Should you Designate a Guardian in your Divorce Agreement?

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 types 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.

Choosing Guardians for Minor Children Part 3: In the Context of Divorce

Sometimes my estate planning clients are divorced with minor children and are not on friendly terms with their former spouses. These are four frequently-asked questions about choosing guardians which arise in this context: “Do I have to name my former spouse as a guardian?” “Can my new spouse be appointed guardian?” “What if I have a restraining order against my former spouse?” “If my former spouse is the custodian of our minor children, will s/he have access to our children’s money?” Here are some of the initial issues we discuss relating to these questions.

1. “Do I have to name my former spouse as a guardian?”

In the event of the death of a custodial parent, the surviving former spouse would automatically become the sole custodial parent, regardless of whether the former spouse is nominated as a guardian. The exception to this rule is if the former spouse is deceased, incarcerated, determined legally unfit, or if the former spouse’s parental rights were otherwise terminated or voluntarily relinquished. The surviving parent is just that, a parent, and while being a parent encompasses the rights and responsibilities that a guardian has, the surviving parent would be known as the minor child’s parent, and not as a guardian.

This does not mean that a client cannot or should not include guardian nominations in his or her Will. The language of the guardian nominations can be tailored to recognize the position of the former spouse within the progression of custodianship of the minor children, and can add contingent guardian nominees in the event the former spouse is or becomes unable or unwilling to assume custody and care of the minor children.


2. “Can my new spouse be guardian?”

The former spouse’s parental rights would supersede a guardian nomination of a client's new spouse, even if the children’s primary residence is with the client and new spouse. This means that the former spouse would automatically become the custodial parent regardless of whether he or she is nominated as a guardian. If the former spouse is deceased or found unfit or voluntarily relinquished his or her parental rights, the Court can then look to other guardian nominations. In these circumstances, it is possible that a new spouse might be named guardian, but not because the new spouse has any inherent right to assume custodianship of the children.


3. “What if I have a restraining order against my former spouse?”

The existence of a restraining order or abuse prevention order does not automatically preclude the former spouse from becoming the sole custodial parent after a client’s death. It will depend on several factors, including whether the restraining order or abuse prevention order includes provisions regarding the minor children, and the status of the former spouse’s parental rights.


4. “If my former spouse is the custodian of our minor children, will s/he have access to our children’s money?”

It depends. Without any estate plan in place, if a former spouse becomes the surviving custodian of a client’s minor children and the client did not remarry, there is a good chance the former spouse will have access to the client’s estate assets which are left to the minor children. If this issue is a concern, it is prudent to establish an estate plan that will ensure that the estate assets are used in the desired manner and managed and distributed by a trusted individual. Some clients choose to establish trusts for the benefit of their minor children just for this purpose.

These short responses are meant to provide initial discussion to some of the questions that frequently arise regarding nominating guardians in the context of divorce. Every client’s family situation is unique and warrants individual analysis and planning for that specific estate.

The Issues with Do-It-Yourself Wills

Clients have come to me bearing copies of their Last Will and Testament documents, which they created through do-it-yourself software kits or on-line estate planning services. They offer these Wills to me for a quick review, believing them to be adequate representations of their wishes, and merely wanting confirmation of these beliefs.

In an age and economy where “do-it-yourself” projects are not only encouraged but often a badge of honor, more people are attempting to save time and money by creating and executing their own Wills. The results, however, are frequently not as laudable as the clients’ intentions. I have yet to review a do-it-yourself Will that has fully and completely reflected a client's wishes, and have even reviewed some with fundamental flaws and contradictions. (Add to that a do-it-yourself Trust and the potential for mistakes and inaccuracies may rise exponentially.)

Of course it is possible that some do-it-yourself estate planning programs will produce documents with the desired results, particularly if the users’ life situations conform exactly with the line of questioning produced by the software or online programs. And if and when the do-it-yourself documents “get it right,” perhaps there will be savings of a few hundred dollars and some hours of time.

The problem is that if the Wills are incomplete, inaccurate, imprecise in any manner, the issues will not be discovered until the Wills are offered to probate, at which time the authors, then deceased, have no ability to clarify or correct the documents. If the Wills were also not executed properly, the Court may reject them from the probate process, or if the problem is with the language of the documents, there may be other issues, such as unnecessary taxes due, heirs omitted by accident, or any number of other problems that can result in (at best) survivors’ confusion and hurt feelings or (at worst) full-fledged litigation. These are usually not the outcomes the decedents were trying to produce.

Wills are documents where it pays to get it right. For many clients, just knowing that their wishes are clearly and accurately portrayed in their Wills offers peace of mind. An initial savings of dollars and time may not be worth the hassle of then having to get the do-it-yourself Wills reviewed and possibly rewritten by an estate planning attorney.