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My wife filed for a divorce and she got diagnosed of ovarian cancer which has metastasized.

Barrington, IL |

If she dies during the course of the divorce, do I get 100% of our marital assets (IRA, 401k, gold coins, life insurance, house, cars ..etc) ? No kids, just lots of assets. I am thinking of contesting it or should I wait until she dies?

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Attorney answers 6

Posted

What a harsh world.

When a party dies during prior to a judgment for divorce, the case dies with him / her. You would be a widower, not a divorcee.

This can get complicated, however. Divorces in Illinois are bifurcated -- we first do a little case where we dissolve the bonds of matrimony (usually called the "hearing on grounds" or something like that) and then, after the first case, we do the meat-and-potatoes part: dividing up the assets, the kids, and everything else. In Cook County and the collar counties, these two cases are usually done one right after the other -- the second one starts, literally, a few minutes after the first one. In other parts of the state, the practice often is to start the second part of the case later -- sometimes much later (except for the kids). Sometimes the second part of the case may not start until months later.

If she dies before the first little trial (on grounds) then the case dies with her. Lawyers and judges would say the case "abates." If, however, she lives long enough to get eh grounds part done, and then she dies, the case survives and the court will divide up the property even though she's gone and will turn her share of the property over to her estate.

So, she very well may ask her lawyer to run into court to bifurcate her case and get teh grounds portion done immediately.

To fight the case on grounds, you'll almost certainly need an attorney. We have this debate on this forum almost weekly about whether it ever pays to fight grounds. Here is a perfect example (I'm sorry to say) where fighting very well may pay off.

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Gary L. Schlesinger

Gary L. Schlesinger

Posted

it is a harsh world.

Judy A. Goldstein

Judy A. Goldstein

Posted

I'm not sure how it works in Cook County, but in Will, if grounds are proved up before remaining issues, the parties are expressly admonished that they are not yet divorced.

Wes Cowell

Wes Cowell

Posted

Huh! What's the point of doing a grounds hearing, then, if the judgment for dissolution isn't entered instanter, I wonder? My understanding is that, before we can divide property (and kids and everything else), the marriage must first be dissolved. Until the magical point in time when the judge bangs the gavel and says "they're divorced," everything remains marital property and marital debt, etc. Its an existential argument -- the marital estate continues to exist and the non-marital estates don't yet exist. But I don't understand why grounds would be proved and judgment for dissolution not entered. Thanks -- I learn something every day.

Gary L. Schlesinger

Gary L. Schlesinger

Posted

it is in just this situation. one party is dying and the judge feels sympathetic and ends the marriage. then on to the property. see the recent mathis case from the il sup ct that the division date is the date of the divorce judgement. mathis was a bifurcated case.

Judy A. Goldstein

Judy A. Goldstein

Posted

I don't disagree with Wes. I have seen grounds hearings work to force parties to move to settlement or trial - back in the days before the Supreme Court Rules required quicker closure - because the judges would inisst on setting the case for trial if grounds were heard. I have also seen hearing on grounds because the Petitioner wanted to move the case and the Respondent was dragging, as the grounds hearing forced movement. On the other hand, I tried that tactic in Cook County once and the judge looked at me like I had 3 heads for asking to bifurcate. I also agree with Gary. Other states bifurcate. M y sister in CA was divorced for years before they settled the parties' VERY SIZABLE estate.

Wes Cowell

Wes Cowell

Posted

I don't think we're disagreeing -- I think there are two ways to do it and (as Judy's (and my) experience demonstrates, Cook County judges rarely allow any duration in the "bifurcation period" (or whatever its called). I've gotten it where the wife is pregnant and we wanted to allow her to marry the bio father so we hurried up the divorce and left the property for another day. Gary: I agree that this is "just the sort of situation," where bifurcation would serve a purpose. I thought, however, that what Judy was saying, was that the judges in Will County will hear the grounds portion, leave the property for another day, and then admonish the parties that s/he wasn't going to enter the divorce judgment instanter and they would remain married. What's the point of that? Why conduct a grounds hearing if you're only going to delay entry of the judgment dissolving the bonds?

Gary L. Schlesinger

Gary L. Schlesinger

Posted

what about the wade case? that was bifurcated just before he negotiated his current big contract. explain that one please.

