Recent Blog Posts
The Differences Between a Living Will and a Do-Not-Resuscitate Order
When it comes to making decisions regarding the end of your life, there are many factors to consider. No matter how difficult it may be for you to think about, leaving such decisions to your loved ones to make can leave lasting feelings of guilt, regret, and wondering if they made the right choice. Fortunately, there are several ways you can prepare in advance regarding your desired end-of-life care. They represent an important but often overlooked element of the estate planning process.
Advance Medical Directives
There are two common ways in which you can make your end-of-life care decisions ahead of time, and both are considered types of advance medical directive. An advance medical directive, put simply, is contingency plan that specifies your wishes to be carried out if you are no longer able to make such decisions for yourself. Living wills and do-not-resuscitate (DNR) orders allow you to maintain control of your own life to the very end.
Domestic Violence Can Affect Parenting Time
Domestic violence is one of the most common family issues in the United States today, unfortunately, and it has an especially pernicious effect on children. If a parent who has committed domestic violence is permitted to continue seeing his or her children, studies have shown that that child has a greater propensity to perpetuate violence in the future. The state of Illinois considers it a high priority to ensure that children are not exposed to such behavior, and as such, if your spouse has charges or convictions, you may be able to mount a serious challenge to their parental fitness.
Domestic Violence Defined
Illinois’ Domestic Violence Act (DVA) of 1986 defines domestic violence as abuse, both physical and otherwise, as well as “interference with personal liberty or willful deprivation.” It also makes a point of identifying a victim as any family or household member, rather than just a spouse. Thus, the law encompasses spouses, but also family members related by blood, people who are (or were) dating or living together, and co-parents of a child who are unmarried. So, for example, if the mother or father of your child abuses you, the DVA still applies in your case, whether you are married or not.
Choosing an Executor, Agent, or Trustee
Estate planning in Illinois or any other jurisdiction is more than simply determining what legal documents are most appropriate to protect the value of your assets after death and achieve the goals and desires you have for the disposition of your property. Equally as important as choosing the right estate planning documents is choosing the right person to handle your affairs and exercise the powers those estate planning documents provide.
The Dangers of Selecting the Wrong Individual
Regardless of whether you named an individual as executor and administrator of your will, as a trustee overseeing your trust, or as your power of attorney, your estate planning documents give the individual significant powers. In the wrong hands, this person could potentially:
- Appropriate your estate assets for himself or herself;
- Drain your bank accounts, retirement accounts, or other financial accounts;
What You Need to Know About Guardianship in Illinois
In Illinois, the law presumes that anyone over age 18 is capable of making decisions and handling affairs for himself or herself. Yet, circumstances may arise where a person is not capable of doing so. If this has happened to one of your family members or loved ones, you may wonder what you can do to ensure that this person does not waste their resources or make harmful mistakes. Guardianship is one option you may wish to consider.
When Is Guardianship Appropriate?
Guardianship should be considered when a person cannot make basic life decisions or is not able to manage money or property. People of any age may require a guardian.
Guardianships are often granted in cases where a person:
- Experiences mental decline as a result of aging;
- Shows symptoms of mental illness;
- Has a developmental disability;
- Suffers from physical incapacity; or
Understanding Probate and Whether You Should Avoid It
As you begin the process of estate planning, you are likely to hear that probate is a time-consuming, expensive series of proceedings that should always be avoided. This idea is prevalent in online resources about estate plans, but there is often little explanation given as to why—other than it can take a long time and costs money. Before you decide whether avoiding probate is necessary, it is important to fully understand the process.
What Is Probate?
Probate is a judicial process by which an individual proves in court that a deceased person’s will is valid. This process also includes taking inventory of the recently deceased person’s property, appraising the property, and distributing the property according to the will. If there is no will or other estate planning instruments in place, property will be allocated by the probate court in accordance with the state’s laws of intestate succession.
Dos and Don'ts of Prenuptial Agreements
Prenuptial agreements, or prenups, are becoming more common, as they acquire a solid reputation for safeguarding one’s interests and assets. However, they are not cure-alls for marriages. There are some things that simply cannot be addressed in a prenup. It can help avoid disagreements if your prenuptial agreement is crystal clear on what it disposes of and if you do not try to do too much with it.
