Life Insurance And Divorce

As a result of divorce or a separation, many parents must make support payments for their child’s living expenses and education until the child’s emancipation. Child support helps divorcing couples achieve the goals they had for their children in the manner they had envisioned when they were still married. If the children are very young at the time of the divorce, child support payments may continue for many years, and a lot can happen in the course of 10, 15 or 20 years. A common question that comes up for divorcing parents is:  What happens if the “payor” parent (the parent paying child support) dies prior to the time the child support obligation is over? One way to ensure that child support payments will continue despite the paying parent’s death is to secure those payments with a life insurance policy.

Life Insurance In A Separation Agreement

Many couples choose to secure their support obligations through life insurance. Some already have life insurance. Others, who are medically qualified, may obtain new life insurance coverage or increased coverage at the time of the divorce.

Providing life insurance policies to cover one’s support obligation is an excellent way to secure the costs of raising a child in the event of the paying parent’s death.

If you have questions about using life insurance to secure child support, you may want to consult an experienced family law attorney who can advise you on this topic and draft the agreement on your behalf.

Naming Children As Beneficiary On Life Insurance

Some couples take what they think is the simple approach and have their insurance policies made payable directly to their child. This seems simple, but actually creates a difficult and expensive problem. In some states, a child is considered to have reached the age of majority at age 18. The policy proceeds will need to be paid to a court-appointed guardian (probably the surviving ex-spouse). The guardian has the legal obligation to administer the insurance funds on behalf of the child until age 18. At that time, whatever is left in the guardianship account must be given to the child outright. If you think back as to how mature you were at age 18, you may want to reconsider naming the child as beneficiary of a life insurance policy.

Naming Custodian As Beneficiary On Life Insurance and Divorce

A somewhat better alternative is to leave the insurance proceeds to someone designated as “custodian” under the Uniform Transfers to Minors Act (UTMA) for the benefit of the child. You will need to check with your insurance company to make sure it understands the designation, and will acknowledge the custodian as the beneficiary of the policy. The designation must be to the custodian for the named child (or children), and not be made to the child directly.

In some states, a properly-named custodian can hold the property for the benefit of the child until age 21, at which time anything remaining in the account becomes the property of the child.

The custodian may not use the funds for him/herself, but only for the child.

The funds can be used for the child’s college education. For many couples, having the insurance funds held in a UTMA account will be adequate to meet the support needs and not provide too much money outright to a child prior to turning 21.

Designating Your Ex-Spouse As The Beneficiary

Many couples, even if separating or divorcing, wish to make their ex-spouses the beneficiaries of their life insurance policy. If the intent of the designation is to provide support for the couple’s children, the surviving ex-spouse is under a moral duty to use the funds as per the separation agreement, that is, to replace the child support the payor spouse or parent would have provided.

However, there are some potential downsides to this designation. The proceeds from the life insurance policy are not protected from the ex-spouse’s (or ex-partner’s) creditors. They can also be affected by bankruptcy, and may be subject to claims of his/her present spouse. Further, there is no guarantee that the surviving spouse will use the proceeds for the children. Even so, this solution appeals to many people on the basis that they trust the ex-spouse (or ex-partner) to have the same desire to take care of their children in the event of the payor parent’s death.

Life Insurance To Secure Alimony Payment

Life insurance can also be used to secure alimony payments in the event of the death of the payor spouse. Even though alimony will end at the death of the payor spouse, the payee spouse can receive a substitute for the alimony payments he/she would have received by means of life insurance proceeds. This is often crucial support for the surviving ex-spouse.

Who Should Own The Life Insurance Policy

One way to prevent a payor from changing the beneficiary designation of a life insurance policy is to have the “recipient” (the ex-spouse, ex-partner or trust for the benefit of children) own the policy. The payor would be the “insured,” but the owner of the policy would have the right to change (or not change) beneficiaries. The question of who pays for the policy premiums could be addressed in the separation agreement.

Next Steps

If you are considering utilizing life insurance in your divorce settlement it is important to discuss the possibilities with your attorney. They will be able to clarify if this is something that will work for your specific situation.

Once you and your attorney decide you would like to pursue life insurance as an option in your proceedings, you should contact an independent life insurance agent who can properly design this specific type of policy.

It is important it is designed properly so the beneficiary information and the ownership is correct. An independent insurance agent will then be able to give you competitive quote for you and your ex-spouse.

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