Life Insurance and Child Support
For litigants in divorce and paternity proceedings where child support is a consideration, life insurance should also be an important consideration. In the event a parent who is contributing support passes away before his/her obligations of child support and college contributions conclude, life insurance proceeds can continue to provide for the financial support of the children. Life insurance beneficiary designations, as well as such designations on other assets such as financial instruments and retirement accounts, may need modification to best protect the asset(s) for the benefit of the children. Many parents consider designating their children as beneficiaries instead of their ex-spouse, other parent or relative. Doing so more effectively assures the proceeds are allocated for the intended recipients. If minors are designated as beneficiaries, a custodian will be required to oversee the proceeds until the time the children are emancipated. Such a designation is regularly accomplished through insurance company forms. The custodian receives the proceeds from the life insurance policy upon the death of the insured, but the custodian has a legal duty to use the funds for the only the welfare of the beneficiaries. A trust is another estate planning option. If utilized, the trust can be designated as the beneficiary of the life insurance, and the terms of the trust can provide how the proceeds are to be distributed for the benefit of designated survivors. Consultations with experienced divorce and estate planning attorneys can offer the best direction for each person’s particular circumstances.
Once a Petition for Dissolution of Marriage is filed, the responding party must be made a party to the proceedings in order for the Court to obtain jurisdiction over that party. Jurisdiction is the authority of the Court to hear and render decisions in a pending case. If the responding party, or an attorney on his or her behalf, does not voluntarily file an appearance in the case, the usual practice is for the petitioning party to have a Summons issued by the Clerk of the Court where the divorce is pending and to place the Petition for Dissolution and Summons for service with the sheriff’s department in the county where the responding party resides or with a private process server. If service of process is accomplished on an out-of-state resident, additional requirements must be met.
When the responding party receives valid personal service, the Court obtains both: 1) the authority to adjudicate the status of matters, for instance: dissolving the marriage, adjudicating allocation of parental responsibilities (parenting time, parental decision-making authority), and assigning interests to property assets located in Illinois (characterized as in rem jurisdiction), as well as, 2) the authority to enter orders regarding the conduct of the parties, for instance: the payment of child support or maintenance, and the allocation of attorney fees and marital debt (characterized as in personam jurisdiction).
If a spouse cannot be located after diligent inquiry, rendering personal service unattainable, upon motion to the Court, service by publication of a notice of the proceedings in the local newspaper where the case is pending may offer an alternative means of service, although, service by such means only confers in rem jurisdiction, such that matters requiring in personam jurisdiction must be reserved until the responding party is either personally served or agrees to file an appearance with the Court.
A Living Trust is created by a trust document and designates one or more individuals or corporations to act as trustee. The trust document directs the trustee to accept title to, or ownership of, real and personal property as trustee for the benefit of the trust’s beneficiaries. The trust documents sets out in detail how the trust is to be administered. It contains the directions of the person who sets up the trust to guide the trustee.
A Living Trust avoids the requirement of probate as your property is conveyed to the trust during your life time. Most of the time, you, as Grantor, would be the trustee and the trust would provide that you can utilize everything in the trust for your needs during your lifetime. Upon death, a Living Trust typically provides for a successor trustee and directs how the property in the trust will be used for the benefit of the remaining beneficiaries. A living trust can also be used to derive tax advantages in larger estate cases.
Parenting Class and Education Programs
Illinois Supreme Court Rules require that each county or circuit court establish an approved parenting education program. Such programs encourage parents to develop ways to relate to each other that keep their children out of conflict, motivate parents to focus on the best interests of their children, and emphasize the need for parents to set aside personal differences in order to provide the healthiest environment possible for their children.
Such programs are generally four hours in length and cover the subjects of parenting time, allocation of parental responsibilities and the impact of divorce and separation on children. Attendance and completion of such programs is mandatory for all parents of minor children who are participating in divorce or paternity cases, unless the requirement is excused by the court for good cause shown. Such programs generally should be completed as soon as possible after commencement of the court case, but not later than sixty days after an initial case management conference, which conference generally takes place about ninety days into the proceeding.
Some counties offer programs that are available online as well in person seminars, and most programs cost in the range of $50.00-$100.00 per parent, although reduced costs are available in some cases, especially to litigants with limited resources. Parents are encouraged to attend different sessions. Courts may impose sanctions on any party willfully failing to complete the parent education program approved in that county, including findings of contempt, and in some cases, denial of parenting time
Illinois, by statute, allows you to designate, by a written power of attorney (POA), who you wish to have power of attorney over your affairs. There are two types of power of attorneys in Illinois: POA for property and POA for health care.
Power of Attorney for Property
The POA for property allows you to designate a person to make decisions regarding your property and finances. Unless specifically restricted, the person you nominate can pay bills, access bank accounts, sell real estate, apply for you to receive benefits, etc.
Power of Attorney for Health Care
The POA for health care allows you to designate a person to make decisions regarding your medical treatment. Certain restrictions or instructions can be included. Typically you would elect your preference regarding life prolonging medical treatment for the event you are unable to survive without it.
