Can I Be Required to Pay for College and Post-Minority Support After My Divorce?

pay for collegeIs Post-Minority Support Unconstitutional?

Divorcing with college-age children may lead to the inevitable question of who will pay for college expenses of the child. In Illinois, Section 513 of the Illinois Marriage and Dissolution of Marriage Act controls this question. Section 513 provides that the Court may require either party to contribute to the educational expenses of a child over the age of 18. These educational expenses may include tuition and fees, housing expenses, medical expenses, living expenses of the child, and the cost of books and supplies. The important thing to note here is that this section says “may,” because parents are not required to contribute the post-secondary expenses of their children with the same certainty as when the child is under the age of 18.

This statute has been challenged in the past and found to be constitutional. Specifically, in 1978, the Illinois Supreme Court decided a case challenging the constitutionality of Section 513. The Court said the statute was constitutional and discussed their belief that children of divorced parents were less likely to receive assistance from their parents for college education than children of married or single parents.[1] In 1988, the Second Appellate District said that this rationale also applied to cases where the parents had never been married. [2]

The reasoning behind these 1978 and 1988 cases may seem outdated now. In Illinois the “average” family, statistically, is no longer a two-parent married household, in fact in 2011 only 46% of children under age 18 lived in a two-parent married household. [3]

A recent DuPage County case brought these changing norms to light when it again challenged the constitutionality of Section 513. [4] In this case, Yakich v. Aulds, both parents were ordered to pay 40% of the college expenses for their daughter and the daughter was ordered to pay the final 20%. However, the mother paid the daughter’s portion of the expenses.  The father, Yakich, argued that parental decision-making with respect to college contribution exists for married persons, but this input ends for non-married couples, and he was therefore unable to give meaningful input into his daughter’s college decision-making process. He further argued that because of this lack of input, non-married parties can be forced to bear a burden with respect to their child’s college expenses when they had no say in where their child went to school or how much tuition cost. This obligation, he argued, does not exist for parties who are married or single, who are not required to contribute to their children’s college expenses, violating the equal protection clause. The Court largely agreed with the father in this case and found that divorced or never married parents are not provided the same input and ability to educate their children as married persons are permitted. Further, because the Court found that there is no rational basis for this difference, it determined that equal protection was denied to the father in this case and Section 513 was unconstitutional as applied to him.

This case does not completely abolish Section 513, as it only decided regarding one specific situation.  However, it puts this statute on the chopping block if other Courts were to agree with the Yakich v. Aulds Court and find other circumstances in which a party being required to pay college expenses would be unconstitutional.

TheYakich v. Auldscase is currently on appeal. We will keep this blog updated when the higher courts give their ruling.

The information provided on this site is not, nor is it intended to be, legal advice.  You should consult with an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, emails, and communications.  Contacting our offices does not create an attorney-client relationship.  Please do not send any confidential information to us unless and until such time as an attorney-client relationship has been established.

Past results do not guarantee future results. Every case is different and is decided on its own merits. Any testimonials or endorsements regarding services do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. 

The choice of a lawyer is an important decision and should not be based solely on advertisements.

[1]Kujawinksi v. Kujawinski, 71 Ill.2d 563 (1978).

[2]Rawles v. Hartman, 172 Ill.App.3d 931 (2d Dist., 1988).

[3]Yakich v. Aulds, 15-F-651 (DuPage Cnty May 4, 2018) (citing Livingston, Gretchen “Fewer than Half of U.S. Kids Today Live in a ‘Traditional’ Family,” PewResearch Center, December 22, 2014, http://www.pewresearch.org/fact-tank/2014/12/22/less-than-half-of-u-s-kids-today-live-in-a-traditional-family.

[4]Yakich v. Aulds, 15-F-651 (DuPage Cnty May 4, 2018).

 

The State Of Illinois Turns 200

Illinois2018 marks the 200th anniversary of Illinois’ statehood, as well as the creation of our Supreme Court. With this milestone in mind, Sherer Law would like to take the opportunity to step back and reflect on our history and some on the great legal minds who have shaped our State.

