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This post is not about getting a divorce, or the emotional, financial and social toll it takes. Instead, I want to discuss how Muslims should plan when they are already divorced.  The divorce settlement is done, custody is sorted out, for the time being.

Of course, as many people going through a divorce already know, especially if you have small children, the next several years, even a decade or more, may involve going to court and paying lawyers for one thing or another.  That is a way of life, where lingering issues can come back to court for years and even decades.  From here, it can get better, or worse. It depends in large part on your decisionmaking. 

But my purpose is to write about the steps both men and women should take to support their families.  Every situation is different of course. But there are a whole lot of similarities from family to family.

You are your own economic unit

Obviously, your ex-spouse is no longer an heir in the Islamic Rules of Inheritance, and you want it that way. If you have a living trust, it will usually have a clause that will say that in the event of divorce, it should be assumed that the person listed as your spouse predeceased you,  which means they get nothing. But you will need a new set of estate planning documents to specify how shares are to be divided. Another thing people miss (I have seen it), is beneficiary designations for retirement plans. I once saw a beneficiary designation that gave everything to an ex-wife from 20 years ago by accident.  

As part of your divorce settlement, there was some sort of financial arrangement that split apart all of the assets.  The exact arrangement can vary widely. Some people are happy with their settlement, and many are not. But what you have is a set of property that is all your own, and none of it belongs to the other person.  There may be obligations; child support, spousal support, a requirement to maintain insurance of various types, whatever it is that you come up with in your negotiations. However, there is property all your own.

We are not correctly starting from scratch, but we are as close as we can get.

Wasiyyah

Haroon and Bilquis had an “amicable” divorce.  They co-parent their three children and get along fine at family functions.  Haroon still feels some sense of obligation to his former wife. Both of them has since remarried.  He knows under the Islamic Rules of Inheritance, she does not get anything.

What he can do, however, is include Bilquis in his wasiyyah.  Under the Islamic rules of inheritance, he can give ⅓ of his estate for almost any purpose.  One exception is that an heir cannot benefit from the wasiyyah. The ex-wife is not an heir, so there is no problem doing this.  

Naming a Guardian

So if your ex is a parent of your children and parental rights were not severed he or she course continues to have parental rights.  This is so regardless of what you or even the court in granting custody thinks of that parent’s qualifications. That you don’t think your ex deserves to be anywhere near your children, even if he (or she) has no custody, pays no support, is living with a mistress who is a horrible person or whatever other concerns you have, they just won’t matter.  

You should name guardians for minor children even if there is an ex out there.  A Judge should have the ability to know what your values are if it ever came to that.  If you are so profoundly concerned at the prospect of your ex raising children if you are no longer around and have grounds to do so, you should consider severing parental rights.  Keep in mind that this will not be easy to do and is not estate planning.

Healthcare Powers

Who is going to be the person most likely to step in and make health care decisions for you in the event you cannot make them yourself?  When you are not married, this becomes a lot less obvious. Your parents may be around, but not close by, or not in a position to make those decisions.  

You need to make sure you have people in mind (and in writing) that would make decisions for you.  You would need a new set of documents.  That may include a HIPPA waiver that allows people you trust to review your healthcare records.  

Is remarriage in the cards?

People who have been divorced before tend to get divorced again and again.  If you are looking at getting remarried, its best not to do it with doe-eyed naivete.  Hopefully, you won’t make the same mistake twice. History shows us that people make the same mistakes over and over though in all sorts of contexts, so I won’t discount this.  Don’t assume you are immune from falling into infelicitous patterns just because you are who you are. Protect your property and your children from whatever hardship may come about from another divorce.  Even there is no divorce, you need to also think about what happens if you are no longer around. I have written about this issue before, and it is worth taking a look at if you have not done so.

What do “children” think?

If you are a divorced adult with grown children, or even teenagers, what your children think will matter a whole lot.  In some respects, everyone knows this. Marriages can be predatory, and many adult children will assume a new spouse has hostile intent  (especially if the new spouse is a woman, people often do not assume the worst about men in this context). You need to have a plan that will deal with this.  Obviously, the first thing is to try to make sure you are marrying a spouse who is not predatory with ill intent (it is harder than it sounds, and it already seems hard).  The second thing is to come up with a plan to make any marriage less threatening to your children while also mitigating any actual threats to your wealth. These threats come from the potential undue influence that a new spouse has on the spouse’s wealth and the possibility of messy divorces (and there may already be a record of that) or estate issues.  

