Can’t Touch This!

By Brenda L. Storey, Esq.

In addition to it being a catchy line from a 90’s song, which I now cannot get out of my head, when looking at certain future financial circumstances of the parties, the divorce court “can’t touch this.”    Specifically, if a spouse is expecting a future inheritance under a will or a revocable trust, the court cannot “divide” that future speculative benefit during the divorce.  Further, that anticipated but not guaranteed future windfall cannot be considered by the court when addressing maintenance and child support at the time of the divorce.  The reality is that the court just does not see these as property or a money source, as they can be divested anytime by revocation or amendment.

Similarly, a court cannot order divorcing parents to pay for their children’s college education.  College is, obviously, a goal many parents have for their children.  The cost continues to sky rocket.  However, the court loses jurisdiction over the financial support of children once they reach the age of 19, or other emancipation as defined by law.    Although this can seem unfair to a parent going through a divorce, it actually makes sense when seen in full context.  Children whose parents do not divorce cannot get a court order that  requires their parents to pay for college education, so children of a divorce are treated similarly.

The Court also has no authority to bind third parties by way of its divorce orders.  For example, a court can order one party to be responsible to pay off a joint credit card, but that order has no impact on the credit card company.   If payment is not made, the credit card company can go after either party or both for collections.    A court cannot order one party to maintain the other on his/her health insurance post-divorce, as the eligibility for coverage is determined by the insurance company.   A court also cannot enter an order against a non-party, such as order that a named caregiver must or must not do something.

There are many other examples of what the divorce court cannot touch.  A thorough discussion with a lawyer is crucial to understanding the limits, and setting realistic expectations.   An exceptional lawyer can even sing that 90’s song for you while answering the questions.