September 29th, 2015 at 2:02 pm
Most family court judges uphold the agreements between parties to the greatest extent possible, provided that the agreements fall within certain parameters. However, just because a person’s signature appears on a written document, or assent is given to an oral agreement, does not mean that the pact was entered into voluntarily and knowingly. What must a spouse prove to render a premarital agreement unenforceable?
Setting Aside a Prenuptial Agreement
In terms of voluntariness, most Illinois courts require some sort of physical coercion to set aside the prenuptial agreement. In fact, Illinois courts have specifically held that a “sign or else” ultimatum is not coercive. Courts in nearby states have made similar rulings regarding the bride’s pregnancy and the sudden appearance of a premarital contract.
While it is almost impossible to prove coercion, the second possibility – that the agreement was unconscionable when made – is not as difficult to establish.
The first point is that the agreement must be unconscionable “when made.” Although it took place in California, the Frank and Jamie McCourt divorce is a good example of this concept. Ms. McCourt agreed to relinquish her ownership share in the Los Angeles Dodgers for pennies on the dollar, at a time when the franchise’s value was extremely low. Later, when Mr. McCourt sold the resurgent team for a record amount, Ms. McCourt could not prove that the contract was unconscionable at the time she signed it.
In Illinois, unconscionability also has an objective element. In addition to unfairness, challenging parties must prove that they did not:
- Waive, in writing, the right to a full property disclosure,
- Have an adequate knowledge about the amount of property, and
- Receive a fair and reasonable disclosure of the other party’s property or financial obligations.
In other words, the judge will probably uphold the agreement if the non-challenging spouse can show any fault on behalf of the signing spouse.
Although prenuptial agreements can limit the amount, duration, or frequency of maintenance payments, such limitation cannot create an “undue hardship.” The same Illinois court which ruled that an ultimatum was not coercive also ruled that a spouse’s reduction from a “lifestyle of luxury” to a $24,000 annual salary was not an undue hardship.
The best approach in premarital agreements is to have aggressive representation at the time it is signed. For a free consultation in this area, contact an experienced Naperville family law attorney. After-hours appointments are available.
September 26th, 2015 at 2:10 pm
Most states do not consider a new spouse’s income when determining a child support obligation, under the theory that step-parents do not have a legal obligation to financially support their step-children. But courts often interpret Illinois law in a different manner, due in large part to a case from the Second District Court of Appeals in northern Illinois.
In In re Marriage of Drysch, a case that originated in Kane County, the court considered the division of college expenses pursuant to a reservation clause in a 1988 divorce. Since that time, Father had maintained basically the same standard of living and same income. His most recent tax return declared an annual income of roughly $80,000, part of which was attributable to his new wife. However, Mother had married a successful real estate broker with an annual income exceeding $620,000; he also paid his wife a $50,000 annual salary.
Furthermore, Father and his son were not at all close. Testimony indicated that they had not seen one another in at least three years following an altercation that resulted in a restraining order, and the son had legally changed his last name to that of his step-father.
Based on this evidence, the trial court ordered Father to pay 10 percent of the son’s educational expenses, citing the income discrepancy between the two households and the estrangement between Father and son. In upholding the financial portion of the division, the appeals court relied on Section 513 of the Illinois Marriage and Dissolution of Marriage Act. This provision states that, when apportioning college expenses, a court must consider:
- Financial resources of both parents;
- The standard of living the child would have had if the parents remained married; and
- Financial resources of the child.
The court concluded that both Mother and her son had access to her new husband’s considerable financial resources, and that the son’s standard of living would have been considerably lower if Father and Mother had remained married. However, the court also declared that the trial judge’s consideration of the relationship between Father and son was improper.
The court specifically held that “it is likely that both parties pool their resources with those of their second spouses, so that their assets and liabilities are substantially intertwined.” In other words, a new spouse’s income may also be relevant when assessing a motion to modify child support based on increased income.
Judges have broad discretion to deviate from the child support guidelines, given specific fact patterns. For immediate assistance in this area, contact an experienced Naperville family law attorney today. Convenient payment plans are available.
September 17th, 2015 at 3:06 pm
In most child custody cases, the primary focus is understandably on the immediate family, or the parents and children. But there are nearly always secondary caregivers as well, including grandparents. According to the government, it is quite common for grandparents to spend a considerable amount of time with their grandchildren; as a matter of fact, over four million households contain both grandparents and grandchildren.