Dealbreakers

Many people just don’t want to ask for a prenuptial agreement.  It sounds so pessimistic and cynical. You need to get lawyers on both sides and follow formalities to do it right.  It’s uncomfortable. Much of the time, it’s just a deal-breaker. If you are sold on marrying someone, you don’t want a dealbreaker.  

This gets us to protecting your assets from decisions you might make, or things that happen in life even if you made all the right calls.  

Asset Protection

Depending on the situation, some asset protection might be useful. In some cases, asset protection planning can eliminate the need for a prenuptial agreement and also protect assets from creditors.  This can take the form of a Domestic Asset Protection Trust, a Qualified Personal Residence Trust or another device. The basic idea is that it is segregated from the kinds of assets that may be available to an adversary if things get messy.  At the same time, it does not necessarily make the prospective spouse feel like a potential adversary.

Prenuptial Agreements and Cohabitation Agreements

I do not necessarily mean prenuptial agreements are a bad thing.  It’s just uncomfortable for many people. Also, some people want asset protections for reasons other than a potential divorce from a spouse they are not yet married to.

Adults should rightly discuss prenuptial agreements; particularly those who have been burned by a failed marriage.  If the union does fail for whatever reason, why not make divorce as painless as possible? A prenuptial agreement is agreeing on the terms of a divorce settlement before marriage. While that sounds horrible, it is remarkably valuable.  Even an ironclad prenuptial agreement would be softer when it comes to child support and even spousal support (in some instances) since courts have an interest in not making people wards of the state if possible. I have seen this type of agreement protect not only the married couple, but children of the deceased spouse after a parent has passed away, and the surviving spouse (not the parent of the adult children) was a predatory criminal.  This can work.

Another way to protect yourself; don’t get remarried again under state law.  There is no Islamic obligation to get married with the government’s blessing.  Marriage in Islam is defined differently from how it is in state law anyway. So for adults, particularly those with children, who want to find an alternative to state-sanctioned marriage, it may be useful to look to cohabitation agreements.  These agreements are flexible and do not have the same requirements as prenuptial agreements.

These agreements are also probably the least threatening to adult children since the rights the spouses are in the four corners of the contract.  Often, this means that assets won’t be comingled and financial affairs, to the extent there are any, will be at arm’s length. I write more about cohabitation agreements here.  

Fresh Start

Divorce is in many ways a fresh start, despite history, continuing obligations, relationships, and pain.  All of these things are opportunities to learn and grow. Whatever decisions you make, you want to protect yourself and prevent further disintegration of your family.  You know from living and breathing, is that things can and often do get worse after a divorce. Understand the reasons why this happens, and do what you can to prevent it from happening to you.  

Many Muslim families have opted for the adoption of children. There is also, for historical and Islamic law reasons, some angst about the subject.

Adoption though has a special status in Islam. While in the days before the Prophethood of Muhammad (SWS) and during the earlier years of Prophethood, the concept of adoption was similar to how it is in the United States today. It is just another way of having children. Children come into your family, become your own, either through birth, or adoption.

Similar though is not identical. So there may be other rules and norms that existed in pre-Islamic times surrounding adoption that does not apply when it comes to adoption in California or other parts of the United States.

Purposes of Adoption in the US

Your children inherit from you. Adopted children similarly inherit by default. You need to actively exclude them from your estate planning documents for it not to be so. For purposes of state intestacy law (what happens when you do not have a will), adopted children and biological children are the same. They are also treated the same for other purposes in various statues. So, for example, next of kin can be an adopted child.

People have used adoption for many purposes, some of them shady. Adult adoptions are a relatively common device. You can adopt someone older than yourself as your “child.” There may be sentimental reasons to do this. A common form of adult adoption is when an adult adopted by a step-parent during adulthood. In many cases, adoption can be less innocent. Adoption can be part of an elder abuse scheme.

