April 25th, 2016 at 12:42 pm
With 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.
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.
April 18th, 2016 at 1:29 pm
When 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.
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.
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.
April 12th, 2016 at 3:16 pm
With 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.
April 4th, 2016 at 3:02 pm
Faced 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.
March 28th, 2016 at 12:44 pm
College 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.
March 21st, 2016 at 7:27 pm
In 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.
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.
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.
March 14th, 2016 at 1:37 pm
In 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.
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.
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
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.
March 7th, 2016 at 1:33 pm
For 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.
February 29th, 2016 at 6:45 pm
Only 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.
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.
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.
February 22nd, 2016 at 5:26 pm
While 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.