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It may seem ghoulish to think about the death of your ex while you're getting divorced (or maybe not). If you have children together, however, you need to factor in the possibility your ex may die while owing child support. To protect yourself and ensure you're able to collect what you're owed from your ex's estate, here are two clauses you should add to your divorce decree.
Mandatory Life Insurance
As parents, you and your ex probably already have life insurance to ensure your kids have enough money to take care of their needs if you pass away before they can care for themselves. However, you want to place a requirement in your divorce decree that requires your ex to maintain life insurance until your kids turn 18 (or whenever the child support order expires). Otherwise, he or she could just cancel the insurance and you could be stuck getting nothing to cover any arrearages that had accumulated prior to the individual's death.
At a minimum, any life insurance policy your ex has should cover the total amount of support he or she would have to pay for each kid until the support order would naturally expire for the youngest child. For example, if your child is eight years old and your ex is ordered to pay $200 per month until the kid turns 18, the insurance policy should be a minimum of $24,000 (10 years x 12 months x $200 per month).
Since your ex will owe less child support as each year passes, the insurance policy can be adjusted to account for this. However, it should never be less than what he or she would be required to pay over the child's lifetime. Thus, if the court makes the cost of living adjustments to the support order that increases what your ex would owe, make sure your divorce decree states your ex must increase the policy to match.
Require a Trust Fund
Another option for ensuring you can collect any child support arrearages if your spouse dies owing you money is by requesting he or she set up a trust fund for the child and place property or money in it that matches the value of the support order. Thus, if the parent passes away, the child can inherit the trust to account for the loss of the monthly support the parent was paying.
Be aware, though, that some states require you to prove that trust is necessary to protect the interests of the child before the court will approve this type of clause. For instance, you may have to show your ex has a history of dodging financial responsibilities or you suspect he or she will try to avoid paying support in the future.
For assistance with crafting your divorce decree to protect your current and future needs, contact a divorce attorney.