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In litigating issues involving Powers of Attorneys and guardianship, sometimes Courts are concerned regarding whether or not a guardianship is recommended if there is a valid Power of Attorney in place. In this regard, sometimes matters depend on the Report of the Guardian ad Litem, or recommendations of the Guardian ad Litem, as well as third parties, such as hospitals and nursing homes, that may be requesting an Order from the Court, including because of not wishing to be involved in any “whipsaw” situation where the maker of the Power of Attorney, and the holder of the Power of Attorney or the person or entity petitioning for guardianship of the person and/or estate may have differences or disputes in regard to what is in the best interests of the maker of the Power of Attorney, or the ward.
There is no guardian of the person and/or estate of the ward, unless appointed by the Court, pursuant to an Order from the Court. If that occurs, then the guardian is subject to compliance with the rules of the Court and any rulings by the Court. If a guardian appointed by the Court violates any duties owed to the ward, or does not follow the Orders of the Court, there could be proceedings directed against the guardian for removal of the guardian, holding the guardian in contempt or sanctions, such as imposing fees or costs on the guardian.
A written Power of Attorney can provide for who is entitled to serve as guardian in the event a guardian is appointed. What typically happens in any written Power of Attorney is that if a guardian is identified in the event of a guardianship, it can be the same person or entity who holds the Power of Attorney. This allows for the maker of the Power of Attorney to provide for instructions as to who the maker of the Power of Attorney wishes in the event a guardian of the person and/or estate is appointed by the Court.
If a person or entity receives a Power of Attorney, there can be a presumption of fraud after receipt of the Power of Attorney in regard to any actions, during the lifetime of the maker, including by estate planning documents, that benefit or favor the holder of Power of Attorney. That does not mean that fraud has actually occurred. Rather, the presumption of fraud is intended to benefit the maker, who is in a vulnerable position. The presumption of fraud can be overcome by clearing convincing evidence, or more probably than that, that fraud did not occur with respect to transactions that benefitted the holder of the Power of Attorney during the lifetime of the maker or upon the death of the maker, pursuant to estate planning documents of the maker.
The maker of the Power of Attorney may be completely competent but may be physically unable to handle certain matters and that may have been why the Power of Attorney was made. If competent, a person can always revoke their Power of Attorney and choose to continue to act on their own.
In a divorce proceeding, it is not uncommon for grandparents to have a concern regarding the outcome, including as same may impact their relationships with any grandchildren, not to mention their child and former spouse of the child. By agreement, there can be provision made in terms of any settlement relative to visitation rights of grandparents if both parties agree.
If a party to a divorce case dies, or is incarcerated, in the course of the divorce case, or after any Judgment of Dissolution of Marriage, there is an issue as to grandparents rights relating to the parents of the predeceasing or incarcerated party
A divorce attorney may or may not wish to become involved in regard to the preparation of estate planning documents for a client or giving tax advice or assist with the preparation of income tax returns for a client. In a divorce case, including with respect to the tax concept of an “innocent spouse” and/or “income due to forgiveness of indebtedness," a divorce attorney should never handle legal matters with respect to which he or she is not competent.
You need to know who the client is. If a husband and wife make the initial contact with the attorney, the attorney needs to determine if representation is for the husband and/or the wife.
Truthfulness of Clients in Divorce Relating to Criminal Tax Investigation by the Internal Revenue Service
Taxpayers involved in criminal tax investigations are not always completely truthful. Sometimes they cannot remember, sometimes they are confused, sometimes they do not keep their facts straight,
Communication by Counsel with Special Agents of the IRS in a Divorce in a Criminal Tax Investigation
After an initial correspondence to the Special Agent of the Internal Revenue Service, a meeting can be set. The attorney should not have the target, the taxpayer, at the meeting.
The objective of the Special Agent of the Internal Revenue Service is usually to follow its mandate in attempting to obtain relevant facts to determine whether or not there has been any criminal tax violations and whether or not to proceed with indictment and/or prosecution.
Should You Give a Statement to the IRS if You Are Getting a Divorce in the Early Stages of a Criminal Tax Investigation?
The attorney should never produce the target of a criminal investigation to give a statement to the Internal Revenue Service at the early stages of a criminal tax investigation.
Will contests may be ongoing prior to or after any dissolution of marriage proceeding may be filed. Trust litigation could be occurring prior to or after any divorce case is filed. There could be estate disputes impacting one or both of the divorcing parties while the divorce is ongoing.
Estate planning, either by will, trust or other instrument, generally means giving what the client has, to a person or entity of the client’s choice, the timing of which the client would control, the manner of disposition the client would control and making arrangements
In a divorce proceeding, if a party predeceases the other, and even if the predeceasing party has an estate plan intended to exclude the not yet ex-spouse, the surviving spouse may have a right to elect to take his or her elective share as a spouse, not-withstanding the terms and conditions of any Last Will and Testament that may be in effect.