On December 3, 1818 Illinois was promoted from a United States territory to the 21stState to join the Union.  However, in order for Illinois to be granted full statehood status, we first had to adopt our own constitution.  Our constitution shaped our current judicial system, creating our Supreme Court and providing for trial and appellate state courts to be created.[1]Originally, our Supreme Court consisted of a Chief Justice and only three Associate Justices.

The first Illinois Supreme Court Justices were appointed by the General Assembly, commissioned by the Governor, and elected for life. In 1848, our constitution was changed to require that the Supreme Court Justices would be elected by popular vote for a term of service.[2]  In 1870, our appellate court system was established. This was composed of circuit court judges appointed by our Supreme Court.

Currently, our Supreme Court is presided over by 7 Justices: Chief Justice Lloyd A. Karmeier and Justices Robert R. Thomas, Thomas L. Kilbride, Rita B. Garman, Anne M. Burke, Mary Jane Theis, and P. Scott Neville Jr.  Each of whom will serve a 10-year term before being up for reelection. [3]

Many of the changes to our judicial system over the past 200 years are due to some of the great legal minds who have called Illinois their home.  Most of us will be familiar with the famous attorney and legal crusader from Illinois, Abraham Lincoln, our 16thPresident of the United States. In fact, four of our Presidents have roots in Illinois.  Ronald Reagan, the only U.S. President born in Illinois; Ulysses S. Grant, who lived with his family in Illinois for some time; and Barack Obama, also an attorney, who lived and taught in Illinois.

George Leighton, a Federal District Court Judge who passed away this year, was another great legal mind from the state of Illinois.  Mr. Leighton was the son of immigrants, and he himself never graduated high school.[4]  He was forced to leave before graduation in order to work on an oil tanker to help provide for his family.  Nevertheless, he continued to study independently and eventually received his college diploma from Howard University.

From there he entered Harvard Law School in 1940.  His schooling was interrupted by World War II, during which he served in the United States Army and was awarded the rank of Captain and received a Pacific Service Metal and a Bronze Star. After he completed his service, he returned to Harvard Law School and earned a Bachelor of Laws in 1946.

After graduation, he moved to Chicago, Illinois where he fought to desegregate juries and schools, represented those who could not afford an attorney, and advocated for people facing the death penalty.  On December 19, 1975, President Ford nominated him to serve as a judge for the United States District Court of the Northern District of Illinois.  He served as a judge until retiring on November 30, 1987 and returning to private practice.  The Honorable Judge Leighton continued to work as an attorney until retiring at the age of 99.[5]After he passed away on on June 6, 2018, he was fittingly laid to rest in Arlington Nation Cemetery.

[1]http://www.idaillinois.org/cdm/ref/collection/isl2/id/167

[2]https://ballotpedia.org/Judicial_selection_in_Illinois

[3]http://www.illinoiscourts.gov/SupremeCourt/meetsupremecourt.asp

[4]http://www.jonathanpollard.org/2001/100501c.htm

[5]https://www.chicagotribune.com/news/obituaries/ct-met-george-leighton-dies-20180606-story.html

The information provided on this site is not, nor is it intended to be, legal advice.  You should consult with an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, emails, and communications.  Contacting our offices does not create an attorney-client relationship.  Please do not send any confidential information to us unless and until such time as an attorney-client relationship has been established.

Past results do not guarantee future results. Every case is different and is decided on its own merits. Any testimonials or endorsements regarding services do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. 

The choice of a lawyer is an important decision and should not be based solely on advertisements.

Why And How To Establish an LLC

Establish an LLCIf you’re starting a small business, one of your first questions is probably whether you should establish your company as an LLC. It can be a bit of a bureaucratic nightmare and it’s another expense you have to consider, along with all the other costs associated with getting your business up and running (business cards, a website, etc. It all adds up). When you’re just starting out, you’re on a tight budget, which leaves you with the question: Is it worth it to establish your business as an LLC?

Protect Yourself from Liability

LLC stands for “limited liability corporation” and one of the main benefits of establishing your business as an LLC is to protect yourself from any personal liability in the event something goes wrong with the company. For example, if the company gets sued, they won’t be able to use your personal assets – only the company’s assets.

