Marietta Divorce and Wills and Estates Lawyer Discusses How Georgia Divorce Affects Your Will and Trust

As a Marietta divorce lawyer, I know that getting a divorce in Georgia can be an overwhelming process.  There are so many decisions to make and things to do that it’s hard to keep everything straight.  And as a Marietta estate planning lawyer, I also know there is one thing that divorcing couples must remember to do—and that is getting your will or trust updated.

Forgetting about your estate plan is understandable from any perspective.  You’re so busy thinking about living arraignments, finances and custody agreements that you simply forget to contact an estate planning lawyer to make sure your spouse will no longer be the beneficiary of your estate once the divorce is final.

And while I admit estate planning is easy to overlook, it’s still something that must be taken care of either before you file or immediately after your divorce is complete.

This is especially true if you have a life insurance policy, retirement accounts, investments, property or even a joint trust with your current spouse.  If you fail to take steps to create a single person trust or designate new beneficiaries on your other assets, your ex-spouse will still receive everything you own—even after you are legally divorced.

Similarly, if you don’t create an updated power of attorney and living will, your soon-to-be ex-spouse will be the only one with legal permission to make decisions for you if you are permanently or temporarily incapacitated.   For most people, the thought of their soon-to-be ex making decisions such as medication administration, life-support or nursing home vs. home health care is frightening.  Also, the ex most likely does not want that responsibility any longer.  That is why it is critical to get these issues addressed at some point before or after the divorce proceedings.

However, there are strict time-frames as to when you can update/amend your estate planning documents during a divorce in Georgia, so please make yourself familiar with the following guidelines:

Updating Your Estate Plan Before Filing Divorce in Georgia

As a Marietta estate planning lawyer, I highly recommend you consider revoking and restating all of your estate planning documents before filing for divorce.  This includes updating your advanced healthcare directive (also known as a living will) and financial power of attorney so someone other than your spouse has the ability to make financial or medical decisions on your behalf if you are unable.   This is especially true if you’re gearing up for a messy divorce which could likely drag on for a number of years. 

You’ll also want to change the beneficiaries on your life insurance policy, retirement accounts and other investments.  If you have a joint trust with your spouse, you’ll need to talk with your Marietta   will and trust lawyer to find out whether you must provide notice to your spouse before it is revoked. 

Updating Your Estate Plan During Divorce Proceedings in Georgia

During your divorce proceedings, the ability to revoke your trust or name new beneficiaries on certain accounts can be halted.  What’s known as an Automatic Temporary Restraining Order (ATRO) or a Standing Order will kick in to ensure your assets and ownership interests stay the same until an official division of assets and ownership interests takes place.  Therefore, it’s important to note that if you pass away during this time, your soon-to-be ex-spouse will still become the beneficiary of your estate.  You can, however, update your will, power of attorney and living will during this time to minimize the amount of power your ex-spouse would have if something unexpectedly happens to you.

Updating Your Estate Plan After a Divorce in Georgia

After the divorce proceeding, you are considered a single person in the eyes of the law.  You are free to update, revoke and amend your estate planning documents as you see fit.  However, as a Marietta GA will and trust lawyer, I’ve come to find that many people falsely believe their spouse is no longer entitled to their assets once the divorce is officially granted.  While it’s true that some estate planning powers may be automatically revoked after the divorce (such as the ability to speak for you medically if you were in an accident), if you have outdated legal documents in place that still include your ex-spouse, he or she will still be the legal beneficiary of your estate or specific assets upon your death.  Therefore, it’s important to make sure every legal document you have is updated immediately following your divorce.

When to Get Help

I always advise people in Georgia to at least meet with a Marietta estate planning attorney, in addition to their Marietta divorce attorney before ultimately filing for divorce. That’s because it’s important for you to know exactly how the divorce proceedings will affect you and/or your children, especially if you become incapacitated or pass away suddenly during the process.

With so much going on during divorce it is difficult to think about adding another legal process.  However, it is critical to make sure your estate plan reflects your new circumstances to avoid everything you own going to your future ex-spouse if you pass away or avoid having him or her legally responsible to make medical or financial decisions for you in the event of incapacity.

GeorgiaFamilyLaw.com

Children Under Age 14 Need Two Parents’ Consent for U.S. Passport

In July 2001, the United States Department of State began to implement a new law regarding passport application procedures. Under the Two-Parent Consent Law, both parents are required to execute the passport application for a minor U.S. citizen under the age of 14. By putting this new law into practice, the Department of State seeks to decrease the likelihood that a U.S. passport will be used to facilitate an international parental child abduction.

