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The Impact on Your Estate if You Die Before a Divorce is Final

The untimely death of chef and actor Anthony Bourdain has brought to national attention the potential ramifications of a person’s death during a divorce proceeding. In the same vein, it has highlighted the importance of understanding what would happen to your estate if you were to die during the pendency of your dissolution without having made any changes to your estate plan.

As occurred with Mr. Bourdain’s untimely death, he had been separated from his wife of 20 years for a year and a half. Though the pending “divorce” was made very public, it is unknown whether any divorce filing actually occurred,

What if does indeed happen if you have not taken steps in expectation of a permanent separation (indeed some are more permanent than others)? The broad answer to this complicated issue depends on whether your passing occurs before or after entry of judgment terminating your marital status. This discussion describes what occurs under California Probate and Family Law. The rules for these scenarios may be different in other states.

Death Before Entry of Judgment Terminating Marital Status

If you should die before entry of a status-only judgment, the Family Law Court would lose jurisdiction over all issues, except those already adjudicated. In California, this is called Abatement, and it happens automatically in this situation. Under these circumstances, your share of the community property and all of your separate property would pass as if the Divorce had never been filed! This is true, regardless of who originally filed, how long the divorce went on, how long the period of separation, or how hostile the parties were to each other during the process. It is also true regardless of cohabitation with a new significant other, regardless of the length of that cohabitation.

Therefore, your assets would pass to the beneficiaries of your current estate plan, which is usually your surviving spouse. If you do not have an estate plan, your estate, if over $150,000.00, would pass through probate, and your spouse would potentially receive all of the community property assets and a share of the separate property. Any non-probate assets, such as retirement assets and life insurance plans, would pass to your designated beneficiaries, again, normally your estranged spouse.

Death After Judgment Terminating Marital Status

If you should die after a status-only judgment (a provision of California law that allows the divorce to occur before, or separate from, the resolution of the other issues) that expressly reserves jurisdiction over the remaining issues in the case, the Family Law Court would retain jurisdiction and the property division would take place there. The personal representative of your estate would be substituted in your place in the divorce for this purpose, and the Family Law Court would be able to decide the outstanding issues in the case. It is worth noting, that the court’s jurisdiction over custody, child support, and spousal support would terminate automatically upon your death in the vast majority of cases.

Death after a status-only judgment also has a very different impact on how your estate would be distributed. A judgment of dissolution automatically terminates non-probate transfers between former spouses, including wills, trusts, and beneficiary rights under retirement plans. It also terminates the right of survivorship interest in joint tenancies and community property with right of survivorship. Unless the respective wills provide otherwise, the judgment also revokes all testamentary transfers between former spouses and any provision in a will nominating the former spouse as trustee, conservator or agent. However, a judgment of dissolution does not terminate the surviving spouse’s rights as a designated beneficiary under the life insurance policy. While the ability to change a beneficiary of a retirement plan or life insurance policy may remain during a divorce, California law prohibits such a change after the filing or service of Divorce papers.

One issue that everyone should consider with an impending divorce is that if you do not sign documents specifically stating otherwise, your estranged spouse will continue to hold the power, upon your incapacity, to make medical decisions on your behalf and, like in the case of Anthony Bourdain, will be the person to make all decisions regarding the disposition of your remains.

While no-one anticipates their death, the best course of action, always, is to prepare for that eventuality with an updated, current estate plan, which takes into consideration all aspects of your life, including an impending divorce. Sometimes doing nothing is indeed a conscious choice; by way of illustration a person with knowledge of a terminal illness also going through a divorce who chooses to maintain or change his/her estate plan. Sometimes it’s simply doing nothing.

Obviously we recommend that you always make that conscious choice knowing all of the consequences of that choice.

3 Tips For Parents Communicating With Their Former Spouse

How To Maintain Communication For Your Child’s Sake

Ideally, parents will work together to amicably raise their child and will consistently make decisions based solely on the best interest of their child. Unfortunately, however, most parents struggle, at least to some degree, with “co-parenting”. The first thing to break down when working to raise a child in two separate homes is communication. The below are some helpful tips to consider when communicating with your ex regarding child custody and visitation matters.

