Divorce litigation affects children, especially if they are living in a contentious atmosphere.  In an effort to minimize the impact of the legal process on children, counties in Illinois have implemented programs and procedures to keep children out of the courtroom, and facilitate resolution of parenting issues in domestic relations cases.  A handful of these programs are summarized here.

 

Mediation

 

Counties in Illinois are required to offer mediation programs for divorcing parents.  If parents are unable to reach an agreement regarding parenting time and the allocation of parental responsibilities, and so long as there are no extenuating circumstances (such as domestic violence), the court will send parents to mediation to try to resolve these issues outside the courtroom.  Judges will often remind parties in a divorce that parents know their family situations and needs best.  As parents, they should take advantage of the opportunity to reach a resolution that is in the best interests of the family, rather than delegating that decision a third party outsider.

 

The mediator does not represent either party and does not give legal advice.  Rather, the mediator’s job is to facilitate conversation between the parties, and hopefully aid them in resolving the matters related to their children.  The mediator will the issue a report stating whether the parties reached a full resolution, partial agreement, or were unable to reach an agreement.


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Section 504 of the Illinois Marriage and Dissolution of Marriage Act addresses maintenance.  The Internal Revenue Service calls it “alimony” on tax forms, and it’s sometimes called spousal support.

 

Under the law, upon the entry of a judgment for dissolution of marriage (a divorce decree), one spouse may be entitled to maintenance, either for a specific duration of time or permanently.  Before awarding maintenance to one spouse, the court must first determine whether an award of maintenance would be appropriate.  Just because the parties have been married a long time or have disparate incomes,that does not necessarily mean one spouse is entitled to maintenance.  Before the court may make a decision about how much maintenance is appropriate and for how long, the law requires the court to first decide whether maintenance is appropriate, after considering the following factors:

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Under Illinois law, child support may be modified upon a substantial change in circumstances.  Normally, a job loss is considered a substantial change in circumstances which would warrant a modification of child support, but sometimes it isn’t.  This post discusses two cases, and the reasons why the courts reached different outcomes.

unemployment application child support

Scenario #1:  Father is working full-time and bringing in most of the family’s income.  He and mother decide they are going to get a divorce, and she is awarded the majority of allocated parenting time with the children.  Mother is seeking child support from father, who is an engineer.  Due to a combination of his unreliability and misconduct at work, he is fired from his job during the pendency of the divorce.  He was paying child support of $2,500 per month on a temporary basis during the pendency of the case.  Now, after a few months, he is unable to find new employment and is living with his parents.  Mother is seeking child support from father, but his position is that he should not be ordered to pay child support because he is not working.

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In Illinois, during a divorce, either party can ask the court to order the other party to pay some or all of his or her attorney fees while the case is pending.  Section 501(c-1) of the Illinois Marriage and Dissolution of Marriage Act provides in pre-judgment (pre-decree) divorce cases, the court can assess attorney fees in favor of the petitioning party and against the other party.  The purpose of these interim attorney fee awards is to “level the playing field” and allow an economically disadvantaged spouse to participate adequately in the litigation.  See, Marriage of Rosenbaum-Golden.  This may be necessary where one spouse uses his or her greater control of assets or income as a litigation tool, making it difficult for the disadvantaged spouse.

Pockets Inside Out

If the court decides that one party cannot pay his or her attorney fees but the other party can, it can order that the party able to contribute pay some attorney fees to the other party.  However, if the court determines that both parties do not have sufficient financial ability or access to funds with which to pay, the court will allocate available funds for each party’s attorneys, including any retainers or interim payments previously paid.

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In this current economy, many people find themselves underwater in their mortgage payments, credit card debts, car loans, student loans, and the like.  In certain situations, filing for bankruptcy may seem like a “get out of jail free” card to rid yourself of all the suffocating debt that you’ve racked up over the years.  But before you call a bankruptcy attorney, take a step back and consider: are all debts dischargeable? What does the law have to say about support owed to a former spouse or children?

bankruptcy

While the United States Bankruptcy Code is expansive and provides for discharge of many debts under several sections, there are certain debts which the legislature has specifically noted are NOT dischargeable, even in bankruptcy.

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Changes to Illinois’ Child Support statute are imminent.  On June 27, 2016, House Bill 3982 was sent to Governor Rauner for his approval, and on August 12, he signed it.  It is currently scheduled to become effective July 1, 2017.  Among the changes in HB 3982 is the revision of the guideline support calculation method.  Currently, child support in Illinois is calculated based on a percentage of the payor’s net income and number of kids to the parties (20% for one child, 28% for two, 32% for three, etc.).   It is a statutory remnant from the days when the “typical” family consisted of one breadwinner, rather than two working parents.  HB 3982 abolishes these guidelines and adopts a method that many other states are already using: the income share approach (previously discussed on this blog here).

