Challenges of Gray Divorce

July 27th, 2015 at 3:39 pm

gray divorce, older divorce, Illinois family law attorneyOlder couples are getting divorced at a record pace, and these cases often create an entirely new set of challenges for family law attorneys.

Between 1990 and 2010, the marriage dissolution rate for couples over fifty roughly doubled. Many of the traditional divorce complications – most notably child custody and child support issues – are absent from these cases. So, on one level, a gray divorce may be less acrimonious than a divorce between thirty or forty-somethings. On another level, however, there are a number of unique challenges in these matters.

Inheritance Matters

According to the Illinois Probate Act, divorce is the legal equivalent of death, at least for estate planning purposes. In other words, step-children may not be in line to receive a share of an inheritance.

Property Division

Simply because they have lived longer, many older people have more property than younger people. Moreover, many older people have been married at least once before, so there may be a substantial amount of non-marital property. Some typical problems include:

  • Retirement Accounts: Although these items may have little or no cash value, especially if the benefits have not vested, these accounts must still be divided just like any other asset.
  • Commingled Funds: When the parties have been married for a number of years, the opportunity for the line between marital and non-marital assets to blur increases dramatically.
  • Property Valuation: Many items may carry as much or more sentimental value than monetary value.

Grandparent Access

Just as it is not unusual for minor children to “pick sides” in their parents’ divorces, adult children may do the same thing. Under Illinois law, grandparents can only obtain custody of their grandchildren under limited circumstances, but they can bring an action for periodic visitation, if such a move becomes necessary. Essentially, if the judge finds that the grandchild’s biological parents are wrongfully withholding visitation and the grandparents brought the action in good faith, the judge may grant the petition.

A gray divorce can mean a unique set of family and financial circumstances. For a free consultation with an experienced Naperville divorce attorney, contact our office. We have been a fixture in downtown Naperville for over 40 years.

Alimony In The Land Of Lincoln

July 20th, 2015 at 4:24 pm

spousal support, Illinois, Illinois divorce attorneyThe wave of spousal support laws that is currently moving across the country, especially in states like Florida and New Jersey, made landfall in Illinois earlier this year. In response to reformers who claimed that alimony laws gave too much discretion to judges and led to sometimes indefensible results, the State Legislature significantly reworked the law. Spousal support is still an important component in most divorce proceedings, although the new law makes an award a two-step process.

Need

According to the new Section 504 of the Illinois Marriage and Dissolution of Marriage Act, the court retains discretion to determine whether or not maintenance is appropriate in a given situation. The judge may consider a number of factors, including:

  • Parties’ Income: This inquiry considers both the payor spouse’s ability to pay and the payee spouse’s financial need, when taking into account the parties’ employment or business income along with any property, especially income-producing property, received in the divorce settlement.
  • Non-Economic Contributions: Some spouses delay career advancement, or leave the workforce altogether, to care for minor children, and this sacrifice may have a significant bearing on their earnings potential.
  • Standard of Living: Divorce almost always means a reduced standard of living for both spouses, but the reduction must be roughly equal for both parties.
  • Marital Agreement: Most judges defer to any formal or informal agreement between the spouses that is not manifestly unfair.

Other factors include the duration of the marriage, which is discussed further in the next section, tax consequences to the parties, the relative ages and health of the spouses, and “any other factor that the court expressly finds to be just and equitable.”

Amount and Duration

Although the judge has some discretion to deviate from the guidelines, the State Legislature clearly intended for the payments to be tied to a specific formula, at least in most cases. According to subsection (b-1), the amount is 30 percent of the payor’s gross income minus 20 percent of the payee’s gross income, and the length of the order is a multiple based on the length of the marriage.

Assume that Husband and Wife are getting divorced after 15 years of marriage. Husband earns $100,000 per year, and Wife earns $25,000. Wife would be entitled to $25,000 ($30,000 minus $5,000) per year for 12 years; in most cases, a judge would order monthly payments of $2,083.33 per month.

Spousal support is typically an important component of a property settlement. For a free consultation with an experienced Naperville divorce attorney, contact our office. Convenient payment plans are available.

Marital Property Division In Illinois

July 15th, 2015 at 2:08 pm

property division, divorce, Illinois family law attorneyThe Land of Lincoln is an equitable distribution state, and “equitable” is not necessarily the same thing as “equal.” Although dividing property can be a drawn-out process, it is important to do it right the first time, because divorce decrees are rather difficult to undo later. For the most part, marital property division is a three-step process.

