Question: When my husband and I divorced 1995, we I signed a settlement which required that he pay me alimony for ten years, provide support and college for our daughter, and continue life insurance of $150,000. When he stopped making all payments three months ago and I called, his new wife told me that he is dying of brain cancer and has six months to live. Because he is so sick, I did not want to take court action, but because I am unable to support myself and educate my daughter, I hired an attorney, but I can’t decide what to do. If he dies, will we be entitled to payment of these funds from his estate? What about the life insurance? I would feel like a heel taking him to court now. What can I do short of that?
Answer: No matter how you try to handle this delicate situation, you and your daughter could come out losers. Since the death of the payor generally terminates obligations to provide support and alimony, your first order of business should be to have your lawyer check the terms of your agreement to make sure that it is binding on your husband’s estate.
Assuming it is, while situations such as this are most difficult, if the lines of communication are open with your former husband and his new wife, you should try to discuss the situation to see if there are ways in which it can be resolved. Since most terminally ill individuals create or modify their estate plans before they become so incapacitated that they are unable to do so, this might be a good time to see where you stand. Assuming your former husband has good health insurance coverage and disability insurance, his estate should be pretty much in tact.
Your agreement should have provided for you to receive proof Of life insurance and premium payment each year or quarter, and you should find out now if the coverage is in place and how much and with which company. If your husband can not afford the premiums, then you should try to get the policy transferred to you and borrow the money to make these payments.
However, not taking action is not without risk. If your ex decides to transfer everything out of his name – or if his new wife has an appropriate durable power of attorney, he may leave no estate - and this could put you and your daughter in litigation with his widow. Or his estate could be drained because of the expense of his last illness. Although the decision is difficult, we believe that, illness or not, this situation needs immediate attention for your protection and that of your daughter.
Question: If this letter seems bitter, that's the way it's intended. In my divorce case which involved our three small daughters (five, seven, and ten years of age), the court appointed a recent law school graduate -- with no experience or qualification other than being a "baby lawyer" - as guardian ad litem for my children at my husband's request. My husband's history includes two arrests for domestic violence to which he pleaded nolo contendere both times, a history of drinking to excess and DWI, a sporadic work history, and constant womanizing.
Despite these facts, the judge rubberstamped the guardian’s report and awarded my husband custody of our daughters. Even though I appealed, my ex moved the children out of state, and the guardian fought with me for a year and a half until the appeals court finally ruled with me and I got my children back. With this woman involved, my ex-husband didn't even need a lawyer. The guardian overstepped her bounds, and there were no restraints on her behavior which was Gestapo-like. The interests of my children were subverted and my constitutional rights were suspended. Why do judges take the reports of unqualified people at face value -- just because they are lawyers? To me, this type of behavior overrides not only common sense, but also my rights to a fair hearing. Not even the police could get away with what this young woman did to me.
Answer: While many guardians ad litem do credible jobs, many do not, and we agree that until the importance of the appointment of guardians ad litem is taken more seriously, problems such as your will persist. And we also agree that just because a person has a "J.D." after his or her name, that in and of itself does not qualify that person as a guardian ad litem. Although training and experience are essential prerequisites, we believe that the courts can reduce the problems that exist in this area by including appropriate guidelines in the orders which are issued to appoint guardians.
"Representing Children: Standards for Attorneys and Guardians ad Litem in Custody or Vistition Proceedings" was published by the American Academy of Matrimonial Lawyers, a non-profit association of leading matrimonial lawyers throughout the United States. Since it’s release, this publication has become the standard used by many judges throughout the United States. To receive this excellent publication, send $7.50 per copy to AAML in care of us, and we will make sure you receive it.
Jan Collins is an award-winning writer and editor. Jan Warner is a matrimonial, elder, and tax attorney. Both are based in Columbia, South Carolina.
Please email your questions janwarner@flyingsolo.com or by mail to P.O.Box 11704, Columbia, S.C. 29211.
