Naperville divorce lawyerEffective May 1, the Social Security Administration closed the “file and suspend” loophole. How does this change affect divorced individuals?

Previously, a married person could file for Social Security benefits at age 66, or at any other eligible age, which triggered his or her partner’s spousal benefit. If the person voluntarily suspended payments, his or her benefits continued to increase at roughly 8 percent a year, and the couple pocketed the spousal benefit, or half the beneficiary’s benefit, as the unpaid benefits continued to accrue interest.

Lawmakers eliminated this option, which was also called the “claim and suspend” strategy, in the 2015 budget bill, citing concerns that wealthy retirees were manipulating the system.

Divorce and Retirement

Although the government closed this loophole, the former spouse rule remains in effect. This rule allows eligible divorced spouses to claim retirement benefits if they were married at least ten years and do not remarry.

Nevertheless, a late-in-life divorce often has a significant impact on retirement planning. As a rule of thumb, maintaining separate households requires at least 25 percent more resources, and many older individuals are tempted to stop making retirement contributions, or cash in their plans, to make up the difference.

These strategies nearly always have long-term consequences. Instead, financial planners suggest the following:

  • Sell the House: If the house is sold as part of the divorce while Husband and Wife are still legally married, they can double the capital gains tax exemption to $500,000.
  • Protect Spousal Support Payments: Divorce disability insurance is rather inexpensive and will ensure that payments continue if the obligor spouse dies or becomes disabled.
  • Stay on the Job: To remain in the workforce as long as possible, consider asking for flex time at work, and remember to use Family Medical Leave Act leave time, if it is available.
  • Use Assets: Think of marital assets, such as stock options and deferred compensation, as retirement assets, and make sure they are divided accordingly.

About a quarter of all married couples over 50 will divorce, and divorced women in this age group are more than twice as likely to be impoverished as divorced men of a similar age.

Gray divorce has financial and emotional consequences. For a confidential consultation, contact an experienced Naperville family law attorney. Convenient payment plans are available.

 

Source:

http://www.thefiscaltimes.com/2016/05/04/Don-t-Let-Late-Life-Divorce-Ruin-Your-Retirement-Plans

Naperville divorce attorneyA cursory internet search about the average cost of a divorce will yield thousands of results, and almost none of them are insightful. The financial cost of a divorce varies so much on a case-by-case basis, due to the unique facts in each matter as well as the geographic location of the action, that about the only honest answer to the question “what does an average divorce cost” is that “in most cases, the cost will be higher than you anticipate.”

Divorce has other costs as well. In addition to the time spent away from work, family and friends, marriage dissolution creates a great deal of fear and anxiety over an unknown future. In addition, while some people embrace the conflict in a divorce, others abhor it and will do almost anything to avoid a fight.

Benefits

Mediation may offer at least a partial solution. Because it requires less preparation and presentation time than a trial, the cost savings can be substantial. Furthermore, instead of waiting several months for a court date that may very well be put off for another several months, mediation is over in a day in most cases.

There may be other benefits as well. Some research suggests that mediated settlements have a higher voluntary compliance rate than court-issued resolutions, because the parties feel as though they have more invested in the outcome.

The Process

Mediation is more than a light at the end of the tunnel. The process itself is attractive, because it combines the competitiveness of a trial with the problem-solving perspective of a settlement conference.

Both attorneys present opening statements, so the parties feel as though they have their “day in court” where their voices are heard. Afterwards, the parties retire to separate rooms, and a trained mediator conveys settlement offers between the parties while attempting to facilitate a resolution.

There is almost no risk. If the mediation is not successful, the litigation process resumes, eventually culminating in a trial or out-of-court settlement. On the other hand, there is so much to gain, from both a financial and emotional standpoint, that mediation is almost always at least worth a try.

For prompt assistance in this area, contact an experienced Naperville family law attorney. We routinely handle divorce and other family-related matters throughout Chicagoland. 

 

Source:

http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1214&context=jdr

Naperville family law attorneyMost judges in DuPage County and other jurisdictions issue standing personal conduct orders in family law matters. Among other things, these order prohibit a parent from interfering with the parenting time of the other party. In many situations, an angry parent will impede the other biological grandparents’ visitation time, in an effort to bypass these orders and “get back at” the other party.

Effective January 1 of this year, the Legislature repealed and replaced the existing grandparent visitation statute, as part of major rewrites to the Illinois Marriage and Dissolution of Marriage Act. But grandparents still have the right to file a petition for contact in some circumstances, and it is still possible to win these actions.

Prerequisites

According to Section 602.9(b), a grandparent is eligible to file a petition for access to a grandchild if:

  • In loco parentis: If a child’s biological parent is legally incompetent, missing or deceased, the grandparents may essentially take that parent’s place, in terms of parenting time.
  • Denial of contact during divorce: As mentioned above, most petitions are based on a denial of contact. In addition to a denial, at least one parent must not object to the petition and the granting of said petition cannot diminish the parenting time of the unrelated parent.

Roughly the same rules apply if the parents are not married to one another.

Overcoming the Parental Presumption

Section 602.9(b) also contains a rebuttable presumption that a denial of contact is “not harmful to the child’s mental, physical, or emotional health.” To overcome this presumption, the petitioner can introduce evidence of:

  • Children’s Wishes: Can the children explain why they have a preference, as opposed to simply stating a preference?
  • Mental and Physical Health: Do either the children or grandparents have special health situations that make unsupervised contact difficult or impossible?
  • Nature and Quality of Prior Relationship: Were the grandparents essentially babysitters, or did they actively take part in the children’s lives?
  • Motivation: Do the grandparent and/or parent want what is best for the children or do the grandparent and/or parent want revenge on the other party?

