Divorce and Your Important Legal Documents

Divorce can be emotionally and financially draining. Quite frankly, it can be a traumatic experience.  When all the i’s are dotted and all the t’s are crossed, many people think it’s over.  Everything has been addressed.  All the important business has been handled.  Unfortunately, many people are wrong.

Many people would be surprised to learn that some of their most important legal and financial documents have been overlooked.   Documents that have big impacts, such as their:  will and trust, power of attorney, health care directives, beneficiaries, and minor children’s guardianship.  It is imperative these documents are updated to ensure that the person you intend to be in a position of authority over your affairs, should something happen to you, actually is.  The following are a few things you’ll want to consider if you find yourself facing divorce:

  1. Revoke your existing Will and create a new one. In Alabama, once you and your spouse divorce, your spouse no longer stands to inherit any of your estate, unless your Will states otherwise.
  2. If you have minor children, you’ll want to appoint a legal guardian.  You may also want to consider leaving your assets in a trust, and appoint a trustee to manage it, for the benefit of your children.
  3. Many assets pass outside of your will and instead are distributed upon death through written beneficiary designations. It’s critical that you update your beneficiaries on life insurance policies, retirement accounts, and certain bank and brokerage accounts.
  4. Revoke your existing Power of Attorney and create a new one. In Alabama, once you file for a legal separation, annulment or divorce, your spouse no longer authority to act as your agent, unless your Power of Attorney states otherwise.  However, this only applies for Powers of Attorney executed in 2012 or later.
  5. Update your Health Care Directive (also referred to as your Living Will) and appoint a new health care proxy.   This is the person who can make medical decisions on your behalf in an emergency or when you cannot speak for yourself.  It’s important to appoint someone you trust, as this person could be making life and death decisions on your behalf.  In Alabama, once you and your spouse divorce, your ex-spouse’s appointment is revoked, unless your Health Care Directive or your divorce/annulment/separation order states otherwise.

In summary, if you’re recently divorced or are considering divorce, it’s important that you consult with your financial advisor and/or attorney as soon as possible to review and update the documents noted above.  If you would like to speak with our firm about scheduling an appointment to address your specific legal needs, please fill out the short form below, or you may contact us at anytime by calling 256.533.2002.  Please do not include any personal information regarding your legal matter in the Comments box below.

 

“No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.”

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Understanding Marital Property in an Equitable Distribution State

Divorce is an issue that approximately one in three Americans will face in their lifetime.  When divorcing, you have to make a lot of one time financial/economic decisions that you cannot undo once the divorce is settled.  From your first day of marriage, you and your spouse will start to accumulate assets and debts that will become part of your mutually owned marital property.  Therefore, first and foremost, you should have a general understanding of marital property if you are contemplating or going through a divorce.

Most often people think marital property is automatically divided 50/50, which is not the case in Alabama.  If the divorce is uncontested, the parties can agree between themselves on the division of marital property; however, if the divorce is contested, all marital property will be divided in an equitable fashion according to the Court unless otherwise agreed to by the divorcing spouses.  Equitable simply means “what is fair, NOT NECESSARILY EQUAL.”

So what is marital property?  Marital Property is any and all property, real or personal, acquired by the parties during the marriage and used regularly for the common benefit of the marriage.  It is also sometimes referred to as joint property.

With a contested divorce, if evidence indicates that certain assets were acquired during the marriage and there is no evidence indicating that one spouse has received those assets by gift or inheritance, then those assets are generally marital property and are subject to division.  Examples of marital assets can include:

  • The marital home
  • Vehicles
  • Household furniture and furnishings
  • Joint checking or savings accounts
  • Pensions and retirement plans
  • Stock and stock options

Separate property is property owned prior to the marriage and property received by gift or inheritance during the marriage.  A party’s separate property is that property over which he or she exercises exclusive control and from which the spouse derives no benefit by reason of the marital relationship.  The Court does not have the right to distribute any separate property that was obtained before or during the marriage, i.e., gifts, inheritances — UNLESS these gifts and inheritances have been used for the common benefit of the marriage.

Like assets, debts are typically incurred in both short term and long term marriages.  Any credit card debts, mortgages, medical bills and other loans will become part of you and your spouse’s marital property, and they will be divided along with your other marital property.   With contested divorces, the Courts try to equitably divide marital debt just as they do marital assets.  Again, equitable simply means “what is fair, NOT NECESSARILY EQUAL.”   The Courts may look at:

  1. Who incurred the debt?  Was it the personal individual debt of one spouse or was it the joint debt of both spouses?
  2. The purpose of the debt?  Was the debt for the benefit of an individual spouse or for the common benefit of the marriage?
  3. What are the parties financial circumstances?  Who can afford to pay the debt and who cannot?

If the circumstances warrant it, the Court using its discretion, can order one spouse to pay the marital or joint debts of the parties, assign the debt of one party to another and/or equitably divide the debt and the obligation to pay it between the Husband and Wife.

If you are contemplating or going through a divorce, you should take the time to review your individual situation with an experienced attorney who can protect you and your best interests.  Family and divorce practice requires experience in financial, property, estate and divorce law.  Our role at Rahmati Law Firm, LLC is to provide the comprehensive representation you need to understand and protect your personal and family interests.  Our attorneys stand ready to assist you in preparing for the next step in your life.

 “No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.”