If you have recently gone through a divorce, you probably experienced a number of challenges and obstacles. Even if in the best situations, it can be very stressful to negotiate the various aspects of a divorce agreement, including the division of marital assets and spousal maintenance. Couples with minor children often have even more to worry about. Now that your divorce is finalized, however, it is probably time to take another look at your estate plan, as the new dynamic of your life should be reflected in your will and other planning documents.

Your Ex is Out by Law

A will is, in most cases, a very durable instrument that will withstand a variety of life changes and other contractual obligations. One of the few exceptions, however, is that a divorce or dissolution of marriage, by law, essentially eliminates your ex-spouse from any will created before the marriage ended. According the Illinois Probate Act of 1975, a will executed prior to the dissolution of marriage “takes effect in the same manner as if the former spouse had died before the testator.”

This means, of course, that your ex-spouse is not entitled to any of the property you had intended for him or her to receive upon your death. On the other hand, depending upon the specificity of your existing will, it may be a little unclear what will happen now with that property. In fact, your entire will may need to be revamped to adjust for the serious life changes.

America is a nation built on second chances. Consider, for a moment, the number of high-profile incidents or embarrassments involving celebrities or public figures, and how many have gone on to even greater success and fame afterward. For many, love and marriage is not terribly different. Despite a failed first marriage, more couples than ever are willing to walk down the aisle again in the hopes of finding the permanent happiness that has, so far, eluded them. Remarriage, however, can be extremely challenging, as many couples beginning second or third marriages are bringing with them children from previous relationships. Finding the right balance between parent and friend is often difficult for new stepparents, but there are some things you should keep in mind to make the transition a little more comfortable for everyone involved.

Be Prepared

As you fell in love with your new spouse, you knew that he or she already had children. Thus, the process of becoming a healthy blended family probably began long before thoughts of marriage ever crossed your mind. During the dating process, it can be very easy to try to ignore your partner’s children and the potential impact on your relationship, but doing so is not very conducive to a future together. It is important, however, to start slow and not to impose yourself on an existing family dynamic in such a way that will be overly upsetting. Understand that you will probably feel like something of an outsider for a little while, because, in reality, that is just what you are. Over time, though, you will probably feel more included and more a part of the family than you ever thought possible.

Be Respectful

Whether you have children of your own or not, you need to keep in mind that every stepparent’s relationship with their stepchildren is different, and may even vary from child to child. For example, your spouse’s older child may have taken to you immediately, becoming affectionate and loving without much effort, while a younger child may be more stand-offish and need additional time to adjust. Neither reaction is necessarily right or wrong, but as long as it is honest, you should be understanding and respectful. If a child wants space, allow him or her to have it; if he or she wants love and support from you, offer it. A long-term future together can only be realistic if everyone remains open and truthful about their comfort and feelings.

Estate planning is different from any other aspect of the law for one main reason: it focuses heavily on planning for a future the individual creating the estate plan may not be around for. The main purpose of utilizing estate planning tools such as a last will and testament or an advanced care directive is to make plans for end of life care and what happens to our assets after we pass away. While planning for the eventuality of death can be uncomfortable and sad, it is tremendously important. In order to ensure your final wishes will be fulfilled, estate lawyers must ask very challenging questions. However, many people find that preparing for these tough questions in advance makes the entire estate planning process easier. If you have not yet done so, take some time to consider the following questions.

When Do You Want Life Support Ended?

We often think of death as a black-and-white scenario, however it is not always clear when a person’s life is officially ended. For example, the highly-publicized Terri Schiavo case involved an individual in an irreversible, persistent vegetative state. If you become incapacitated like this, do you want doctors to use prolonged artificial life support or mechanical ventilation? When should "the plug be pulled"? An advanced directive or living will gives you the authority to choose what medical treatment you wish to be used around the end of your life. Drafting a document like this also saves your loved ones from having to make these incredibly personal decisions for you.

Who Should Raise Your Children If Both Parents Pass Away?

