immediate family members and multiple generations. However, repairing these fractured relationships is often possible with patience, dedication, and professional guidance.

The Impact of Divorce on Family Dynamics

Divorce, particularly among long-married couples, can place significant strain on relationships between parents and their adult children. With life expectancy increasing, divorcing parents may find themselves navigating family dynamics that span multiple generations, including children, grandchildren, and even great-grandchildren. The reasons adult children may distance themselves during or after their parents’ divorce are varied and often deeply personal.

Here are some of the most common causes of estrangement and potential pathways to resolution:

Common Causes of Estrangement and Resolutions

Value Conflicts

When a parent’s actions contradict the values they once instilled in their children, it can lead to estrangement. David’s infidelity and subsequent marriage to his new significant other caused his 30-year-old son, Andrew, to feel disillusioned. Andrew distanced himself from his father for three years, even barring him from seeing his grandchildren.

Resolution: With the guidance of a neutral family specialist during his collaborative divorce, David and Andrew explored each other’s perspectives and developed mutual compassion. This allowed them to reconcile, ultimately reuniting David with his son and grandchildren.

Loyalty Conflicts

Loyalty conflicts often arise when divorcing parents inadvertently place their children in the middle of their disputes. For example, 21-year-old Maria was overwhelmed when her mother, April, pressured her to side against her father. Feeling trapped and burdened, Maria chose to sever communication with her mother.

Resolution: As part of their collaborative divorce professional team, April met with a neutral family specialist to work through her feelings of anger and betrayal. She apologized to Maria and assured her that maintaining a relationship with both parents was important. This facilitated healing and eventually restored their bond.

Dependency Manipulation

Divorce can sometimes lead to one parent using their financial or emotional support as leverage. Hiromi, for instance, manipulated her 25-year-old son, Steven, by criticizing his father, Hector. To avoid the stress this caused him, Steven cut ties with Hector.

Resolution: A neutral family specialist on their collaborative divorce team helped Hiromi recognize the harm she was causing. She later encouraged Steven to reconnect with Hector, allowing father and son to rebuild their relationship.

Rebuilding Relationships

Reconnecting after estrangement requires time, patience, and effort. Research shows that many adult children become estranged during or after their parents’ divorce. Parents like David, April, and Hiromi, who take the initiative to work with a neutral family specialist and learn how they harm their adult children, can expedite the healing process for their children and themselves.

A Collaborative Approach to Divorce

The Collaborative Divorce Process provides a framework to reduce conflict and promote healing during divorce. This method involves a team of professionals, including collaborative family lawyers, neutral family specialists, and financial specialists. Together, they support the emotional well-being of all family members, including adult children.

Albert Camus’s words resonate deeply in this context: “Peace is the only battle worth waging.” By prioritizing reconciliation and understanding, families can navigate the challenges of divorce with compassion and emerge happier and more at peace about how their family has changed.

*Names and details changed to protect privacy.

Change The Way You Look At Navigating Divorce and Transforming Your Life in Post-Divorce

August 29, 2023 By Glenn Crawford

While it’s true that navigating the road of divorce can be bumpy and unpleasant, I firmly believe you have within you the power to ease some of the strain. I was divorced after 24-years of marriage and I know from personal experience that going through divorce can be mentally, emotionally, and physically taxing. I’m in the financial wellness business and I identify as a “Fiscal Fitness Coach”, it allows me to be unabashedly my authentic self. By employing the coach’s mindset, I have one mission and that’s the help people to better outcomes. It means I can say whatever I believe to be true if I have conviction that it’s in the best interest of those I serve. It also means that I don’t sell anything. People can take my advice or leave it.

Although I know a great deal about financial planning and investments, it’s not the same thing as marital asset division. So, I turned lemons into lemonade by becoming a Certified Divorce Financial Analyst (CDFA). My practice is focused on providing clarity, comfort, and confidence in understanding the financial decisions and the impact of those decisions on people’s lives in post-divorce taking into consideration taxes, risk, liquidity, and the ability to generate income. In short, answering the question everyone asks, “am I going to be ok?”.