Locate

The parties typically exchange financial information, such as bank account records and tax returns, within a month or so after the petition is filed. However, these documents often give an incomplete profile of a person’s financial status, either due to unintentional gaps in the records or the party’s efforts to conceal assets.

There are a number of telltale signs that your attorney looks for, in order to pursue hidden assets. Some indicators include:

  • Evasive or inconsistent answers to financial questions,
  • Regular account statements that are suddenly redirected to a different email address or stop coming altogether,
  • Correspondence addressed to unfamiliar business entities, and
  • Unexplained changes in account balances.

There may be a perfectly innocent explanation for all these things, but their existence is a signal for a diligent attorney to dig a little deeper and ask more questions.

Classify

Section 503(a) of the Illinois Marriage and Dissolution of Marriage Act clearly defines the difference between “marital” and “non-marital” property. In a nutshell, non-marital property is anything acquired before the marriage or by gift.

Pragmatically, however, the difference is not always so clear cut. Assume that a wife buys a car shortly before the marriage, and continue to use funds from her paycheck to make the payments. Although the car itself is non-marital property, the money from her paycheck is marital property and should be subject to property division.

In cases like this, funds are commingled, and ownership must be clearly established. Typically, the contributing estate – in this case, the marital estate – is entitled to reimbursement for the value of its contribution to the receiving estate.

Divide

In this phase, the court must consider a number of factors. Some of the more prominent considerations include:

  • Duration of the marriage;
  • Valid agreements between the parties, including prenuptial and postnuptial agreements;
  • Current and future economic circumstances of the spouses;
  • Spousal maintenance; and
  • Custody of minor children.

The judge must divide property in a manner that will not create an unreasonable financial burden for either spouse. This includes such concerns as maintaining payments on the marital home and tax liabilities resulting from the allocated assets.

Property must be located and classified before it can be properly divided. For a free consultation with a thorough Naperville divorce attorney, contact our office. Our firm has been a fixture in downtown Naperville since 1973.

Premarital Agreements: A Good Start

July 8th, 2015 at 4:14 pm

premarital agreement, prenuptial agreement, Illinois family law attorneyMost would probably agree that money is a source of friction in many marriages and personal relationships. This friction can lead to serious disagreements and eventually erupt into open conflict, and perhaps even divorce. A premarital agreement gives couples the opportunity to address financial issues before this friction develops, so it never has the chance to become a wedge that separates man and wife. These contracts are especially well-suited for second and subsequent marriages, because in addition to financial matters, the parties can make inheritance and other testamentary provisions.

Illinois law encourages the use of marital agreements to resolve actual and potential conflicts, since mutual understanding is almost always a better option that expensive and time-consuming litigation.

Elements of a Premarital Agreement

These agreements are basically like any other contract, in that certain elements must be in place to make them enforceable. There are two areas of note.

First, although oral contracts are enforceable, in most cases, a spousal agreement must be written. Second, it must contain consideration. In other words, both parties must either receive something that has tangible value or give up a right they would otherwise be able to exercise.

What It Can Do

Under the law, a premarital agreement can cover almost any potential source of conflict, including:

  • Mortgage and real property management rights;
  • General rights to marital property;
  • Elimination or modification of spousal support;
  • Property disposition upon divorce or separation;
  • Ownership of a life insurance policy;
  • Choice of law provisions;
  • The making or execution of a will or trust; and
  • “[A]ny other matter” that is “not in violation of public policy or a statute imposing a criminal penalty.”

Child support is off limits, as these provisions are not part of the marital property settlement, even though money technically changes hands. Matters related to the children of the marriage must be addressed at the time of divorce.

Enforceability

In addition to their potentially broad nature, spousal agreements are also relatively easy to enforce. However, there are two defenses:

  • Lack of Voluntariness: Illinois law basically requires physical coercion in this area; even a statement like “sign this agreement or the marriage is off” may be insufficient to show involuntariness.
  • Unconscionable When Made: If the agreement becomes one-sided later, for example, if a company goes public and its value skyrockets, that development is not a defense to enforcement. In addition, parties seeking to invalidate an agreement must prove that they did not receive a “fair and reasonable” disclosure, did not waive the right to further information, and could not ascertain that information.

A premarital agreement can help get a marriage started on a sure foundation. For a free consultation with an experienced Naperville family law attorney, contact our office. After-hours appointments with a lawyer are available.

