Life Insurance Policies and Guaranteed Maintenance, Part 1

 Posted on February 04, 2015 in Family Law

Sometimes a life insurance policy may be the most valuable asset in an Illinois divorce. In fact, a life insurance policy may be used to guarantee maintenance paid to a spouse as a result of a divorce. However, you may ask:

“In Illinois, how can I be certain that my ex-spouse has purchased a life insurance policy to guarantee my maintenance?”

First, the short answer is to get it in writing. Make sure that your Marital Settlement Agreement contains a provision that requires your spouse— usually the husband who is paying maintenance—to guarantee maintenance payments in the event of death. He must maintain a life insurance policy on his life, payable to you.

Second, make sure that the Marital Settlement Agreement is entered into your final Judgment for Dissolution of Marriage. A typical example of a provision that protects the spouse receiving maintenance by having a requirement of a life insurance policy to guarantee maintenance in Illinois is as follows:

 ARTICLE I

LIFE INSURANCE

1. JOHN SMITH acknowledges and agrees that upon entry of Judgment for Dissolution of Marriage, he shall secure and keep in full force and effect a life insurance policy on his life, in the amount of five hundred thousand dollars $500,000, to secure payment of JANE's maintenance as provided above.
2.  JOHN SMITH shall name JANE JONES as the irrevocable beneficiary of the aforesaid life insurance policy until JOHN no longer has an obligation to pay maintenance to JANE.
3.  In connection with said life insurance policy, JOHN shall accomplish the following:

1. Perform all acts and execute all documents necessary to keep the policy in full force and effect, and to accomplish all matters set forth above;
2. Annually provide JANE with a copy of said policy, proof of the paid premium on said policy, and the beneficiary designation;
3. Not borrow against or otherwise encumber said policy so as to reduce the death benefit; and
4. If JOHN shall fail to maintain said life insurance, in whole or in part, for the benefit of JANE as required by this Agreement, then upon JOHN SMITH's death, JANE shall have a lien and/or claim against JOHN's estate for the full amounts that would have been payable to JANE if said insurance had been in full force and effect at the time of his death.

Third—and most crucially—it is important to make sure that if you are receiving maintenance and have such a life insurance provision, you demand the proof that the policy is in existence each and every year, and that you are the designated beneficiary—if you can get your ex-spouse to agree. Your Marital Settlement Agreement provision could also require your spouse’s insurance agent or insurance company to advise you if there has been any change in life insurance or any lapse in the policy.

Finally, if your spouse works for a major company, it is possible that his life insurance may be governed by the ERISA as part of the benefits he receives from his employer. The Employee Retirement Income Security Act of 1974, or ERISA, protects the assets of millions of Americans so that the funds placed in their retirement plans during their working lives will be there when they retire. Likewise, it may also prevent your spouse from changing the designated beneficiary of his life insurance policy to someone other than you, like a second wife or girlfriend.

At the time of the entry at your Judgment for Dissolution of Marriage in Illinois, you can have a Qualified Domestic Relations Order entered in your divorce to make sure that your spouse cannot change the policy beneficiary to someone other than you, if the policy is protected by ERISA.

As you can see, even a simple provision, like a life insurance provision in the marital settlement agreement to guarantee maintenance, is not simple. This is why our attorneys at Martoccio & Martoccio are highly skilled and experienced in dealing with all of the provisions of marital settlement agreements in order to get the best possible deal for you.

Ready to Speak with an Attorney? Contact the Law Office of Martoccio & Martoccio Today

If you are considering filing for divorce, please contact an experienced divorce attorney in DuPage County at the Law Office of Martoccio & Martoccio. We are here to advise you and look out for your best interests. Call us today at 630-920-8855 to schedule your free consultation.

Read Part 2 of the Series >>