If divorce is in your future, or you have already filed or been served with a Petition for Dissolution, protection of your assets should be in the forefront of your thoughts. Unfortunately, careful planning in the actual divorce proceeding is only half of the battle. You must also take precautions to ensure that your ultimate estate plan is put into effect. This involves a coordinated effort between your family law counsel and your estate planning counsel in order to ensure that you are protecting your assets, but also avoiding the pitfalls of the Automatic Temporary Restraining Orders (ATROs) imposed upon parties to a Dissolution. An ATRO is an automatic court order limiting the actions the parties can take once a divorce case has been filed.

Prior to filing a divorce action, you should examine your estate plan—or lack thereof. Before filing, you have the most freedom to execute your estate planning intentions. If you want to put a plan into place or make changes to a plan, this is time to do so. You should consult an estate planning attorney in conjunction with consulting a family law attorney to learn what options are available and will best suit your individual and family needs prior to actually filing for divorce. In some cases, of course, this kind of measured reflection is not possible. There may be a reason that you should push your case forward to the filing stage, or you may be the party who is served. If this is the scenario, there are still options available to you in terms of estate planning, albeit, much more limited.

The second that you sign the Petition for Dissolution, the ATROs are firmly in place with regard to you. (Upon service of the Petition to your spouse, the ATROs are effective against your spouse.) At that point, any action you take is subject to certain statutory rules. Certain estate planning tasks may be taken without notice to the other party, while others require written consent from the other party, or even a court order. In the event that you want to take any action affecting your property during divorce proceedings, it is crucial that you consult your family law attorney.

Maintaining and updating your estate plan during the divorce process is important because should you pass away during the process, your property will be distributed as if the divorce filing had never taken place. If you had a plan in place prior to filing, the beneficiary was likely your spouse, and this would continue despite the fact that you were involved in a Dissolution proceeding. If you had no plan upon your death, your assets would pass through the probate process, again to your spouse, in all likelihood. Thus it is imperative that you take steps to put your desires into effect as early as possible.

Once you have been restored to the status of a single person (via a judgment with the court), your complete freedom to exercise the estate plan of your choice is typically reinstated. Accordingly, if there are goals that you could not accomplish during the time in which the ARTOs were in effect, you are then able to fully execute your estate plan.

While it may be overwhelming to ponder these issues alongside your existing divorce concerns, your family attorney should give appropriate consideration to the way in which the termination of your marriage impacts your estate planning.

In my next article I'll discuss issues surrounding what to do with an estate plan before filing for divorce.