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.
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.
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.
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.
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.
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.