Many individuals incorrectly assume that estate planning is only necessary for the elderly. However, if you have children of any age, you should have estate planning tools which dictate guardianship in the event of a tragedy. If something happens to you and your child’s other parent, who should be the child’s new legal guardian? Unfortunately, parents who do not make this decision official through legally-binding estate planning documents may not have their wishes granted upon their death. When parents die without choosing a legal guardian for their minor children, the court chooses one or more individuals to become guardians based on the best interest of the child.

When a couple decides to end to their marriage, determining how to divide marital property is often a challenging process. Before division can even begin, the parties and the court must first establish what constitutes the marital estate. Illinois law provides fairly straightforward guidelines as to what is considered marital property and what is not, but, as with most areas of law, there may be some exceptions to the rules. On such variation may include a marital home purchased prior to the marriage, which, by the letter of the law, could be considered non-marital property.

In Contemplation of Marriage

According to the Illinois Marriage and Dissolution of Marriage Act (IMDMA), assets that are acquired prior to the marriage are generally non-martial property, and those acquired by either spouse subsequent to the marriage are part of the marital estate. By this standard, a home purchased before a couple actually gets married could ostensibly be considered non-marital property, especially if the home was titled in just one party’s name.

Despite the best theoretical intentions of the law, the real world often proposes logistical challenges. For example, it is not uncommon for a couple to begin looking for a home and complete the purchase before their marriage, with the intention of the sharing the home once they are married (or sooner). If the marriage subsequently ends in divorce, the status of the home as marital or non-marital property may be in question. Over the last four decades, several cases around the state have addressed similar situations and appellate courts have established a reliable case law precedent.

An estate plan generally involves human heirs, such as children and grandchildren, but this is not always the case. Some individuals have non-human dependents to consider. Does that mean everyone should include their pet in an estate plan? Not necessarily, yet it might be worth considering if there is even the slightest possibility that your companion may outlive you. It is important to realize that this provision might be important, and how you can take the first step toward implementing it in your estate plan.

Why Plan for Your Pets?

When the owner of an animal dies or becomes incapacitated, the animal may end up at a shelters, especially if there are no family members who are willing to take on the responsibilities of surrogate pet ownership. It happens so frequently, in fact, that estimates suggest some 100,000 to 500,000 pets are admitted to a shelter after their owner’s death or incapacitation. How do these once companions end up in shelters?

Often, it is the friends, family, or children of the deceased that surrender them. Perhaps they do not have the room income to care for the animal, or have tried to care for it but do not know how to do so appropriately. Still others might have allergies, small children, or other extenuating circumstances that make caring for an animal difficult or nearly impossible.

Even if you have never experienced it, you probably realize that a divorce can take a tremendous emotional toll on a person. You may also be familiar with the basic idea of dividing marital property. What may not be as obvious from the outside, however, is the potentially devastating effects a divorce can have on the personal financial situation of each spouse, which can be long-lasting and can even result in bankruptcy.

If divorce has become a strong possibility for you and your spouse, there are a few areas of concern that you can address along the way to prevent major financial problems down the road.

Consider the Type of Assets

The division of marital assets is an often contentious part of the divorce process. Although Illinois is equitable distribution state, meaning each spouse’s allocation should be fair, not necessarily equal, you and your spouse will probably try to reach a fairly even agreement. You should keep in mind, though, that certain assets are not as easily converted to cash in the event of unforeseen expenses. For example, if you got to keep the family home while your spouse was allocated an investment account with similar value, you may struggle to sell the home if you were to ever need to do so.

In most cases, the assignment of assets to a single heir is straightforward; you only need to determine a creative way to decrease the tax load. By contrast, assigning assets to multiple heirs is generally more complex. Not only do you have to determine how to increase the overall amount each person receives after their tax liabilities but you must also discern whether to distribute the assets fairly or equally. What is the difference between these two options, and which one is most appropriate for your estate planning needs?

Fair or Equal: What is the Difference?

While some people use the terms fair and equal interchangeably, the two terms are quite different from one another. To split things equally means to give everyone the exact same amount, but fair distribution is not always equal. Sometimes, it may appear that one heir is getting “more,” but the truth is that they are getting more for a very specific reason.