This is especially beneficial if you’re married. If you don’t establish an LLC and you get sued because of something related to the business, not only are your personal financial assets up for grabs, those of your spouse might be as well.

Taxes

An LLC does not have to pay federal taxes. This does not mean you and your employees and/or business partner(s) don’t get taxed for the income you bring home – it just means the business itself does not get taxed. That income gets distributed to all the members of the LLC, each of whom then has to pay federal and state income taxes on that money.

The reason it’s beneficial to not have the company itself get taxed is because not all of the money the business brings in will go straight into your pocket – there will be business expenses you’ll have to cover and it will give you peace of mind knowing you won’t have to pay taxes on that money before paying for things like rent and utilities for your office, not to mention your employees’ salaries. It also means you won’t have to pay the government twice by paying corporate taxes, followed by your own income taxes.

But just because you don’t have to pay federal taxes doesn’t mean you should forget about state taxes. Depending on where you live, your LLC might have to pay state taxes. For example, in Illinois LLCs do have to set aside 1.5% of their net income to pay the personal property replacement tax.

What Do I Need?

To establish your company as an LLC, you need to file an article of organization, which you can find at your local secretary of state’s office (these days you can probably find it on their website). Once you have completed the form, you need to file it with your secretary of state’s office in order for the LLC to legally come into existence.

Keep in mind that any mistakes on the form could result in a delay in getting your LLC established while you go over the form trying to figure out where you went wrong. This is why it’s so important to have a qualified attorney at least look over the form and help you file it. Ideally, they should be with you every step of the way so you can avoid do overs.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

The information provided on this site is not, nor is it intended to be, legal advice.  You should consult with an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, emails, and communications.  Contacting our offices does not create an attorney-client relationship.  Please do not send any confidential information to us unless and until such time as an attorney-client relationship has been established.

Past results do not guarantee future results. Every case is different and is decided on its own merits. Any testimonials or endorsements regarding services do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. 

The choice of a lawyer is an important decision and should not be based solely on advertisements.

Divorce: How to Break it to the Kids

break it to the kidsOne of the worst parts of getting divorced is when you have to break it to the kids. Depending on how old the kids are and how much the marriage has deteriorated, they may have already guessed what’s happening, but you should still broach the subject carefully. We’ve come up with some tips to help.

Do It Together

It’s always hard to do things with your soon-to-be ex, but it’s important to remember that you will both continue to be parents, so this is a good time to start practicing how to raise the kids as a divorced couple.

Plan Ahead

There’s no way to map out exactly how a conversation will go, and you can’t expect it to happen just the way you plan it, but you can foresee some questions (maybe even objections) and decide how you’ll address them. Because you and your partner should have the conversation with your kids together, you should also complete the planning stage together. It’s important that you both agree on how and when to broach the subject, as well as the kind of language you’ll use. The words you choose to use can make a big difference, so it’s important that you decide carefully, agree on it beforehand, and stick to the plan.

Talk to Everyone at Once

If you have more than one child, be sure to talk to all the children at the same time. This is not a situation to deploy the “divide and conquer” strategy. While it might be tempting to try to talk to just one child at a time, in reality that will just lead to confusion for them and emotional exhaustion for you, since you’ll have to have the same tough conversation multiple times. It will also give them a chance to talk about it amongst themselves before you have a chance to talk to each of them, which will lead to rumors and fear.

Answer Any Questions

They’re bound to have questions: where will they live? Who will they live with? Will they still see both parents? Will they still be a family? It’s important to address all these questions and any others they might have in order to reassure them that your decision to end the marriage has nothing to do will your love for them.

Be Prepared for Multiple Conversations

It will take a while before they’ll be able to fully digest what you tell them and what it might mean for them. Be prepared for them to come back later with more questions and be open to answering all those questions. Just keep in mind the first rule of talking about divorce with the kids: do it together. You might not both be in the same room when one of your kids asks you about the divorce, (they’ll likely feel more comfortable talking to one parent than the other), just remember the words and language you and your partner decided on and continue to abide by that plan. You should also keep your partner in the loop about any questions or concerns your children are having, just as they should keep you abreast of anything that one of the children might approach them with after the initial conversation.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

The information provided on this site is not, nor is it intended to be, legal advice.  You should consult with an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, emails, and communications.  Contacting our offices does not create an attorney-client relationship.  Please do not send any confidential information to us unless and until such time as an attorney-client relationship has been established.

