Till Death do you Part?

One often passes over the opportunities to discuss celebrity divorce on blogs; however, an interesting question about what happens if you have filed for a divorce, but that divorce is not yet finalized when one of the spouses passes. Do you or your soon to be ex-spouse get more of the estate because you are still considered married? Having a prenuptial agreement which states that your current spouse, whom filed for a divorce, will only be allowed to inherit any of the estate if they were married and living together at the time of death. The question in the probate court with respect to the estate will be if the couple was living together at the time of death. Every state is different when they are dealing with estate issues, therefore, if you are in the process of a divorce, make sure that you update your will or trust. Moreover, if you have concerns that your death may occur before the finalization of your divorce, motion the court to bifurcate your case to grant your divorce but reserve on the other issues so that your divorce can be granted. This way, if you die, you will die without a spouse and your former spouse will not inadvertently be entitled to more of the estate under the probate/estate laws.

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Do I need an Orange County divorce attorney?

If you are unsure if you need a divorce attorney, ask yourself the following before you proceed on our own with the divorce proceedings:

1. Do I comprehend the forms that I need to file in order to proceed without a lawyer?

2. Do we have children?

3. Do we have large assets, pensions, 401(K)s and/or liabilities that need to be separated?

4. Is my spouse going to contest any portions of our divorce that may necessitate Court intervention and guidance?

5. Do I have any doubts about whether I am agreeing to do something that I'm not legally required to do or waiving something that I may be legally entitled to?

If you responded yes to any of the questions above, it is in your best interests to at the very least consult with a family law divorce attorney.

The following are common characteristics of a person who does not need an attorney to assist them in a divorce:

1. The parties have no children or sizeable assets that need to be separated and/or have already divided all of their assets and liabilities;

2. The person comprehends all of the divorce documents and is perfectly capable of filing them out without the assistance of a lawyer;

3. Not in a hurry and have no specific time line that they are looking for to finalize their divorce;

4. The funds that it would take to hire a lawyer is more than the value of the assets or debts the parties are contesting;

5. Alimony or child support is not at concern.

DIVISION OF PROPERTY / ASSETS & DEBTS

Debt is part of the American life style. We buy homes and carry a mortgage, we buy autos and carry a lease or a loan and we each have various credit card debts for incidentals, emergencies and/or a trip or family splurge. Often in a divorce matter the parties can easily divide the assets, be it the family residence, cars, jewelry, a vacation home etc. Parties in a divorce action often forget about dividing the community debt that has accumulated through out the marriage. In a divorce situation the parties will no longer have two incomes with which to pay all the bills. In this economy it may be difficult to pay for daily household expenses with just one income. If neither party will be able to pay for the debt it may be wise to consult with a bankruptcy attorney.

California is a community property state and the California Family code calls for an equal distribution of the parties’ assets and debts. The parties can enter into an agreement as to who will be responsible to pay what debt. In the event that the spouse who is awarded the debt obligation does not pay you can pay the debt yourself to save your credit and/or proceed to court to enforce the original order stating that your spouse has not complied with the courts order. This of course does not save your credit or prevent creditors from contacting you demanding payment.

If you have assets like a home it may be wise to sell the home and each pay the debt from the proceeds of the assets so that each of the parties can walk away debt free.

For further assistance on your particular matter feel free to contact the law firm of Yanez & Montes, LLP 714-665-6600.