money and death of parent

[hagatha]

Soc,

All parties live in PA.

Father has terminal brain cancer. Parents have been seperated for almost five years. Mother refuses to sign final papers because she will not receive any money if the divorce is finalized.

Child is 16 and had quit school, with mothers blessing. However since learning of fathers health problem has re-enrolled him in school. (child failed 8th grade and decided he did not want to repeat the grade. She moved to another county and somehow got him into 9th grade)

Father has no attorney and given the health problems can not afford counsel. (we're working on that)

Questions

1). Is there any way to "fast track" the divorce without mothers signiture?

2) Can father prevent mother from getting any of his pension?

3) Can father prevent mother from getting any social security benifits?

4) Should son fail to attend school or quit school before the death of father can mother still optain SS benifits for child?

5) Should father make a new will but include mother (leave her $1.) to prevent her from contesting the new will?

6) Any other suggestions?? (Daughter does Not want mother to benifit in any way from fathers death)


Thanks
The Witch

[socrateaser]

>Questions
>
>1). Is there any way to "fast track" the divorce without
>mothers signiture?

You can ask for an order shortening time, and the court would probably grant it. But, the other parent is entitled to a trial on the merits, so this all could get quite messy and expensive.

>
>2) Can father prevent mother from getting any of his pension?

Depends solely on PA law. I can't answer. PA is a separate property jurisdiction, where, in "general,"  pension would be the separate asset of the husband, subject to the court's authority to equitably divide the marital estate on divorce, depending upon the respective parties' contributions to the marriage and subsequent needs.

Without very specific facts about the marital history, I couldn't even guess at what the court might decide.

>
>3) Can father prevent mother from getting any social security
>benifits?

Nope. Federal law permits the divorced spouse to obtain benefits as if she were not divorced. This has no effect on any other relation or subsequent spouse.

What you are suggesting is thus, punitive in nature, and generally beyond the authority of the court, except upon proof of criminal or willful and malicious actions.

>4) Should son fail to attend school or quit school before the
>death of father can mother still optain SS benifits for
>child?

Contact the SS Administration for specifics in this area of law.

>
>5) Should father make a new will but include mother (leave her
>$1.) to prevent her from contesting the new will?

This is also a question of PA law. If husband intentionally leaves wife out of will, to the extent that PA probate law permits this scenario, the Will controls. However, I suspect that there are laws in the jurisdiction which permit the court to prevent the husband from achieving in death, what he could not have otherwise achieved during a divorce.

>
>6) Any other suggestions?? (Daughter does Not want mother to
>benifit in any way from fathers death)

Yes. When planning for revenge, first thing to do is to dig two graves (in this case, three). Daughter has NO interest in father's estate until his death, unless father transfers the property inter vivos (prior to death).

If the property is more than $12,500, and is transferred before death, there will be a HUGE federal gift tax on the amounts greater than $12.5K assessed against husband's estate, and thus on the property transferred to daughter. If husband dies and daughter inherits, then no gift tax, and if the estate is less than $3 million, then no estate transfer tax, either.

Furthermore, since the divorce is pending, husband is likely restrained by the court from modifying the disposition of his assets, without court permission. So, any changes now would almost certainly be reversed.

If you believe that the wife is using the situation to achieve a result that, but for husband's incapacity, would not have been possible, then you need to bring the matter to the court and show that the wife doesn't deserve the assets from the divorce or likely death of husband, because of her inequitable actions.

This is known as the "clean hands doctrine." A party who wants equity/fairness from the court, must have clean hands in the transaction with the other party. Here, the wife is apparently using the divorce to prevent husband from making a testamentary or inter vivos disposition to his daughter, which, but for husband's incapacity, would be his preference.

Get an attorney, and explain it to the judge. Once the wheels are rolling, the wife may be suddenly persuaded to settle.

[hagatha]

Soc,

The father is willing to abide by the settlement they had already reached. Mother has decided after hearing of fathers terminal illness to do whatever she can to postpone the divorce as she believes she will benifit more as his widow. And this benifit would be a detriment to the children.

questions

1. can he make a new will designating the children as his benifituaries which would void the previous will listing her as sole benifituary?

2. You are saying she will be able to get SS even if the divorce is granted? What if he does live a couple of more years? Is SS based on the amount of time the parties were married? or subsequent marriages?

3.  Since one of the children is still a minor, should the inheritance he is likely to recieve be put in a trust fund or would you recommend another way to protect the childs assets from mother. (mother will most likely spend the money)

4. Should father go to court and present the settlement they agreed to and ask the Judge to order that settlement explaining that mother  would have already signed the paperwork except for learing of fathers illness?

Thanks
The Witch

[socrateaser]

>Soc,
>
>The father is willing to abide by the settlement they had
>already reached. Mother has decided after hearing of fathers
>terminal illness to do whatever she can to postpone the
>divorce as she believes she will benifit more as his widow.
>And this benifit would be a detriment to the children.
>
>questions
>
>1. can he make a new will designating the children as his
>benifituaries which would void the previous will listing her
>as sole benifituary?

He can make one, but the probate court can set it aside if it appears that the husband is attempting to accomplish in death what could not have been accomplished during life: cutting his wife out of the marital estate.

>
>2. You are saying she will be able to get SS even if the
>divorce is granted? What if he does live a couple of more
>years? Is SS based on the amount of time the parties were
>married? or subsequent marriages?

It's irrelevant. Whatever she gets from the SSA in benefits has zero effect on what any other person might get. So, stop worrying about it.

>3.  Since one of the children is still a minor, should the
>inheritance he is likely to recieve be put in a trust fund or
>would you recommend another way to protect the childs assets
>from mother. (mother will most likely spend the money)

If the husband has identifable separate assets that have never been comingled with any assets of the wife, and are currently in separate accounts, the husband could conceivably create an irrevocable trust and appoint a trustee with strict instructions to only provide income from the trust to the child as necessary to improve the child's life, and to distribute the res (principal) to the child upon the happening of some occurance (like 30th bday or some such).

But, if the assets transferred to the trust were comingled with assets of the wife or taken from a joint account, then the wife will likely be able to challenge the transfer as a misappropriation of her joint property, and the probate court will order the assets disgorged to the extent that they were wife's.

>4. Should father go to court and present the settlement they
>agreed to and ask the Judge to order that settlement
>explaining that mother  would have already signed the
>paperwork except for learing of fathers illness?

Parties cannot be forced to settle a legal action. Wife has a due process constitutional right to a trial on the merits. If she won't settle, then the case needs to go to trial. If husband dies first, the case will be dismissed and it will be tried by the probate court.

I would definitely have husband create a new will omitting his wife to the maximum extent legally permitted under PA law, and doing similarly with any trust for his children's benefit that he may wish to try to create. But, I cannot advise as to the exent that a PA probate court will recognize these testamentary arrangements.

I can't give you advice that would be unlawful or in contempt of an existing family court restraining order. However, if I knew that I were dying very soon, and I had control over significant assets that I wanted to keep from someone else, I would go to Bermuda and rent an apartment. I would transfer all of my assets to Bermuda banks and investment instiutions and I would set up a trust therein to distribute the funds as I saw fit. Then I would instruct the trustee, who would be a bank employee to fight any attack on the trust.

Since I would never return to the U.S. alive and since all of my assets would be in Bermuda (assumes that I could either sell any U.S. real property or borrow all of the equity), I wouldn't care what a U.S. court might order against me, because I would die in Bermuda and everything I owned would be there, out of reach of the U.S. courts.

But, that's just what I would do.