My job is much more than figuring out the numbers. I know I can do that. A good part of my job is to provide some perspective and assure people that they are in fact going to be ok, no matter what even though they are in a time of uncertainty.

I’d like to share some of the best advice I can give, and it has nothing to do with the financial decisions involved in the divorce process.

Let’s start with this idea, how about taking care of yourself first? You’ve spent your energy taking care of your spouse and kids. Now is the time to practice what we call self-care. You are going through challenging times, but I assure you that “this too shall pass”. It may be uncomfortable as you go through the process but believe that you will get through it and that there is sunshine on the other side of the dark cloud you may hovering over you now.

There is no limit to things you can do to steady and calm yourself. Get exercise, walk your dog, pick up your instrument that’s been in the case, create a music playlist that puts in a good place, listen to experts (YouTube) on self-help, self-actualization, and spiritual awareness, have a cup of Jasmine tea before you go to bed. My magic elixir is taking a nice bath with a glass of wine, soft music, and a magazine. You’ll sleep like a baby and that’s one thing you need right now, rest. Allow yourself to do that, if you need to sleep all day, sleep all day. Please don’t do it for 30-days straight though. If you need to have a good cry, have a good cry. My Mom taught me that it was perfectly fine to release that emotion. Divorce is a business, and the business of divorce doesn’t care about emotion. Get yourself steadied and put yourself in a position to make informed decisions rather than emotional ones. The quicker you take stock of the position you are in become informed, the quicker you will get your Mojo back.

I’m fine with any decision you make as long as you understand the impact of those decisions on your financial well-being in post-divorce. I’ve seen people do things to their long-term detriment by making a uniformed decision.

Next, I’d like to share a quote and an analogy by one of my mentors Dr. Wayne Dyer, one of the most published and renowned self-improvement authors ever. He said, “when you change the way you look at things, the things you look at change”.

Here’s an example, when you go through divorce you can look at it like you are going to “have to” do some things. That is true, you have to make decisions, disclose things, and meet deadlines. But guess what else is true, you “get to” do some things. You get to rewrite your whole life script; you have a clean slate. How great is it that you can be the author, director, and star of your life script?

I’ve got another powerful example. Rather than looking at your divorce with feelings of pain, anger, hurt or deceit, how about looking at it with gratitude? No one deserves to be in a loveless relationship, if your partner wants to leave, was deceitful or can’t give you their all, be grateful that they are liberating you to find your happiness. It may be hard to believe, but no matter what age you are, you might find someone who will give you the love, caring and companionship that you deserve. You’ve been liberated, be grateful.

Ok, let’s talk about the financial decisions of divorce for a minute. I’d like to share what I call “The 5’isms of Divorce”. My Dad was a Colonel in the Army and he said, “son there are very few universal truths but there are a lot of general truths”.

So here are 5 – things that I think everyone should know generally about divorce:

You are a partner in the marital enterprise – You are entitled to 50% of the was acquired during the course of your marriage, you are responsible for 50% of what was incurred during the course of your marriage. It doesn’t matter if you were the major breadwinner or the CEO of the home. The operative word being “during”, but you are a partner in the corporation of what you built as a married couple. The trick is how do you divide the assets and debts of the company in an equitable way taking into consideration taxes, risk, liquidity, and the ability to the ability to generate income.
Everything is negotiable in divorce – The Date of Separation is negotiable, Spousal support is negotiable, Child support is negotiable, all the assets and debts are negotiable. You can negotiate buyouts, swap outs, trades, etc.
You and your soon to be EX can agree on anything you want to agree on – absent a judge, an attorney or an advisor like me. You can agree on whatever you want as long one of you hasn’t lost their mind. Sometimes people submit that their partner has lost their mind, but they must be diagnosed as such.
Marital Asset Division is essentially final – You can’t go back an renegotiate it unless you can prove fraud, which is timely and costly.
You have to get it right – If marital asset division is final, you have to get it right. There are no do-overs.