A power of attorney usually is triggered upon the happening of a specific event, such as a person losing their capacity to make their own decisions. You can also elect to have a power of attorney go into effect immediately, or upon the occurrence of a certain date. This is common for the POA for property, which enables your designee to sign on your behalf at a real estate closing or other such financial transactions that you are unavailable or unable to attend. You can revoke a POA at any time and it automatically terminates upon your death.
What is a Will?
A Will is a common instrument used to enable a person to designate the beneficiaries of their estate. Wills allow you to make specific bequests. For instance, if you want your daughter to receive your diamond necklace, your friend to receive your sports memorabilia, or a certain amount of your estate to go to a charity, a Will enables you to make the specific designation.
Wills also enable you to choose whom you wish to be the executor or administrator of your estate. Furthermore, they can be used to state preferences for whom you wish to be guardian of your minor children.
Since Wills do not go into effect until death, deeds to real estate, title to property and names on financial institution accounts can be held in the name of the person, unlike living trusts, which require those items to be titled in the name of the trust. There is no such thing as a “Living Will.” This is a misnomer for granting someone a power of attorney.
Child Custody Disputes: The Role of a Guardian Ad Litem
When the allocation of parental responsibilities is in dispute, the Court has the authority to appoint an attorney to investigate the best interests of the child and make recommendations to the Court. That attorney performs the role of a Guardian Ad Litem (GAL). Either party may request the appointment of a GAL, or the Court may appoint one on its own motion.
The GAL, in addition to being a licensed attorney, is required to have completed supplemental professional education, often covering topics such as developmental considerations of children, family dynamics, interviewing and assessment techniques, mental health and substance abuse issues, ethical considerations, and others. He/She makes inquiries of each party, the child/children which are the subject of the dispute, and often, third parties with information relevant to the matters in dispute such as counselors, teachers, and extended family members.
The GAL is a neutral agent of the Court, can be cross-examined by either party, has broad authority, and communications with GALs are not subject to privilege. GALs, as licensed legal professionals, are entitled to receive a retainer for their services, separate and apart from legal fees which may be paid by either party to his/her own counsel. The GAL retainer is often allocated in percentages to each party based on their respective financial circumstances. While the recommendations of a GAL are not binding on the Court’s determinations, such recommendations are often given considerable weight in judicial decisions.
In Illinois, it is very important to have a proper plan in place for your estate. If you do not designate the beneficiaries of your estate while you are alive, when you die, your estate will have to be probated and your property will be divided using a statutory formula that takes into account the relatives you have left behind. If you have a spouse and children, your spouse will receive 50% of your estate and the other 50% will be divided between your children. If you only have a spouse, your spouse will receive everything. If you have children and no living spouse, your children will receive your estate in equal shares. The formula also addresses how your estate will be divided if you do not have a spouse or children.
What are the grounds for Marriage Annulment in Illinois?
Annulments are characterized as declarations of invalid marriages in Illinois. There are limited legal grounds for annulments which include specific legal requirements and strict deadlines for when petitions may be brought. Grounds include:
- Lack of capacity to consent to the marriage at the time it was solemnized because of mental incapacity, infirmity, being under the influence of alcohol, drugs or other incapacitating substances, or inducement to marry by force, duress or fraud involving the essentials of marriage – which must be brought no later than 90 days after knowledge of the condition is first acquired;
- Lack of physical capacity to consummate the marriage by sexual intercourse at the time the marriage was solemnized and the other party did not know of the incapacity – which must be brought no later than one year after knowledge of the condition is first acquired;
- A party was aged 16 or 17 years and did not have the consent of his/her parents or guardian or judicial approval – which must be brought prior to the time the under-aged party reaches age 18; and
- The marriage is prohibited, as in the case of bigamy and marriages with immediate family members, for which there is no deadline.
Children born during a marriage that is annulled remain the lawful and legitimate children of the marriage. Marriages are deemed invalid as of the date of the marriage, unless the Court finds, after considering all relevant circumstances, that the interests of justice would not be served by making the judgment of annulment retroactive. This means that dissolution of marriage laws relating to the division of property and maintenance, or alimony, would ordinarily not apply.
Relocation After Divorce: What Are The Requirements For Me To Move With My Child?
Effective January 1, 2016, the act of moving is statutorily characterized as “relocation.” Any parent with whom a child resides with the majority of the time, or either parent if the child resides with both of them equal amounts of time, must provide advance written notice to the other parent of an intent to move: a) more than 25 miles from the child’s current home, if the child resides in Cook, DuPage, Kane, Lake, McHenry or Will County; b) more than 50 miles from the child’s current home, if the child resides in any other county in Illinois; or c) out of state to a new residence that is located more than 25 miles from the child’s current residence.
The notice must meet the following requirements: state the date when the parent intends to move; state the new address which the parent will be moving to; and, if not a permanent move, state the length of time the parent will be living at the new address. The notice must be provided to the other parent at least 60 days in advance of the move, unless a Court orders otherwise or is impracticable, in which case, notice must be given at the earliest practicable time.
If the non-moving parent consents to the move, and signs and returns the notice to the moving parent, then the moving parent may file the signed notice with the Court and no further court action is required. If the non-moving parent does not consent, or fails to return the signed notice, the moving parent must file a petition with the Court asking for permission to relocate before the move may occur.