How Adoption is not the same as biological children

A corporation is a person under the law. Under the law, that is understood to be a legal fiction. A corporation can sue people, and people can sue them. A corporation cannot vote for the mayor. It has no right to public school education; it cannot marry, have biological children or adopt children.

Similarly adopted children are “children” of the adoptive parents. That means a whole lot. They inherit from parents, biologically unrelated “siblings” can inherit from one another in some circumstances under state intestacy law and so forth. They can be next of kin for things like medical decisions. But the law will only take this fiction so far.

Example:

Rania and Faisal adopted Hafsa and Elyas. Both Hafsa and Elyas have separate birth parents, but their adoptive relationship makes them “siblings.” As they grow up, they become very close. They marry each other.
This relationship is not incest, at least not in California. They are not blood relatives. If Hafsa and Elyas were actual biological siblings, they could be guilty of a felony. Under both California law and in the Sharia, their marital relationship is entirely legitimate.

The law structures adoptions to allow for a family relationship, but not place all restrictions that might otherwise exist if the relationship were biological rather than merely a legal fiction.

Severing Ties

This notion of allowing for family relationships has another real consequence; Severing family ties, both physically and legally.

Example:

Tayyib and Aishah have a child, Sameena. When Sameena is 4, Tayyib and Aishah have a painful divorce. Aishah takes full custody of Sameena and visitation to Tayyib is severely limited. Sameena keeps her distance from her father as she grows up since she does not want to offend her mother, who has since married Abdullah. Besides, Sameena has a great relationship with Abdullah, who she calls “Baba.” At 16, she asks to be adopted by Abdullah, which makes him happy. Abdullah has no other children of his own. Abdullah divorces Aishah the next year, but still has a great relationship with Sameena.

When Sameena turns 18, she starts talking to and occasionally visiting her biological father Tayyib, his new wife, Bilquis and her four brothers and sisters. Tayyib and Abdullah both die before Sameena’s 19th birthday. Neither of them leaves a will or a living trust.

Sameena is now a legal stranger to Tayyib. She will not inherit anything from him under California’s intestacy statute. His other children will take what should have been her share in Islam.

Sameena will inherit from Abdullah. She will get his entire estate even if Abdullah has parents or other close biological relatives who would be his heirs in Islam.

What happens here is entirely legal, yet depending on your perspective, somewhat absurd. Why are we legally severing a biological relationship? Why do we deny actual biological family member their inheritance in Islam? Because you cannot be of two different families. The law can replace reality.

Origin of the Adoption “Prohibition” in Islam

Many Muslims know the story, but I will say it anyway. There is a lot more here, but Zayd (RA) was Muhammad (SWS)’s adopted son. Adoption was not a formal process like it is today. But this relationship was understood. Zayd (RA), by all accounts, had a difficult marriage with Zaynab bint Jahsh (RA). They divorced.

Allah revealed verses in the Quran about adoptions.

The Quran recognized this was a fiction. Calling someone your son does not make someone your son. You may feel real parental love for your “son,” or you throw that term around when you are explaining things to young people, it’s still not an actual thing. It’s just something you say with your mouths, as pointed out in the Quran. Muhammad (SWS) could marry Zaynab bint Jahsh despite whatever prohibition existed during that place and time. It does not make any sense to have make-believe relationships that restrict freedom to marry.

Under California law, there would be no prohibition against this kind of marraige. It is baffling to me why anti-Muslim websites and articles latch onto this relationship as somehow damming. In Europe, there was an ancient prohibition against such marriages. The rule was supposed to protect sexual competition between parents and children and shielded children from confusion and such. No such thing exists now. In any event, nobody seems to worry about such things anymore, at least as far as the law is concerned.

How we view adoptions

What do we have in the difference in how we view adoptions: In Islam, we do away with formal adoptions because they are not real and create absurd consequences. In the United States, we have adoptions, but we do away with some absurd results by statute but leave others intact. It is fair to say the term “adoption”- like many terms, means different things at different historical periods and different geographic locations.

If you want to adopt, you need to have a definition that fits your values, which, if you are reading this blog, presumably means in keeping with Islamic tradition.