There are times when Emergency Petitions for Orders of Protection may precede the filing of a divorce case. In some situations, the Judge handling the subsequently filed divorce case may wish to consolidate or also make the Emergency Petition for Order of Protection proceeding part of the divorce case once it is filed. Courts can do this to avoid confusion and so that overlapping of similar issues are not being taken up in two (2) different proceedings, possibly by different Judges, in the same Circuit Court.
A Judgement of Dissolution of Marriage can assign certain debts that are of the responsibility of each spouse to pay. Whether paid or not, if either party files a bankruptcy after the Judgement of Dissolution of Marriage is entered, it is possible that certain debts could be discharged for bankruptcy purposes. On the other hand, discharging certain debts in a bankruptcy would not abrogate the responsibility of the person who filed for bankruptcy still having to pay any debts assigned to the person within the context of the dissolution of marriage case.
There can be an issue in regard to how to handle estate planning, including estate planning documents already in place, once a divorce case is filed and while same is pending.
Sometimes once parties are divorced, they remarry. In the event they remarry, there is a question as to what is marital property and what is non-marital property.
A divorce is final on the date the Judge enters the Judgment of Dissolution of Marriage, unless the Order entered by the Judge provides otherwise.
When parties are married, there is a certificate of marriage that identifies the parties using their given names. After the parties are married, a spouse may or may not use the exact name on the certificate of marriage as the name of the spouse during the course of the marriage.
Parties to a marriage, whether living together or separated, can request emergency relief in a form of an Order of Protection.
When a divorce case is initially filed it may be automatically assigned by the Clerk to a certain Judge. Either party should be timely advised, immediately upon filing, as to who the Judge is expected to me, subject to facts and circumstances.
Complexities of Any Estate and/or Trust Administration During the Pendency of a Dissolution of Marriage Proceeding
If there is a pending trust and/or estate administration that impacts either of the parties in a divorce proceeding, including if they may stand to receive something from the trust administration and/or the estate administration, there should be a distinction made in regard to what may be considered non-marital property and what may be considered marital property. Since Illinois is an equitable distribution state, the Court can weigh the equities and take into consideration non-marital property in dividing and/or awarding marital property. Further, there could be expectancy and/or timing issues such that even though an estate administration and/or trust administration is pending, it may be unclear as to what amounts, if any, a party may expect to receive from the estate administration and/or trust administration, which could result in uncertainty in terms of taking same into account with respect to division of any marital property between the parties.
What Happens if Death Occurs with Respect to Either Party During the Course of a Dissolution of Marriage Proceeding?
If either of the parties dies prior to a Judgment of Dissolution of Marriage being entered in regard to a pending dissolution of marriage proceeding in Illinois, then the party that died being married to the spouse and the divorce did not occur before the death of the party. That means that the survivor would be considered a surviving spouse for purposes of intestacy not to mention any surviving spouse or widow’s award, or the right to contest a will within six (6) months from the date of death or the right for the surviving spouse to take his or her elective share with said election to be made within seven (7) months from the date of death of the predeceasing spouse.
It is important to be aware of any estate planning documents in a dissolution of marriage proceeding, if not critical to change any Will or estate planning documents prior to or after a divorce proceeding may be filed.
Prior to and after the filing of any divorce proceeding, careful attention should be given to retirement plans, including beneficiary designations. The primary source documents should be carefully reviewed. Many retirement plans require designations of beneficiaries to be changed to remove an ex-spouse as beneficiary. Otherwise, even after any Judgment of Dissolution of Marriage may be entered, it is possible that an ex-spouse could still take, as a result of a beneficiary designation.
Any advanced medical directive, or property power of attorney, or healthcare power of attorney, that may have been executed prior to any Judgment of Dissolution of Marriage being entered, identifying the ex-spouse as a power of attorney or as an alternative power of attorney, should be reviewed and considered, and changes made to effectuate new documents, if appropriate.
In a divorce proceeding, careful attention should be given to estate planning documents in effect. In terms of issues that can be addressed, those matters may include
Discovery is a legal way to find out information, and obtain documents relative to representation of a client.
When you and your husband decided you’d stay home and raise the kids, it was a decision you both felt good about. "We’re a team" - you thought. "What’s his is mine. And what’s mine is his. We’re building a life together." Not once in your life did you ever think you’d one day be telling your friends “My husband wants a divorce.”
As a result of the marriage, rights and obligations were created for you and your spouse with respect to certain legal monetary and property rights. And if you have children together, you also have legal obligations with regard to the care and financial support of your children.
One of the most common questions we’re asked is, "How do I ask my spouse for a divorce?" Well, there’s no one-size-fits-all answer, but here are a few tips to help make an uncomfortable conversation go as smoothly as possible.