Past results do not guarantee future results. Every case is different and is decided on its own merits. Any testimonials or endorsements regarding services do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. 

The choice of a lawyer is an important decision and should not be based solely on advertisements.

Understanding Your Rights On Appeal

appealTo understand your rights on appeal, it is first necessary to realize that an appeal is not a completely new trial.  Rather, an appeal is a review of the trial court’s decision to determine whether that decision was made in accordance with the law and applicable facts.  The party who was unhappy with the trial court’s decision (the appellant) is the one who brings the case to the appellate court to ask for this review.  The party who was satisfied with the trial court’s decision (the appellee) will argue for the trial court’s decision to stay in place.

In Illinois, if you appeal a case, three appellate court judges will review the case and consider arguments from the parties.  After looking at the trial court’s ruling and the case and listening to the arguments from both sides, the appellate court will issue a ruling as to whether it is maintaining or reversing the decision of the trial court.

One of the complicated issues in appeals is understanding what decisions can be appealed. This can sometimes be a murky area. Generally, a final judgment in the trial court may be appealed. [1] A final judgment is considered one which resolves all issues and rights in a case. [2]

Family law cases can sometimes be difficult to navigate when it comes to the appeals process, as more times than not, multiple issues are involved and may not be resolved at the same time.  For instance, one family case may involve issues of divorce, child custody, child support, distribution of property, maintenance and other issues. Under the final of judgment rule, generally, all issues would need to be resolved before an appellate court would have authority to review the decision of the trial court.  This means that orders on temporary matters, such as temporary child support or interim fees, will generally not be appealable until there is a final order on the issue. [3] These types of orders are not final judgments as the issue is still pending and will need to be completely resolved by the trial court by the end of the trial court proceedings.

However, Illinois provides an exception to this rule in some cases.  If the trial court judge decides some, but not all, issues, it can also issue a written order stating that there is no reason for delaying an appeal on the decided issue(s). [4] If this happens, a party who wants to immediately appeal the issues that have been decided may do so, rather than waiting for the trial court to resolve all issues.

Some issues that are likely to be given this immediate appellate approval are child custody and the division of parental responsibility.  In fact, in Illinois, appeals on these issues are expedited so that the appellate court generally hears them more quickly than it would an appeal in another case. [5] Additionally, if a party is appealing multiple issues that include child custody or parental responsibilities, the issues will all be heard together.

For more information and help regarding your rights in an appeal or other matters, please contact Sherer Law Offices at (618) 692-6656.

The information provided on this site is not, nor is it intended to be, legal advice.  You should consult with an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, emails, and communications.  Contacting our offices does not create an attorney-client relationship.  Please do not send any confidential information to us unless and until such time as an attorney-client relationship has been established.

Past results do not guarantee future results. Every case is different and is decided on its own merits. Any testimonials or endorsements regarding services do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. 

The choice of a lawyer is an important decision and should not be based solely on advertisements.

 

[1]Ill. Sup. Ct., R 301 Method of Review.

[2]Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 259 Ill. Dec. 729, 759 N.E.2d 509 (2001).

[3]2 Gitlin on Divorce § 16-8 Appeals (2018)

[4]Ill. Sup. Ct., R 304 Appeals from Final Judgments that do not Dispose of an Entire Proceeding

[5]1 Gitlin on Divorce § 11-18 Mandatory Accelerated Disposition of Child Custody or Allocation of Parental Responsibility Appeals (2018)

 

What Does Divorce Look Like if You’re Over 50?

divorce over 50We all thought our lives would be set by the time we hit our 50s – that we would have it all figured out. But life doesn’t work that way. No matter what our age, there are always things that can surprise us, and that can include divorce.

Is Divorce the Same at Any Age?

