Recent Blog Posts
Keeping Assets of Sentimental Value Following a Divorce
Asset distribution is a part of nearly every Illinois divorce, and it has unique potential to cause arguments and misunderstandings. Nowhere is this more common than in attempting to distribute assets with significant sentimental value. Both spouses may wish to retain an asset like a piece of art or jewelry that has good memories associated with it, and it can very often devolve into a fight over who will keep the item.
When, How, and Why?
The little details can make a difference. For example, the date, or rough date, of acquisition can often decide who actually has ownership of the item. If you or your spouse acquired the item before your marriage, it is your (or your spouse’s) property, with no obligation to share it. Illinois law holds that nonmarital property encompasses all that you owned before your marriage, unless you actively take the step of making it marital property. For example, if you own a parcel of land before your marriage, and sign half the interest over to your spouse, that land would qualify as marital property, because you took the affirmative step of involving your spouse in its administration.
How a Divorce Can Affect Your Estate Plan
Following a divorce, the terms and provisions of your estate plan may become obsolete, especially if your ex-spouse factored prominently in your plan. While there are laws that help prevent estate planning issues after a divorce, it is still a good idea to take another look at your will, trusts, and any other estate planning tools to determine if modifications are needed.
Revocable Trusts
A revocable or living trust is the most common instrument that requires review during or after a divorce. In a revocable trust, the holder of property (called a settlor) confers that property to a trustee to hold for a beneficiary while still retaining the right to take the property back. It is very common for either the trustee or the beneficiary to be a spouse.
If your former spouse is a beneficiary of a revocable living trust, there is not much of a problem. A beneficiary does not actually own the assets in the trust and will not, in most cases, until the death of the settlor. Beneficiaries can be changed fairly easily following your divorce. If a former spouse is a trustee, however, more serious issues may arise. The settlor has the right to retain the property, but the trustee retains control over the property itself. This can create complications in property division during divorce in addition to concerns regarding the future of your estate.
Reinstating Parental Rights In Illinois
In the overwhelming majority of cases, when your or your spouse’s parental rights are terminated, there is no getting them back. Normally, if parental rights are involuntarily taken away, it means that evidence of abuse or neglect has been discovered, after which it is considered too dangerous to allow the child to remain in your home. However, if there are other reasons for termination, such as a parent’s abrupt deportation, it may be possible to have the determination reversed, dependent on several different factors.
Illinois Law
Illinois is one of only a handful of states to even countenance the possibility of reinstatement of parental rights after their termination. The law holds that if filed by the Department of Children & Family Services (DCFS) or by the minor child themselves, parental rights may be reinstated if certain conditions are met, namely that the motion is supported by “clear and convincing evidence.” This is not subjective; it is a specific burden of proof that a court will insist upon before granting the motion.
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.
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