By: Donald C. Schiller
Schiller DuCanto & Fleck LLP
Chicago, Lake Forest and Wheaton, Illinois
Telephone: (312) 641-5560; Facsimile: (312) 641-6361:
Michelle A. Lawless
The Law Office of Michelle A. Lawless LLC
161 N. Clark St. Suite 1700 Chicago, Illinois
Telephone: (312) 741-1092
- Guardian Ad Litem statute amended effective January 1, 2024. Section 5/506 of the Illinois Marriage and Dissolution of Marriage Act is amended effective January 1 2024 with respect to the specific duties of a guardian ad litem (GAL) as follows: (1) The GAL shall submit to eh court and the parties a written report, recommendations, or a proposed parenting plan not less than 30 days before a final hearing or trial, unless the court directs otherwise; (2) The report shall be admitted into evidence without the need for foundation; (3) The GAL shall be available for a deposition before a final hearing notwithstanding any other discovery cut off. Further, at the discretion of the court, the GAL: (1) may be present for all proceedings, including any in camera examination of the child; (2) may issue subpoenas as part of the investigation; and (3) may file pleadings relating to procedural matters. Section 5/506 was not amended with respect to the duties and responsibilities of Child Representatives or Attorneys for the Children. A complete copy of the statute may be found here.
- Connecticut Appellate Court interprets Marital Settlement Agreement when husband fails to maintain required life insurance policy beneficiaries.At the time the parties divorced, husband obtained a life insurance policy with a death benefit of $500,000 as he was required to do under the separation agreement (Connecticut’s version of an MSA), but he did not designate the beneficiaries consistent with what the separation agreement required. He designated his estate as the primary beneficiary, and no secondary beneficiary, rather than naming the specific primary beneficiary and secondary beneficiary the separation agreement listed. Husband died testate and the insurance company filed an interpleader action alleging it was unable to determine who was entitled to what amount due to the inconsistency between the beneficiary designation and the separation agreement. The Conn. Appellate Court held that the separation agreement’s express designation of a remedy for breach of husband’s obligation was that this daughter shall have a claim and charge against his estate in the amount of $500,000. Therefore, the daughter did not have a right to the life insurance proceeds directly under the interpleader cause of action, but would have to seek the $500,000 against her father’s estate directly. John Hancock life Insurance Company v. Susan Curtin, et. al. (Connecticut Appellate Court, AC 45565).
John Hancock v. Susan Curtin, et. al.
- Deferred distribution method upheld by the Oklahoma Supreme Court as a mechanism for dividing assets which cannot be valued at the time of divorce.This case involved a highly contested divorce where substantial oil and gas assets were at issue which could not be valued at the time of the decree. During the marriage husband had pursued two different oil and gas ventures of which he was part of the management team. At the time of the divorce there were two sets of units (Bakken units and Energy units). There was substantial risk associated with the Bakken units stemming from a loan agreement and substantial potential for profit associated with the Energy units. The trial court found both sets of units were marital because they were acquired during the marriage through joint efforts of both parties and were, therefore, subject to division. Because the properties’ value lay in their future growth, the trial court considered the most equitable form of division was that future distributions and proceeds from both sets of units be held in constructive trust for both parties’ benefit with the obligation on husband to distribute to wife her equal share. Husband appealed the classification of the Energy units as marital property and their equal distribution via constructive trust based on future value and profits. The Oklahoma Supreme Court held that the trial court’s ruling was proper and analogized it to the future distribution of a pension plan. It acknowledged that valuing an asset at its present value was the preferred method, but when faced with an asset, the value of which could not be determined at the time of the property division, the deferred distribution method was proper. The Court further held that the based on the trial court’s findings that throughout the proceedings, husband deliberately deceived and defrauded wife and breached his fiduciary duties to her, and a constructive trust was a proper mechanism to ensure that wife received her just proportion of the marital assets.Fitzpatrick v. Fitzpatrick, 2023 OK 81.
Fitzpatrick v. Fitzpatrick