Yes and no. The laws don’t change, but where you’re at in life has a significant effect on divorce proceedings. For example, one or both of you might have established careers and have compiled significant financial assets, all of which will have to be taken into account when dividing marital property.

If you have kids and one of you stayed home to raise them instead of working outside the home, that will have a significant effect on the spousal support the court will award. The parent that stayed home will find it hard to get a job because of both their age and how long they’ve been out of the workforce, so it’s possible that spousal support will be their only form of income.

Retirement

If you’re in your 50s, you’re probably starting to think about retirement – or you might even be one of the lucky few who managed to retire early. The reduced income you have in retirement could affect the amount of spousal support you have to pay, assuming you didn’t retire early (before age 65).

Social Security

If one spouse stayed home to raise the kids and take care of the house, they won’t have much Social Security of their own because they weren’t paying Social Security for all those years they weren’t in the workforce. In some cases, the court might award them a portion of their ex-spouse’s Social Security income, but only if they’re over the age of 62, have not remarried, the marriage lasted for at least ten years, and at least two years have passed since the divorce was finalized.

In general, retirement funds, such as 401k plans, IRA plans, and pension plans are considered marital assets if the parties contributed to the funds during the marriage, though there may be exceptions to this rule for things such as inherited IRAs or other inheritance or gifts.

Pension Plans

Pension Plans are also considered marital property (if earned partially or entirely during the marriage) and the Court typically awards each spouse a percentage of the pension plan.  A pension is divided though a Qualified Domestic Relations Order (QDRO), in which case the pension plan administrator will send the payments directly to each spouse when the plan participant qualifies to receive same. This ensure payments to each party in the proper form and amount and allows each party to be taxed only on his/her portion of the benefits.

Survivor’s Benefits

You also might want to consider trying to negotiate for survivor benefits. Most pension plans give their workers the option of reducing their retirement benefits for themselves during their lifetime so that more can be paid to their spouse after the employee’s death. This is especially common in cases where the wife stayed home while her husband made the money  or the wife earned far less than the husband during the marriage.  Women tend to live, on average, seven years longer than men. That makes for a substantial amount of survivor’s benefits, so it’s worth it to at least try to get it included as part of your retirement division agreement.

No matter what stage you’re at in life when you and your spouse decide to split, you need a qualified family law attorney on your side – someone who will listen to your story and come up with the best solution for your needs.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

What if You Discover Hidden Assets During Your Divorce?

hidden assetsIn a 2014 survey, one in three people admitted to “cheating” financially on their spouse. It could be anything from hiding bills from their spouse to lying about how much money they make or how much debt they have, to something as big as hiding assets from their spouse. But everything tends to come out during a divorce, so what do you do if you’re in the middle of divorce proceedings and you suddenly discover hidden assets?

Tell Your Lawyer

If you hired a good divorce attorney, your attorney will attempt to find any hidden asset(s) during the discovery phase of the divorce proceedings. You will work closely with your attorney to review the financial discovery from the other party to see if anything appears off or suspicious.  If the attorney finds anything suspicious, they’ll know the next best steps to take from there. It could be anything from asking the judge for more time for the discovery process to filing a motion to have your spouse held in contempt of court. There are many reasons people hide money and assets during a divorce, but it’s against Illinois law, and depending on the circumstances, people who do so risk contempt of court and even perjury if they lied under oath about the hidden asset. That means they may have to pay some hefty fines and might even serve some jail time.

If you happen to find out about the asset on your own (for example, if you find a misplaced bill or bank statement), then the first thing you need to do is inform your lawyer so they can determine the next steps to take.

Look for the Warning Signs

If you think your spouse may be trying to hide money from you or the divorce court, here are some things to look for:

  • Overpaying taxes – some people do this so they can collect a large refund after the divorce has been finalized.
  • Delaying raises or bonuses – some people ask their employers to hold off on raises or bonuses until after their divorce is final. If your spouse had mentioned they were expecting a raise or bonus that never came and they suddenly stopped talking about it, that would be something to investigate.
  • Putting property in someone else’s name – if it looks like they gave away a lot of money or sold an asset for much less than it was worth, that’s suspicious behavior that should be investigated, especially if the person who now “owns” it is a friend or family member of your spouse.
  • Suspicious business holdings – if one of their business accounts suddenly received a large amount of cash, they could be using it to try to hide money they don’t want to get divided up in the divorce.

