What if something was left out of our asset distribution?
If an asset was disclosed during the information-gathering, or “discovery,” phase of the divorce process and you were aware of the asset, yet for some reason the asset wasn’t mentioned in the agreement and there is language in your agreement providing that each party waives their right to the assets of the other except as specifically set forth in the agreement, then you are out of luck. If, however, an asset was never disclosed during the discovery phase or never contained in your spouse’s sworn statement of net worth, that would be considered fraud, and you would have the right to go back to court to obtain your fair share of the undisclosed asset. Sometimes, when there are real suspicions about whether your spouse will be truthful, you can include language in an agreement that provides that, should an asset be uncovered that was not previously disclosed, the discovering party gets that asset.
What happens if we reconcile?
If you have a legal separation agreement but you never moved forward to divorce because you reconciled and you begin once again to live together as husband and wife and share income and assets as if the separation agreement never existed, that does not mean that you once again have rights to the income and assets obtained after the separation agreement was signed. In fact, to ensure that you do have those rights, you will need to sign another agreement that declares the separation agreement null and void.
I have seen parties sign a separation agreement that divides up their marital estate and provides that all income and assets acquired thereafter will be their respective separate property, and then the parties reconcile and live together for a substantial period of time. And during that period of time, one of the parties acquires a new home and/or a new business, and then the parties separate again, most probably for the same reasons that the parties had separated in the first place. While it is understandable that the wife who lived with her husband and provided him emotional and potentially financial support to enable him to acquire his new business believes that she should be entitled to some share of that business, unfortunately, if the parties never rendered their separation agreement null and void, she would have no rights whatsoever. If the reconciliation occurred after the judgment of divorce goes into effect, then that cannot be undone unless you remarry or you enter into a cohabitation agreement to set out the parameters of your relationship.
What happens if I disagree with the court’s final asset distribution order?
If you don’t like the way that the judge distributed your assets after trial, you have a right to appeal his or her decision to an Appellate Court.
In New York State, where I’m from, because their caseloads are so large, judges often refer cases that are purely financial to “special referees” who are only empowered to hear a case and report their findings back to the assigned judge to confirm or disaffirm. However, you may expressly consent to give the referee, rather than the judge, the power to “hear and determine” the issues in your case. If you do not consent, the decision will be made by the judge assigned to the case. If you have consented but are not satisfied with the referee’s decision, you can also appeal the referee’s decision to an Appellate Court just as you would appeal the judge’s decision.
Can I make my spouse give me a religious divorce or enforce a religious marriage contract?
Because religious divorces are often held hostage and used as leverage to get better terms from a settlement, judges will force a litigant to take the necessary steps to give the other spouse a religious divorce before finalizing the secular divorce and will financially penalize the spouse who refuses to do it. As for a religious marriage contract, depending upon what that contract provides, if it is “against public policy” or if it provides for some custodial determination that is not in the children’s best interests, it may not be enforced by a secular court.
Can I remain the beneficiary of my spouse’s life insurance after we divorce?
Yes, you can. In fact, to secure child support or maintenance obligations that your spouse has, your agreement should specifically provide that you will remain a beneficiary while those obligations are being fully satisfied. Your agreement should provide you with authorization to check with the life insurance company directly about whether the policy premium has been paid up to date, that there are no encumbrances or borrowings against the policy, and that the beneficiary status hasn’t been changed. If your agreement does not provide for that, your ex-spouse should at the very least have to provide you with confirmation that the beneficiary designation has been maintained.
If a spouse has no such obligations and he or she never removes your name as beneficiary, it is possible that your agreement may have provided a waiver of your rights to be a beneficiary. Instead of receiving a windfall after your ex-spouse’s untimely death, you may have to give back any life insurance proceeds that you receive.
Can I buy a life insurance policy on my ex after the divorce?
No, you cannot buy a life insurance policy after your divorce on your ex-spouse—without his or her permission. Given that the issue of life insurance so often brings up the sometimes-rational and sometimes-irrational concern that the other spouse will actually do something to hasten one’s death, consent to purchase such insurance after a divorce should not be expected. Sometimes, however, you might be the owner of a term policy on your ex-spouse that you are willing to pay the premium for and that you believe makes financial sense to keep. Even after a divorce you, as the owner, can maintain that policy until the term ends.
Unless an agreement specifically provides for some type of reduction in obligations to pay alimony by an early retirement or a termination of employment, decisions to retire early or to change employment to a lesser-paying, more altruistic job will not relieve a spouse of obligations to pay alimony.
How do I make sure I get my share of my ex-spouse’s retirement plan?
The most effective way of ensuring that you obtain your appropriate share of your ex-spouse’s pension is to file a qualified domestic relations order (a “QDRO”) with the pension administrator. That QDRO should be prepared by a service that understands the complexities of the plan, and it should be done soon after the divorce decree has been entered. In fact, a draft can be forwarded to the pension administrator to approve prior to the finalization of the divorce decree. This is one of those ministerial tasks that can be overlooked—which creates a nightmare for clients and attorneys alike—so there should be a “dinger” or reminder in place each month after the agreement has been finalized. It is best to make a checklist of all of the things to follow up with after a settlement agreement is final, and a QDRO should be high up on that list.
My ex-spouse got the house in the divorce, but I’m still on the mortgage. How can I be sure she is paying the mortgage on time?
To make sure that your spouse doesn’t adversely impact your credit because of a failure to make timely mortgage payments, you can arrange to:
- escrow part of the assets being distributed to your spouse and have them automatically deducted to pay the monthly mortgage;
- ensure that you have the right to pay the mortgage on the residence and deduct the monies from any support payments you might be obligated to make; and/or
- be given the right to force a sale of the residence in the event that there have been a number of late payments or if there are arrears.
When can I change my will?
While this varies state to state, in New York, a surviving spouse has a right to one-third of a deceased spouse’s estate, even if the deceased spouse’s will only provides the surviving spouse with a dollar amount and his or her dirty laundry. A prenuptial or postnuptial agreement, however, can allow spouses to waive their rights to their shares of the other’s estate. So, unless you have such an agreement in place, if you are separated from your spouse, until you have a final, duly executed separation agreement that provides a waiver of that right of election, you still have to maintain a will that provides that your spouse will receive his or her legal share of your estate. And, when divorce proceedings start, automatic orders actually prohibit you from making any changes to your will or to life insurance or other insurances.
Will I lose my alimony payments if I move in with my new significant other?
Unless your agreement provides that your cohabitation after some period of time terminates your alimony payments, that living arrangement will not cause you to lose your alimony. In New York, however, your support could be in jeopardy if you are “holding out” yourself and your new significant other “as husband and wife”—but that standard would be very hard for your ex to prove.
How do I get my ex-spouse to co-parent with me?
If I had an answer for that, I would be a very rich woman. Unfortunately, when there is a bad dynamic and a lot of hurt and resentment, it carries over into the co-parenting arena. Some people utilize the sources of a parenting coordinator to try to referee these issues and get parents to be able to successfully co-parent. I recently participated on a panel where a therapist who I highly regard explained that, until the parties have closure on their relationship, they are incapable of successfully co-parenting. This therapist works with divorced couples and their new spouses and significant others to obtain that closure so that they can release those emotions that are constantly playing in a loop and just focus on their children.