KEEP COMMUNICATION RELEVANT

When co-parenting with your ex, it is important to stay focused on the relevant issue at hand, namely, your child. You should not make a practice out of bringing up issues regarding your ex’s personal life unless there is a strong nexus to your child’s safety or wellbeing. Bringing up irrelevant information may, in some instances, result in an unfavorable ruling in your family law matter.

NO “NAME CALLING”

Being disrespectful to your ex, even when it is deserved, will rarely if ever, help your case. While “telling your ex off” may feel good at the time, it is crucial to understand that this correspondence may come back to hurt you in the future, possibly in the form of an exhibit for the Judge to review. Moreover, even if your ex does not bring this information to the court’s attention, it is likely that you will have made your co-parenting relationship worse.

ADDRESS LEGITIMATE CONCERNS IN WRITING

If you have a legitimate concern regarding the health, safety, or welfare of your child, it is important to bring this information up to your ex immediately, preferably in a written correspondence. While it is hopeful that you will not have to go to court over the issue, it is important to create a written record in the event that your ex refuses to work to resolve this issue, and you have to move forward to get relief from the court. On the other hand, if your ex brings up a safety concern regarding the child to your attention, it is important to address that concern, even if it is an irrational one. Blowing off your ex will show the court that you are not willing to co-parent.

Please note, the above are just a few tips and things to consider when co-parenting with your ex. It is important to discuss the specific issues of your case with a trusted family law attorney.

Social Media and Child Custody

Social media is present in most of our lives today. Whether you use Facebook, Twitter, Instagram, or some other social media outlet, most people freely post their comments and pictures without much thought about how the posts may affect them later.

Can social media affect your child custody case?

Many couples include their significant others on their friends list. Mutual friends may also have access to your social media page(s). Social media posts provide a mountain of evidence that can be used against you in court to prove that it is not in the best interest of the children to place them in your care, should issues relating to child custody and visitation arise later. Even an “innocent” re-post of a picture or comment you just believe is funny can be used to show your state of mind.

Social Media Posts and Your Character

For instance, e-cards and pictures relating to alcohol use are often used to prove that a parent has a drinking problem and/or is not stable enough to care for minor children. Additionally, posted statements or pictures relating to your case that are unflattering or places the other parent in a bad light may indicate that you are not the parent who will foster the parent-child(ren) relationship, thus causing you to have a reduced time-share with the children. This is especially true when your children are members of your social media pages.

While there are several other ways that social media can reflect poorly on a parent’s character and therefore their ability to parent, the important thing to keep in mind is to always be mindful of what you are posting on social media especially when you enter legal battles that involve child custody and visitation. Or you can simply turn off your Twitters and Facebooks until your divorce is finalized.

Which Friends Can You Talk to During a Divorce?

By James Parke

Going through a divorce is obviously one of the worst periods anyone can experience in life. In fact, many have stated that divorce is worse than the death of a loved one because, in death, it is common for the survivors to focus on the "good characteristics" of the deceased while overlooking the faults. On the other hand, a divorce is a "death" of a relationship, but in that "death", the parties seem to have nothing good to say or think about the other.

Divorce brings out a great deal of anger, hate, bitterness, and resentment. Most mental health professionals will suggest that a person going through a divorce needs to talk about those feelings to a select group of close friends, people who know you and who will allow you to vent to them.

Here are a few tips on how to pick those friends to whom you may safely vent:

  1. Do not choose a relative or close friend of your spouse

The saying that "blood is thicker than water" is more than an adage. If you choose a relative or close friend of your spouse, it often comes back to "bite" you because of their allegiance to the other spouse;

  1. Limit the number of "close friends"

A good general rule of thumb is to ask about five to seven friends for permission to vent to them. Do not pick anymore, and try not to pick less than that number. If you pick more, then you lose "quality" control. If you pick less, the individuals that you chose are likely to be "burned out" by your venting, as there are no alternatives for you to choose; and

  1. Do not choose a family member

It is always surprising how many attempted reconciliations fail because one party's family refuses to forgive or accept the other party because of the "venting" which the relative spouse has done with them. Relatives are typically very protective and, if you vent too much of the "bad" things about the other party, they will never trust that party again; and

  1. Ask for permission to vent

Once the group of "venting" friends has been decided, be sure to reach an agreement with those friends that you will first ask them if it is a good time to hear your "venting" before you start venting; and

  1. Don’t discuss legal matters

Do not ask your friends for legal advice unless that person is an attorney. Asking advice of a friend about a legal matter like a divorce is like asking a friend who has had knee surgery if he would do some arthroscopic surgery on your knee. You would not do that, so don't ask your friend who has gone through a divorce to be your legal representative.

