The disposition of property between married couples is greatly affected by both death and termination of the marital relationship. Estate planning and divorce, annulment, or legal separation are integrally related, but many going through the alteration of their marital status put on blinders and fail to consider the estate panning consequences as they relate to an estranged or former spouse. The interval between filing the family law petition and final judgment of all of the family law issues can be lengthy, depending on the complexity of your case. At a minimum, the marital relationship cannot be terminated earlier than six months from the date the respondent is served with the petition. Therefore, advance planning is advisable in the event you should die in the interim. Below are some tips to consider, depending upon the timeline into which your situation falls.
IF YOU ARE PLANNING ON GETTING DIVORCED/LEGALLY SEPARATED
Once you file or are served with a petition for dissolution or legal separation, standard family law restraining orders prohibit you from transferring property interests in a way that would interfere with the court’s ability to equitably divide the marital property. Such orders prohibit the following actions without notice to the other party and without consent from either the other party or the court, depending on the property interest:
Therefore, you should consider taking such actions prior to a family law petition being filed. If property issues are complex in your case, you should consider bifurcating the marital status and property issues, so that the marital status is finally adjudicated after six months and the restraining orders applicable to estate planning will no longer apply.
You are not prohibited, however, from doing the following and need not give notice to the other party or seek court approval:
See the discussion below for the items you should consider in preparing these documents.
IF YOU ARE RECENTLY DIVORCED
Once your divorce is final, certain rights your spouse previously would have had are revoked by operation of law; however, this is not true in the case of a legal separation, as the marital status has not technically been terminated. Therefore, it is crucial that you review your estate planning documents to ensure that your current wishes are protected.
As you should now realize by reading the information in this article, it is advisable that you consult both a family law attorney and an estate planning attorney if you are going or have gone through a change in your marital status.
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