DFW Custody Lawyer - Child Support

Under the new approach, child support will be calculated based on the parents’ combined adjusted net income estimated to have been used for child-related expenses if both parents and child(ren) were living together.  The Department of Healthcare and Family Services (“HFS”) will publish worksheets to aid in calculating the amount of support, as well as a table that reflects the percentage of combined net income that parents living in the same household in Illinois ordinarily spend on their children.  As of the writing of this blog, those tables have not been published.  However, examples of the tables and worksheets previously proposed by HFS can be found here.  They will not be part of the statute, but will be updated periodically and available on the HFS website.

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When going through a divorce, one thing parties are tasked with is dividing the marital estate.  This involves dividing marital assets, and allocating the responsibility of marital debts as well.  Debt that is incurred during the marriage is presumed marital.

Student Loan Debt

But what if the debt is for student loans incurred by only one party during the marriage?  At first blush, it may not seem fair to require the spouse working during the marriage to be responsible for the student’s loans, or even be responsible for a portion of them.  At the same time, the student may not have income, or may have pursued his or her degree relying on the working spouse’s representation that he or she would help pay the loans.

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Fertility treatments and agreements for the purposes of preserving fertility down the road have become more commonplace in recent years.  When disputes arise regarding who has control of the embryos, Illinois courts will look to contract law to resolve them.

Embryo

In the case of Szafranski v. Dunston, the parties, Jacob and Karla, began dating in 2009. By mid-March 2010, Karla was diagnosed with cancer and learned that her chemotherapy treatments would most likely lead to infertility. In an effort to create pre-embryos (fertilized eggs which have yet to be implanted into the uterus) with Karla’s eggs and Jacob’s sperm, Jacob and Karla entered into a verbal agreement to undergo in vitro fertilization (IVF) together.  As a result, 3 pre-embryos were created and frozen.

 

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Imagine the following scenario:  Kim and her boyfriend Kanye decide they want to get married.  Kim and Kanye have acquired a lot of money, bling, and swag throughout their years of work in music and promotions.  Kim, being the more cautious one, decides that before she and Kanye get married, they should sign a premarital agreement (better known by some as a prenuptial agreement or “prenup”) to protect herself in the event that fame wreaks havoc on the fledgling marriage.

Money in mout

Kim’s attorney drafts a premarital agreement that provides, among other things, that Kim’s earnings from the businesses which she started before her marriage, including her reality show, clothing line, and promotional appearances, will remain her sole and separate “non-marital” income.   Kim’s attorney gives the agreement to Kanye, who briefly glances at it while laying down a track, and signs it, without having his attorney review it.

 

Three months after the wedding, Kim decides the whole “marriage thing” is not right for her and files for divorce, in Illinois of all places.  During their short marriage, she has raked in a grand total of $3,000,000 in earnings from her various non-marital businesses.  In court, Kanye argues that the premarital agreement should be invalid.  He also argues that, even if it is found to be valid, that Kim’s $3,000,000 in earnings are marital in nature and that he should get half.  What should the result be for poor Kanye?

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It is common for a child support payor to be required to pay a percentage of any additional income above and beyond a base percentage of his or her income.  This additional income may include, for example, bonuses, commissions, or work from side jobs.

Illinois courts define income as “something that comes in as an increment or addition… a gain… that is usually measured in money.”  They have held that income can include a lump-sum worker’s compensation award, military allowance, deferred compensation, and the proceeds from a pension.  Some Illinois courts have also included disbursements from an IRA as income for child support purposes.  In such cases, if the child support payor’s judgment requires him or her to pay 20% of any additional income earned as child support, and he or she withdraws $100,000 from an IRA, the child support payee would be entitled to $20,000 in child support.

ira child support

This is the rule that circuit courts in the Second Appellate District are required to follow.  In the case of Marriage of Lindman, the Second District Appellate Court has held that IRA disbursements constitute income for child support purposes even where the IRA was part of a property settlement.  In the case of Marriage of Eberhardt, the First Appellate District followed this precedent.  This rule seems quite unfair at first blush, because the child support payor did not necessarily “gain” anything in addition to what he or she already had, that is, basically a savings account with tax restrictions.

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