The judge may also consider “any other fact that establishes that the loss of the relationship between the petitioner and the child is likely to unduly harm the child's mental, physical, or emotional health.”

If you, or someone in your family, had a healthy relationship with grandchildren that has now been cut off or limited, contact an experienced Naperville family law attorney. After hours appointments are available.

 

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=8300000&SeqEnd=10000000

Posted on in Divorce

mediation, DuPage County family law attorneysDramatic courtroom showdowns are a staple of many movies and TV shows for much the same reason that millions of viewers watch Game 7 of the World Series: many of us are riveted by the high stakes, winner-take-all atmosphere. While a divorce trial certainly has those elements, when your money and your future hang in the balance, and intimate details about your family become public record, a trial may lose this appeal.

A trial may be beneficial in some cases, especially if there is the need for emotional closure or the parties are unable to agree on terms. But in most cases, mediation is an attractive option, provided that the right elements are present.

Preliminary Questions

In DuPage County, judges nearly always refer contested family law cases to a mediator, unless there is an “impediment” under the rules or the parties have already unsuccessfully attempted mediation in that particular case. Most other jurisdictions, including Will County, have similar rules. Only a select number of mediators are qualified to handle family law cases, because these matters have very specific legal, factual and financial implications that other civil cases do not have.

Parties can also voluntarily attempt mediation at any time; the mediator should always be a family law attorney who practices in the area.

Procedural Issues

Before the parties arrive, most mediators review the active pleadings to familiarize themselves with the issues and events in the case. Perhaps more importantly, such a review offers insight into the current routine in terms of custody, visitation, support and other items.

Most mediations take place in an office-type setting that has at least two conference areas. After the attorneys make brief opening statements, each party retires to a separate conference area, and the mediator conveys settlement offers back and forth. The separation often allows for an effective “cooling off” period that helps ensure decisions are made based on the facts, and not based on emotion.

The session typically lasts a full day. If a settlement is not reached, the mediator usually declares an impasse, although it is not unheard of for negotiations to resume again later, if the parties are close to an agreement.

Mediation is often a good alternative to a trial, but is not suitable for every situation. To learn more, or for a confidential consultation with an experienced Naperville family law attorney, contact our office. Convenient payment plans are available.

 

Source:

http://www.dupageco.org/courts/LocalCourtRules/2649/

agreements, Naperville divorce attorneyWith the new baseball season upon us, now is a good time to look back on the moment when the resurgence of a Major League Baseball team converged with divorce and prenuptial agreement law.

In 2011, the West Coast billionaire power couple who owned the Los Angeles Dodgers filed for divorce. At the time, the team was in bankruptcy and the franchise’s value was lower than it had been in many years. The wife, who was then a co-owner, agreed to relinquish her share of the franchise in exchange for “the security of a guaranteed $131 million payment, plus more than $50 million in real and personal property,” according to a court ruling.

Several years later, after the acquisition of several high-profile players and a nearly unprecedented revival, the husband sold the team for a whopping $2.15 billion. His ex-wife sued for roughly $900 million, which she claimed should have been her share of the sale's proceeds. To get out of the prior agreement, she claimed that her husband had misled her about the team’s value.

Upon review of the approximately 220,000 pages of documents that he submitted during the divorce, the court ultimately sided with the husband, and even ordered the wife to pay an additional $1.9 million in legal fees.

Spousal Agreements

Even though California is a community property state and Illinois is an equitable distribution state, they are both Uniform Premarital Agreement Act states, so in this area, roughly the same law applies in both jurisdictions.

Both states have something else in common: voluntary agreements between spouses receive considerable deference from judges. In order to overturn such a pact, the challenging party must show evidence of:

  • Involuntariness: Some states have a list of factors that would show involuntariness, but in Illinois, such a determination in almost entirely within the judge’s discretion.
  • Unconscionable: Not only must the division be so uneven as to shock the conscience, it must have been unconscionable when it was made. In the above example, when the 2011 property agreement was signed, it was not deemed unconscionable.

The UPAA contains a severability provision, which means that if one part of a premarital agreement is subsequently declared invalid, all other provisions remain in effect.

Spousal agreements that conform to the UPAA are nearly ironclad in most cases. For a confidential consultation, contact an experienced Naperville family law attorney. We routinely handle property division matters throughout Chicagoland.

 

Sources:

http://www.latimes.com/sports/dodgers/dodgersnow/la-sp-dn-dodgers-jamie-mccourt-divorce-loses-appeal-20150226-story.html

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2087&

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=01001-02000&file=1610-1617

temporary orders, Naperville divorce lawyerWhen it was dedicated in 1889, the Eiffel Tower’s builders intended it as a temporary structure to decorate Paris during the World’s Fair and celebrate the 100th anniversary of the French Revolution. At that time, World’s Fairs were major international events, bigger even than the Olympics. Officials were ready to demolish it in 1909, but decided to keep it as a radio tower. Today, the Eiffel Tower draws more visitors than any other paid tourist destination on the planet. The most famous landmark in the City of Lights is not the only temporary thing that becomes permanent. In most Illinois divorces, the judge enters temporary orders within a few weeks, or even a few days, after the petition is filed. Although they are meant to be temporary, in many cases, these orders may eventually become permanent.

The Law

Either party may request temporary child support and/or temporary spousal maintenance. Many times, these orders are prepared on the basis of affidavits that are submitted along with supporting financial documents, such as paystubs and tax returns. If there is a compelling need, the judge may hold an in-person hearing.

