The Hardest Part of Breaking Up
I have heard both anecdotally by fellow attorneys and other random sources that more divorce filings are made in January than any other month of the year. In my own practice, during the last few weeks, I have seen many people planning or going through a divorce or breakup speak with me about updating their estate plans and for legal advice about taking the next step.
A breakup can be a very difficult experience, especially for same-sex and other unmarried couples ending long-term relationships without the protections that the process of divorce provide. Many of these stories are heartbreaking and serve to provide many lessons. For both the purpose of preserving client confidentiality and privilege, I am going to use this blog to share a story about myself and use it to discuss some very important points about Georgia probate law.
About a year ago, as I sat on my bedroom floor sorting out my stuff and physically separating our lives, it raised many emotions ranging from anger to hopelessness to fear. I was with my ex-partner for a little over four years, living together for the last two of those years. The relationship had not been going well for a long period of time (let’s say years) but for some reason the end of it still caught me off guard. I was left with this feeling of profound sadness at having lost something, anger for all the things that led to the breakup, and a small but growing sense of relief that it was over. Then I had no idea what to do.
While I am not qualified to provide life advice, as an estate planning attorney and a lesser extent as a person who been there, I can offer you some suggestion that might prevent a worsening of the situation and to plan for your legal future as a single person. However, nothing I write here is intended be taken as legal advice or to create an attorney-client relationship. If you have questions about your own situation or the situation of a friend or family member, please contact me directly.
1. Destroy any legal documents where you leave property to your ex.
That morning, as I was packing up my life, I found the folder containing my legal documents that I drafted for myself maybe a year earlier. It contained my Last Will and Testament, Revocable Living Trust, and Georgia Advance Directives for Healthcare. In these documents, my ex would be the person to receive my estate and make decisions about my healthcare. It reflected a life where I trusted him to make my final decisions should that situation occur and when I wanted him to benefit from my estate.
I then ran these documents through the paper shredder.
It was awesome.
In this situation, you should do the same thing as early as possible. As long as these remain your most current estate planning documents, your ex can benefit from your estate. While you are destroying these documents, I suggest that you check and update the beneficiaries on your insurance policies, retirement accounts, and any other defined beneficiary plan you may have to make sure your ex does not benefit from that as well. If you have children under the age of 18 with your ex, you can structure an estate plan that benefits them without benefiting your ex.
Beyond the legal purpose of destroying these documents, you should do it because it is cathartic. As a then-newly single person, watching the pages disappear into the shredder gave me the feeling that I had turned a corner on my life.
2. Physically separate
This should be obvious. As both a lawyer and a thinking person, I believe that remaining in the same living space with the ex is a terrible idea, even though financial constraints may make it impossible to do otherwise in the short-term. The reason for this belief is that I did live with my ex for a few months after the breakup, in separate rooms, and it was terrible. Being in that house made me feel like I could not move on with my life. It also continually kept me on an emotional roller-coaster. Not a good time for either party involved.
I strongly believe that the more distance you keep from them, the better. There is no better way to keep an emotionally volatile situation going than to continually be around the person who created half the situation. It’s a recipe for disaster.
If you have anywhere else you can stay until you get things together, go there.
3. If married, file for divorce
While I do not typically handle divorce cases, I strongly suggest married couples intending to divorce, to go ahead and file as soon as possible. It is important to end the legal entanglements with your ex and come to resolutions on issues surrounding property division and, should the couple have any, minor children. Further, in Georgia, as long as a couple is legally married, a surviving spouse can take some or all of the deceased spouse’s estate through a Year’s Support petition. This is true even if the deceased and their spouse were separated and living in different households.
I would also suggest that same-sex couples married in other in states seek a divorce if the relationship is irretrievably broken. There are increasingly new avenues to getting an out of state marriage dissolved. However, I suggest you consult with an attorney as the law in this area is rapidly changing.
4. Redraft estate documents
Now that you have destroyed, your estate planning documents, now is the time to draft new ones. I suggest you meet with me or another estate planning attorney to put together an estate plan that suits your needs as a person outside the relationship. This is especially true when minor children are involved.
At the very least get a new Last Will and Testament. The process of getting one made is relatively quick and generally makes sure that everything goes where you want it to go. Your family should appreciate it later.
5. Finally, Get back your stuff
This one is more easily said than done sometimes. I had the blessing of an ex who didn’t create many problems for me as I gathered and separated our stuff before moving out. Our finances were separate. We agreed that I would keep the pets (who are personal property).
For unmarried couples with joint bank accounts, it is important to come to a fair division of the accounts that reflect each person’s contributions. If is real estate is owned together, it is important to figure out how to remove one of the people from the deed and/or how to divide proceeds from selling the property. These and other assets can often be difficult to divide and you may need professional assistance to come to an equitable conclusion. The hope is that this can be done without the involvement of the court system.
I urge you not to allow an argument over stuff to turn into a protracted struggle. It is often best to cool off and have a third party, such as an attorney or mediator, assist in the process. If you need help haggling with an ex, we would be more than happy to help.
6. Remember that you will be OK
This is not so much a suggestion but rather an observation.
I can’t guarantee that you will find love and happiness. I wish I could deliver sunshine, rainbows, and unicorns to the world. However, there is a wealth of research (that I am too lazy to cite) that suggests that with enough time, you will psychologically return to the same place you were before. You will engage with your family, job, and the world on more or less the same terms before the toll of the breakup. If you don’t like how you were before, I suggest you seek change those parts of your life that dissatisfy you while things are still in flux, perhaps also seeking counseling/mental health treatment. Life is too short to be unhappy.
As I was mourning the end of the relationship, my older brother told me thing I most needed to hear: “You will be OK.” I didn’t believe it at the moment but in time I would be OK. In fact, I would be better than OK because I had this experience and it was over. I was now free to find a better relationship that enriched rather than depleted me. As it turns out, this summer, I will be marrying the man of my dreams. If it had not been for that breakup, it would not have been possible. So I have to thank my ex for that.
So this is my turn to tell people going through this tough time in their life that it will be OK. In fact, it will be better than OK.