Unfortunately, after a divorce, weekend sleepovers and other treasured activities are sometimes replaced by weak excuses as to why the children cannot come as scheduled. Often, divorced caregiver parents feel no emotional connection with their former in-laws, and non-custodial parents hesitate to share their parenting time. In other situations, the parents may feel that denying visitation to grandparents is a way to “get back at” their former spouses.
Section 602.9(c) of the Illinois Marriage and Dissolution of Marriage Act directly addresses these situations, and empowers grandparents to legally maintain contact with their grandchildren. To secure visitation rights, which may differ based on the circumstances of the family, the grandparents must prove that there is an “unreasonable denial of visitation by a parent that causes undue mental, physical, or emotional harm to the child.” When considering this factor, the judge may consider whether or not the child:
- Lived with the grandparent petitioners for at least six months;
- Had “frequent and regular contact or visitation” with the petitioners for at least 12 months; or
- Was left with the grandparents as the “primary caretaker” for at least six consecutive months during the preceding two years.
In addition, at least one of the following five factors must be present:
- A parent is deceased or has been missing for at least 90 days;
- At least one parent does not object to grandparent visitation, and the requested time does not diminish the parenting time of the unrelated parent;
- A judge has declared a parent to be legally incompetent;
- A parent has been incarcerated for at least 90 days; or
- The parents were never married.
The second factor is the one most commonly present. Typically, for practical purposes, the biological child carves out some of his or her parenting time and relegates it to his or her parents.
For a confidential consultation with an experienced Naperville family law attorney who is dedicated to giving grandparents and other secondary caregivers a voice in child custody proceedings, reach out to us today.
September 8th, 2015 at 3:42 pm
The adultery website Ashley Madison is facing yet another potential class-action lawsuit, in the wake of a serious data breach in August 2015. What impact, if any, does this development have on property division actions in Illinois?
In the latest action, California resident “John Doe” claims that the website’s parent company, Canada-based Avid Life Media, failed to permanently delete account records, despite its promises to do so and collection of an additional $19 fee from each member. The lawsuit also states that the company negligently failed to take the proper precautions to protect “particularly sensitive” information that users submitted, given the rash of high-profile hacks over the past several years. Finally, court papers claim that Avid Life Media failed to promptly disclose the breach to possibly-affected members.
The lawsuit demands unspecified damages.
Adultery in Property Division Matters
Fault in the breakup of the marriage – including adulterous conduct – is not admissible in a divorce property division matter. However, a clever lawyer may be able to get this information before the judge and, perhaps more importantly, make adultery, or even attempted adultery, a matter of public record.
Under the Illinois Marriage and Dissolution of Marriage Act, dissipation of marital property is a factor in determining an equitable property division. Although waste is typically associated with items like failing to maintain real property or an ostentatious and extravagant lifestyle, purchasing gifts for a girlfriend, or even using funds from a paycheck (which is marital property) to pay membership fees on a website, may also qualify as dissipation.
The length of the marriage is yet another factor. An argument can be made that if Husband had not committed adultery, the marriage would have lasted longer, and Wife would therefore be entitled to a greater share of the marital property.
If nothing else, marital infidelity may be used as leverage during settlement negotiations. If Wife possesses evidence of Husband’s adultery, he may think twice before rejecting a somewhat unfavorable settlement offer and proceeding to trial. The same logic applies earlier in the process: Husband may come to the bargaining table to avoid disclosing embarrassing and potentially damaging information. This is particularly true if Husband is a government or military employee, as adultery is grounds for revocation of a security clearance or even termination, in some cases.
For a confidential consultation with an experienced Naperville divorce attorney who tenaciously fights for your share of the marital estate, contact our office. Convenient payment plans are available.
August 31st, 2015 at 1:56 pm
Illinois supporting parents currently owe approximately $3 billion in unpaid child support, and a new law hopes to address not only the numbers, but also the reasons behind the numbers.
House Bill 2791, which took effect July 30, challenges the notion that past-due supporting parents are simply “deadbeat dads” who refuse to pay. Instead, State Representative Camille Lilly (D-Chicago), the bill’s sponsor, believes that parents fall behind because they are unable to pay. Accordingly, the new law directs the Division of Child Support Services to “identify and minimize barriers to paying child support so as to decrease the total amount of unpaid child support in Illinois.”
