Horror Story: Estate Planning and Divorce

I got a call last week that serves as a cautionary tale for divorcing couples. 

I tell all clients that they need to review and revise their estate plan and the documents involved in that plan when they get divorced.  These documents include Wills, trust instruments, general powers of attorney, health care powers of attorney and beneficiary designations, among others.

However, understandably, many clients do not get around to following this advice.  Many people are emotionally spent during the divorce process.  The last thing they want to do is to go see an estate planning attorney to review documents that remind them of their ex and the life they used to have. 

So, if you are in that boat, let this tale motivate you to call an estate planning attorney today. 

The caller told me that her fiancé had been married in 2004 and divorced in 2010.  During the marriage, her fiancé had executed a durable power of attorney in favor of his then wife.  (Durable means that it survives the incapacitation of the person who executes the Power of Attorney).  Her fiancé recently suffered a medical condition that prevents him from rescinding the Power of Attorney.  So, this man’s ex-wife is exercising the broad authority granted under the Power of Attorney, including managing her ex-husband’s bank accounts and other finances.  And, his fiancé is powerless for now.

You might imagine the unpleasantness that this has caused.  And, it all could have been avoided by reviewing this man’s estate plan after his divorce.  

If you want to avoid your ex having a hand in your finances and other business after your divorce, take the time to review your estate plan as a part of your divorce.

Talking About Divorce May Save Your Marriage

As this article from CNN shows, discussing a possible divorce can save your marriage. 

For the Richards, the conversation about how to break the news of their divorce to their kids led to an open and honest discussion about their marriage.

That, in turn, led to a discussion about how they communicated with each other, and why it was not working.  That conversation saved their marriage.

In my experience as a Raleigh divorce attorney, I have heard client after client explain why their marriage fell apart.  Frequently, they describe little problems that were never effectively addressed.  Five, ten or twenty years later, those little problems had become major problems; just like the problems the Richards describe in the article.

I frequently work with couples that have lost the ability to effectively communicate with each other.  My perception is that many of these couples could have avoided divorce if they had worked on more effective communication during the marriage.  The Richards’ story is a perfect example of this idea.  From countless conversations with marital and family therapists, I understand that their experiences support this idea as well.

I am not a marriage counselor or a mental health professional.  But, I am married and I work with divorced and divorcing couples every day. 

As shown by the Richards’ story, and my own work with divorcing families, you may avoid divorce by having a difficult but important conversation with your spouse that begins something like this:  “If we ever get divorced, what would be the cause?  What can we do to address that now?”

Better to explore these issues now, rather than years down the road in my office.

 

Randolph (Tré) Morgan III is an experienced family law attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, paternity, guardianship and other family related matters.  

Common Law Marriage in North Carolina

My last post discussed the laws relating to unmarried domestic partners, i.e. couples who have lived together for a significant period and acted like they are married.

 One of the biggest misconceptions about the law of marriage in North Carolina is that there are “common law wives” or “common law husbands” in this state.  North Carolina does not grant common law marriages.

Other states do recognize common law marriages.  And, if two people were common law spouses in another state, and then moved to North Carolina, North Carolina may recognize the common law marriage from the other state. But, in or order to get married in North Carolina you have to have a marriage license and a marriage ceremony (in the courthouse or otherwise). 

Because North Carolina does not recognize common law marriages, North Carolina couples that have lived together, but have never been married do not receive the same rights accorded to married couples. 

These rights are significant.  Some of the most important ones are:

–  The right to ask the court to equitably divide property at the end of the relationship;

–  The right to seek financial spousal support from the other party at the end of the relationship;

–  The right to take a share of a spouse’s estate at their death (“elective share” in legalese); and

–  The right to receive spousal benefits from certain retirement plans and pensions.


The bottom line is that is that if you have any questions about whether you are legally married in North Carolina, you should contact a North Carolina family law attorney.  Otherwise, you risk missing out on important protections if your relationship comes to an end.

 

Randolph (Tré) Morgan III is an experienced family law attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, alienation of affection, criminal conversation, parentage, guardianship and other family related matters.