One day, your son or daughter tells you that he or she is getting a divorce. "I am not surprised," you say, "because I cannot imagine how my wonderful child could have wound up marrying that dreadful person. I never liked them anyway,"
Then comes the shocker. The attorney for your child's spouse wants you to produce information about your assets and what you intend to leave to your divorcing child. That is information you have always considered very private, and, in fact, you have not even told your children what you have planned to do with your estate.
The reason for this request is that, under Massachusetts law, in the process of "equitable division" of marital resources the judge may order either party to pay alimony to the other or may assign part of the assets of one party to the other party. In making those decisions the judge shall consider a number of factors, including "the opportunity of each for future acquisition of capital assets and income." Other states do not take anticipated inheritances into account, treating inherited assets as belonging to the spouse who receives them.
While the judge may not order you to pay any of your assets to your child's spouse, your child's "expectancy" may be taken into account in making an alimony order or order dividing present assets. Thus, counsel for your child's spouse is entitled to the requested information.
Instead of furnishing copies of wills and trusts and providing copies of brokerage statements, you may furnish what is called a "Vaughan Affidavit." In the Vaughan Affidavit you must state your net worth, plus or minus $500,000, what your estate plan provides, and when it was amended.
Anticipating the marital breakup of a son or daughter is painful. However, it is something you may have to deal with, and we can help you prepare your estate plan for that possibility.
Our colleague, Robert Lawless, works closely with us and handles divorces and legal separations for our clients. He has been dealing with these issues for many years and has broad experience in divorce matters.