 

Evidence-Based Divorce in Illinois

June 24th, 2015 at 6:16 pm

divorce, at-fault divorce, Naperville Family Law AttorneyThe majority of marriage dissolution actions, both nationwide and in The Land of Lincoln, are no-fault divorces. These divorce actions are easy to prove, as they require only the testimony of one spouse that the couple has “lived separate and apart” for the requisite period and “irreconcilable differences have caused the irretrievable breakdown of the marriage.” Even if the non-filing spouse insists that the parties can reconcile, the judge will most likely conclude that the spouses are obviously not on the same page, and that future reconciliation attempts would be fruitless.

All that being said, a fault divorce may be a better option, in many cases. Some people have very compelling personal or religious reasons for wanting or needing a declaration of marital fault. Perhaps more importantly, the waiting period in an evidence-based divorce is always substantially shorter, or maybe even nonexistent.

Grounds for Divorce

Section 401 of the Illinois Marriage and Dissolution of Marriage Act sets forth nine grounds for divorce, in addition to the no-fault provision:

  • Impotence: If either spouse is naturally incapable of having children, a divorce maybe granted.
  • Desertion: The absent spouse must remain away for at least a year; any period of legal separation or divorce litigation may be included in this calculation.
  • Alcohol or Drug Use: The addiction must last at least two years, and it must be so powerful that it “becomes a controlling or a dominant purpose of his life.”
  • Attempted Murder of a Spouse: The filing spouse must prove that there was “malice” in the act.
  • Physical or Mental Cruelty: “Once is happenstance, twice is coincidence, and three times is enemy action,” according to spy novelist Ian Fleming. A similar analysis applies here, although two instances may be sufficient, in some cases.
  • Intentional Infliction of a Sexually Transmitted Disease: This one really needs no further explanation.
  • Criminal Conviction: The statute limits the scope to a felony or “other infamous crime,” but does not define the latter term.
  • Bigamy: It is both illegal and grounds for divorce to be married to two different people at the same time.
  • Adultery: Any physical romantic relationship, with or without sexual contact, is legally adulterous. Pornography, online adult chat rooms, and other “virtual affairs” are in a grey area.

It is a defense to prove that the petitioner caused or provoked the offending conduct; for example, a spouse who left the marital home for more than a year to escape the threat of physical cruelty in unlikely to be found at-fault for abandonment.

Both evidence-based and no-fault divorces are available in Illinois. For a free consultation with a compassionate Naperville divorce attorney, contact our office. Convenient payment plans are available.

 

Over the Line: Moving Children Out of State after a Divorce

June 16th, 2015 at 1:02 pm

out of state, relocation, Illinois family lawyerDivorce can often have a various surprising impacts on a family’s life long after the case has run its course. One common way that this has been seen in recent years is the issue of relocation, a parent with custody moving the child out of state. Custodial parents are not free to do this on a whim. Instead, they need a court order before they will be allowed to take the child out of state. This has become a major issue in recent years with more and more parents moving out of state as they look for work. Consequently, parents should be aware of how courts decide relocation cases, and the impact that a relocation decision can have on a visitation schedule.

How Courts Decide Relocation Cases

The major issue with relocation cases is that if only one parent is moving out of state, uprooting the child can interfere with the relationship between the child and the non-custodial parent. Therefore, courts are leery of allowing that without good reason, and the moving parent must demonstrate that the move would be in the child’s best interests. Illinois law provides five concrete factors that courts should look to when determining what the child’s best interest is. The five factors are:

  • The likelihood that moving would increase the child and custodial parent’s quality of life;
  • The custodial parent’s motives in asking for the move;
  • The noncustodial parent’s motives in objecting to the move;
  • How the move would impact the noncustodial parent’s visitation rights; and
  • Whether the court could implement a realistic visitation schedule if it allows the move to go forward.

If the court decides that, on balance, these five factors make it seem as though the move is in the child’s best interests, then the court will likely grant the custodial parent the ability to move out of state with the child. Additionally, the court will also likely reconfigure the visitation schedule to accommodate this.

Visitation after Relocation

Visitation scheduling following an out-of-state relocation will be done with an eye towards the practical realities of trying to accomplish visitation at such an increased distance. For instance, courts will probably award longer continuous blocks of visitation to avoid forcing either the child or noncustodial parent to be constantly traveling back and forth. Additionally, these long blocks mean that visitation for children who have been relocated out of state will likely be more concentrated during vacations from school to accommodate these longer blocks.

Filing for divorce is a major decision that can impact a person’s life for years. If you are considering filing for divorce, make sure you get all the information about the process beforehand. Contact a dedicated Naperville divorce attorney today to learn more about how the divorce process works.