Here’s more good news. There’s a 95% chance that you will reach a resolution on your own. In other words, a judge decides the terms of a divorce in only 5% of cases. I would also encourage looking at an alternative means to litigation of coming to an agreement. Collaborative divorce and mediation provide a roadmap to resolve disputes and make financial decisions amicably. These processes foster open communication, reduce legal costs, and enable individuals to take control of their financial futures. By embracing these alternative approaches, couples can transform the divorce experience into an opportunity for growth, collaboration, and long-lasting financial empowerment. You may discover the transformative power of a more amicable divorce process—one that empowers you to forge a path to financial stability and a brighter future for yourself and your loved ones. There was a bright light in you before you got married. That light is still there, you just have to find it and dust it off.

To learn more about the collaborative process click here Glenn Crawford can be reached at 424 N. Lake Ave. Suite 201, Pasadena, CA. 91214, and the office number is (818) 486-5053.

August is “National Make-a-Will” Month. Are You Ready?

August 22, 2023 By Diana L. Martinez, Esq.

Creating a legal life legacy plan can be daunting. Excuses like “I don’t really have anything”, “I’m young and healthy”, or “I’ve just never gotten around to it” can lead to heartbreak, stress, and costly court proceedings for our loved ones, should the unexpected happen. This is even more challenging if you are legally separated or divorced. Everything you worked to preserve can be turned over to your spouse or former spouse, if you don’t create a legal plan detailing your wishes. There are some common misconceptions and complications if you are legally separated compared with divorced. But, in either case, with some work, you can get your plan in order to protect yourself and your loved ones.

Estate Planning when you are Legally Separated (still married)

A legal separation differs from a divorce in that it does not end the marriage. While property like homes, cars, and financial accounts and certain legal obligations are resolved, the marriage stays in place. Whereas at the end of a divorce, each spouse is legally single. This is an important distinction when creating legal instructions if you become unable to make financial and health care decisions (incapacity) and for what happens to your home and financial accounts after you die. Such instructions take the form of a Will and, most often, a Revocable Living Trust, together called an “estate plan”. A Health Care Power of Attorney and a Financial Power of Attorney give clear instructions when you can’t. These legal documents identify who is to take on these roles while you are incapacitated and can put limits on what can be done by your Power of Attorney. Without these documents, the state will assume you intend your spouse to be that decision-maker. Also, in California, spouses have a legal right to inherit from each other. While a divorce ends this right, a legal separation does not. There is case law suggesting that a legally separated widow is not eligible to inherit from the decedent spouse, but your heirs may still have to deal with the probate court, and all of the frustration, fees, and costs that go with it, should your spouse challenge your estate plan. If you have a retirement account, life insurance, and/or investments, you may be limited on your ability to change your designated beneficiaries from your legally separated spouse unless they sign a waiver. And even with a waiver, there may be other related benefits (specifically as to certain pension plans) that cannot be waived. For those who are legally separated and in a new committed relationship, your romantic partner will have no legal right to inherit from you unless you provide for that person in your estate plan, regardless of how committed or how long you’ve been together. This applies even if you are divorced (if you’ve not married your new romantic partner).

Estate Planning when you are Divorced

Planning for your future is typically easier when you are divorced. But there are still some concerns. If you have “reserved” (delayed final orders) on certain assets in your divorce, you will not be able to control what happens to those community assets upon your death through a Will and Trust. This happens when people resolve only their marital status (called a “bifurcation”). Your executor will have to step in, in your place after your death, to complete the division of those assets in the family court. If you have not created an estate plan, the probate court will have to appoint someone for you – yup, your loved ones end up in probate court. If you have remarried, without an estate plan, the state of California will assume that you want your new spouse to take your share of any community property you hold with that person and all or a portion of your separate property (depending on whether you have children from another relationship). Whether you are legally separated or divorced, you can create a plan to make sure your wishes are honored, and your loved ones are taken care of and can move forward without delays, conflict, or expense.

