Three Cs: The Benefits Of Mediation

February 8th, 2016 at 8:49 pm

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

What’s Mine Is Mine

January 25th, 2016 at 2:58 pm

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

 

Coming Attractions

January 11th, 2016 at 3:55 pm

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

Laying the Foundation

January 4th, 2016 at 3:52 pm

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

Paying for College in Illinois

December 28th, 2015 at 4:38 pm

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

Grandparent Rights in Illinois

December 21st, 2015 at 1:56 pm

grandparents, rights of grandparents, Illinois family law attorneyA child’s relationship with his or her grandparents is often collateral damage in a child custody case, but Illinois law gives you the tools to reverse the damage, or at least minimize it.

Typically, these disputes arise when a former daughter- or son-in-law receives custody of minor children and refuses to allow them to visit their former in-laws. It may also be theoretically possible for grandparents to file an action for visitation against their biological children, although these instances are somewhat rare.

Section 607 of the Illinois Marriage and Dissolution of Marriage Act does not define the visitation period – it simply says that grandparents, great-grandparents, aunts, and uncles may be granted the right to “reasonable” visitation under certain circumstances – but most grandparent petitioners request one weekend per month.

Preliminary Questions

Obtaining visitation rights as a nonparent is somewhat difficult, although certainly not impossible. The first step is to overcome the presumption in Section (a-5)(2) that “a fit parent’s actions and decisions regarding grandparent, great-grandparent, or sibling visitation are not harmful to the child’s mental, physical, or emotional health.” In other words, the court defers to a parent’s decisions in this area unless the petitioner grandparent can show that the denial of visitation is harmful to the children. In reaching its decision, the court will look to the:

  • Children’s preference,
  • Nature of the relationship between grandparents and grandchildren, and
  • Intentions of the grandparents (i.e. was the action brought in good faith).

Just as importantly, the court will inquire as to whether the grandparents were the primary caretakers of the grandchildren for at least six months.

Next, the grandparents must show that there has been an “unreasonable” denial of visitation. This term is not defined, so it is up to the judge to determine what behavior is reasonable and what behavior crosses the line.

The Next Step

Once the presumption is overcome and the parent’s behavior is deemed unreasonable, the grandparent petitioners must establish one of the following:

  • The children’s other parent is deceased, incarcerated, or incompetent,
  • The petitioners are close blood relatives, or
  • One parent does not object to grandparent visitation.

The third reason is the one most commonly advanced in these cases.

To help ensure that your voice is heard in an ongoing or soon-to-develop custody case, contact an experienced family law attorney in Naperville for a confidential consultation. Convenient payment plans are available.

 

Source:

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=075000050K607

Limitations on Maintenance in Illinois

December 14th, 2015 at 6:19 pm

alimony, maintenance, Illinois divorce attorneyAbout a year ago, some sweeping changes to the Illinois spousal support law went into effect. These changes came in the context of alimony reform that has touched nearly every state in the Union in the last few years. Reformers, who are mostly obligor men, want to sharply curtail spousal support payments and perhaps even do away with the system altogether. Those on the other side, who are nearly all obligee women, make an equally compelling case that cash payments are an important part of an equitable property settlement.

As is typically the case, neither side was particularly pleased with the compromise. Expect both sides to descend on the statehouse in the months ahead to forge additional alterations in the law or roll back the changes that were made.

Threshold Question

Spousal maintenance was once a given in a property settlement. Under the new law, the judge must make an affirmative finding that spousal support is appropriate in that case, based on factors including:

  • Income disparity between the parties,
  • Relative current and future earning capacity of each party,
  • Standard of living established during the marriage,
  • Non-economic contributions to the marriage, and
  • “[A]ny other factor” that the court deems relevant.

So, the nature of alimony has changed very little. Spousal support is still viewed primarily as a vehicle to equalize the standard of living between the ex-spouses.

Guidelines

If maintenance is appropriate under the circumstances, Section 504(b-1) applies as to the amount and duration of payments. The judge may deviate from the guidelines, but must expressly state the reason for doing so in the written order.

The formula determines the amount due by subtracting 20 percent of the obligee’s gross income from 30 percent of the obligor’s gross income; the duration of the payments is based on the length of the marriage.

Assume that Husband earns $70,000 per year and Wife earns $30,000, and that they are divorcing after a 15-year marriage. Husband must pay wife $18,500 per year ($24,500 minus $6,000) for nine years (15 multiplied by 0.6). But the amount is subject to a maximum – the obligee’s gross income cannot exceed more than 40 percent of the couple’s pre-divorce income – and that cap applies in this example. Husband can only pay Wife $10,000 per year to stay under the limit.

The new alimony law is quite confusing. For a confidential consultation in this area, contact an experienced Naperville family law attorney. Convenient payment plans are available.

 

Source:

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

A Change Is in Order

December 7th, 2015 at 3:42 pm

support order, order modification, Illinois family law attorneyWhen a child custody, spousal support, child support, or other divorce-related order becomes unworkable, for whatever reason, many parents execute informal understandings about these matters. Such agreements often consist of little more than an exchange of emails or text messages. Reliance on these side agreements is always a bad idea. Since they are not enforceable in family court, judges largely ignore them.

The fallout is serious. Failure to pay support in precisely the manner stipulated may lead to wage garnishment and other adverse actions; picking up a child outside the written schedule without the specific consent of the other parent is child kidnapping.

Modification is typically a rather straightforward matter. The issues are limited to the relief sought, so school report cards are typically not relevant in a spousal support modification. In a similar vein, anything that transpired prior to the entry of the most recent order is also normally irrelevant. In both these actions, the key phrase is “changed circumstances.” But this term is not really not defined anywhere in the statute.

