Recent Blog Posts
Spousal Maintenance and the Division of Marital Property
Financial and property considerations can be a very complicated part of the divorce process. It is often difficult to determine who should get what and how much is fair based on the specific circumstances of the case. For many couples, the concepts of dividing marital assets and spousal maintenance might seem like two, very separate ideas. In reality, they are often very closely related, and in many cases, decisions regarding one directly affects the other.
Spousal Maintenance
Spousal maintenance, or alimony as it is sometimes called, is intended to help a financially-disadvantaged spouse ease some of the economic impact of a divorce and a post-divorce life. To determine if maintenance is needed, in the absence of an agreement between the spouses, the court must take into account a number of factors regarding the marriage and divorce. These include each spouse’s income and needs, as well as their contributions to the marriage and toward the earning capacity of the other. The court will also consider the length of the marriage and the standard of living that was established.
Estate Planning When Your Spouse Is Hesitant to Participate
When married people create an estate plan, both parties are generally involved. What can you do, though, if you want to get serious about planning your estate and your spouse is still reluctant to get on board? Nagging certainly will not do the trick, nor will threatening or begging. Still, there are some ways that you may be able to ensure your heirs do not get shortchanged. It may be helpful to learn a few strategies for dealing with a spouse who seems hesitant to get on board.
Do What You Can On Your Own
While it is best to have your spouse on your side before you create an estate plan, you may not ever be able to persuade them. This does not mean you cannot create an estate plan. In fact, there are strategies that you can use on your own to ensure your assets go to the right people and charities. Assets that are yours—solely yours—can be drafted into an estate plan, regardless of whether or not your spouse participates. Further, you can ensure you have named your power or attorney for health or financial decisions just in case you ever become incapacitated.
The Race to the Courthouse: Does Filing First Matter in Divorce?
Once you have reached the decision to end your marriage, the real work must begin. You and your spouse will need to decide how to divide your property, how to make arrangements for your children, and how to adjust to your new post-divorce lives. Before you can get there, however, one of you will need to start the legal process of divorce by filing a petition for the dissolution of marriage at the county courthouse. Many clients approach us with questions about this, often wondering how important it is to be the one who file for divorce and whether it makes any difference at all.
Knowing the Law
The divorce process in Illinois is governed by the Illinois Marriage and Dissolution of Marriage Act (IMDMA), which is a comprehensive collection of statutes that address matters from choosing a venue to how parenting time matters will be decided by the court. A divorce, as a matter of law, is essentially a legal action used to dissolve a marital contract between two parties, and, as such, in every divorce, there is technically a plaintiff and a defendant. These terms, however, are far less important in a divorce than in other areas of the law, such as personal injury or criminal law, and, in fact, the IMDMA refers to the parties in a divorce as a plaintiff or defendant in just one paragraph.
How a No-Contest Clause Can Strengthen and Protect Your Will
During probate, the formal vetting process all wills must go through, heirs who believe a will is invalid can challenge that will in court. For example, if a relative worries that his elderly grandmother was coerced into agreeing to her will, he can contest that will. The court will examine the evidence and make a decision to either enforce the will or start from scratch and distribute the deceased person’s property according to state law. Wills can also be contested for dishonest reasons. For example, an heir who is unsatisfied with his or her inheritance may contest the will simply in an attempt to receive a greater inheritance. If you wish to make your will much less susceptible to being contested in court, a no-contest clause may be right for you.
What Exactly is a No-Contest Clause?
A no-contest clause, often called a terrorem provision, is a set of directions written into a will or trust which addresses potential contests. The Latin phrase “In terrorem” literally translates to “about fear.” It is called this because the provision includes a penalty for anyone who tries and fails to contest the will during probate. If a disgruntled heir challenges the will without justification, that heir may be penalized. In this way, a no-contest clause can help discourage heirs or beneficiaries from challenging a will or trust.
What You Need to Know About Jurisdiction After a Relocation With Your Child
The application and enforcement of the law can be very complex in many situations. This can be especially true in cases related to allocated parental responsibilities—formerly child custody—and parenting time, or visitation. One of the fundamental principles of law is the concept of jurisdiction, which refers to the authority that a particular county, state, or federal court system maintains over the parties and the subject matter of the case in question. Only a court with appropriate jurisdiction can make decisions and enter orders in accordance with applicable statutes.
In some situations, jurisdiction may be fairly straightforward. For example, if you live in DuPage County, and were injured in an accident near your home caused by another resident of DuPage County, you probably realize that the DuPage County circuit court has jurisdiction over your case, and your claim should be made there. In other cases, however, jurisdiction may not seem quite so clear, at least to the average citizen. One such example can be found in the area of family law. If your parenting plan and parental responsibilities orders were entered in Illinois, and you decide to move out of state, which state has continuing jurisdiction over your family’s case? Fortunately, there are laws in place to address this exact scenario.