Regardless of the methods used to hide money or assets, doing so is always against the law and can come with severe penalties in an Illinois divorce court. Whether your spouse is trying to hide assets so they don’t get divided up along with the rest of the marital property, or so they don’t go into the child support and/or spousal support calculation, you’ll need an experienced Illinois divorce attorney on your side.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

How to Handle an Ex Who’s Also Your Roommate

ex who’s also your roommateMoving in together is an exciting time. You’re full of love and can’t wait to spend as much time together as possible.

But breakups are the exact opposite. Whether the separation is because of betrayal and mistrust, or just hurt feelings, your ex is usually the last person you want to see. Alternatively, maybe you do still want to see them, even though you know it’s not good for you. Either way, continuing to live with your ex can make it hard to move on, even if doing so is a financial necessity. To make it a little easier, we’ve come up with six tips on how you can handle an ex who’s also your roommate:

  • Set Boundaries

This is especially important for living expenses and household chores. Where you may not have kept track of who did what when you were a couple, one person leaving all the bills and/or work to the other after a breakup can lead to resentment, so set boundaries ASAP. Who’s going to pay which bills and who’s responsible for which chores?

  • Sleep in Different Rooms

This is a big one, for obvious reasons. Even if you’re sleeping in separate beds, sleeping in the same room is still very intimate, which is why you need to stop doing it as soon as you break up. If that means one of you sleeps on the couch, so be it. To keep things as equal as possible, you can even try to take turns sleeping on the couch, assuming your relationship is still strong enough to handle that kind of negotiation and you can both agree to a schedule and stick to it.

  • Don’t Bring Dates Home

Just don’t do it. You may have moved on, but they may not. Or they may be trying, but seeing you with someone else could set them back. It might be hard to talk (or even think) about dating when you’ve just broken up, but it’s best that you and your ex talk as soon after the breakup as possible about if/when you can each bring dates home.

  • Stop Doing Things Together

This can be tough if you’ve lived together for a long time and have an established routine. For example, you used to cook together, stop. The same goes for cooking for them or letting them cook for you. Once you’ve broken up, you’re both responsible for your own meals.

And certainly don’t drink together. While “grabbing a drink” might sound harmless, it can quickly lead to one or both of you overindulging, which can result in fighting and that just makes everything worse.

  • Set a Move-Out Date

Finally, you need to decide as soon as possible who’s moving out and when. Are you both moving out? Is one staying and the other leaving? If you bought a house together, that can make the situation even more complicated. Regardless of the obstacles, you need to find a way to work through them so you can live apart and start moving on with your separate lives sooner, rather than later.

  • Divide any property you have together.

This is where legal help may be needed, as jointly held assets between non-married couples may have to resort to filing legal action to divide that property.  Whether it’s a house, a car, or other items of property that are in joint names, you should speak to an attorney who is experienced in filing partition suits in the event you and your ex cannot agree on the division of your property.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

What Is A Postnuptial Agreement?

postnuptial agreementYou’ve probably heard of a prenuptial agreement, in which the two parties entering into marriage sign a contract detailing what belongs to whom, and what is owed to each party in the event of a separation or divorce. Most people prefer to sign such a contract before the wedding to give them peace of mind before they legally merge their lives together.

But just because you didn’t sign a prenuptial agreement, doesn’t mean your financial situation is set in stone. Much like a prenuptial agreement, a postnuptial agreement can help provide peace of mind to one or both parties – the main difference being that it’s drawn up and signed after, rather than before, the wedding.

How Do You Know if You Need A Postnuptial Agreement?

There are a few reasons you and/or your spouse might want a postnuptial agreement. Most of the time they are used to protect one spouse’s marital property interests in the event the other spouse is embarking on a business venture that will entail a significant amount of risk. On the other hand, if one spouse suddenly came into a large inheritance, they may want to protect that asset in the event of a divorce, in which case a postnuptial agreement can provide that assurance.

