Monthly Archives: March 2013

The Multi-Disciplinary Nature of Family Law: Expecting the Unexpected

When people ask why I chose family law, I tell them that it’s one of the few areas of law where one not only deals at close range with clients, but one that touches on a plethora of areas of the law.  After over 20 years in practice, it has become obvious that the multi-disciplinary nature of divorce extends far beyond the issues of income taxes, bankruptcies, and the business entities that we deal with to value the estate.  It extends into areas of trust and estate planning, insurance and a variety of other areas that those experiencing divorce often don’t foresee. The purpose of this Article is to highlight a few of the most common areas where what appears to be ordinary planning can have an unexpected negative result in the event of a divorce.

It is a common occurrence for couples to jointly consult estate planners with the single focus of passing along their wealth to future generations in the most tax effective manner possible.  Sometimes these estate plans involve putting assets into trusts that are irrevocable which means that the spouses can not reverse the transfer and the assets that go into the trust are no longer available to be awarded in divorce.

There are times in joint estate planning where only one of the spouses will interact with the estate planner to decide how to structure the plan.  While practical, a spouse who is uninvolved in the planning loses out on the chance to understand the plan structure and its implications.  Each spouse needs to be advised about not only the consequences on death, but consequences on divorce of any estate planning technique they use.

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The Illinois Supreme Court Allows Guardians to File Petitions for Dissolution of Marriage on Behalf of Wards in Karbin v. Karbin

The population of the United States is getting older.  The most recent census, conducted in 2010, revealed not only that there are now more Americans age 65 and above than at any other time in U.S. history, but also that this age group grew at a faster pace during the prior decade than the total population.  Moreover, the 65-and-older set is expected to increase even more rapidly over the next decade as more baby boomers start to turn 65 and as new medical advances continue to extend life expectancy.

As the age of the population increases, so, too, does the likelihood that more people will experience competency issues, which may necessitate a guardianship during their later years.  Article 11a of the Illinois Probate Act provides for the appointment of a guardian for a “disabled person,” defined as anyone over the age of 18 “not fully able to manage his person or estate” because of “mental deterioration,” “physical incapacity,” “mental illness,” or “developmental disability.” The guardian – most often a friend or family member – must always act in a ward’s “best interests” and work to “promote the well-being of the disabled person, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence.”

Although a guardian has authority to make all types of innately personal decisions on behalf of his or her ward, until recently, a guardian was unable to file a petition on behalf of an incompetent ward for the dissolution of his or her marriage, even where the guardian believed such action to be in the ward’s best interests as a protection from physical or emotional abuse, financial exploitation and/or neglect by the ward’s competent spouse.  This changed, however, with the Illinois Supreme Court’s decision in Karbin v. Karbin, 2012 IL 112815, which overruled the court’s prior ruling in In re Marriage of Drews, 115 Ill. 2d 201 (1986), which held that a plenary guardian lacks standing to institute dissolution proceedings on behalf of a ward.
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