Temporary orders govern custody, visitation, and support matters until the divorce is finalized. Such temporary orders generally also include:

  • Financial Restraining Order: Parties are prohibited from transferring or spending money in anything other than the usual course of business, normal living expenses, and attorneys’ fees payments.
  • Personal Restraining Order: Children may not leave the county or the state for any purpose or for any length of time, absent extraordinary circumstances and the judge’s written permission.
  • Case-Specific Orders: For example, when there are allegations of domestic violence, the judge may order parties to attend counselling or surrender any dangerous weapons in their possession.

If there is evidence that “irreparable injury will result to the moving party,” orders may be entered without hearings. Temporary orders are always subject to modification and, in many cases, are appealable.

The Procedure

Temporary orders often become permanent because judges generally favor the status quo, and are reluctant to upset it unless there is a compelling reason to do so. Additionally, the same judge that enters or approves the temporary orders is often the one that will approve the final decree, and no one likes to admit that they made a mistake.

That being said, the temporary orders are not set in stone. In many cases, information comes to light during discovery that radically alters the situation or a social investigator unearths evidence that pertains to the best interest of the children. Moreover, the judge almost always accepts whatever agreement the spouses reach, even if it alters provisions in the temporary orders.

Events transpire quickly in divorce proceedings, so it is important to put an experienced Naperville family law attorney on your side as soon as possible. Contact us today for prompt assistance.

 

Sources:

http://www.history.com/topics/eiffel-tower

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=6000000&SeqEnd=8300000

divorce rate, Naperville family law attorneyWith a new Justice League movie on the big screen, some are asking why the costumed superheroes are no longer on network television. According to one observer, no-fault divorce laws may have closed the Hall of Justice, accomplishing what Lex Luthor and his ilk could never pull off.

In the 1960s and 1970s, Superman, Batman, and the rest of the Super Friends/Justice League might draw 20 million viewers on a Saturday morning. By the 1980s, that number had dwindled to two million, and that decline coincides with skyrocketing divorce rates. It seems that part-time parents were no longer content with allowing to stare at the TV screen for several hours each weekend, as divorced moms and dads sought more “quality time” with their children. Other factors, most notably the rise of kids-only cable channels that were exempt from federal broadcasting rules, also contributed to the change.

After years of decline, the last “Saturday morning cartoon” signed off in 2008.

Grounds for Divorce in Illinois

California Governor Ronald Reagan signed one of the country’s first no-fault divorce laws in 1968; over the next ten years, most other states followed suit. Effective January 2016, Illinois abolished all evidence-based divorces, like adultery and cruelty, and all marriage dissolutions in the state must now be based on “irreconcilable differences.” While many observers hailed the end of the need for couples to air their “dirty laundry” for everyone to see, some expressed dismay as abuse victims seemingly lost some of their power.

But fault in the breakup of the marriage can still be relevant for property division purposes, because dissipation (waste) of community assets is expressly relevant for property division purposes, and arguably relevant in determining the amount and duration of spousal support payments. Such dissipation takes place if, for example, Husband spends thousands of dollars buying gifts for various girlfriends or Wife maintains a “love nest” with another man.

It may be unrealistic to expect a night-and-day difference in the property settlement or alimony determination, because these laws are not designed to punish wayward spouses. The judge, however, will certainly consider any and all inequities when making a division.

For prompt assistance with a marriage dissolution matter, contact an experienced family law attorney in Naperville today. We routinely handle cases throughout the greater Chicagoland area.

 

Sources:

http://www.awn.com/animationworld/disappearance-saturday-morning

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+IV&ActID=2086&ChapterID=59&SeqStart=3800000&SeqEnd=5300000

child support, Naperville family law attorneyFaced with possible shutdown because of the ongoing budget crisis, the state's Title IV child support collection arm should now have enough money to remain operational through the end of the fiscal year.

Kane County officials recently approved a $310,000 emergency loan, which coupled with federal funding, should allow local four-attorney division of the State's Attorney's Office to meet its $700,000 budget. According to reports, the state of Illinois had not made a payment on the contract since last August and, after having met payroll in February, the agency was out of money. The county may file suit against the state to recover the $310,000, but one official said such action would be “a last resort.” Going forward, there are plans to merge Title IV with federal programs, as the county cannot afford to continue footing the bill.

Title IV collected a little over $25 million in past-due child support last year.

Child Support in Illinois

The Land of Lincoln is one of the few remaining states that utilize a percentage-of-income system for child support determination purposes, as most states have adopted a model that considers other factors in addition to the obligor’s income, such as the amount of parenting time.

There is a sliding scale which begins at 20 percent for one child and ends at 50 percent for six or more children. With a few exceptions, such as permanently physically or mentally disabled children, the child support obligation ends when the children turn 19 or graduate from high school, whichever comes first.

If the judge determines that the guideline amount is not “appropriate after considering the best interest of the child,” the amount may deviate based on:

  • Child’s Resources and Needs: Some children have income from part-time jobs or annuity payments, while others have special physical, emotional, or educational needs.
  • Parents’ Resources and Needs: It may be inappropriate for a low-income obligor to pay guideline child support to a high-income obligee.
  • Specific Costs: The statute lists uninsured medical expenses, child care expenses, extracurricular activities, and educational expenses.

Child support may be modified based on a material change in circumstances, such as a good faith job change. Changing needs of the child may also necessitate an order modification.

Many area families depend on regular support payments. For prompt assistance in this area, contact an experienced Naperville family law attorney. We routinely handle cases in DuPage County, Will County, and nearby jurisdictions.

