(The Press-Enterprise) - A divorce often involves significant emotional upheaval in addition to legal paperwork. However, it’s important to know, for your own well-being and those of your loved ones, there are some legal documents you’ll need to update or implement during and after your divorce.
The legal proceedings for a divorce in California take a minimum of six months and often longer. During that time, your spouse is still your legal next-of-kin, which gives them some authority and rights.
In addition, you may have a joint trust with your spouse that no longer states your desires on your death. You may have appointed your spouse as your agent for health care decisions or as your power of attorney. It will be necessary to review these documents and make changes where and when you can. There are some actions you can take during the proceedings, and others that can only be done after the divorce is final.
Temporary restraining order
Pursuant to the California Family Code, a standard automatic temporary restraining order (ATRO) is put into effect for both parties the moment a petition for dissolution is filed. The ATRO prevents either spouse from transferring, concealing, encumbering or otherwise disposing of any real or personal property without the consent of the other party or the court.
The ATRO stays in effect until a final dissolution order is entered. While this does mean you cannot move assets around, there are other important steps you can take.
Health care directive
If you do not already have an advance health care directive in place, you should immediately get one. With this, you select an agent to make healthcare decisions for you in the event you are incapacitated.
If you don’t want that to be your spouse, you’ll need to designate someone else, and a back-up to that person. You may also want to specifically state that you do not want your spouse, regardless of marital status, making decisions for you.
If you have a health care directive already, you’ll want to review that document and make any necessary changes in a new document. Implementing or changing a health care directive is not prohibited by the ATRO.
Power of attorney
Likewise, a durable power of attorney can be implemented or replaced while the divorce is pending.
Thus, if you want someone other than your spouse to make financial, personal and lifestyle decisions for you in the event of your incapacity, you’ll need to get your power of attorney updated.
Keep in mind the agent you name is the person who will sign contracts for you, choose (perhaps terminate?) your lawyer in legal proceedings, select a care facility, and other such important life decisions for you should you not be able to.
Update right of survivorship documents
By giving notice to the other party, you can change the right of survivorship designation on certain assets.
A property held in joint tenancy can be converted to tenants in common by one party. You can change the “payable on death” or beneficiary designation on an account in your name (without removing the funds from the account). However, these actions require notice to the other party and should be discussed with your family law attorney.
Note also, if these assets are community property, your change of beneficiary will be deemed to affect only your half of the asset. Your spouse will still own their half.
Furthermore, retirement plans are controlled by federal law, and most will require your spouse’s consent to change the beneficiary to anyone other than your spouse. Certain pensions are only payable to a surviving spouse. Be sure to check with your plan administrator to determine what changes you can make and when.
Your will
Family Law Court loses jurisdiction over the matter of your assets upon your death. Thus, if you die in the midst of your divorce, your spouse is your surviving spouse with all community property rights intact.
The ATRO does not prevent you from amending or creating a will. Thus, early in the divorce proceeding, update your will to provide who should inherit your separate property and your half of the community property if it’s anyone other than your spouse.
A living trust
If you and your spouse have a joint trust, you may revoke the trust. However, you’ll need to check the provisions of the trust to determine whether either party acting alone may revoke the trust or if it takes both parties.
If you do not have a copy of your trust, immediately request one from your estate planning attorney. That attorney may have a conflict of interest in representing you (given that they also represented your spouse), but they have a duty to give you a copy of your trust.
Some trusts will have a provision in the document that states if the parties divorce, they will be treated as having pre-deceased one another for purposes of distributions under the trust (i.e., spouse 1’s share of assets would “skip over” spouse 2 and be distributed to the contingent beneficiary in the event of spouse 1’s death and vice versa).
In addition, California law provides that upon the entry of a final judgment of divorce, provisions of wills, trusts, powers of attorney and other dispositions of property are automatically revoked. However, this only applies upon final judgment. During the sometimes seemingly interminable period between filing and judgment, you’ll need to have acted to disinherit your spouse.
Finally, the ATRO does not prevent you from creating your own trust. But you may not transfer any assets into that trust until the divorce is finalized. Thus, also having a “pour-over will” (a will that states “pour my assets, whatever they may be, over into my trust and do what the trust says,” but in fancy legal terms) will be important.
Going through a divorce is a difficult process wherein much can seem out of your control. However, there are actions you can and should take immediately to ensure additional complications do not arise. Perhaps doing so can give you a much-needed sense of power.
By Teresa J. Rhyne
August 21, 2022
Teresa J. Rhyne is an attorney practicing in estate planning and trust administration in Riverside and Paso Robles, CA. She is also the #1 New York Times bestselling author of “The Dog Lived (and So Will I)” and “Poppy in The Wild.”
