In Re Marriage of Velasquez

JUSTICE HOLDRIDGE,

specially concurring in part and dissenting in part:

I agree with the majority’s statement that a divorce does not terminate property rights of a husband and wife that exist independently of the marriage. Leahy v. Schuett, 211 Ill. App. 3d 394, 570 N.E.2d 407 (1991). I agree with the majority’s statement that a dissolution agreement may extinguish a divorced spouse’s expectancy interest in a land trust or insurance policy if the agreement includes a clear expression of the spouse’s waiver of that interest. In re Marriage of Myers, 257 Ill. App. 3d 560, 628 N.E.2d 1088 (1993).

I also agree with the majority’s statement that two factors determine the effect of a waiver provision in a marital settlement agreement on a specific expectancy interest in dispute: (1) whether the expectancy interest in dispute was specifically listed as a marital asset and awarded to a spouse; and (2) whether the waiver provision contained in the settlement agreement specifically states that the parties are waiving any expectancy or beneficial interest in that asset. See Leahy, 211 Ill. App. 3d at 400.

I agree with the majority’s statement that the holding in Leahy is relevant to the instant matter. In Leahy, the wife held a beneficial interest in an Illinois land trust the corpus of which was a commercial building. In the marital settlement agreement, the husband was awarded the building “free and clear of any claim whatsoever” by the wife in the marital settlement agreement. Leahy, 211 Ill. App. 3d at 396. The husband died testate and assigned the building to his children. The court held that general release contained in the marital settlement agreement did not extinguish the wife’s beneficial interest in the land trust.

I also strongly agree with the majority’s statement that specificity is required for a waiver to be effective; and I agree completely with the majority’s statement that a divorce decree that contains a broadly worded waiver, but fails to mention a specific insurance policy, pension account, i.e., an expectancy interest in a specific asset, cannot defeat the named beneficiary’s claim to that expectancy.

I even agree with the majority’s holding that the general release provision in the Velasquez marital settlement agreement was not sufficient to waive Shirley Velasquez’s claim to the proceeds of the insurance policy.

In view of the above well-settled law, law correctly cited by the majority, I fail to see how the general release provision of the Velasquez marital settlement agreement is sufficient to waive Shirley Velasquez’s beneficial interest in the land trust. I would reverse the trial court’s holding that she waived her beneficial interest in the land trust, and I therefore, respectfully, dissent from that portion of the opinion.