 

Sources:

http://www.chicagotribune.com/suburbs/elgin-courier-news/news/ct-ecn-kane-child-support-loan-st-0313-20160311-story.html

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+V&ActID=2086&ChapterID=59&SeqStart=6100000&SeqEnd=8350000

college expenses, Naperville child support lawyersCollege expenses are increasing nationwide, but why has tuition at Illinois public universities doubled over the past ten years, and what effect does that increase have on child support orders?

The pension fund crisis has touched institutions of higher learning. In 2005, 20 percent of the higher education budget was earmarked for pensions; by 2015, that proportion was 53 percent. So, drastic tuition hikes were deemed necessary to keep facilities up to date and otherwise remain competitive. Moreover, state institutions of higher learning are hiring 50 percent more administrators than instructors, resulting in a payroll imbalance. According to one estimate, the University of Illinois’ chancellor’s salary could have funded more than 320 Monetary Award Program grants for low-income students.

Tuition and fees at the University of Illinois-Springfield are about 30 percent above the national average.

Paying for College After Divorce

In most cases, regular child support ends after the children turn 18. But college expenses are one of the most notable exceptions. And despite recent amendments to Section 513 of the Illinois Marriage and Dissolution of Marriage Act, including a cap on college expenses, a limit on the length of payments, minimum grade point requirements, and the inclusion of 529 plans and other assets, much of the law is highly discretionary.

Many of the likely areas of contention are in Section 513(d), which says that the parents may be ordered to divide the cost of:

  • Tuition and Fees: There is a significant difference between a year at a local community college and a year at the University of Illinois. Furthermore, what obligation (if any) does the student have to borrow money?
  • Housing Expenses: The amount is capped, in most cases at a double-occupancy dormitory room at the University of Illinois, but once again, the actual amount for housing can vary significantly, depending on both the location and type of housing.
  • Living Expenses: This category is vague as well. For example, “transportation” is included, but does that mean a new car with full insurance and a gas/maintenance stipend, a pair of one-way bus tickets to get from home to school and back again, or something in between?

The judge may award a reasonable amount based on the evidence and arguments of counsel, underscoring the need for thorough preparation and effective advocacy.

Division of college expenses is an oft-overlooked element of child support. For a confidential consultation, contact an experienced Naperville family law attorney. We routinely handle cases in DuPage County and nearby jurisdictions.

 

Sources:

http://www.huffingtonpost.com/hilary-gowins/college-out-of-reach-tuit_b_9384972.html

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=6000000&SeqEnd=8300000

property division, Naperville family law attorneysIn a bygone era, Illinois and most other American jurisdictions were all common law states, regarding marital property distribution. Under this system, marital property belonged to the spouse’s name that appeared on the title, irrespective of anything else. That formula worked well through much of the nineteenth century, as it was generally illegal for women to own property.

Needless to say, a lot has changed in the Land of Lincoln since the man himself was first elected to the Illinois General Assembly in 1834. Now, the Illinois Marriage and Dissolution of Marriage Act stipulates that all marital property must be divided equitably, which is not necessarily the same thing as equally, no matter whose name appears on the title.

Pre-Distribution Procedure

Generally speaking, marital property is anything that was not acquired before the marriage or by gift. But property division is usually not as simple as that categorization implies.

In most marriages, especially those of a rather long duration, property often becomes commingled. For example, Husband might use funds from his paycheck (marital property) to restore a classic car he bought before the marriage (non-marital property), and Section 503(c) of the Illinois Marriage and Dissolution of Marriage Act addresses these issues.

The first question is whether or not the commingled property has transmuted, or lost its identity. To return to the previous example, if Husband only used his paycheck for new tires or new upholstery, the community property has probably been transmuted. This inquiry is very much fact-based.

If the property has not been transmuted, and the contributing estate can establish contribution by clear and convincing evidence, that estate is entitled to reimbursement. Such reimbursement often comes in the form of a lien that is payable when the property is sold.

Distribution Factors

Once the property is categorized, it must be divided in accordance with the factors listed in the statute. Some of the more prominent ones include:

  • Agreement: Most divorces are settled out of court, and the judge typically approves any agreement that was voluntarily made and not manifestly one-sided.
  • Children: If Wife maintains primary responsibility for minor children, she will may be awarded the house and a family-sized car, if the parties own these things.
  • Relative health: If one spouse is older or in poor health, that spouse may be entitled to a greater property share, because of a diminished income-earning capacity.
  • Relative economic circumstances: The same argument may apply if one spouse is a cardiologist and the other is a teacher’s aide, or if one spouse is entitled to a substantial inheritance and the other is not.

For prompt assistance in this area, contact an experienced Naperville family law attorney for a confidential consultation. Convenient payment plans are available.

 

Sources:

http://www.historyplace.com/lincoln/

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+V&ActID=2086&ChapterID=59&SeqStart=6100000&SeqEnd=8350000

Posted on in Child Custody

order modification, Naperville family law attorneyIn the late Cold War, President Ronald Reagan adopted an old Russian proverb, “doveryai no proveryai,” in nuclear arms reduction talks with Russian Premier Mikhail Gorbachev. When translated into English, the phrase means "trust, but verify." That same philosophy applies to family law modification procedures: agree whenever possible to facilitate effective co-parenting, but always get any changes in writing and make sure those documents are enforceable. Such orders often including co-parenting plans, allocated parental responsibilities, and parenting time schedules.