Options for Collecting Delinquent Child Support

June 9th, 2015 at 8:18 am

Illinois divorce attorney, Illinois child support attorney, Illinois family law attorneyPeople rarely think about what happens after a lawsuit comes to an end. Whenever a movie focuses on a legal proceeding, once it ends the credits start rolling. However, real life often does not wrap up as neatly. This is especially true in divorce cases involving child support. While some supporting parents dutifully send a check each month, many attempt to avoid it. In those instances, parents of children who are owed child support should know that they have a variety of options for enforcing that support obligation ranging from wage garnishment to state-imposed criminal penalties.

Wage Garnishment

One of the most effective ways to enforce a child support obligation is through the use of a wage garnishment. A wage garnishment is a procedure under Illinois law that allows someone who is owed money to take that money directly from the debtor’s paycheck. In a practical sense, this is done by having a court direct the debtor’s employer to pay some portion of that check to the child being supported, rather than giving it to the supporting parent.

However, there are some limitations on a wage garnishment proceeding. First, a person must be earning a minimum amount of money before that person’s wages may be garnished. In Illinois, that amount is $371.25 a week. Additionally, even if a person makes enough for their wages to be garnished, the law places a limit on the total amount that may be taken. Ordinarily, Illinois law caps it at 15 percent, but the fact that the debt is child support raises that cap to 50 percent, and possibly even higher.

State-Imposed Penalties

If wage garnishment is not an option, there are also a variety of state-imposed penalties that people can seek, either directly or through the appropriate state agency. One common penalty is contempt of court. Child support is a court order, and court orders are legal documents that come with consequences if someone disobeys them. In this case, if a supporting parent cannot show good cause for why they have not been paying the support, then the court may impose jail time on them.

In more serious instances, failure to pay child support may also be a crime. Illinois law makes it a felony offense to willfully fail to pay child support for more than six months or to the point where the debt becomes greater than $5,000. If that happens, then the delinquent parent may end up facing a prison sentence of one to three years.

Children have a legal right to be supported by their parents. If your former spouse is failing to obey a court order to pay child support, contact a skilled Naperville family law attorney today to learn more about your options for collecting the money owed to your child.

Time Value of Money: What People Need to Understand about Time, Money, and Divorce

June 2nd, 2015 at 9:08 am

Illinois divorce lawyer, Illinois family law attorney, division of assets,Which is better: $100 today or $100 tomorrow? The fact that that is an easy question demonstrates an intuitive, but important, concept about money: it decreases in value over time. However, that simple principle can lead to much more complicated questions, especially when it comes to divorce. For instance, what if the question had been, “Which is better: $100 today or $200 in a year?” or “a $300,000 marital home now or a retirement account that will be worth $400,000?” These more complicated questions require more than just an intuitive understanding that money now is better than money later. They require the understanding of something known as the time value of money.

The Time Value of Money

The time value of money is a concept used by economists to calculate how much a certain amount of money at one time would be worth at another time. Of course, just going through a divorce does not require a nuts and bolts knowledge of how to figure out the time value of money, but understanding the basic principles can help people make smart decisions when it comes to dividing up the marital property.

The basic idea behind the time value of money is that there are a variety of things that make money now worth more than that same amount of money in the future, including lost profits, risk, and inflation. As far as lost profits goes, money that people have can be invested for a profit. Even money that just sits in a savings account earns interest. The problem of risk relates to the risk that the payment will not actually come through. As promises of payment get made further and further into the future, more and more potential obstacles to payment appear, such as the spouse who is obliged to pay suddenly losing their job or falling ill. The final problem is one of inflation, which creates issues because money loses purchasing power over time during the ordinary growth of the economy.

Why This Matters in Divorce

This general decrease in the value of money over time is important in divorce because much of the property division process involves negotiation and tradeoffs between current obligations and those in the future. Take the example from the beginning about a $300,000 marital home and a $400,000 retirement account. Comparing those items is difficult for a variety of reasons, such as the unique benefits provided by a home and the upkeep costs associated with home ownership. Of course, one of the major difficulties is comparing the value of the home, which is immediately available, with the retirement account, which may not be accessible for decades. While the comparison could be done by hand, there are a variety of calculators online that can make the process easier.

Divorce is a complex process, and the legal issues represent only some of the considerations that go into it. If you are considering a divorce and want to learn more, contact a skilled Naperville divorce attorney today.

What Qualifies as Income for Child Support?