Determining What Constitutes “Fair”

Fair can mean something different to everyone. For example, children who see another child with more food or a later bedtime might cry, “Not fair!” – even if the other child is older. Fair is much like this; it determines what is appropriate to give in terms of responsibility or amounts by weighing various factors. Asset fairness is no different.  

Imagine a plausible scenario: one day, you are sitting in your office, perhaps taking a break to read the morning newspaper and to refill your coffee cup for the second time. Suddenly, a person you have never seen before asks you to verify your name. When you do, he hands you an envelope and announces that you have been served. Confused, you open the envelope to find that—to your utter shock—your spouse has formally filed for a divorce. In a matter of moments, it may feel like your whole world has been turned upside down, but now you must take action in response. What should you do and where should you even start?

Analyze the Situation

If you have been truly blindsided by your spouse’s divorce filing, there are, to put it bluntly, serious problems in your relationship. Even the healthiest of marriages experience tough times every now and again, but through the difficulties, united couples will continue to talk and communicate their issues and concerns. There is a good possibility that the underlying issues that led your spouse to file for divorce have been going on for a long time, but communication was not a high enough priority. The problems were downplayed or completely ignored until, one day, enough was enough.

It Only Takes One

While a healthy marriage requires full cooperation and participation from each spouse, a divorce can be all but completed with the efforts of only one. Of course, if you refuse to cooperate with the divorce proceedings, the process will likely be much longer and more expensive. The other consideration is that it is unreasonable for you to try to stay married to someone who no longer wishes to be married to you. The better option is to get the help you need to get the through the process and to start a new life where you can be happier and healthier.

Thinking about the end of your life is not an easy task, especially if you are still fairly young or currently in the prime of your life. Yet failing to do so can have serious consequences for you and those you love the most. Of course, you are not alone. In fact, statistics suggest that only about 40 percent of American adults have a valid will. Do not continue leaving your family unprotected. Learn how creating an estate plan can improve the future of your family and how you can create one that protects everyone’s best interests.

How Creating a Plan Can Protect You

People do not generally consider how an estate plan can help them, yet there are some clear benefits to having one. If, for example, you become incapacitated, a valid power of attorney can help ensure your wishes are followed. You can name someone you trust to make any medical decisions you have not already considered. It is also possible to assign someone to watch over your financial affairs. In short, an estate plan can protect and preserve your interests in the face of the unthinkable.

How Creating a Plan Can Protect Your Family

A valid and well-designed estate plan can protect your family, regardless of whether you have become incapacitated or have passed away. By having someone you trust assigned to your financial matters, your estate is preserved, even if you are incapacitated. By having a clearly defined will, you can save your loved ones the stress and worry of probate or long, drawn-out battles over who gets what. Your plan can also reduce the state and federal taxes that your family may have otherwise been responsible for paying.

After months or even years of unhappiness, you have finally decided that it is time for your marriage to end. It happens. In fact, it happens to about 800,000 couples every year in the United States, or about 2,200 per day, including weekends. If you are like many individuals, it can be very tempting to take to Facebook or Instagram in celebration of your newfound freedom. Others, sadly, turn to social media as an outlet for disparaging their partners, in hopes of finding support from friends and loved ones, or simply out of anger or spite. Whatever the reason, it is often best to limit your use of social media during your divorce to prevent potential unforeseen consequences.

Social Media Affects Divorce Cases

According to recent study conducted by the American Academy of Matrimonial Lawyers (AAML), as many as 99 percent of family law attorneys have observed an increase in the use of text message and social media evidence in divorce and family proceedings in the last few years. Many divorce attorneys are even incorporating strategies for uncovering such evidence. What was once the territory of private investigators with cameras and notebooks is now often covered by voluntary posts on Facebook.

Appearances Can Be Everything

While discovering damaging information on social media, such as your spouse’s illicit affair, for example, may irrevocably destroy your relationship, Illinois law prevents a court from considering marital misconduct in most proceedings related to divorce. Spousal maintenance and property division concerns are not dependent upon the behavior of either spouse. However, there are subjective factors that can greatly affect your case, especially when children are involved.