If too much emphasis is placed on either side of the equation, the family’s life will be out of balance. It is not cost efficient, from a financial or emotional standpoint, to constantly file motions and counter-motions based on new circumstances. At the same time, an over-reliance on informal agreements and the hope that the other party will “do the right thing” is a recipe for disaster.

It is important to note that side agreements between the parents, even if they are in writing, are never enforceable in family court. But under new changes to the Illinois Marriage and Dissolution of Marriage Act, such side agreements could streamline the modification process.

Expedited Modification

Under the new Section 610.5(e), these agreements can serve as the basis for a motion to modify the parenting plan, even if it has been less than two years since the existing order went into effect. To qualify, the agreement must be:

  • In Use: The parents must actually be exchanging the children at Mom’s house instead of Dad’s house, for example, and not merely talking about making such a change.
  • Period of time: The agreement must have been in effect for at least six months before the motion to modify is filed.
  • Mutual: Both parents must actually agree; if one parent abides by the terms but does not really agree, the modification may be contested.
  • Voluntary: The same result applies if there was excessive arm-twisting or any other such coercion.

The expedited path is also available for “minor” modifications, a word that is not defined but probably means items like typographical errors or changing a pickup time from 12:00 pm to 12:15 pm. An expedited proceeding is also possible if the modification is necessary to correct a glaring error, like granting unsupervised visitation to a person with a pending criminal case in this area.

Contested Modification

If the expedited path is not available, the motion must be based on a substantial change in circumstances, such as:

  • Job change,
  • Removal of disability,
  • Substance abuse relapse, or
  • Remarriage.

If a contested motion is brought within two years of the existing order, the movant must also show that there is a danger to the children’s emotional health or physical well-being.

When life changes make the prior parenting orders unworkable, contact an experienced efamily law attorney in Naperville for a confidential consultation. We routinely handle cases in DuPage County, Will County, and nearby jurisdictions.

 

Sources:

http://www.leadergrow.com/articles/443-trust-but-verify

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=8300000&SeqEnd=10000000

spousal support, Naperville divorce lawyerFor the fourth time in four years, the Florida House of Representatives wants to follow Illinois’ lead and largely end permanent spousal support in the Sunshine State. The measure likely has enough support to make it through both the House and Senate. Two years ago, Governor Rick Scott vetoed a similar bill, because it applied retroactively to prior property divisions. Last year, advocates removed the retroactivity provision but another controversial element – a presumption that equal time-sharing was in the children’s best interest – caused that bill to fail. Another bill died because the session expired.

One family law attorney welcomed the proposed changes because the mathematical formula makes alimony awards more predictable and thus more negotiable during mediation.

Alimony in Illinois

Permanent spousal support is already mostly a thing of the past in the Land of Lincoln, as the wave of alimony reform that keeps crashing ashore in Florida touched Illinois lawmakers several years ago.

As of January 1, 2015, the Illinois Marriage and Dissolution of Marriage Act treats spousal support much like child support, in most cases. Instead of nearly unlimited discretion regarding both the amount and duration of payments, judges must now apply a mathematical formula that utilizes:

  • 30 percent of the payor spouse’s gross income;
  • 20 percent of the payee spouse’s gross income; and
  • The length of the marriage.

The gross income for spousal support purposes is calculated much differently than the net income used in child support calculation. Gross income refers to all income from all sources without any allowable reductions.

Specifically, the amount of support is found by subtracting 20 percent from the payee's gross income from 30 percent of the payor's gross income. The duration of the order is based on a percentage of the length of the marriage, according to a table provided in the statute.

Assume that Wife earns $150,000 per year, Husband earns $30,000 per year, and they are divorcing after a 15-year marriage. Wife would pay husband $39,000 ($45,000 minus $6,000) per year for 12 years (15 multiplied by 0.8).

Is Spousal Support Needed?

Before that formula is even applied, however, the requesting spouse must introduce evidence that support is necessary. That decision is based on:

  • Each party’s income, property, and economic circumstances,
  • Relative age and health of the parties,
  • Duration of the marriage,
  • Noneconomic contributions to the marriage, and
  • Any spousal agreements.

Fault in the breakup of the marriage is not relevant to alimony determination. Cases in which the combined income of the parties exceeds $250,000 per year or involve alimony or support from previous relationships will be handled on a situational basis at the discretion of the court.

For prompt assistance in this area, contact an experienced Naperville family law attorney. Convenient payment plans are available.

 

Sources:

http://www.sun-sentinel.com/news/florida/fl-alimony-family-law-20160228-story.html

http://www.ilga.gov/legislation/ilcs/documents/075000050k504.htm

Posted on in Uncategorized

child support, Naperville family lawyerOnly about half of child support obligees receive the full amount they are owed, resulting in a staggering $5 billion annual arrearage. Moreover, there is about a 4-to-1 ratio between administrative costs and money collected. So, in order to collect $100 million in unpaid support, a state must spend at least $25 million. In many cases, that is money which the state simply does not have.

As a result, child support enforcement cases that are turned over to the Attorney General or other public agency often languish due to lack of attention. And, once the case finally begins to move through the system, the state attorney does not represent you or your family.

Conversely, a private attorney is a strong advocate who is committed to upholding your legal and financial rights. Also, an experienced child support collection lawyer has the exact same tools that are available to a state attorney.

Procedural Matters

A judge normally authorizes a withholding order when the divorce or child custody paperwork is signed, but this order is usually not issued. If the obligor parent becomes delinquent, and the obligor parent has a W-2 job, that withholding order can normally be served on the person’s employer. Typically, that order can withhold up to 50 percent of the obligor’s check for both current and past due child support.