If you are currently going through or considering a divorce, don’t hesitate to contact our Corona divorce law firm to discuss the specifics of your case.

Violating Court Orders

It is a reasonable assumption that after a divorce is finalized and the court has sorted through issues of child support, spousal support, child custody and visitation that things would run smoothly under the influence of the legal orders.

However, this is not always the case, and other avenues are needed to compel a former spouse to comply with court orders. A court order is a legal decree in which the court dictates that a person must carry out a specific action. Violating such orders is punishable in California by a fine or imprisonment.

In California, a divorce judgment can only be as strong as the execution and enforcement of the court-mandated orders. Violating a court order, particularly in a family court where matters of enforcing child support/custody are concerned, is a foolish thing to do.

Courts issue orders compelling people to do certain things for a wide variety of purposes, but all share at least one thing in common – violation is subject to penalty.

If an individual violates the divorce decree, the other party can seek remedial measures by filing a contempt motion with the court. Defying a court order is considered contempt of court. Examples include, but are not limited to:

  • Failure to pay child support
  • Failure to pay spousal support
  • Failure to comply with the court-ordered visitation schedule

If your ex-spouse has violated or is violating divorce orders, or if you are being accused of violating a divorce order, contact an experienced divorce attorney at the family law offices of Holstrom, Block & Parke for the care, support, and personal attention you need at this time.

Failure to meet the terms of a divorce can have serious and unwanted consequences. For more general information about divorce in California visit us online to our Divorce Practice Center. To schedule an appointment and speak to an attorney submit our contact form or call one of our law offices during normal business hours.

We are located in Riverside, San Bernardino and Orange County for your convenience.

About Dayn Holstrom

Dayn Holstrom is a hard working, compassionate problem solver who welcomes the opportunity to serve you in any way he can. His maximum availability to your questions and concerns begins with your free initial consultation. He is well-seasoned in all matters related to family law and a skilled negotiator and litigator.

I Want a Family

When you envision parenthood, do you think about little footsteps running around your house? How about crayon drawings hanging on your refrigerator door?

Adoption has helped make the dreams of parenthood come true for countless families in the United States.

But, how do you start? The adoption process has many steps, which may seem a little daunting at first. The following is a step-by-step description on how the process works:

  1. After months or years with infertility issues, determine if adoption is for you.
  2. Make sure you decide on an adoption plan – do you want a relationship with the birth parents or do you want to find a child through an agency?
  3. Choose an adoption professional, such as an experienced family law attorney, to guide you through the process.
  4. Complete an adoption home study, which proves you are ready to adopt a child and provide a safe environment for him or her.
  5. Complete an adoptive parent profile, which describes who you are, why you want to be a parent, the plans for your child, and photos of you and your family.
  6. Find a match – through an agency’s matching service or through your own adoption advertising.
  7. Participate in pre-placement contact – helps the adoptive couple and the prospective birth parents get to know each other before the birth of the baby to ensure their match is a good fit for both parties.
  8. Wherever the birth mother lives, travel to her for the big arrival.
  9. ICPC – Interstate compact on the placement of children requirements – you will need to remain in the state where the child was born until all clearances are finalized; this can last from a few days to a few weeks.
  10. Complete post-placement services – ensures the family and child are adjusting well to one another.
  11. Final hearing – a judge’s final review of the adoption, ensuring everything is complete.

Whether you are considering placing a child for adoption, or building your family through adoption, it is important to have an experienced Family Law attorney guide you through the complicated and complex process.

The Family Law offices of Holstrom, Block & Parke provides assistance, legal advice and representation to adoptive parents in a professional caring and supportive manner. Just remember – adoption is the best gift any person can give to a child in need of a permanent family. Get in contact with our firm today!

Visit us today in one of our offices located in Riverside, San Bernardino, and Orange Counties.

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