The study will develop an accurate demographic profile of delinquent parents, including their incomes, the ratio of the child support amount to that income, primary language spoken, employment history, and criminal history. The study will also examine any “institutional barriers” to collection and assess any impact that unpaid child support has on a supporting parent’s ability to get a job.
In an accompanying statement, Rep. Lilly stressed that HB 2791 is designed to make the system more efficient and not give past-due supporting parents the chance to justify their actions.
Child Support in Illinois
The impetus behind HB 2791 is the idea that delinquent payors are predominantly poor and nonwhite, employers do not hire them because of their negative credit histories and possible issues regarding withholding orders, and the collection system is inefficient and biased. Whether or not these things are true remains to be seen.
Although some other states have reworked their child support laws to account for the relative incomes of the parents, the amount of time they spend with their children, and other factors, the State Legislature did not really incorporate any of these changes into the new Senate Bill 57. Instead, Illinois is still a straight percentage-of-income state, albeit with a twist.
The child support guidelines state that supporting parents must pay a percentage of their net incomes on a scale that starts at 20 percent for one child and ends at 50 percent for six or more children. “Income” is broadly defined to include imputed income, if the court finds that the supporting parent intentionally quit a high-paying job to avoid paying child support.
The court may deviate from the guideline amount if it finds that such action is necessary after considering the children’s:
- Educational, emotional, and physical needs;
- Probable standard of living if the parents lived together; and
- Financial needs and resources (this factor also applies to the parents).
Either party may typically file a motion to modify the amount based on a permanent and unanticipated change in circumstances.
A measure of financial security is important to both children and parents. If your family is dealing with child support issues, contact an experienced Naperville family law attorney for a confidential consultation. After-hours appointments are available.
August 24th, 2015 at 4:02 pm
When the “Modern Family” law takes effect this January, it will fundamentally reshape the way family law cases move through the system and are ultimately decided. In addition to the subjects covered in previous blogs, there are a few other significant changes.
Modification and Property Division
While the change to in-state and out-of-state modification is by far the most important alteration, there are a few others of note. For example, child support can be made permanent by agreement of the parties, meaning that it cannot be modified absent extraordinary circumstances.
As for property division, the new Section 503 expands the marital property presumption and a change in classification must be supported by clear and convincing evidence. A related provision changes the rules when dealing with commingled property. Finally, the new law explicitly states that the trial date is the property valuation date, which can significantly affect retirement account balances and other figures. If necessary, a judge has the power to appoint a financial expert and divide the expense between the parties.
The Legislature included an entirely new section on this issue, which was sorely needed, because current law is very uncertain.
Any award can be made payable to an academic institution, a child, or a party. The obligation terminates if the child’s average drops below “C” or a similar ending event occurs. Furthermore, either party may bring a petition for children’s’ educational expenses through age 23, or age 25 in some circumstances. These expenses are defined as:
- Tuition and Fees: This amount is capped at the cost of the University of Illinois in a given year; a party can also demand reimbursement for books and supplies;
- Room and Board: Similarly, the amount is capped at the cost of a double-occupancy dorm room and standard meal plan at the University of Illinois Urbana-Champagne;
- Medical Costs: The petition may demand the actual cost of both medical insurance and uninsured expenses; and
- Living Expenses: This category includes all living expenses during recess periods, such as food, utilities, and transportation.
A future post will examine the new Section 602.7, which rewrites the way that divorced parents interact with their children.
It is safe to say that Senate Bill 57 is one of the most sweeping family law reform measures in the state’s history. For a confidential consultation with an experienced Naperville family law attorney that understands all the implications of these changes, contact our office. Convenient payment plans are available.
August 17th, 2015 at 7:24 am
A sweeping new family law bill will take effect January 1, 2016, greatly changing the Illinois Marriage and Dissolution of Marriage Act (IMDMA). In addition to the end of “heart balm” actions, changes to modification proceedings, and the elimination of evidence-based divorces, there are some other relevant changes.
Child Custody Provisions
Many critics complain that most states, perhaps unintentionally, place too much emphasis on “winning” and “losing” child custody disputes. Senate Bill 57 is a direct response to these faultfinders.
The law replaces the term “custody,” which has some negative implications, with the phrase “parental responsibility allocation.” Although it is somewhat unwieldy, the words more accurately reflect the idea of shared parenting responsibilities in a divorced household.
