Dear Tom,
I am so sorry to hear about this situation. My heart goes out to you
and your family, and I hope for the best for your wife. Seriously.
But, these various issues cannot be avoided, and let me use my
experience as an attorney that does a fair amount of family law to
attempt to shed some light on the issues, which you identified as:
1. How does the fact that she filed for divorce against me affect my
marital rights, duties, legal, financial and personal obligations?
1A. I'm thinking in terms of life and death decisions,
1B. long term care considerations,
1C. life insurance,
1D. joint savings?
1E. If she filed a will after filing for divorce, how might that
affect things,
1F. could it possibly jeopardize my relationship (custody) with my
son.
2. I cannot hope for a frank, honest conversation with her about these
concerns,
and I lack full confidence in my attorney.
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First allow me please to insert a disclaimer. Any one issue that you
are presenting can be a very substantive legal issue for which any two
trained experts may have differing opinions. Also, state laws can vary
in material respects as to many of these topics. I will answer your
questions to the best of my ability, but confirming these views with a
local expert that is aware of not only the state law, but also the
local court practices, is critical.
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Here are my thoughts:
1. As a general rule, the filing of a complaint/petition for divorce
does not alter the duties and obligations that were assumed during the
marriage. Until a judge signs the court order dissolving the
marriage, the marriage exists and the protections and obligations are
typically in full force and effect.
I am assuming that you answered your wife’s complaint – you indicated
that you have an attorney – and that answer provides the basis for the
disputes, if any, as to property distributions.
You did not indicate, and I assume that there was no filing for a
legal “separation”, which would be a court order that may, on an
interim basis, provide some direction or disposition as to marital
assets.
THEREFORE, from all indications, you are still entitled to the powers
over marital assets that you have always enjoyed. This does NOT mean,
however, that you will be able to avoid accounting for your actions,
or her for her actions. Courts differ as to the effective date for
marital asset distributions: many courts will value as of the date of
the filing of the complaint/petition, other courts may value as of the
date of separation (however, in your case, since you are living in the
marital home, with your wife, there has been no separation from “bed
and board.”) You should feel comfortable, subject to the advice of
your attorney, to pay the bills, collect monies and deposit them to
joint accounts, and to separate a “fair share” of the collective
savings into your own account if you feel that someone will interfere
with the joint account – but remember, you will be held strictly
accountable for making such a transfer – your decision will be held to
high scrutiny by the court and your actions, if unfair, will be held
against you in spades.
1A. Life and death decisions. I presume that you are asking about
those very critically important decisions as to continuing life
support or otherwise prolonging life of a person who is unable to make
the decisions for herself. I would propose that your wife create a
health care power of attorney which empowers someone to make those
decisions on her behalf – or where she indicates that she wants “no
artificial support” or, on the other hand, to have “all efforts made
on my behalf.”
Here is a nice site from North Carolina that explains this power of
attorney and gives an example:
http://www.ces.ncsu.edu/depts/fcs/frm/docs/fcs387.html . University
of Michigan Hospitals has the following:
http://www.med.umich.edu/1libr/topics/legal02.htm
MAKE SURE THAT, IF SHE DESIRES TO USE THIS MECHANISM, THAT IT IS
SPECIFIC TO YOUR STATE! The hospital should have a form. Her attorney
will also have the appropriate form.
I would strongly suggest that you not participate in this process –
you not be the attorney-in-fact that holds the power, or be seen as
influencing her decision. If you were seen as imposing pressure upon
the process or decision, given the pendency of the divorce, it may
cloud or invalidate her choices, which would be very unfortunate.
1B. Long term care considerations, are similar to the considerations
mentioned in 1A above. There is another power of attorney, generally
known as a “durable power of attorney” where a person who is, among
other things, in long-term care and unable to take care of their
affairs, to empower another to do so for them. Here is an example:
http://www.savewealth.com/planning/estate/powerofattorney.html
Florida Medicaid has some interesting information:
http://www.floridamedicaid.com/Rules/dpoa.html
1C. Life insurance will probably remain as is until such time as the
court’s order is signed, at which time an ex-spouse will probably, as
a matter of law, be eliminated as a named beneficiary under the
policy. If you are the named beneficiary under her existing policy,
and she has made no alternative provision, until the divorce is final
you will probably remain. STATE LAW MAY VARY. Easy question, though,
for your attorney.
1D. Joint savings were discussed above. Any transfers WILL be heavily
scrutinized for appropriateness. Perhaps, if the savings are
significant to the two of you, a simple agreement to split the funds
50/50 – in writing – may be appropriate.
1E. “If she filed a will after filing for divorce, how might that
affect things?” Well, the simple answer is “a lot.” However, this
should only affect the distribution of property and issues directly
related thereto. A will is an instrument that speaks for us when we
are no longer around to speak for ourselves (which is why the
formalities about forming a will are so critically important.) If you
wife, heaven forbid, should pass away, to the extent that a court will
desire to know her opinion as to an issue it will scrutinize the will.
Now, with that said, there are statutory legal protections for you.
For example, the custody of your son will no doubt be governed by the
processes and laws of your state and you as the father will be the
presumptive custodian of your son unless the court were to find that
you were otherwise unfit for such a role. It would be a highly unusual
set of circumstances where a will and a provision within that will to
contribute much to such a debate.
1F. You ask whether all of this, and perhaps the will in particular,
could possibly jeopardize the relationship with your son. The answer
of course is that ALL of this will affect the relationship with your
son – whether it will jeopardize is an unknown.
May I strongly suggest that you and your son, and your dear wife (if
able) seek some counseling so that the relationship that exists will
not be damaged, and hopefully that relationship will be strengthened
as you move through this incredibly difficult, heart-renching and life
changing experience. Divorce changes things for everyone involved,
and particularly for the children. An experts guidance through this
dark forest is invaluable and, if it is productive, will be the best
investment that you have ever made.
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Finally, you should feel comfortable with your attorney. Certainly
you should make your views as to his/her assistance known – in no
uncertain terms. The practice of law is a tough business, and it is
possible that a very competent attorney just got off on the wrong
foot. Give him/her a chance after you explain your feelings.
If things don’t change, and f you can without suffering an unbearable
financial penalty, fire the attorney and seek someone who you are more
philosophically aligned with.
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Again, Tom, best of luck. If you have any specific questions, PLEASE
click on the Clarification Button and ask away. I will get right back
to you.
My most important advice, though: You are still a family – protect
what is good and treat everyone fairly – and this will work out for
you.
I will be thinking of you and your family,
Tom
weisstho-ga
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