Changing a Child Support Order

Either party may request a modification of support in either direction, but typically these motions involve a custodial parent’s request for additional support from the non-custodial parent. Courts may consider well over a dozen factors in these matters, including:

  • Good faith employment change (an obligor cannot quit a job to reduce a child support obligation),
  • Increase or decrease in income since the prior order,
  • The needs of the children, and
  • The standard of living the children would have had if the parents were married.

Any change must be in the best interest of the children.

Custody and Visitation Modification

As a rule of thumb, these changes are more difficult to obtain, because most family court judges place a premium on stability. A substantial change in circumstances may include issues like:

  • A breakdown in co-parenting,
  • Consistent interference with child visitation,
  • Verified mistreatment or neglect allegations, and
  • The custodial parent’s health issues, including a problem with substance abuse.

There is normally a two-year waiting period for custody or visitation modifications unless there is a “serious endangerment to the children’s mental, moral, physical, or emotional health.

Sustainable and practical orders are a cornerstone for successful co-parenting. For a confidential consultation, contact an experienced Naperville family law attorney. After-hours appointments are available.

 

Source:

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

The Two Faces of Child Support

November 23rd, 2015 at 2:49 pm

child support, divorced parents, Illinois family lawyerUnder Illinois law, all parents, married or single, have a duty to financially support their children. In the case of married parents, the law assumes, rightly or wrongly, that this financial support takes place. Divorced parents, and those who were never married, must often pay child support. These financial provisions are among the very few that are commonplace in almost all divorce decrees.

Failure to pay child support might mean the suspension of a driver’s license or professional license, a lien placed on certain property, and, if one Illinois legislator has his way, the inability to participate in fantasy sports leagues. So, it is important that child support be set at an equitable level and paid in both a timely and verifiable manner.

Setting Support

Illinois is one of only nine percentage-of-income states, which simply means that obligor parents pay a fixed percentage of their incomes based on the number of children. Most all other states employ some variation of the income-share model, which incorporates the income of both parents when setting child support payments.

In The Land of Lincoln, there is a sliding scale that begins at 20 percent for one child and ends at 50 percent for six or more children. The guideline amounts are presumed to be reasonable, when taking into account the:

  • Financial needs of the children,
  • Resources of the custodial parent,
  • Educational needs of the children, and
  • Standard of living the children would have had if the parents were married.

Either party may request an adjustment based on these same factors, though such variations are difficult to obtain. The amount may be modified upon proof of changed circumstances, like a new job or a pay change.

Paying Support

The best way to pay support is via wage withholding, because payments are transferred instantly and completely verifiable. If wage withholding is not an option – for example, if the obligor is self-employed – direct payment through the Attorney General’s website is almost as good. Sending paper checks to the Attorney General is also an option; the checks must always clearly reflect the account number.

Direct obligor-to-obligee payments, or the agreement to assume certain bills in lieu of paying cash support, is normally a bad idea for both parties. Obligee parents find themselves financially dependent on another person, and since the payments are not verifiable, obligors will have trouble establishing a payment history when disputes arise later.

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

 

Sources:

http://techcrunch.com/2015/10/27/illinois-introduces-legislation-to-regulate-daily-fantasy-sports/

http://www.ncsl.org/research/human-services/guideline-models-by-state.aspx

Now and Then

November 16th, 2015 at 5:52 pm

long-term marriage, divorce, Naperville family lawyerWhy are twice as many long-term marriages ending in divorce today than they were twenty years ago and fueling a so-called “gray divorce” revolution? The answer may be twofold.

First, many people have a different definition of a “happy marriage” today than they did twenty, thirty, or forty years ago. Then, the most important elements in a marriage relationship were security and stability, at least in most households. Now, in addition to these items, many people seek some level of personal satisfaction and self-fulfillment. So, the expectations have changed.

Attitudes about marriage and divorce have also changed. A record number of Americans (70 percent, according to a 2008 Gallup poll) believe that divorce is morally acceptable. In other words, while a self-reflecting question like “Do I really want to stay with my spouse?” was unutterable a generation ago, it is now commonplace. And, given the rising tide of expectations, many marriages simply do not measure up, at least in the minds of a partner.

It only takes a spark to light this fire. For many people, that spark comes with the untimely death of a friend or loved one, retirement, an empty nest, a significant birthday, or some other milestone.

Financial Considerations

While most spouses have largely emotional reasons for seeking a divorce, there are some concrete economic concerns as well, especially for older Americans:

  • Retirement Plans: In most cases, a divorcing spouse is entitled to an equitable share of the funds accumulated during the marriage. Where long-term marriages are concerned, the amount of money can be staggering.
  • Home Equity: In a similar vein, both spouses are typically entitled to a share of the equity in a residence. If a sale and partition is not an option, an owelty lien, which guarantees payout when the house is ultimately sold, may be available.
  • Health Insurance: If Husband and Wife divorce, and both spouses are covered by Wife’s work policy, Husband loses his coverage. New coverage can be difficult to find and afford, especially if Husband has any health problems.

Other economic concerns include the amount and duration of spousal maintenance payments, along with the financial support of adult children.

Gray divorce introduces a unique set of challenges into family law cases. For prompt assistance in this area, contact an experienced family law attorney in Naperville. We regularly serve clients throughout Chicagoland.

Source:

https://www.wellsfargoadvisors.com/life-events/articles/gray-divorce-boom.htm

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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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