Senate Bill 57, or the “Modern Family Law,” is much more than window dressing. The Legislature amended Section 102, including a few more overarching principles for family law cases. The new guideposts include:
- Protecting minor children from exposure to “conflict and violence,”
- Discouraging novel or unusual solutions,
- Accelerating the process, to the greatest extent possible,
- Recognizing the importance of joint decision-making after divorce, and
- Making timely support awards, including advances for legal fees and costs, when appropriate.
Court pleadings must be changed in accordance with the new rules; instead of “In Re Custody of XYZ,” they are to be titled “In Re Parental Responsibility of XYZ.”
This proceeding is not eliminated, but it is rather sharply limited. There may have been a concern that legal separation, though originally conceived as a shortcut, simply meant a longer legal proceeding and higher attorneys’ fees, at least in many cases.
In legal separations filed after January 1, 2016, the judge may only grant limited support and enter limited property division orders. Furthermore, all these questions must be entirely re-litigated, if and when a divorce is filed.
In a rather minor change, courts will now require a standardized affidavit in support of these requests. Child support is to be allocated according to parenting time, and there are “significant penalties” for intentionally filing a false affidavit.
There are some more significant changes.
- “Kick-Out” Orders: A judge may only remove a person from the marital residence after the petitioner files an affidavit or verified pleading, and a full hearing is conducted.
- Mediation: If ordered, the costs must be distributed equitably, as opposed to equally; the matter may be revisited in the final order.
- Prohibition on Extraordinary Expenditures: This subsection is entirely omitted.
There are still more changes in this law. For a confidential consultation with an experienced Naperville family law attorney, contact Roscich & Martel Law Firm, LLC. Although we have access to a vast network of resources, we strive to maintain a small-town atmosphere. Call 630-355-5222 today.
August 10th, 2015 at 3:51 pm
Governor Bruce Rauner recently signed Senate Bill 57 into law. The measure significantly reworks many portions of the Illinois Marriage and Dissolution of Marriage Act. While some of these changes are largely cosmetic, others have a significant effect on divorce cases.
It is no secret that the American family is changing. According to the Pew Research Center, 71 percent of American children lived in a “traditional” household – a married man and woman who were on their first marriage, along with their biological children – in 1960. By 1980, the figure had dipped to 61 percent; in 1994, for the first time in history, the number dropped below 50 percent.
To cope with the new reality, the Illinois House actually passed the so-called “Modern Family” bill in 2014, but it died in the Senate. Effective on January 1, 2016, Senate Bill 57 will be the law of the land.
Heart Balm Actions and Evidence-Based Divorces
The first section of the new law prohibits court action for alienation of affection; these “love triangle” negligence lawsuits often arise from divorces that are granted due to adultery, when a jilted spouse sues the person that broke up the marriage.
In a closely-related provision, Senate Bill 57 eliminates all grounds for divorce other than irreconcilable differences. The two-year waiting period for no-fault divorces is reduced to six months, and even that period can be waived, in certain circumstances and if both spouses agree.
Waste of marital assets, which can be a back door to admit evidence of adultery during property division proceedings, is still admissible. In a similar vein, emotional, verbal, and physical abuse is admissible in a protective order proceeding.
Existing law requires custodial parents wishing to move out of state to obtain court approval, while an in-state move requires no such permission. This provision often leads to seemingly unjust results: a move from Chicago to the Illinois side of the Kentucky border (300 miles) is perfectly legal, while a move from Chicago to Gary, Ind. (30 miles) requires judicial approval.
Senate Bill 57 imposes a flat 25-mile provision for most of the state. Any distance greater than that, the relocating party must file a motion with the court. In Cook County, and the five contiguous counties, the maximum distance is 50 miles.
In future posts, we will examine the sweeping changes to custody and support provisions.
Just like the family itself, Illinois family law is changing. For a consultation with an experienced Naperville divorce attorney who understands all the ramifications of the new law, contact our office. After-hours appointments with an attorney are available.
July 27th, 2015 at 3:39 pm
Older 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.
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.
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.
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 confidential consultation with an experienced Naperville divorce attorney, contact our office. We have been a fixture in downtown Naperville for over 40 years.
July 20th, 2015 at 4:24 pm
The 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.
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 consultation consultation with an experienced Naperville divorce attorney, contact our office. Convenient payment plans are available.