Estate Planning During and After a Divorce

Developing a comprehensive estate plan is essential to protect your assets, ensure that your desires are carried out and to lessen unnecessary burdens on your loved ones in the event that tragedy strikes.  During and following a divorce, making changes to your estate plan is a necessary step the importance of which cannot be overstated. 

When contemplating a divorce or once the process has begun, it may be in your best interest to execute a new Power of Attorney, Health Care Proxy and HIPAA Release.  You need not wait until a divorce is final to complete updated documents, so that the individual with access to your medical information, the person appointed to make healthcare decisions should you become incapacitated and the person with the ability to take financial action on your behalf is not your soon to be ex-spouse.  

At the time that your divorce is final, it is imperative that you execute a new Last Will and Testament.  This would allow you to choose a new personal representative to be responsible to carry out your final wishes and, if necessary, name the person that you would choose to be responsible for caring for your child(ren) and being responsible for their financial decisions.  

While some of these documents cannot be finalized until the divorce is settled, consulting an estate planning attorney prior to or during the divorce proceeding can assist you in advanced planning and provide valuable advice regarding any issues in the divorce that may affect your estate.

Alimony Reform Act and Orders from Divorces Prior to 2012

There has been significant interest lately regarding the circumstances under which the Alimony Reform Act allows for the suspension, reduction and (of particular interest) termination of alimony orders for divorces that were completed prior to the enactment of the law. 

As a preliminary matter, there is one significant distinction regarding agreements entered into prior to March of 2012.  If the Divorce Agreement contains language stating that the alimony provisions are surviving, meaning they are not subject to future modification by the Court, the provisions of the Alimony Reform Act regarding termination do not apply.

If the Divorce Agreement contains language stating that alimony provisions merge, meaning that they are modifiable by the Court, some of the provisions regarding the suspension, reduction and termination of alimony may apply.  

On January 30, 2015, the Supreme Judicial Court issued 3 decisions impacting the right to seek modification of an alimony order issued prior to the enactment of Massachusetts’ Alimony Reform Act.

  • Doktor v. Doktor, 470 Mass. 547 (2015)
  • Rodman v. Rodman, 470 Mass. 539 (2015)
  • Chin v. Merriot, 470 Mass. 527 (2015)

As a result of these decisions, some provisions of the Alimony Reform Act apply to alimony orders issued prior to 2012, while other provisions of the Alimony Reform Act do not:

  • Retirement Age – Alimony Reform Act Does Not Apply – Under the Supreme Judicial Court rulings, the provision of the Alimony Reform Act that provides for the termination of alimony when the paying party reaches normal retirement age does not apply.
  • Cohabitation – Alimony Reform Act Does Not Apply – Under the Supreme Judicial Court rulings, the provision of the Alimony Reform Act that provides for the reduction or termination of alimony when the party receiving alimony remarries or cohabitates with a new partner does not apply.
  • Durational Limits – Alimony Reform Act Does Apply – Under the Supreme Judicial Court rulings, the durational limits for marriages of less than 20 years can be used to seek a termination of alimony through a Complaint for Modification.