Judy A. Goldstein

Judy A. Goldstein

Posted

Are you referring to the Kansas Wade case?

Gary L. Schlesinger

Gary L. Schlesinger

Posted

dwayne wade. the basketball player for the miami heat. represented by jim pritikin et al. case bifurcated so the divorce occurs just before his new contract started either last summer or 2011. brian hurst reps her now claiming the new contract is based on past services not future and that the guaranteed money is thus marital.

Judy A. Goldstein

Judy A. Goldstein

Posted

Star struck court, high profile lawyer, have not seen an appellate decision yet. (Perhaps I missed it.) If the decision is out, hopefully, were the facts narrowly interpreted? Possibly not the result the rest of the world would get????? The jury is still out - phrase used in the vernacular and not intended to mean there is/was/should have been a jury.

Gary L. Schlesinger

Gary L. Schlesinger

Posted

i think there is an app ct decision. custody was hotly contested. she lost. kids removed to fla. visit there. he pays for all. she has been held in contempt for interferring with his time. most notably dad's day 2012

Wes Cowell

Wes Cowell

Posted

I don't know about Dwyane Wade, but getting back to the point, the court is to "consider[], approve[], reserve[], or ma[k]e provision for child custody, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property." As for Wade, the Mathis case (and others before it as well as 503(f) ". . . value the property as of the date of trial . . . ") suggest to me that upon the entry of the Judgment, Wade's property (contracts) should be valued as of that date and his future earning capacity could be considered in the allocation of property in existence at the time of the J., and also as part of any maintenance consideration; but a future contract would be non-marital property.

Gary L. Schlesinger

Gary L. Schlesinger

Posted

not if it is based on past performance that occurred during the marriage. that is what happens with stock options. read the options cases.

Wes Cowell

Wes Cowell

Posted

The stock option cases split between findings of marital and non-marital. I would submit that a professional athlete's current contract offer may be "guided" by past performance, but is really an enticement to keep him with the team (or lure him away) and is to compensate him for future performance. Certainly the current contract offer is not intended to compensate him for past performance. Stock options on the other hand are sometimes made to compensate for past performance (and sometimes to entice to stay). The cases that say a stock option is marital property have reached the conclusion that the option was for past effort, made during the marriage. The other cases -- that have reached the conclusion that the option is NOT marital property -- have reached the conclusion that the option was to entice the employee spouse to remain with the company; that is, a reward for something that is to take place after the marriage is dissolved. I think there would be a myriad of considerations, here, but I think I'm mostly right. I think

Posted

her death before the judgment for dissolution ends the divorce case.

what if anything you get upon her death depends upon how the assets are titled and her estate plan.

Posted

Adding to the other attorney's answers, she may petition the court to bifurcate the proceedings based on her rapidly declining health. Bifurcation will result in her being divorced which will sever all assets held in joint tenancy. Therefore, jointly held assets will not go to you but to whomever she designates in her will. Having dealt with an identical case not long ago, this is a complicated factual and legal matter to analyze. You should consult with an experienced divorce attorney who can assist you in pursuing the best strategy.

Posted

If your wife dies during the pendency of your divorce, the divorce will be dismissed and you will inherit the marital estate unless she has made other provisions which you might still be able to contest.

Posted

Just to add a little to the conversation, if she dies, assets in her name will transfer pursuant to her estate plan. It is not illegal in Illinois for her to intentionally attempt to avoid having assets in her probate estate to defeat your claim to those assets as her husband. (Forced share in Illinois is one-third). If she has the significant portion of marital property in her name, you may end up better off in a divorce than as a recipient in her estate if she has made beneficiary designations and estate plans to defeat your claims to her property.

Posted

It depends on how these items are set up. Some have pay on death clauses such as a 401 and of course life insurance. The itesm like the coins and other personal property have no chain of title and possession and control can probably take care of those. The house and cars;if they are held in joint tenancy or tenancy by the entirety with a right of survivorship will pass outside of the Court. The issue becomes finding out how these items are titled to see if you will be the merry widower. She may not pass as quickly as you seem to be anticipating. If she goes into a comatose state and lingers you could be facing property division litigation with your father in law, sister in law, etc., as your comatose wife's guardian and then things get expensive.

This is a general answer and does not address the specifics of your individual case. To give the specific answer you need our firm needs you to come in for a consultation.

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