Nov 22, 2023

IICLE Family Law Flash Points - November 2023

Guardian ad Litem Statute Amended Effective January 1, 2024Section 506 of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101,et seq.,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 the 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; and (3) the GAL shall be available for a deposition before a final hearing notwithstanding any other discovery cutoff. 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 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 foundhere.Connecticut Appellate Court Interprets Marital Settlement Agreement When Husband Fails To Maintain Required Life Insurance Policy BeneficiariesAt the time the parties inJohn Hancock Life Insurance Co. v. Curtin,219 Conn.App. 613, 295 A.3d 1055 (2023), divorced, the husband obtained a life insurance policy with a death benefit of $500,000 as was required by 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. The 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 Connecticut Appellate Court held that the separation agreement’s express designation of a remedy for breach of the husband’s obligation was that the ex-wife would 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.Deferred Distribution Method Upheld by Oklahoma Supreme Court as Mechanism for Dividing Assets That Cannot Be Valued at Time of DivorceFitzpatrick v. Fitzpatrick,533 P.3d 757 (Okla. 2023), involved a highly contested divorce in which substantial oil and gas assets that could not be valued at the time of the decree were at issue. During the marriage, the 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, the Bakken units and the 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 that 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 the husband to distribute to the wife her equal share. The 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 based on the trial court’s findings that, throughout the proceedings, the husband deliberately deceived and defrauded the wife and breached his fiduciary duties to her, a constructive trust was a proper mechanism to ensure that the wife received her just proportion of the marital assets.

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