DO: Distinguish Between Marital and Non-Marital Property
This is arguably the primary purpose of a prenuptial agreement. Illinois law lists it as the second right that couples have in the creation of such a document, and indeed, that is what most are used to accomplish. Dividing one’s property in a prenuptial agreement can save significant time and trouble in divorce court, which can provide a significant boost to post-marital relations.
DO: Protect Your Spouse From Your Debts
The Effects of Retirement on Spousal Support
Spousal support—also known as alimony or maintenance—is found to be appropriate in many divorce cases, and is usually paid to the spouse with lower income. The situation may change, however, when the paying spouse reaches retirement age. It can prevent confusion and lost time if you and your former spouse do your research before retirement becomes an issue.
A “Substantial Change in Circumstances?”
Depending on your situation, the paying party may seek to have their support responsibility reduced or even terminated upon retirement. However, it is not as easy as simply petitioning the court and expecting your request to be approved. As with other requests of this nature, you must be able to present evidence showing that your current support responsibility is unreasonable or excessive in light of the reality of your retirement and the resulting financial effects.
Illinois law holds that spousal support obligations may only be modified if a substantial change in circumstances has occurred. While there is debate about the meaning of that term, generally it is held to have occurred when a person’s income changes by more than a certain amount. The court will consider multiple factors in determining whether a “substantial change” has taken place, including anything that might affect the paying party’s net income. Retirement does fall onto this list of factors, but it is not the only consideration in whether or not a court will reduce or terminate an obligation.
Preventing Disputes Over Sentimental Assets
When a person dies without a will or any other instruments of estate planning in place, his or her property will be distributed by the Probate Court in according with Illinois laws regarding intestate succession. Such cases often create significant disagreements among surviving family members. Of course, families may also fight when they discover what they are to receive in a will as well—and in some situations, things can get completely out of control.
More Than Money
While people often throw their familial allegiances to the wind and try to take as much as they can, family disputes on inheritance are not always about money. Conflict can arise for emotional reasons as well. While a grandson may not care to inherit a particular pie plate that his grandmother used for 30 years, for example, that same item could mean the world to someone else in the family. It is worth putting time and careful thought into your plan regarding who inherits the sentimental assets that you own. In doing so, there are a few things you should consider.
Understanding Marital Misconduct
In many divorce cases, the concept of marital misconduct is often discussed, if only to underscore the fact that any evidence of it is not applicable to most divorce-related discussions. While Illinois law expressly excludes it from playing a role in issues like property division, it is still important to understand exactly what constitutes marital misconduct and what is simply a difference of ideology or opinion between you and your spouse.
Marital Misconduct and Divorce
Marital misconduct is generally defined in the law as conduct of any kind that has helped erode the marriage. This can take many different forms, from the wasteful spending of marital money to adultery to domestic violence. In many states, this kind of conduct can have a negative effect on a spouse’s portion of the marital assets as well as on the amount of parenting time granted to them. The rationale behind such decisions is that someone who shows flagrant disregard for the marriage and its benefits should be entitled to less in a divorce.
Guardianship for a Disabled Adult Child
When you are the parent of a disabled child, it is common to assume that he or she will never be able to advocate for himself or herself. While some do require assistance during their lifetime, not every disabled person requires guardianship once they reach adulthood. It can often be up to you as a parent to decide whether guardianship is necessary or whether your child can handle his or her own affairs.
Dealing With Probate Court
Guardianship for adults is handled in Illinois by the Probate Court. Disability is not the only potential grounds for which a guardianship may be sought, but it is the most common. There is a rebuttable presumption in Illinois law that an adult over the age of 18 can manage their own affairs. If this is not the case for your son or daughter, you need to be prepared to show evidence to that effect, with a detailed report of your child’s challenges and strengths. Illinois is somewhat unique in that plenary or total guardianship is generally considered a last resort and is only used if the person in question displays a complete lack of ability to manage their own affairs. Limited guardianship is preferable.
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