Your child’s guardian in a divorce: how to choose and what to do when you and your ex don’t agree

One of the most important ways to protect your family in the event of an emergency is to name a guardian for your children if you pass away before they turn 18. You need to choose who will care for them, because if you don’t, then the court decides. But what happens in a divorce? How do you pick someone when your ex is still in the picture?

The reality is that, in most cases, your ex will get guardianship of your child should you pass away, as your ex is still the other parent of your child. In some cases, this doesn’t happen, though, such as when there is a history of violence, substance abuse, a criminal history, or mental illness. In that case, you should make sure that you have it specified in your estate plan that you do not want your ex to become your child’s guardian, and why. You may not be able to get around it, but at least you can make your wishes known.

But this doesn’t mean that you shouldn’t choose someone. After all, your ex could pass away before you do, and if you don’t choose someone (or don’t “get around to it”), then, again, the state will decide for you, without your input. Another important estate planning issue is who will manage the assets that you leave to your children. You may not want to leave them in the care of your ex, or perhaps the ex’s new spouse. I have an estate planning client in San Ramon who is very concerned about leaving assets within reach of the husband’s new wife! So you should consider a separate money manager or other options to ensure your money is safe and goes where you want it to – to your child.

The bottom line is that estate planning issues are critical in divorce, and must be taken care of once the divorce has finished.


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