People might hate each other during a divorce but they love their kids. To avoid conflict, parties to a divorce may forgo dividing assets for simply awarding those assets to a child or children. Giving away marital assets to children can be memorialized in an Illinois Marital Settlement Agreement. Realistically, if you gave the marital property away to a child, neither party owns the property and the property does not need to be addressed in the Marital Settlement Agreement. Directions regarding marital property as written in a Marital Settlement Agreement must be enforced. The Marital Settlement Agreement will be read and enforced as a contract. “A marital settlement agreement is construed in the manner of any other contract” Blum v. Koster, 919 NE 2d 333 – Ill: Supreme Court 2009 Leaving Items To Children After Your Death In A Marital Settlement Agreement Not infrequently, parties to a divorce wish that their children receive the marital property…but only after they are done with it. “Done with it” usually means when the parties are dead. Both parties’ wills should be updated to reflect the agreement reached in the Marital Settlement Agreement. If a will is not appropriately updated, Marital Settlement Agreements can be binding on the probate courts which determine the distribution of assets after death. “Where a domestic relations order has been entered, the trial court retains jurisdiction to enforce its order, as further performance by the parties is often contemplated.” Smithberg v. Illinois Municipal Retirement Fund, 192 Ill. 2d 291, 297-98 (2000) An Illinois divorce’s “property settlement agreement defined the nature and extent of the rights and liabilities of the parties with respect to the marital real estate, and [a probate] court [is] required to direct performance of those obligations under the decree so as to fully execute its terms.” In re Estate of Coleman, 395 NE 2d 1209 – Ill: Appellate Court, 2nd Dist. 1979 “[P]roperty issues survive the death of a party where the divorce judgment is entered prior to the party’s death.” Sondin v. Bernstein, 126 Ill.App.3d 703 (1984) Binding Promises To Children In A Marital Settlement Agreement Before the death of a party, leaving items to children (or anyone else) can get really complicated. The obligation to turn over the marital property to the children can be likened to creating a debt to the minor child(ren). Each party is agreeing to satisfy that debt to the child(ren). […]
