What I’ve learned in 46 years as a Family Lawyer: The first thing to do when you start thinking of getting a divorce — GET A WILL.
If you already have one, I’ll bet it is what we call “Sweetheart Wills.” You leave everything to your spouse, and he/she leaves everything to you, and if you die at the same time in a car crash, then it goes to your kids in a testamentary trust until they reach some age you two selected when you had the Will written up.
So, why is this the 1st thing to do? Think about this – you are contemplating divorcing your marital partner but ignoring the fact he/she will get everything if you die. You are doing nothing to protect the property you have accumulated during your marriage, which you will want if you go forward with the divorce but will ignore it while considering if you’re going to go ahead. The reasons you are thinking about divorce are probably myriad. Still, if it has to do with financial problems, controlling behavior problems by your spouse, or a suspected affair, then there is a greater urgency for you to take control of what you own and make sure you control how that property gets to your loved ones. You could take years to make the problematic emotional decision to leave a marriage and get a divorce. Having your own Last Will and Testament prepared ensures that you have protected all your interest in the property you worked so hard for while married. It is a legal way to “hedge your bet” while deciding what to do and a very smart one.
Just like in a divorce division, you own both separate property (if you can prove it) and 50% of any community property. If you have not done a Will, then major expenses, time, and problems await down the road for you if something should happen to you. It gets more complicated if you have unemancipated children. You can also set up who you want to raise the children if you both you and your spouse perish in a common accident. While your spouse may have a superior right to custody and possession of your children, there are methods to incorporate into your Will to allow a fund to be set up to fight for custody of your kids by a relative or someone who has been a close caregiver to your children if you believe your spouse will not do what is best for your kids.
You also may have what is called non-probate property (IRA’s, company retirement plans, life insurance, and annuities, to name a few), which you usually have set up to go to your spouse if you die by beneficiary designation. While getting your Will done, the attorney will walk you through how to get these assets to your designated loved ones should something happen to you. Many times, these assets are the most valuable you own, and they could go to the person you were considering divorcing because you ignored the reality of how things were set up.
While you are thinking over your options, the very smartest and advanced planning you can do is get a Last Will and Testament. There are other standard estate documents you should strongly consider having done, but getting your Last Will and Testament done is the critical document to have completed. In my 46 years of practicing law, the most down and dirty, emotional, expensive, and devasting litigation has not been in divorce court – but probate court. You are not there to guide the ship in the heavy swales of the litigation storm, and the only one left in charge is the very person you were thinking about leaving to start on your own. You can pull forms from the internet and do it – but I have seen some pretty screwed up Wills done by people pulling forms down from the Web. See an attorney and get educated, and have your Will done right. Your family, friends, and children will all thank you.