Guardianship

Being a guardian of a minor child does not make you an adoptive parent. The birth parents continue to have their parental rights. Guardians do have many of the same rights parents do; however, concerning the child’s education and healthcare. However, they do not inherit from their wards.

In wills, we typically include language about guardianship for minor children. When a parent dies, they name people, often family members, to care for their children. A court appoints the guardian. This process is entirely appropriate and does not cause any problems from an Islamic perspective.

Adopting anyway

Muslims want to adopt to build and grow their families. There are orphans out there with no relatives capable of taking care of them. We have children in foster systems all over the country.

So go ahead, adopt. Yes, it is a legal fiction. Yes, it can create absurd consequences. But you can and should adjust your planning for these consequences.

Inheritance for your adopted children

Adopted children do not inherit in Islam. When I say inheritance, I mean inheritance by right. That is not the same thing as saying they cannot get anything after an adoptive parent dies. However, the share of the adopted child or children is limited to the wasiyyah, which is no more than ⅓ of the estate in the aggregate.

Example:

Sultana has three biological children: Muhammad, Ahmed, and Hamid. She also has an adopted daughter, Hamida. If Hamida were her biological child, her inheritance share would be 1/7th. However, she is not. So she gets nothing by right. Sultana can give a wasiyyah to her adopted daughter. She can give up to ⅓ of her estate to her daughter. She can give more to her adopted daughter than her biological son.

We do have a problem however when parents have only adopted children as their heirs.

Example:

Judy and Robert are married and are both converts to Islam. Nobody from either person’s family is Muslim. They have adopted three children and have raised them all as Muslim. They want all of their children to inherit from them. What do they do?

Gifting

Another mechanism for Estate Planning is lifetime gifting. Neither Judy or Robert can make their adopted children their heirs for more than ⅓. The only heir in Islam for Judy is Robert, and the sole heir for Robert is Judy. Robert dies first, and Judy survives and does not remarry before death, then the only family she is survived by are her three adopted children. Under Islamic law, 2/3rds of the estate passes to Baitul Mal, which is the Islamic treasury under the Khilafah. In case you were wondering, no such thing exists anymore. So we have Islamic charities pinch hit for this role. This kind of solution would be dissatisfying for Judy and Robert.

One possibility for them is to take some assets and place it in a business entity and irrevocable trust or a combination of those (what they do precisely depends on their goals and the assets in question). They give away the assets during their lifetime. So, for their home, they create a Qualified Personal Residence Trust. In this trust, they keep a present interest in this trust but give away a future interest (after say 30 years) to their adopted children. The gift is not connected with their death and is not inheritance. If they want to continue living in the home 30 years later, they will pay rent to the trust for the benefit of their adopted children.

Why not just give stuff away outright? Because they may lose it through divorce, lawsuits or bankruptcy. Also, because you may only want to give a portion of the asset away while maintaining control of it, kind of the way a company owner sells shares off to raise capital.

That is just one example of a solution that may be available for Judy and Robert. Whatever solution, Judy and Robert will have some assets of their own if they die without and Islamic heir, and that only ⅓ of those assets, in the aggregate, can pass on to adopted children. There is just no getting around that.

Maintaining ties with the biological family

As a general rule, adoptive Muslim families should not permit cutting off ties with the biological families of their adopted children. Cutting off family ties is a sharia issue. It might make you an oppressor. Maintaining family ties would mean keeping the name, facilitating communication and also, when relevant, trying to get the biological parents to include their children in their estate plans, notwithstanding the adoption.

In many instances, it may well be the case that the birth family is embarrassed and does not want to have anything to do with their prior life. The child may be a product of trauma. The existence of the child may be a secret with extended family. Of course, these are all considerations adoptive parents need to work out before they decide to restore family ties.

Adoption is hard

Adoption is a remarkable challenge and many parents. It is admirable what many parents go through as they build their families. Many parents adopt children from traumatic backgrounds, with health challenges or special needs. Many parenting challenges are similar to families with only biological children, while others are different. However, the act of adoption is charitable. I mean “charitable” in the sense that parents who do it act for the benefit of humanity by giving wealth, time, love and everything else they have into this endeavor. It is not however precisely the same thing as having biological children.

When we plan our estates, we need to reflect our values. We also need to reflect reality.