There has been some talk in Illinois divorce circles lately that the “grounds for divorce” may be eliminated. You may be asking yourself “if they eliminate the grounds for divorce, how will people be able to file? How will the courts know the reason for the split and be able to factor that reason into the final judgement of divorce?”
When you’re going through divorce, there are so many things to think about – so many topics to consider and important decisions to make. It can be downright mind boggling. Who gets the house? What kind of visitation schedule would work best? How do we divide our assets?
When it comes to divorce, as with just about anything else in life, the more prepared you are ahead of time the better. When you’ve got all your ducks in a row, the process can go much more smoothly and will likely be resolved much faster – something that is important to most divorcing couples.
These days we’re seeing more and more marriages end for those over age 50. These so called gray divorces come with their own set of unique circumstances and they differ greatly from divorces between younger couples.
So there you have it. What you thought would never happen to you has officially happened. After a 30 year marriage: divorce. Becoming single again after such a lengthy marriage can be a frightening time filled with uncertainty. There are so many things to think about to ensure that you’ll be ok.
There’s no question – getting through divorce is never easy. Between dealing with the loss of your marriage, to splitting up assets to developing parenting plans and anticipating life as a single person again, you are no doubt experiencing a whirlwind of emotions, not the least of which is stress.
Given the current state of the economy, it’s not surprising that more and more couples are choosing to continue living together even after they divorce. Cohabitation after divorce may seem like a strange even impossible concept for some former couples, but for others, it’s completely doable.
Chances are, when you got married, you were both equally as excited to start your new life together. Unfortunately, when it comes to ending a marriage, the situation isn’t always so balanced. If you’re leaning toward getting a divorce but your spouse doesn’t want to hear it, it can be incredibly frustrating.
One of the most difficult things about divorce is the many significant life changes that come along with it. Suddenly you may find yourself looking for a new place to live, having to get back into the workforce, managing your finances on your own or adjusting to a visitation schedule with your kids.
Once the dust has settled and you’re over the major hump of getting divorced, it’s natural to start considering dating again. But how can you really know if you’re ready? How can you make sure you don’t make the same mistakes again? Most importantly, how can you protect yourself from getting hurt once you put yourself out there again?
As with most legal matters, the process of getting a divorce differs from state to state. If you live in Illinois and you’re contemplating or have already made the decision to dissolve your marriage, there are certain things you need to know in order to make the process go as smoothly and quickly as possible.
When I was growing up there was a DJ on the radio that had a thing called “Desert Island Discs” and the idea was if you were stuck on a desert island and could have only one album to listen to over and over, what would it be? As a music lover myself, I couldn’t possibly imagine listening to only one album for the rest of my life, so when it comes to divorce and determining what the one asset you must protect in a divorce should be, the choice seems equally impossible.
When it comes to ending a marriage, among the most important things to consider are the concepts behind fair divorce settlements, or more specifically, how to get one.
Have you ever noticed that if someone standing next to you yawns, you’re more likely to yawn too? It seems that yawns are contagious and apparently, so too is divorce!
As you realize that a divorce is imminent, you will undoubtedly spend lots of time researching, collecting documents, interviewing attorneys, etc. Even though these activities take up much of your time, you must remember to put your children first. Of all of the parties to a divorce, children are the ones who often suffer the most.
When looking at this issue it is easy to be mislead into thinking that there are easy solutions to this problem. Current research gives some very pat answers to a question that is extremely complex. The key to understanding the insurance dilemma facing divorced spouses is to look at long term solutions and to understand the need for an advisor to negotiate the process.
Annulment: A Declaration of Invalidity of Marriage Petition seeks a judicial ruling that a valid marriage never took place, that the marriage is not legally valid and that the marriage does not legally exist. Legal Separation: A Legal Separation Petition seeks a judicial ruling that one spouse should pay another spouse child support or spousal maintenance, and distribution of property, without seeking to dissolve the marriage.
Real estate lawyers should learn the family law implications of property conveyances, and divorce lawyers should know the pitfalls of transferring real property incident to divorce. This article is designed to alert both sets of lawyers to some of their most basic common concerns.
Upon the filing of a lawsuit and the serving of a summons upon the other party, both parties are restrained from physically abusing, harassing, intimidating, striking, or interfering with the liberty of the other party, or of any minor children.
In deciding child custody, the Illinois court does not consider the gender of the custodial parent. The court considers all relevant factors including the wishes of the child's parents, the wishes of the child, the relationship of the child with the parents, siblings, and any other person who significantly affects the child's best interest, the child's adjustment to home, school, and community, the mental and physical health of everyone, any physical violence by the child's potential custodian, whether directed at the child or at another person, episodes of repeated abuse whether directed at the child or directed at another person, and the willingness and ability of each parent to encourage a close relationship between the other parent and the child.
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