There are no two ways about it: getting divorced is an exceptionally emotional time. In addition to the emotional highs and lows, there are the legalities to address. You have an overwhelming number of decisions to make and things you should think about it.
It's hard to even consider that list of tasks when all you really want to do is crawl into bed and pull the covers over your head.
However, taking certain steps now will help prevent even more potential pain down the road. We've all heard the horror stories of angry, soon-to-be-ex-spouses cleaning out bank accounts, moving assets, and destroying documents. You don't want to be a statistic.
Though your spouse has certain rights throughout the divorce process, you do want to control your assets as much as possible. Here are 8 steps you should and can take immediately while getting divorced:
Step 1: Review Pre- or Post-nuptial Agreements
You set up these documents for good reason. Now is the time to unearth them and start to take a look at them. Be sure that you are sharing any agreements with your attorney as soon as possible so that your rights are protected.
Step 2: Determine What You Can—and Cannot—Change Now
Although you may be ready to make all kinds of changes as soon as you've determined you're getting divorced, you must ensure you're within the limits of the law. While some documents can be altered now, others cannot.
For instance, you cannot change the beneficiary designations on life insurance, retirement accounts, pension plans, or 401K plans. You also cannot remove family members from your health insurance. You can, however, file a complaint for divorce which will put a hold on all assets.
Step 3: Healthcare and Power of Attorney
While you are getting divorced, you can immediately change the name of the person you'd like to look after your health and finances (power of attorney documents) in case of accident and before the divorce is final. You are required to revoke the power of attorney and execute a new one and provide notice to your soon-to-be-ex of the change.
Step 4: Update Your Will, Estate Plan, and Trusts
If your state allows you to execute a new will, trust, or estate plan during the divorce proceedings, you should do so. Usually in a divorce, the court will issue a preliminary injunction, which requires that certain things such as assets and moving are prevented. Until you are divorced, you are obviously still married, so this injunction may prevent you from changing your estate plan documents and requires a conversation with your divorce attorney first.
However, once the court enters a judgment of divorce, spouses are automatically disqualified as a beneficiary and as a fiduciary (e.g., trustee, personal representative). This does not, however, apply to pensions, 401(k), profit sharing, and other retirement plans. Arizona law does not protect you, so you must notify them of your divorce and change beneficiaries.
IRAs are a little different. Even though Arizona law protects you, IRA custodians may not be willing to follow that law if they are not notified of the divorce. You should also probably immediately change death beneficiaries on life insurance and bank accounts, just to be sure.
Step 5: Decide What to Leave Your Ex
In some cases, you may not wish to disinherit your spouse from all assets or benefits. This is particularly true if you share joint care of a special needs child who will require care and support into the future.
Special needs estate planning is an in-depth topic and one that cannot be fully covered here. Be sure to consult your estate planning attorney for assistance if this relates to your situation.
This is just one instance where you might choose to leave assets to an ex-spouse, particularly if the divorce was fairly amicable, but there may be others. Now's the time to consider.
Step 6: Revisit and Review
Once the divorce is final, you should go back and review all beneficiary designations, draw up a new will, trust, or estate plan, and make any final changes to power of attorney documents. At that point, you'll be able to designate beneficiaries and draw up new documents.
If You Are Getting Divorced, Trust Your Estate Planning to Poulos Law Firm
While the emotional aspect of getting divorced is tumultuous, and you have many aspects to consider legally, now is not the time to neglect your estate plan. Poulos Law Firm has years of experience assisting individuals and families through this trying time to ensure that your loved ones' future is secure.
Contact us to schedule your initial consultation and learn how getting divorced affects your estate.