Serving a withholding order is sometimes easier said than done. Many times, employers use off-site companies to handle payroll matters; other times, the obligor parent’s employer is in another state, and may hesitate to respect an Illinois court order.

In addition to wage withholding, there are a number of other coercive measures that can be taken, including:

  • Drivers’ license and/or passport suspension;
  • Asset seizure;
  • Tax refund seizure; and
  • Jail time and/or probation.

Defenses

In most cases, the only element that an obligee parent must establish is that the obligor willfully failed to pay support. That is not the same thing as an “intentional” failure to pay; normally, if the obligor paid any other bills during the time period in question, there was a willful failure to pay child support. Involuntary unemployment due to a physical inability to work is typically the only defense.

Unpaid child support is crippling to many Chicago area families. For a confidential consultation with an experienced Naperville family law attorney, contact our office. Convenient payment plans are available.

 

Sources:

http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/family/Chapter11-cs.authcheckdam.pdf

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2089&ChapterID=59

Posted on in Divorce

older divorce, Naperville family law attorneyWhile a late-in-life divorce may have no legal impact on the couple’s children, the emotional impact is significant and even debilitating, in some cases.

Since older children have long-established family memories and traditions, letting go of them is often difficult. And adults, especially adult females, take more time to recover from emotional trauma than children. These negative emotions are complicated by the fact that graduations, weddings, and other celebratory occasions may be overshadowed by the logistical concerns of ensuring that Mom does not come into contact with Dad.

There are other specific negative consequences. Older adults sometimes share details about the breakup of the marriage with their children, placing the children in the uncomfortable position of parenting their parents. Also, due to the sometimes enormous financial expense of divorce, promised payments for first homes, education, and other items may go unfulfilled.

Grey Divorce and Grandparents’ Rights

These feelings often give rise to anger, often at the parent who is rightly or wrongly faulted for the divorce. One way for the children to express that anger is by impairing the relationship between grandparents and grandchildren. Sometimes this action is blatant – “You cannot see Johnny any more” – but more often it is somewhat more subtle – “Susie cannot come over this weekend because she has a Girl Scout event.”

Grandparents have options in these situations, even though the Illinois Marriage and Dissolution of Marriage Act contains a “parental presumption” that gives great deference to biological parents in child-rearing decisions.

To obtain written and enforceable visitation rights, the grandparents must show that the parents unreasonably denied contact. In these cases, the judge will examine:

  • Grandparent/Grandchild Relationship: If the bond was fairly strong, and especially if the grandparents had custody of the grandchildren for at least six months, this factor normally weighs in favor of visitation rights.
  • Child’s Preference: There is no age cutoff in this particular section, but as a rule of thumb, judges give considerable deference to opinions from children who are at least 12.
  • Good Faith Petition: Parents are not the only ones who may impede visitation out of anger.

Additionally, at least one biological parent must not object to grandparent visitation. If the petition is granted, most judges will approve an arrangement along the lines of one weekend per month.

Grandparents often have legally-cognizable visitation rights with regard to their grandchildren. For a confidential consultation with an experienced Naperville family law attorney, contact our office. After hours and off-site appointments are available.

 

Sources:

http://www.huffingtonpost.com/terry-gaspard-msw-licsw/how-to-move-on-from-your-grey-divorce_b_5242932.html

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+VI&ActID=2086&ChapterID=59&SeqStart=8350000&SeqEnd=10200000

Posted on in Divorce

divorce, Naperville family law attorneysDeerfield (no. 2), Naperville (no. 10), and several other Chicago suburbs made a recent list of the ten best places to live in Illinois, in part because of low divorce rates.

The survey examined 162 communities in the state and ranked them in 21 separate categories. In addition to marriage dissolution rates, the study considered the percentage of families with children under 18, medical care availability, and violent crime rates.

In addition to Deerfield, top five also consisted of Morton, Washington, Libertyville, and O’Fallon. On the flip side, the bottom five were East St. Louis, Harvey, Dolton, Maywood, and Blue Island.

Overlooked Aspects of a Divorce

There are always negative emotional and financial consequences in a divorce. At the same time, there are always positive financial and emotional effects as well. Major issues, like child custody, child support, and the marital residence, understandably get most of the attention. But there are also some under-the-radar factors to consider, and these items may have as much effect on a decision as the larger issues.

  • Health Insurance: Divorce terminates a non-employee spouse’s participation in an employer-sponsored health plan. COBRA coverage is an option, but it is expensive and only a short-term solution. This consideration is especially important for spouses with pre-existing conditions or other health issues;
  • Temporary Orders: Often, unless there is a major revelation as the case develops, the temporary orders serve as a blueprint for the final orders. This reality underscores the need for an aggressive, but not overly-so, attorney. If your marriage appears to be breaking down, for whatever reason, it is best to talk to an attorney straightaway, because things happen fast once a petition is filed;
  • Possible Financial Impact: Illinois uses percentage-of-income formulas to determine spousal support and child support, making it possible to reasonably estimate these liabilities with little more than a current tax return.

The vast majority of divorce cases settle out of court, usually after the parties conduct discovery. Once discovery is at least substantially complete, most cases are resolved through formal or informal mediation, which allows the parties to control costs, maintain some civility, and retain more control over the outcome.

At Roscich & Martel, we fight for your legal and financial rights. Call our experienced Naperville family law attorneys today for a confidential consultation.

