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Naming a Guardian For Your Child After Divorce

Naming a Guardian Post Divorce

Divorces tend to exhaust people. At the end of a lengthy divorce, the last thing that anyone wants to consider is additional legal paperwork or decisions. However, many parents with minor children feel concerned about what would happen to their children if they die, and what legal options they have regarding naming a guardian for their child after divorce. If you are a parent that has minor children, learn more about how estate planning can be an important step after your divorce, as Rilus Dana from Dana Legal Help explains more about estate planning after your divorce.

What Every Parent Wants To Know After A Divorce

Now that you are divorced, you may be wondering not only what would happen to your children after you die, but if there is anything you can legally do to prevent your ex-spouse from having full custody of your minor child. The unfortunate truth is that in most cases, an ex-spouse that has joint physical and legal custody of your child will have a large amount of leverage to gain full custody if you die. However, there are some steps you can take in certain circumstances to attempt to mitigate this possible scenario.

What Can You Do Right Away As a Parent?

If you are in the process of a divorce, take the time to change your beneficiary designations that are not part of your divorce to people that are other than your soon to be ex-spouse. In many cases, you will not be able to change your spouse as a beneficiary during a divorce because the assets in question will be ones that need to be equitably divided during the process of the divorce.
However, regarding your estate planning documents, such as your Last Will and Testament (Will), there are steps you can take to change your last wishes to better represent your wishes regarding your children. Consider taking these steps:

  • Immediately make holographic (handwritten) changes to your existing Will. There is a legal presumption in the state of Arizona that a Will is revoked upon a divorce. However, during the process of a divorce, horrific tragedies can happen. Make sure that your wishes are made known during your divorce, or anytime thereafter directly on to your Will through your written handwriting. Consider also having a witness that is unrelated to you, and who is not a beneficiary in your Will witness your handwritten changes and then sign your Will to attest to that fact.
  • The changes you make can include both financial ones, as well as ones that impact your children. While you may have wishes regarding naming a guardian after your divorce, if your ex-spouse has a healthy relationship with your child and shares both legal and physical custody, the law tends to favor granting the other parent full legal custody.

What Happens If My Ex-Spouse Is Not A Healthy Influence on My Child?

There are circumstances where an ex-spouse is simply not a healthy influence on your child. It is important to note that if you ever feel you or your child are in any kind of danger, you should always contact law enforcement. However, if you believe that your ex-spouse should not receive full custody upon your death, you can consider including the following types of information into your Will as you name a guardian after your divorce:

  • Your ex-spouse does not participate in your child’s life either during the marriage or following the divorce.
  • Your ex-spouse does not adhere to the terms of the parenting arrangement and agreement and rarely sees his or her child.
  • Your ex-spouse has had changes of circumstances that have led them to either committing illegal acts or creating a dangerous environment for your child.
  • Your ex-spouse can not be found following the divorce.
  • Your ex-spouse has engaged in any kind of inappropriate or illegal activity in the presence of your child.
  • You have family members or close friends that are heavily involved in the child’s life that would prove to be a healthy emotional guardian in your place.
  • You have reasons why a family member or close friend would serve as either a better guardian than your ex-spouse or your child should at a minimum share time with your ex-spouse and your chosen guardian.

What Are Some Concrete Steps To Take Following a Divorce Regarding Minor Children

There are some concrete steps you can take following your divorce regarding your minor children depending on your own unique facts and circumstances.

When Your Relationship With Your Ex-Spouse Settles Down

In many cases, the time that passes after divorce often creates a more amicable relationship between spouses. If this is your case, take the opportunity to visit with your ex-spouse about what your wishes are for your shared minor children in the case of your death. It is important to also listen to their wishes as well, for example, if they would want you to ensure that the children spend time with their other set of grandparents, etc.

Change Your Beneficiary Forms and Legal Documents

Regardless of whether or not you are able to come to an agreement regarding whether or not your ex-spouse will have to grant your wishes regarding a guardian for your children in the case of your death, there are also other ways to protect your children if you die. You should take the time to change all of your beneficiary forms on your retirement plans, remove your ex-spouse from your property and assets you have after the divorce, and make sure that you do not have your spouse on any kind of medical directive or decision-making documents. Taking the time to do this ensures that your children will have free access to your assets and estate as you move through the estate planning process.

Create a Financial Plan for Your Children

Concerning your estate planning process, you should absolutely visit with an estate planning attorney either during or immediately after your divorce. Even if you are unable to name a guardian after your divorce for your minor children, you can create a Trust or other estate planning document that will ensure that they receive your assets and wealth after you pass away. Make sure to name a person other than your ex-spouse to handle these assets to ensure that your children are financially taken care of in the event of your death.

Contact an Experienced Divorce Attorney

If you are considering a divorce, or in the process of a divorce and still have legal questions about your children and how to ensure your legal rights are protected, contact an experienced family law attorney at Modern Law today at (480) 462-7958. We would welcome the opportunity to visit with you about your legal rights.

For more information

Listen in on a more in depth discussion on the subject of naming a guardian post-divorce between Billie Tarascio and Rilus Dana:

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