Important steps to take:

Most important: create a Will.
Set up a Trust. A Trust is the vehicle that holds your assets and gives instructions to get them where you want them to go, in the way you want them to get there. It also keeps you out of probate court (a Will alone does not).
Update your Designated Beneficiaries. If your partner/former partner is still named as a beneficiary on your life insurance policies or retirement accounts, they will automatically inherit those funds upon your death, regardless of what you have instructed in your Will and regardless of your Legal Separation or Divorce Judgment. You must change your beneficiaries if you wish to avoid this.
Complete your property division and update how title is held. Surprisingly, many people think once their legal separation or divorce is completed, they can sit back and relax – the hard part is over. There is a lot of work to do to complete the re-titling of financial accounts, real property, vehicles, insurance plans, and other assets and debts. This can take time and is probably the most important part of your separation or divorce to secure your ability to control those items and to make sure you are not responsible for those items assigned to your spouse or former spouse.
Update your Estate Plan. Things change over time. You may inherit real estate, have a new grandbaby, or your executor may move out of the country. Review and update your existing plan every couple of years, at least, to make any necessary updates.

With proper planning and a knowledgeable, experienced professional you can create a life plan that honors your wishes, both during your lifetime and after.

Navigating Fear and Divorce

July 7, 2023 By Patricia Van Haren

Introduction:

Divorce is without doubt one of the most challenging experiences a person can get through. It involves emotional upheaval, uncertainty about the future, and the end of a once-cherished romantic partnership. Fear can become a constant companion during this journey, casting a shadow over decision-making and exacerbating existing conflicts.

As a family law attorney with a focus on mediation and collaborative divorce, I have witnessed how fear can hinder the divorce process and impede the path to a peaceful resolution. When a couple is in litigation, they may soon find that all of their fears turn into reality but that does not need to be your story. In this article, I aim to shed light on the role of fear in divorce, its impact on individuals and families, and how mediation and collaborative divorce can help alleviate these fears and enable the spouses to be active participants in a path to peace.

Understanding Fear in Divorce:

Fear is a natural response to uncertainty, loss, and change. In the context of divorce, it can manifest in various ways, including:

a) Fear of the unknown: Divorce introduces a multitude of unknowns – financial stability, child custody arrangements, and future relationships. When a couple is engaged in divorce litigation, they are placed in a position of working against each other and battling over ever issue. This increases the stress level and builds up fear in both spouses. Fear often arises from the fear of the unfamiliar and the loss of the familiar. When you choose to move forward with an out of court resolution, you have the ability to weigh in on the choices in your future rather than leaving your destiny to the whim of the Judge.

b) Fear of loss: Divorce often involves the loss of a shared life, the dissolution of dreams and plans, and the fear of losing connections with children, extended family, and friends. When a couple is in litigation often friends feel like they need to take sides or they may choose to avoid both spouses. Families often align with one of the parties and children may also feel like they are betraying one of both of their parents simply by enjoying time with the other parent. When a couple chooses collaborative divorce, they often utilize a specialist that can help them maintain family relationships and communication with extended family after divorce.

c) Fear of conflict: Conflict is inherent in divorce, and the fear of contentious legal battles, animosity, and bitterness can create immense anxiety. When you are not engaged in litigation but you are exploring a problem solving approach to your divorce, you will not be forced to engage in ongoing conflict. Spouses who choose collaborative divorce are able to work with a team to manage conflict before it escalates and to develop communication skills which allow them to work together after the divorce is finalized.

