The "What If" Clause: Why Naming Guardians Belongs in Your Divorce Settlement

During a divorce, most spouses are focused on survival. They are worried about who gets the house, how to split the retirement accounts, and creating a custody schedule that works for two busy parents.

The last thing they want to think about are adding more topics to the mediation “To Be Resolved” task list and dragging negotiations out unnecessarily. Negotiating a divorce settlement agreement is stressful and difficult and it’s nearly impossible to get dueling ex-spouses to agree. Why add more to the mix?

But as a divorce mediator who is also an estate planning attorney, I see a dangerous gap in 90% of divorce agreements. While you are negotiating who gets the house and where the kids sleep on Christmas, you are likely ignoring the single most critical "what if" scenario that exists. It is the question most lawyers forget to ask, but it is non-negotiable for protecting your children’s future and ensuring they are kept in the center of the family, not stuck in the middle of a tragedy.

Most divorce agreements forget to answer a very important question:

What happens if neither of the divorcing parents wakes up tomorrow?

It is the "unthinkable scenario"—a car accident or tragedy that takes both parents. And while it is less likely that divorced parents will die in a joint tragedy after their divorce, there still exists the possibility that both parents could die while the children are minors and if a plan is not legally put in place, you are leaving your children in an extremely vulnerable position: where a court will have to decide what happens to them after a lengthy and expensive guardianship case, and these cases often tears families apart because of the conflict.

The "Battle of the Grandparents"

If you and your co-parent pass away without a clear plan, the state of California (via your local court) will decide who raises your children. The judge who makes the decision doesn’'t know your values, your parenting style, or that your brother-in-law creates a toxic environment and you’d never want your children raised in his home.

Worse, in the vacuum of having no plan in place through legal documents that explain the decisions of the children’s parents, well-meaning family members often fight for control. Your parents vs. your ex’s parents. It creates a "Battle of the Grandparents" that drains your estate’s money and traumatizes your grieving children.

Why "Settle It Later" is a Trap

Many attorneys will tell you, "Oh, that’s an estate planning issue, handle it in your Will later."

Here is why that advice might not be wise:

Post-divorce, most people are exhausted. You likely won't get around to updating your estate plan for years. I see this all the time!
Trying to get your ex-spouse to agree on a guardian after the divorce is finalized—when you are no longer in a structured negotiation—is nearly impossible.
It ensures your wishes are documented. If something should happen to you, and your Ex receives full custody of your children until your Ex also passes, your decisions about who to raise your children next have already been agreed upon and documented by both of you.

The Solution: The Nomination of Guardian Provision

The smartest time to decide on a guardians is while you are already at the negotiating table, either engaged in the mediation process or working through a settlement agreement with your attorneys.

In my mediations, we include a Nomination of Guardian provision directly in the Marital Settlement Agreement. I can even help my clients create legally binding Guardianship nominations to include in their mutual estate plans that will be binding after the divorce. While the Court always has the final say based on the "best interest of the child," California Family Code Section 3043 states that the court will give "due weight" to the nomination of a parent because the parents are in the best position to decide who should care for them.

By agreeing on a primary and alternate guardian now, you present a "united front" to the court. You tell the judge, "We may not be married, but we agree that this is who should raise our children if we are gone."

How to Choose (When You Hate Your Ex)

Now the challenging part. How do you actually agree with your ex-spouse on the next guardian in line if you can’t even agree who should have them on Christmas in which years?

This is where mediation continues to be the most effective option. We move the conversation away from "my side vs. your side" and focus on continuity.

Who lives in the same school district?
Who has a relationship with the kids now?
Who shares your values on education and discipline?
Who has the energy and financial stability to take this on?
Who has the ability to love and parent them like you both would?

Often, we find that both parents actually do agree on a specific aunt, uncle, or close friend, once we strip away the ego or fear.

The Right Move

As long as you are negotiating a settlement agreement, adding a Guardian Nomination Clause followed by memorializing your choices in a Guardian Nomination document, is one important way even ex-spouses can come together to decide what is in the best interest for their children, no matter what comes.

Tamara M. Arnold is a 20+ year attorney and divorce and family conflict mediator. Learn more about her fully virtual divorce mediation practice at www.TruceResolutions.com