May 26th, 2015 at 8:55 am

Illinois divorce attorney, Illinois family law attorney, Illinois child support lawyerOne of the largest financial impacts that divorce has is the assignment of child support, a regular check designed to see that a child’s needs are met despite their parent’s having separated. Illinois law determines child support as a percentage of the supporting parent’s net income. However, this raises some important questions, namely “Exactly what qualifies as income?” and “What sorts of expenses can be netted out of that income?” As it happens, the Illinois statute governing marriage lays out the basic rule in section 505, but that basic rule can be subject to some complications.

What Qualifies as Income

The basic definition of net income in Illinois law is slightly circular. The law ends up violating that old classroom rule about never using a word to define itself, and states that net income is “all income derived from all sources” minus certain allowable deductions. This definition has left it up to the Illinois courts to determine what qualifies as income.

Courts have generally interpreted this language broadly to sweep most financial gains of the parents into their income. This is because Illinois has a stated public policy of wanting to maximize child support awards in order to benefit children, and this broad definition of income helps with that. Consequently, many unusual types of income are included in the child support calculations, even if they are only one-time things. Some examples of things that can be considered income under Illinois law include the sale of stock, lottery winnings, and employee bonuses or housing stipends.

However, in some of those cases it can be a little more complicated. For instance, an Illinois appellate court recently dealt with the issue of when a stock sale counts as income. The supporting spouse had received the stock as a gift from his father-in-law during the marriage and he sold it after the divorce for a loss. His wife argued that the sale should be included in his income for child support purposes, but the court disagreed because the sale of depreciated stock realizes a person’s decreased net worth.

Allowable Deductions

Once the court has figured out what qualifies as income, the law lays out a set of specific deductions that they are allowed to take from it. These deductions include:

  • Federal and income taxes;
  • Social Security payments;
  • Retirement contributions;
  • Union dues; and
  • Certain necessary medical expenses.

The full list of allowable deductions is laid out explicitly in section 505 of the Illinois statute.

Trying to determine the full financial impact of divorce can involve applying some complex legal rules. If you are considering a divorce and want to learn more about how it might affect you, contact a skilled Naperville divorce lawyer today for more information.

Proposed Law Would Speed up International Adoptions

May 19th, 2015 at 8:29 am

Illinois family law attorney, Illinois adoption lawyer, Illinois adoption laws,While all adoptions involve no small amount of legal requirements and bureaucracy, international adoptions can add some extra difficulties because of the many different government entities involved. This is especially true in Illinois. Illinois is the last state in the country to have a position known as an Intercountry Adoption Coordinator. The Intercountry Adoption Coordinator is an additional state office official that needs to approve an international adoption on top of the usual offices that need to approve it in other states. This creates problems because it slows down the process, and lets adoptions rest on the unpredictable judgment of one person.

In recognition of this concerns created by the office, a bill has been introduced in the Illinois House to remove the Intercountry Adoption Coordinator’s position, allowing the international adoption process to move more predictably and more swiftly. Currently, the bill is awaiting debate in the Illinois Senate before it can potentially be voted on.

The Intercountry Adoption Coordinator

The Intercountry Adoption Coordinator is a position within the Illinois Department of Children and Family Services who is responsible for approving international adoptions in Illinois. The Intercountry Adoption Coordinator enters the process following the home study, a written report performed by a social worker who investigates and interviews the potential parents. That home study then goes to the adoption coordinator who must approve the findings in it before the adoption is allowed to proceed.

The New Bill

The new bill eliminates the Intercountry Adoption Coordinator based on two concerns about how the position hinders the international adoption process. First, the extra layer naturally slows down the process. This is especially true because there is only one person who can make the approval, which forms a bureaucratic bottleneck. It comes after a licensed social worker has already studied and approved the adoption. However, the Intercountry Adoption Coordinator can request extra documentation beyond that study, which can slow the process down even more.

Beyond the issues with speed, the bottleneck created by the Intercountry Adoption Coordinator also creates concerns about predictability. Leaving the decision up to one person introduces their own views and feelings into the mix. While the Intercountry Adoption Coordinator has the best interests of the child at heart, they are still only one person and there are many issues with adoptions that reasonable people could disagree about. Having only one person act as a gatekeeper makes it difficult to determine which side of those issues they will come down on.

Importantly, the bill still needs to make its way through the Illinois State Legislature before it becomes law. Regardless, dealing with the legal complexities surrounding international or domestic adoptions can be difficult. If you are considering adoption and want to learn more about the process, contact an experienced Naperville family law attorney today.

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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), powers of attorney for over 60 combined years to residents of Naperville, Aurora, Bolingbrook, Wheaton, Warrenville, Winfield, Downers Grove, Lisle, Kendall County, DuPage County, Kane County, and Will County in Illinois.

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