Many divorcing parents put their estate planning issues on the back burner as part of their post-divorce “to do” list. Divorcing parents with minor children or children with special needs, however, may wish to include a guardian nomination provision within their divorce agreement. Guardian nomination provisions are not required by the Court as part of the divorce agreement, and are therefore seldom seen, but having the conversation prior to the divorce and memorializing the couple’s agreed-upon wishes is an easy way to protect the children from a potential nightmare down the road.
Most divorcing couples are primarily focused on the immediate issue of transforming a single family unit into separate lives: division of assets and liabilities, transitioning to two households, and creating the parenting plan. These issues contemplate the parents living apart, with the issue of the death of one parent arising primarily in the context of a triggering event for the termination of financial support. The care of the children in the event of the death of both parents is usually not part of the typical divorce discussion. In out-of-Court divorce processes such as Mediation or Collaborative Law Practice these type of additional discussions are encouraged.
So what happens to the children if both divorced parents die? As with an intact family, the parents’ relatives would probably go searching for a Last Will and Testament to see what the guardian designations are. With a married couple, whose estate planning was likely done together, the guardian nominations would be the same in both Wills.
For divorced parents, who each have their estate plans prepared separately post-divorce, the list of guardians in each Will may not overlap. Divorced parents frequently nominate guardians only from his or her own side of the family. There may be little or no discussion with the ex-spouse about who should raise the children. Differing guardian nominations can lead to a contested guardianship, including litigation, lawyer fees, and the time and expense associated with a contested Court process. Worst of all, after the child has lost both parents, the child's relatives are at war with each other. Their relationships may be irretrievably destroyed, and if no temporary guardianship is allowed by the Court, the child may remain in DCF custody and placed in a foster home pending the outcome of the guardianship case.
While this worst case scenario may not occur in every case, the potential for it is there if divorcing parents do not take the time to jointly consider who will raise their children if they are both deceased (or otherwise unavailable). Adding a clause to the divorce agreement to nominate guardians would help avoid the possibility of a contested guardianship.
Whether the divorce agreement includes a list of specific names or merely states the parents will confer post-divorce to agree on the nominees, the type of guardian nomination provision is far less important than the fact that there is one at all, demonstrating that the parents have contemplated the options for who will raise their children in the event they are not available to do it themselves.
*Beth is of counsel to Skylark Law & Mediation, PC and runs her own a solo law practice in Newtonville. Beth's practice includes family law & divorce representation, estate planning & probate, and GAL work.
UPDATE: The court has released a web calculating version of the 2021 MA Child Support Guidelines Worksheet . It resolves some of the typos referred to below, but the unexpected calculations still apply. Every four years, per federal mandate, the Massachusetts Probate & Family Court revisits the Child Support Guidelines through the work of a Task Force appointed by the Chief Justice. The 2021 Massachusetts Child Support Guidelines were recently posted. They take effect on October 4, 2021. If you are interested in a training on all of these changes to the new Child Support Guidelines: DMTA Presents the 2021 MA Child Support Guidelines Update – Attend this event to learn the key updates you need to know for your mediation clients. Presented by Justin Kelsey of Divorce Mediation Training Associates and Skylark Law & Mediation, PC . For a full comparison of all the tracked changes between the 2018 and 2021 Massachusetts Child Support Guidelines you can download a pdf sho
It is our hope that all families find a way to resolve conflict peacefully. This is especially true when children are involved. Divorced or separated parenting has many complications and the first is just deciding how to share time with a child from two separate households. Developing a schedule can result in a lot of tension, especially if parents have trouble picturing how this new schedule will interact with their work schedules and the schedules of their children. To help make this easier, we've created an online tool for creating parenting plans that is simple and easy to use: We encourage parents, regardless of the process they are using to divorce, to use this form to assist in evaluating and settling custody disputes. The form allows you to choose between the Model Parenting Plan proposals or customize your parenting plan over a four week period by clicking directly on the form. When you click on a section of the calendar it switches between Mom and Dad, an
In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be