Does ‘Separation’ Have to Mean Scorched Earth?

by Meredith Brown, Attorney, Brown and Brown

Most divorcing couples can agree on the day they were married but it is not uncommon for spouses to have very different ideas of when the marriage was “over.” Sometimes the dates expressed by spouses are years apart. How do couples set their date of separation? Why does it even matter?

canstockphoto24466347In California, property and debts accumulated by a married couple from their wedding day to their date of separation are considered “community property” to be divided equally.  Generally, once a couple has separated, their earnings, retirement plan contributions and employment benefits such as restricted stock and stock options, and their debts become separate property. When competing dates of separation vary significantly, division of sizable assets and debts may be placed at issue.

So how does the court determine the date on which a marriage was over? There are literally decades of cases that have sorted through a myriad of facts and circumstances in an effort to fix the date on which a particular couple separated. Courts have considered conveniences such as maintaining a joint account to pay bills or filing a joint tax return, or even the thoughtful act of sending a birthday card, as a sign that the marriage was not truly over. It is almost as though couples must suddenly turn a blind eye to one another and their history together as a prerequisite.

This summer, the California Supreme Court issued a ruling on the date of separation in Marriage of Davis. Davis holds that as a prerequisite to separation, spouses must live in two separate residences (with a footnote to the opinion leaving the door open for physical separation under the same roof, under limited circumstances). For many divorcing couples maintaining two separate residences during this difficult time is not economically feasible, practical or desirable, especially for couples with minor children.

When parties cannot agree on their date of separation a separate trial on that one issue may be necessary. The trial process is adversarial, emotionally draining, time-consuming and costly. Judges do the best they can but the court lacks resources to allow for a more compassionate approach that considers the personal and emotional needs of divorcing couples.

The Collaborative Divorce process is different. It is designed to respect your history together and help you design your post-marriage relationship. While you are fully informed about the law, you are not bound by the rules that restrict the court’s options. Your Collaborative Divorce team provides a confidential environment in which you and your spouse work together to create a settlement that meets your family’s needs.

Broken Trust: Advice About Estate Planning During A Divorce

by Meredith L. Brown, Esq.
Brown & Brown

Many couples prepare Wills and Trusts in connection with a happy life event, such as the birth of a child. Frequently these documents are placed in a safe deposit box, never to be updated or even thought about again.

When the unfortunate life event of divorce happens, couples often opt to defer consideration of their old estate planning. No one wants to think about their mortality on a good day, much less when divorce is on their mind. This decision is understandable, but it is probably unwise and potentially costly.

First, a note of caution: if a Petition to dissolve the marriage has already been filed, the law requires that specific steps be taken before changes are made to Wills and Trusts. Similarly, there is an automatic restraint against making changes to beneficiary designations on any insurance. Couples must be sure to comply with these rules.

Family law does not place restrictions on changes to your Advance Health Care Directive after you have filed for divorce. Most couples designate their spouse as their legal voice when it comes to treatment and end of life decisions. Even in divorce situations where couples are amicable, it may not be appropriate for a soon-to-be ex spouse to make these decisions in the midst of a divorce.

How do you decide whether to change your existing estate plan?

The first (and obvious) step is to read and understand your documents. Most couples prepare documents that leave the estate to the survivor between them. Then, ultimately, the estate goes to their children. But this is not always the case, particularly in second marriages.

If you acquired assets after your Trust was created (for example a new home), determine whether title was taken in the name of your Trust. If you hold assets outside of your Trust, you could have the cost of a probate proceeding.

Even if you haven’t done any estate planning but own real estate or other titled assets with your spouse, be sure to check the deed or other title documents. Certain forms of title such as joint tenancy carry with them an automatic right of survivorship. You should consider whether you wish to change the form of title to one without survivorship rights. But before you make any changes, be sure to comply with the notice requirements mandated by law.

Second, ask yourself:  if you were hit by the proverbial truck before your divorce is final, would you want your spouse to receive your share of the estate? If you have children, do you trust that your former spouse will preserve your share of the estate so that your children ultimately receive everything? Would you feel differently if your former spouse sold the marital residence? What if he or she remarried?

Keep in mind that even if you decide to change your estate planning by preparing new Wills and Trusts, your former spouse may still have control over assets you leave to your children, if they are still under age 18. If you do not wish for this to happen, you will need to designate someone else as the guardian of the estate of your children.

As you may guess, determining how your assets are distributed upon your death can be complicated like many other aspects of your life when you file for divorce.  But this is something you need to address for the well-being of yourself and your children. You don’t have to go it alone.  Investing in the advice of an attorney with expertise in estate planning as well as a skilled financial specialist is an investment well worth making.

If you pursue a Collaborative Divorce, a financial specialist is part of your divorce team.  This can be extremely helpful if you are also working through a complex estate plan. It’s another smart reason to consider the Collaborative Process for your divorce.