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Tax Issues Related to Qualified Domestic Relations Orders and Divorce

An increasingly large portion of the assets of married couples consist of rights to payments and stock from pension plans. In many states such assets are subject to division during a divorce. Divorce and division of property are generally controlled by state law, but pension plans are controlled by federal law in many respects.

Pension Plans and ERISA
A major advantage of saving for retirement through a pension plan is that contributions from employees and employers for plans such as a 401(k) plan are not taxed as income until distributed by the plan, usually after retirement, at lower tax rates. However, under provisions of the Federal Internal Revenue Code, the assignment of pension benefits, including transfers to a spouse during divorce, may result in the loss of such tax benefits.

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Healing the Pain of Divorce

Thanks to Denver attorney and new fellow blogger Peter Mullison at My Colorado Divorce Lawyer Blog for this post:

Cathy Miller at about.com offers some good advice for people dealing with the emotional toll of divorce:

  1. Develop a support system. Find those friends and family who will be there to see you through the times when you need a shoulder to cry on or someone to listen. A clergyman or professional counselor may be helpful, as you can talk openly and confidentially. After a divorce, your true friends won’t be hard to recognize, because they will be willing to help you adjust to the changes. Seek a divorce recovery group in your community, so that you can interact with others going through the same emotions.
  2. Seek professional help if needed. Some people get stuck in the pain of divorce, and may experience depression, whether mild or severe. In that case, it is imperative to seek professional help, through your family doctor or a licensed therapist. Don’t try to carry your burden alone.
  3. Lean on your faith. People who have a religious base may find this is the time they rely deeply on their faith. Even those who don’t consider themselves religious can lean on the faith in themselves that healing is taking place, and that they have the strength to pass through it.
  4. Let yourself feel your emotions. Now is not the time to try to hold in your feelings. Cry when you need to. Express your fears. Voice your anger. Holding in your emotions or trying to convince yourself you are fine when you aren’t is not healthy for you emotionally or physically.
  5. Journal. Many people find that journaling gives them a safe place to process their thoughts and feelings. Choose a journal and set a time of the day when you can write uninterrupted. This may be a time of discovery for you, of the deep seated feelings you didn’t even realize you had. The key to successful journaling is just to keep doing it. Find a safe place to keep your journal so you can have access to it but feel it is safe from others. After some time has passed, you can look back at how far you’ve come and all that you have accomplished.
  6. Don’t isolate. Accept the offers to go to lunch with your friends. Take a day and go out window shopping or sightseeing in your community, and ask someone along. Spend time with family and friends and don’t allow yourself to become isolated. Some time alone is good for everyone, but don’t overdo it.
  7. Be patient with yourself. For a while it may seem you take two steps forward and one back. Allow yourself the time it takes to heal the emotional wounds. Deal with them now so they don’t show up in your life in other ways later. Don’t expect the pain to go away too quickly, but allow yourself all the time you need. This is a very individual process, so don’t compare your progress with others.

SOURCE: My Colorado Divorce Lawyer Blog

Separate or Marital Property? Crowder v Crowder

In Crowder v. Crowder, the Supreme Court has unanimously affirmed the ruling of a Fayette County Superior Court judge. Justice Robert Benham wrote for the Court.

Wife’s appeal was automatically granted pursuant to the Court’s Domestic Relations Pilot Project. She "contends portions of the marital home, Husband’s 401(k) savings account, Husband’s pension, and Wife’s retirement plan constitute marital property subject to equitable distribution, and asserts the trial court erred when it failed to identify the assets as marital property, to determine the amount of the asset subject to equitable distribution, and then to distribute the marital property equitably."

In affirming the court below, the Supreme Court notes that "in a bench trial, the court sits as the finder of fact and, as such, is charged with the responsibility of determining whether and to what extent a particular item is a marital or nonmarital asset and then exercising its discretion and dividing the marital property equitably." However, "inasmuch as the issues on appeal depend upon the factual determinations made by the trial court as fact-finder and neither party asked the trial court to make factual findings, we are unable to conclude that the trial court’s equitable distribution of marital property was improper as a matter of law or as a matter of fact."

SOURCE: Supreme Court of Georgia