Include Your Family in Your Estate Planning Discussions
Some people are just born rich. They are fortunate to be part of a family with wealth going back several generations. Others manage the impossible and win the Powerball jackpot, becoming enormously wealthy virtually overnight. Most people, however, work very hard throughout their lives to accumulate the assets and property that make up their estate. You have probably made sound financial decisions and put in the hours to earn what you have, so when it comes time to decide what will happen to your assets upon your death, you have the right to do so.
Keep in mind, however, that while the right to make decisions about your estate is yours and yours alone, such decisions are not made in a vacuum. The choices you make are likely to have an effect on your family members and loved ones. Whether that effect is positive, negative, or neutral depends on your circumstances and how you handle them.
Eliminating Assumptions
Should I Move Out Before Filing for Divorce?
If you and your spouse are having serious problems in your marriage, one of you may decide to find another place to stay while you figure out what to do next. You might, for example, stay with a family member so that you can gather your thoughts about how to proceed. This practice is so commonplace that most couples would not even consider a divorce while still sharing a home.
Just because something is a common practice, however, does not mean that it is a legal requirement. In fact, it may come as surprise to learn that Illinois law does not require any period of separation in most divorce cases.
Knowing the Law
Prior to 2016, a couple seeking a divorce on the grounds of irreconcilable differences—colloquially known as a “no-fault divorce”—was required to live separate and apart for two years before the divorce could be finalized. By agreement of the parties, the separation period could be lessened to six months. While Illinois courts found that “living separate and apart” could theoretically occur under the same roof, most cases saw one spouse or the other move out the marital home for at least half a year prior to the divorce being finalized.
Can I Write a Handwritten Will?
In the comedy show Parks and Recreation, there is a scene where Ron Swanson is being lectured about how his impressive estate is not covered by a will. He replies that he does have a will and that he wrote it when he was eight years old. To the horror of his financially-savvy colleague, Ron pulls out a small folded note with a few scribbles on it. If you have thought about creating your last will and testament, you may have wondered if you can simply write the instructions down in a notebook or on a piece of paper. The answer varies depending on where you live, but it is important to note that Illinois wills must meet certain criteria to be legally binding.
States Vary on Rules Regarding Handwritten Wills
The enforceability of a handwritten will depends on state law. Many states do accept handwritten wills that meet other criteria, but each state’s laws vary with regard to witness requirements. The purpose of having witnesses sign off on people’s wills is to ensure to the court that the will’s creator, called a testator, signed the will of his or her own volition. Testators must have the mental capacity to understand what they are signing and cannot be coerced into signing a will. Having witnesses also helps guarantee that the signature on the will is that of the testator and is not forged. Nevertheless, in some jurisdictions, witnesses are not required to be present for a handwritten will to be legal. This is known as a holographic will. Two witnesses must be present when the will is signed in other jurisdictions.
Should You Change Your Name After Getting Divorced?
Although it is not required, the majority of women who get married change their last name to match that of their new husband. This can lead to an unexpected challenge if the marriage ends. If you are planning to end your marriage through divorce, you may be wondering what you should do about your last name. Some women choose to keep their married name post-divorce while others go back to their maiden name. Still, others come up with completely unique solutions to the dilemma of what to do with their last name as a newly-single woman. Whatever you decide, make sure to consider both the short-term and long-term effects on your personal and professional career.
The Decision to Keep Your Married Name Is Completely Your Own
Except in very rare circumstances, the choice of whether a divorcing woman changes her last name from her married name to something else is completely up to that woman. The vast majority of divorce decrees do not include requirements about names. The decision is a deeply personal one and can be influenced by a wide variety of factors. One thing many women consider is what the name symbolizes to them. For some, keeping their ex-husband’s name may bring up too many painful emotions. Other women are able to separate the name itself from the memories of their marriage or for other reasons do not feel negatively towards their married name.
Accounting for Digital Assets in Your Estate Plan
If you have started the process of planning for your family’s future through a comprehensive estate plan, you have probably considered where many of your possessions will go. Perhaps your car will be gifted to a grandchild, while your home will be sold and the proceeds split between your children.
When deciding what will happen to physical property, many otherwise-dutiful estate planners forget about their digital assets. Have you considered what should happen to your personal documents and data stored online after you pass away? What about your social media accounts? The world is becoming more and more digitized with each passing day, and it is important we account for this in estate plans.
What Exactly Is Considered a Digital Asset?
Digital assets refer to items such as:
- Email and documents stored in “the cloud”;
- Marketplace accounts on websites like Amazon, eBay, or Craigslist;
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