 

Source:

http://abc7chicago.com/family/study-names-best-worst-illinois-cities-for-families/1157319/

Posted on in Mediation

mediation, Naperville family law attorneyPrior to their first mediation session, as many as 95 percent of family law parties believe the process will be a waste of time, reasoning that if negotiations alone could resolve the couple’s problems, the matter would not be in court. But during mediation, over 70 percent of the parties settle all, or the vast majority of, the issues in the case. Perhaps the reason there is such a significant disparity between expectations and results is that, once the parties begin mediation, they are acutely aware of the three driving forces at work in these situations.

Control

Research indicates that voluntary compliance with a court order is much higher when the parties make all the decisions, or at least most of them. This dynamic is especially present if any participants have issues accepting authority, because these individuals may view a judge’s order as not reflective of the realities in the case.

When considering the financial and emotional costs of noncompliance, and since a party that refuses to obey a court order must be brought back before the judge, the benefits of control over the outcome become more apparent.

Cost

In addition to this potential long-term expense, there are immediate costs as well. When these cases proceed to trial, the attorneys must spend an enormous amount of time to prepare. There may also be other associated costs, such as the retention of expert witnesses, more in-depth discovery, and possible appeals.

Mediation reduces most of these costs. Instead of a trial that might last several days, the attorneys need only prepare for a mediation session that lasts, at most, several hours. As there is no need for experts to testify, these ancillary costs will be lowered as well.

Civility

This dynamic is not always present, because there are some parties that need the emotional closure that a trial sometimes offers. But, for the most part, it is preferable to avoid a courtroom showdown, especially if there are children. Mediation often lays a foundation for successful co-parenting, because the parents are empowered by the fact that they worked together to overcome obstacles. Moreover, instead of a public trial that includes a detailed record of the proceedings, mediation is a more private and low-key affair.

Mediation is not always successful, but it is almost always worth a try. For a confidential consultation with an experienced Naperville family law attorney, contact our office. Convenient payment plans are available.

 

Sources:

http://www.mediateiowa.org/divorce-custody-mediation/learn-about-mediation/mediation-statistics.aspx

http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1214&context=jdr

Posted on in Prenuptial Agreement

prenuptial agreement, overturn, Naperville family law attorneyAlmost no contract is completely ironclad; there is nearly always at least one loophole that can be located and exploited. Although Illinois family law follows this general rule, most judges will enforce premarital agreements, absent extraordinary circumstances.

The existing tendency to enforce these contracts became even more pronounced in 1990, when Illinois adopted the Uniform Premarital Agreement Act. In so doing, the Legislature eliminated a common-law requirement that the agreement be “fair and reasonable.” Now, it is much more difficult, though certainly not impossible, to overturn a premarital agreement.

Was The Agreement Involuntary?

To overturn part of an agreement, the challenging party must prove that it was not voluntary or unconscionable when made. If the challenge is successful, the offending portion of the agreement will be removed and the remainder will stand. Partial invalidity does not invalidate the entire document.

In terms of voluntariness, the bar is set very high. In most cases, there must be a level of coercion that borders on the use of physical force; even something like a sign-or-else ultimatum is insufficient. Some states, including California, set out a list of factors to consider in this area. But in Illinois, the matter is almost entirely discretionary.

Was The Agreement Unconscionable When Made?

“Unconscionable” is not defined in the law; a plain meaning of the word is something that shocks the conscience; for example, a 60-40 split is uneven but clearly not unconscionable. To win an unconscionability argument, the challenging party must also prove:

  • No Disclosure: The drafting party must have either provided no financial disclosure whatsoever or provided one that intentionally omitted key assets. If the challenging party waives disclosure, that act must be in writing.
  • Inadequate Knowledge: In addition to an actual lack of knowledge about marital assets, the challenging spouses must generally prove that they would have been unable to attain such knowledge.

So, to overturn a premarital agreement based on unconscionability, the division must be manifestly unfair and the challenging spouse must have had little or no idea about what he or she was signing.

It is difficult, but not impossible, to overturn a premarital agreement in Illinois. For a confidential consultation, contact an experienced Naperville family law attorney. After hours appointments are available.

 

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2087&ChapterID=59

http://www.aaml.org/sites/default/files/MAT206_3.pdf

Posted on in Child Support

child support, income share, Naperville family law attorneyTo more accurately reflect the new interpretation of family law that became effective on January 1, the Illinois child support law may soon move away from the percentage-of-income model, and the State Legislature is expected to take up the matter in the spring of 2016.

Only nine states still use the percentage-of-income model.  These jurisdictions determine the amount of support by applying a percentage to the obligor’s income which is determined by the number of children. In Illinois, the sliding scale begins at 20 percent for one child and ends at 50 percent for six or more children.

One of the major criticisms of this model is that it leads to cookie-cutter results, which is one thing the changes to the Illinois Marriage and Dissolution of Marriage Act seeks to avoid. That is why, although many of the changes were substantive, many more were essentially cosmetic. For example, instead of words like “husband” and “wife” or “child custody,” the law uses terms like “spouse” and “allocation of parental responsibilities.”

The New Look?

If and when the Legislature amends the law, what might those changes look like? Most income share states, which use a much more holistic view of custody and support, employ a rather complex formula that takes into account the actual amount of time each parent spends with the children, the children’s financial needs, and both parents’ ability to meet these needs.

Neighboring Iowa, which is an income shares state, is a good example. Whereas child support calculation in the Land of Lincoln requires little more than a calculator, the process in the Hawkeye State roughly resembles a loan application, and Illinois could well elect to enact a similar procedure.

If there is no consensus for a radical change, the legislature might eliminate the current guidelines, and instead base child support decisions on more subjective factors mentioned in the statute. So, in addition to evidence regarding the obligor’s income, the obligee would also be required to present evidence about the family’s overall financial circumstances.