Other times the couple may have wanted a prenup, but never got around to signing one before the wedding. In a time where more and more couples are comprised of spouses who both work outside the home, fewer people feel like the concept of communal property makes sense for their circumstances.

Alternatively, if two people get married and only then realize that they have very different ideas about how to handle money, a postnuptial agreement can help to save their marriage by defining which assets and properties belongs to which spouse. If you’re having marital problems, and you feel like your finances might be at risk because of it, a postnuptial agreement can allow you to focus on working on your marriage instead of worrying about your financial assets. Many people feel more comfortable working on relationship issues they may not otherwise have given a chance without a postnuptial agreement.

On the other hand, if you’re seriously considering divorce, a postnuptial agreement can save time and money in the divorce process by dividing property and assets ahead of time.

The birth of a child is another common reason people sometimes seek out a postnuptial agreement, especially if one or both of the spouses was previously married to someone else. A postnuptial agreement can clarify the child’s inheritance rights of property and finances from the current marriage and/or one or more previous marriages, if necessary.  However, you cannot pre-negotiate child support.

Previous marriages can also make inheritance tricky if one spouse dies, which is another common reason for seeking out a postnuptial agreement. In that situation, a postnuptial agreement can clarify who owns an asset in the event of a divorce or the death of a spouse.

There are many reasons for wanting a postnuptial agreement. Whether your circumstances have changed, or you just wanted the additional peace of mind a contract can bring, the family law attorneys at Sherer Law Offices are here to help.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

What Does an Executor Actually Do?

executorWhen someone has a will drawn up and notarized, detailing what will happen to all their property after their death, they will usually specify in the document who will act as the executor of the will. If the document does not specify an executor, the court will appoint one.

But what does it even mean to be the executor of someone’s will? What, exactly, does that job entail?

Essentially, the executor’s job is to make sure the will is carried out as it is written. The assumption is that the will represents the intentions of the deceased at the time of their death – or at least the last time they were sufficiently mentally fit to decide what should happen to their possessions at the time of their death. The executor is tasked with fulfilling those wishes.

File the Will

The first thing the executor needs to do is file the will in the probate court of the county where the deceased lived. If they did not live in Illinois, then the will must be filed in the probate court of the county in which the deceased’s real property (such as land, a house, condo, etc.) is located. If they did not have any real property, then it needs to be filed in the county where most of the deceased’s personal property is located.  Once the will has been filed, the probate court grants the executor the powers of executor of the will, which allows them to fulfill the rest of their responsibilities.

Notifications

The executor is also in charge of notifying the heirs and legatees of the will that the document has been filed with the probate court – the legatees (also known as beneficiaries) are those listed in the will to receive something, while the heirs are those who would inherit the estate in the absence of a will.

Conduct Inventory

Under the Illinois Probate Code, an executor has 60 days from the time they become executor to conduct an inventory of the estate. The inventory must list all the real estate, personal property, and money owned by the estate.

Defend the Will

Once the heirs and beneficiaries have been notified that a will has been filed, they have 6 months from the time the will has been filed to challenge the validity of that will.  If the court finds the will invalid, the executor would be the one to file an appeal on that decision, if they decide to do so.

Manage the Estate

Before the will can be executed (and/or while it is being contested) there may still be bills that need to be paid on behalf of the estate. For example, if any real estate is included in the will, property taxes and/or mortgage payments may need to be made before the property is transferred to the ownership of the heir or legatee. The executor will be responsible for using funds and assets from the estate to make such payments, which is why it is of the utmost importance to assign an executor who can be trusted with this responsibility.  The executor has a fiduciary duty to the estate and the heirs and legatees to maintain the estate assets until such time as they can be distributed in accordance with the decedent’s wishes.

If you haven’t yet had a will drawn up for your estate – or you want to revise an existing will – you need a law firm you can trust. We can help you draft an air-tight will to ensure all your property and assets will go where you want them to go.  If you have been named the executor of an estate, we can also help you fulfill your duties in a timely, cost-efficient manner.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

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