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Be Careful About Spousal Trusts And Quick Divorces
Jan L. Warner & Jan Collins

Q: I am writing you because I have run out of options

Q: Several years ago when my wife and I were planning our estates, little did I expect that we would be getting divorced. Because women usually outlive men, I was advised to transfer property to my wife so it would not be in my estate. I was concerned because she had never handled money and because if I died, I wanted the assets to go to our children rather than to her new husband if she remarried.

I put a significant amount of property and money into a trust drawn up by my lawyer. My wife was to get the income during her life and the principal was to go our two grown children and their families at her death. Well, now that we are getting divorced, she wants to keep the trust like it is (so I won't be able to give it to the woman I will marry) and to divide everything else. I need the money. My divorce lawyer tells me that the trust is irrevocable. I didn't know that when I signed it. My divorce lawyer tells me that I need an estate lawyer and that worries me. Do I have reason to be concerned and what can I do?

A: Yes. And you do need lawyers skilled in these areas to advise you. A spousal trust is a vehicle that can accomplish a number of things, including: 1) Providing management of assets for an uninterested or incapable spouse, 2) Removing assets from the reach of a new partner of the surviving spouse, 3) Removing assets from estate tax exposure, and 4) Providing income during the life of the surviving spouse while controlling the ultimate disposition after the death of the surviving spouse.

Although we would not intend to second-guess your lawyers, we believe there were other ways to accomplish your goals without irrevocably placing significant assets into a trust over which you apparently have no lifetime control. We believe that an alternative type of trust was available that could have been either unfunded or only partially funded during your lifetime with the funds coming from what is known as a "pourover" from your will. In this fashion, you could have retained control, which has now become a very important issue.

Of course, none of this can help you now that a divorce court will ultimately make the decision of how your estate will be planned. But it should open your eyes -- and our readers' eyes -- to the fact that you should never sign anything -- even if it was prepared by a lawyer -- without knowing the consequences of your acts.

Q: I am writing you because I feel I have run out of options. Here's my problem: My divorce case has been in the courts for more than a year, and we have had four final hearings so far. The case was set for two days last October, but because of scheduling difficulties, we were given four hours on one day. Then, two and a half weeks later, we went back for a day. After a six week wait, we had a half a day one week and a full day during the next week. Now we are now scheduled to go back in April to "finish up." Every time we go to court, the judge makes us leave the courtroom at least once to bring in what he calls "emergency cases." The judge continues to ask for information about what happened the last times we were in court. And since I asked for the divorce and put up my case first, my husband has the time to prepare and to bring in more and more

witnesses which prolongs this legal disaster. Although my lawyer tells me that this is the best that can be done in my county, I don't think it's fair. Why should I have to accept piecemeal justice?

A: You shouldn't. Based on correspondence from our readers throughout the country, we see more and more "private litigants" getting second class treatment in the court systems. We don't know how an overworked judge can remember what went on two days ago, much less two months ago. There is no question that with your case being presented in this disjointed fashion, you and your husband are at a disadvantage because the judge can forget his side as well as yours. Piecemeal litigation will surely drive up your attorneys fees because each time your lawyer goes to court, there will be preparation time which will be billed to you -- not to mention extra briefs to try to keep the judge on target. Since the basic cause of your problem is underfunding of the court system courts receive less than one percent of governmental budgets -- we suggest that you call and write your state senator and representative. We also suggest that your lawyer make sure that your objections to this procedure are noted in the court record, just in case the result is too skewed and you must appeal.

Jan Collins is an award-winning writer and editor. Jan Warner is a matrimonial, tax, and elder law attorney. Both are based in Columbia, South Carolina. Flying Solo is distributed by Knight-Ridder/Tribune Service.

Please send your questions by e-mail to or by mail to P.O.Box 11704, Columbia, S.C. 29211.

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