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xavierjd, Lawyer
Category: Family Law
Satisfied Customers: 3400
Experience:  20 yrs exp. in divorce, custody, visitation & support .
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I filed for divorce;husband died; probate awarded guardianship

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I filed for divorce;husband died; probate awarded guardianship of minor child to eldest child; there was a custody temporary custody entered in divorce awarding child to me;

I filed motion to vacate guardianship; probate judge denied my motions; I do not want to appeal the guardianship; what prevents me if anything from petitioning the domestic relations judge to grant me permanent custody based on the temporary order? that is now that is nothing left in front of probate, I want to file a motion for a custody hearing granting me custody of my minor daughter based on the temporary custody order entered before my husband died; is this possible? If not, why not?
Thank you for using It will be my pleasure to assist you today.

If your husband died during the divorce, the case would be closed. The temporary orders entered in the divorce proceedings are no longer valid.

Why does the eldest child have guardianship of the minor child?

Customer: replied 3 years ago.

She petitioned for it; claiming I could not take care of the child;

about the divorce even tho petition for dissolution is dismissed there are many issues that can still be approached; property; and custody;the petition dies with the husband but other motions can still be ruled on that

one is definitely marital property;

thejudge has jurisdiction over


the probate judge he never bothered to check onanything and he just makes up stuff;



Hi Cynthia,

The Divorce Petition died with your husband. That includes any issues regarding marital property.

If your husband had a will, then the will would have to be probated and the property distributed according to the will. If you owned property together with your husband, it would pass to you. Any joint bank accounts, stocks, bonds, etc. that listed you as a joint owner or beneficiary would also pass to you.

In Illinois, if he died without a will, his estate will be distributed to his closest relatives (his "heirs"). Who his closet relatives are depends on the family situation, specifically whether he is survived by a spouse, children, and/or any brothers and sisters.

For example, for a typical family (husband and wife plus kids), upon the death of the husband with no will, half of his estate will pass to the wife and the other half passes to the children to be divided equally between them. However, anything held jointly between the spouses such as bank accounts, homes, cars, etc. will go directly to the surviving spouse.

The temporary order of custody from the family court became void when your husband died. You would, most likely, then automatically gain physical custody of your child. The guardianship would remain in place. The eldest child would have to begin an action in the family court to attempt to gain custody.

You may wish to contact an attorney who specializes in family law and one who specializes in probate law for a consultation. An initial 1/2 hour telephone consultation is $25.00. You can discuss the specific facts of your case, evaluate your options and decide how to proceed. It would be well worth your time and the minimal cost. Below is a link to the Illinois Bar Association Attorney Referral Page.

I hope you find this information useful.

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions.

Thank you for your business!


Many customers have asked how they can specifically direct a question to me in the future. If you specifically want me to assist you in your legal matter, just put "xavierjd” in the subject line and I will gladly pick up the question as soon as I am on-line.

***Answers given are for informational purposes only and are not meant to replace the advice or assistance of an attorney licensed to practice law in your state. If you need any more information, please do not hesitate to ask. Thank you!

xavierjd and 2 other Family Law Specialists are ready to help you
Customer: replied 3 years ago.

thank you

Hi Cynthia,

You are VERY welcome.

I'm glad that you found the information useful.


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