If you have already developed an estate plan, congratulations! You are already a step ahead of more than half of American adults. However, it is also important to understand that estate planning is not a “set it and forget it” undertaking—to borrow a phrase from a well-known infomercial. You need to review your plan on regular basis to make sure that it is still ready to meet your evolving needs. In addition, there are certain situations or life changes that may require you to update or make changes to your estate plan.

Getting Married or Divorced

When you get married, your new spouse does not automatically become a beneficiary in your existing estate plan. He or she will only inherit a portion of your estate if you update your plan. On the other hand, a divorce will nullify any provisions in your will that pertain to your ex-spouse, but only once the divorce is finalized. You will need to choose a new beneficiary to receive the portion of the estate once meant for your spouse.

Keep in mind that you will need to update your named beneficiaries on retirement accounts and other investments. A divorce will not automatically revoke your ex’s status as beneficiary for those type of assets.

Everyone knows that when you get divorced, your ex-spouse gets half of everything—unless you have a prenuptial agreement. That is just the way it works, right? Well, not exactly. Not in Illinois anyway, along with about 40 other states. The idea of an equal 50-50 split applies only to the nine states that maintain a standard known as community property in divorce. The remaining states, including Illinois, use what is called an equitable distribution standard, which may vary slightly from state to state, but generally requires a more in-depth consideration of a divorcing couple’s property and circumstances.

Determining and Valuing the Marital Estate

The equitable distribution guidelines in Illinois are contained in the Illinois Marriage and Dissolution of Marriage Act. The process begins with establishing which assets belong to the couple and which belong to each individual spouse. Those that belong to the couple include all property acquired by either spouse during the marriage with limited exceptions for gifts, inheritances, and judgments. Assets owned by either spouse prior to the marriage, along with the exceptions to marital property, are non-marital property and not subject to division. The value of the marital estate must also be determined, which may require the assistance of various experts, including real estate appraisers, financial advisors, and other professionals.

Considerations for Equitable Distribution

Once the marital estate has been established and valuated, the court must make a determination regarding the portion of the estate to be allocated to each party. In doing so, the court is required by law to take into account:

Your family should not need to worry about your finances and assets after you die. That is why it is so important for you to create an estate plan. Even people of modest means have an estate and multiple options to choose from to ensure that their affairs are in order when the time comes. Two popular options are wills and living trusts. Understanding the difference between the two can help you decide which one is your best option.

A Last Will and Testament

A will is a legally binding written document that dictates how your property and assets will be distributed when you die. You can modify your will at any point during your lifetime, which means that the terms are not set in stone at the time of writing them. You can use a will to name a guardian of minor children in the event of your death, decide how debts and taxes will be paid, and name an executor of your estate.

Living Trusts

A living trust is a legal entity that is created to hold and own property. A trust is managed by a trustee, which is usually the owner, at least during his or her lifetime. The owner is also usually the beneficiary while they are alive. A trust usually names a successor trustee who will take over the management of the trust when the owner dies. Your assets can be dispersed to named beneficiaries when you die, and you will be able to maintain privacy regarding how these affairs are handled.

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.

Property Division

Similarly, when the division of marital property is left to the court, the circumstances of the marriage and divorce must also be weighed carefully. The court must take into account—again—the income and needs of each spouse, as well as any claims of dissipation, which spouse wishes to remain in the marital home, and any provisions regarding the couple’s children.

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.

You should also ensure you have a complete log of any joint accounts, should you outlive your spouse and end up becoming the executor of their estate. This can help you avoid any last-minute confusion and may even expedite certain issues, even if they failed to create their own estate plan. Further, if you and your spouse should pass away together, your other heirs will still have the information they need to manage your joint assets.

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.

The IMDMA does, however, make more references to a petitioner and a respondent. The petitioner is the spouse who initiates the proceedings by filing the divorce petition, making him or her formally the plaintiff. The non-filing spouse is the respondent and is given the opportunity to file an answer to the petition including motions of his or her own. For the remainder of the proceedings, each party maintains equal status as a party to the case, with the ability to file motions, request considerations, and present evidence. From a legal standpoint, therefore, there is little official advantage to filing for divorce before your spouse does.

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.

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.

Relocation and Substantial Change in Circumstances

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

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