The Impact of Fear:

Allowing fear to dominate the divorce process can have far-reaching consequences, both for the individuals involved and their families and can cause some of the fears to be self-actualized by their own actions.

a) Hindering decision-making: Fear can cloud judgment and prevent individuals from making rational decisions based on their long-term interests. Sometimes this will cause one spouse to burry their head in the sand and refuse to move forward which can lead to conflict and frustration from the spouse that wants to move forward with the divorce. Fear can also lead to impulsive choices or an overwhelming desire to “win” at any cost. This is where using a team approach can assist families in moving forward and allow the spouses to make sound rational decisions based on facts rather than emotions.

b) Escalating conflict: Fear often fuels conflict, making it harder to find common ground and reach agreements. When couples are in litigation they often become enraged when reading what is written about them in court documents. They become fearful that the court will side with their spouse so they feel that they need to file documents that paint their spouse in a negative light. This cycle may continue through the entire litigation case. The spouses may become entrenched in their positions, leading to prolonged and acrimonious legal battles. When couples choose a peaceful process of moving forward, they can work with the members on their team to deescalate the conflict and to come up with solutions that will be better for their children, them and their former spouse.

c) Emotional toll on children: Fear and conflict can have a detrimental impact on children caught in the crossfire. When parents are in litigation they are often in conflict in front of the children and the children can see the animosity between the parents. It can affect their emotional well-being, academic performance, and relationships with both parents. This is where the litigation model really fails children. The future of children in litigated cases is left to a Judge that has usually never even met the children. When a family chooses to work together as a team with their professionals, they learn how to communicate in a way that the children are not exposed to anger and conflict.

Mediation and Collaborative Divorce: Empowering Alternatives:

Fortunately, there are alternative approaches to divorce that prioritize cooperation, respect, and open communication to divorcing couples. Both mediation and collaborative divorce offer couples an opportunity to navigate the divorce process while mitigating fear and focusing on constructive solutions for their children and their family:

a) Mediation: In mediation, a neutral third party, the mediator, facilitates discussions between the couple to identify common goals and reach mutually agreeable solutions. The process encourages open communication, problem-solving, and decision-making based on the best interests of both parties and any children involved. The mediator does not act as an attorney for either party however each party may choose to have a consulting attorney to guide them through the process.

b) Collaborative divorce: Collaborative divorce involves a team of professionals, including attorneys, financial advisors, and therapists, who work together to guide couples through the process. All professionals on the team have been collaboratively trained and the focus is to help the family create their new life in two households. The emphasis is on resolving all issues outside the courtroom, fostering cooperation and communication, and finding win-win solutions that prioritize the needs of all family members.

Alleviating Fear through Mediation and Collaborative Divorce:

Mediation and collaborative divorce offer several benefits that can help alleviate fear and promote a healthier divorce experience:

a) Empowerment and control: These processes allow individuals to retain control over all decisions which impact their lives and their children rather than leaving them in the hands of a judge. This empowerment can counteract fear by giving individuals a voice and an active role in shaping their futures and the way that they interact in the years to come. Both spouses learn to work together to come up with resolutions and to formulate an agreement that benefits them and their children.

b) Preservation of relationships: Mediation and collaborative divorce aim to preserve amicable relationships between divorcing partners and co-parents, which can help mitigate fear related to loss and disconnection. It allows for respectful co-parenting and a smoother transition for children. When families are in litigation the fractured communication system between the parents becomes increasingly hostile and can make it hard to have open communications in later years. Collaborative Divorce also enables parties to continue to have relationships with extended family and friends as there is not the same compulsion to feel like they need to choose sides.

c) Emotional support: Both mediation and collaborative divorce prioritize the emotional well-being of both spouses and their children and offer as well as encourage the opportunity to work with mental health professionals who can provide emotional support and guidance throughout the process. The coaches on a collaborative team are able to guide the process so that both spouses can be heard throughout the process and can learn skills which will enable them to coparent after the case has concluded.

Conclusion:

Divorce is a journey that can be marked by uncertainty and fear, but it doesn’t have to be defined by animosity and acrimony. As a family law attorney specializing in mediation and collaborative divorce, I firmly believe that fear can be transformed into empowerment and cooperation. By choosing alternative dispute resolution methods, such as mediation and collaborative divorce, people can take control of their divorce process, preserve important relationships, and build a foundation for a more positive post-divorce future.

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

April 27, 2023 By Diana L. Martinez, Esq.

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?

News and Articles

Estate Planning when you are Legally Separated (still married)

Estate Planning when you are Divorced

Important steps to take:

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