Divorce - FAQ

Divorce affects – either directly or indirectly – every individual and every family in the United States. According to the Centers for Disease Control and Prevention, approximately 43 percent of all marriages end in divorce within 15 years.

How does divorce affect my estate planning?

Divorce affects many areas of estate planning. Your Last Will and Testament (will) does not get revoked just because you are getting divorced. Unless your divorce agreement and will provides otherwise, your soon to be ex-spouse may inherit some or all of your assets, to the detriment of your children, parents or siblings, depending on the details of your prior will. You should change your will as soon as you determine that your marriage is over, whether you have actually filed for divorce or not.

If you are obtaining a divorce, you will also want to re-do your powers of attorney. The General Power of Attorney document gives someone you appoint the ability to access your finances and assets, in case you are unable to do so yourself. The person you designate can do everything you could do for yourself, if the power of attorney is properly drafted, such as check writing, collecting rent, repairing your home, selling your house or car, or trading stocks or other investments. During an extended period of disability, the last thing you would want is for your soon to be ex-spouse to be managing your financial affairs.

You will also want to re-do your Georgia Advance Directive for Health Care (or Health Care Power of Attorney). This document empowers someone of your choosing to make any decisions about your health care which you are unable to make yourself, such as what kind of treatment, whether to have surgery or not, and how much pain medicine you should receive. These are not decisions that should be made by your soon to be ex-spouse! It is a relatively simple document that can easily be prepared by your estate planning attorney.

What are some of the financial pitfalls of divorce?

Sometimes debt overwhelms you during or after your divorce. Many people file for bankruptcy - and a growing number of them are women. More women than couples now ask the courts to declare them legally insolvent and distribute whatever property they have to their creditors. You may want to consider filing for bankruptcy if you have large debts that are likely to stop accumulating and you cannot negotiate a good resolution with your creditors.

Generally, it may be in both spouses' best interests to file a joint bankruptcy on their marital debts before filing for a divorce. This way, they may be able to eliminate some debts that otherwise would be subject to division during the property settlement portion of the divorce.

For example, if the couple has a lot of consumer debt like credit cards, they may be able to discharge that debt in a Chapter 7 bankruptcy filing. If you are having financial difficulty, you can discuss filing Chapter 7 bankruptcy with your attorney. Your attorney should help you by working in conjunction with your accountant and investment advisor.

In addition to my bankruptcy attorney, are there any other sources that I can refer to for financial information or advice?

An Enrolled Agent (tax professional licensed by the Internal Revenue Service to represent taxpayers before the IRS) is an experienced tax professional and can also assist you in conjunction with your attorney.

Please note: This information is provided as a service only; Elder Law Firm does not provide divorce representation.