Either way, the Legislature clearly intends to make divorce a less sterile and clinical process, and if the child support law is changed, those changes would certainly reflect this new attitude.

For prompt assistance in this area, contact an experienced Naperville family law attorney. Convenient payment plans are available.

 

Sources:

http://www.bnd.com/news/local/article52269540.html

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+V&ActID=2086&ChapterID=0&SeqStart=6100000&SeqEnd=8350000

https://secureapp.dhs.state.ia.us/CustomerWeb/Resources/SupportGuidelines/Court%20Rules.pdf

Posted on in Prenuptial Agreement

prenup, premarital agreement, Naperville family law attorneyNumerous studies indicate that money management is one of the leading sources of marital conflict, and a prenuptial agreement can help remove this source of discord before it has a chance to develop into conflict.

That being said, there is certainly nothing romantic about a premarital agreement. But there is also nothing romantic about a life insurance policy, and soon-to-be spouses routinely make such arrangements before they exchange rings. What makes a premarital agreement any different? Illinois is a Uniform Premarital Agreement state, but as it has its own version of the Act, some of the court decisions from other jurisdictions are not binding in The Land of Lincoln.

Contents

A premarital agreement can cover almost any financial or inheritance matter, with the exception of child support, which cannot be “adversely affected” in any way. Some of the more common areas include:

  • Rights and obligations of both residential and non-residential real estate property,
  • Disposition of property at dissolution or separation, and
  • Modification, or even elimination, of spousal support.

In addition to financial matters, a prenuptial agreement may also contain language about inheritance issues and “any other matter, including personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.”

Enforcement

Family law, in general, places a great deal of importance on lawful agreements between the spouses, and premarital agreements are no exception.

One way to overturn such an agreement, or at least part of it, is to show the agreement was not entered into voluntarily. Most courts typically require a significant amount of arm-twisting to be shown, as even a “sign or else” ultimatum normally does not make the agreement legally involuntary.

Another avenue is to establish that the agreement was unconscionable when it was made. “Unconscionability” is not defined in the statute, but a common legal definition is unusually harsh, a shock to the conscience, and grossly unfair. In such an action, the party seeking to overturn the agreement must also show that there was no fair and reasonable disclosure of property, no voluntary waiver, and no other way to obtain such a disclosure.

To start your marriage on a more solid foundation, contact an experienced family law attorney in Naperville today. We can help you draft a prenuptial agreement that meets your needs and that will stand up to any potential challenges in the future. 

 

Sources:

http://www.bankrate.com/finance/personal-finance/couples-cash-money-management-with-your-partner.aspx

http://www.ilga.gov/legislation/ILCS/ilcs3.asp?ActID=2087&ChapterID=59

http://legal-dictionary.thefreedictionary.com/unconscionable

Posted on in Child Support

educational expenses, college, Illinois family lawyerAs the calendar turns to 2016, many students begin to give even more serious thought to their college educations. As a result, parents begin thinking about how to pay for these diplomas. Since child support in Illinois ends when children turn 18, at least for the most part, do non-custodial parents have any legal obligation to share the financial burden?

Most divorce decrees, child support decrees, and other such orders contain language from Section 513 of the Illinois Marriage and Dissolution of Marriage Act. Subsection (b) is fairly straightforward: a non-custodial parent may be required to assist the student in completing a Free Application for Federal Student Aid (FAFSA) form, and pay for up to five college applications, two standardized tests, like the SAT, and one standardized test preparation course.

A preparation course can be several hundred dollars, but the other listed expenses are typically negligible. The remainder of this provision, which governs the payment of educational expenses, is considerably more detailed and potentially much costlier.

Division of Expenses

Most orders contain a reserve clause regarding Section 513, which states that these costs will be divided once they can be reasonably ascertained. A judge must apportion these expenses between the parents based on:

  • A determination of “educational expenses,”
  • Comparison of the parents’ financial resources, and
  • Amount the student can contribute.

The law is in flux in all three of these areas, and recent updates to the statutes are set to take effect beginning in 2016.

Educational expenses generally means both school costs (e.g. tuition, books, and fees) and living expenses, and the student’s choice is not necessarily the determining factor. A recent case suggests that economics plays a significant role. A student wanted to attend an out-of-state school at an annual cost of $34,000; the non-custodial father identified a similar in-state program for about $17,000 per year. The court sided with the father, as the mother and student were unable to prove that the out-of-state school was substantially better.

In terms of parental resources, step-parent income is typically not calculated for child support purposes. But, these resources may be a factor in dividing post-secondary costs, because the situation is much different.

Finally, what amount should the student be required to contribute? Should the student work while in school, and if so, for how many hours? Should the student borrow money, and if so, how much?

For help in answering these questions, and others like them, contact an experienced family law attorney in Naperville. We routinely represent individuals and families throughout Chicagoland.

 

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=6000000&SeqEnd=8300000

https://scholar.google.com/scholar_case?case=1431027993425069711&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Illinois State Bar Association DuPage County Bar Association SuperLawyers Naperville Area Chamber of Commerce America Society of Legal Advocates National Trial Lawyers Leading Lawyers, Emerging Lawyers American Inns of Court American Institute of Family Law Attorneys

Roscich & Martel Attorneys has provided high-quality legal representation in divorce, family law, real estate, estate administration, probate, wills, Advance Health Care Directives (living wills), and powers of attorney to residents of Naperville, Aurora, Plainfield, Bolingbrook, Wheaton, Warrenville, Winfield, Downers Grove, Lisle, Kendall County, DuPage County, Kane County, and Will County in Illinois.

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