The Residential Parent (who, for the pure sake of ease in writing, we will call “MOM”), thinks that she has won something and the Alternate Residential Parent (who, for the pure sake of ease in writing, we will call “DAD”) thinks that he has lost something. Unfortunately both are wrong and their personal view is faulty. The children did not cause the divorce, you did. The children should have a reasonable expectation that, except for visitation and overnights with DAD, they really “should” continue on as they would have if both parents were living together and giving the children the support and nurturing they deserve.
First, permit me a word about “JOINT CUSTODY” and “SOLE CUSTODY”:
CUSTODY, either sole or joint, has been around informally since the time married people began to separate and eventually get divorced. Some years ago, Judges and the Legislature, with help from the Bar Association, decided that the whole concept of winner/loser was creating too many problems so that the label “Joint” came into being. Joint Custody is the product of a “Joint Custody Agreement” or “Order of Joint Custody” A look at our statute is helpful:
THE ILLINOIS MARRIAGE & DISSOLUTION OF MARRIAGE ACT which we will refer to as simply IMDMA (750 ILCS 5/ 1 et seq, which is the citation to the statutes) provides in Section 602.1 (b) the following:
(b) Upon the application of either or both parents, or upon its own motion, the court shall consider an award of joint custody. Joint custody means custody determined pursuant to a Joint Parenting Agreement or a Joint Parenting Order. In such cases, the court shall initially request the parents to produce a Joint Parenting Agreement. Such Agreement shall specify each parent’s powers, rights and responsibilities for the personal care of the child and for major decisions such as education, health care, and religious training. The Agreement shall further specify a procedure by which proposed changes, disputes and alleged breaches may be mediated or otherwise resolved and shall provide for a periodic review of its terms by the parents. In producing a Joint Parenting Agreement, the parents shall be flexible in arriving at resolutions which further the policy of this State as expressed in Sections 102 and 602. For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court may order mediation and may direct that an investigation be conducted pursuant to the provisions of Section 605. If there is a danger to the health or safety of a partner, joint mediation shall not be required by the court. In the event the parents fail to produce a Joint Parenting Agreement, the court may enter an appropriate Joint Parenting Order under the standards of Section 602 which shall specify and contain the same elements as a Joint Parenting Agreement, or it may award sole custody under the standards of Sections 602, 607, and 608.
(c) The court may enter an order of joint custody if it determines that joint custody would be in the best interests of the child, taking into account the following:
(1) the ability of the parents to cooperate
effectively and consistently in matters that directly affect the joint parenting of the child. “Ability of the parents to cooperate” means the parents’ capacity to substantially comply with a Joint Parenting Order. The court shall not consider the inability of the parents to cooperate effectively and consistently in matters that do not directly affect the joint parenting of the child;

(2) The residential circumstances of each parent; and
(3) all other factors which may be relevant to the
best interest of the child.

(d) Nothing within this section shall imply or presume that joint custody shall necessarily mean equal parenting time. The physical residence of the child in joint custodial situations shall be determined by:
(1) express agreement of the parties; or
(2) order of the court under the standards of this Section.

(e) Notwithstanding any other provision of law, access to records and information pertaining to a child, including but not limited to medical, dental, child care and school records, shall not be denied to a parent for the reason that such parent is not the child’s custodial parent; however, no parent shall have access to the school records of a child if the parent is prohibited by an order of protection from inspecting or obtaining such records pursuant to the Illinois Domestic Violence Act of 1986, as now or hereafter amended or pursuant to the Code of Criminal Procedure of 1963. No parent who is a named respondent in an order of protection issued pursuant to the Illinois Domestic Violence Act of 1986 or the Code of Criminal Procedure of 1963 shall have access to the health care records of a child who is a protected person under that order of protection.

There are a few parts of this statute that need to be emphasized in order to understand the impact of the Statute. First and foremost is that, if either side requests joint custody, the court will refer the matter to “mediation”. The sole function of the mediator is to secure an agreement and report to the court that the parties have agreed (and the agreement is described) or that the parties have not agreed. The mediator is not a judicial official and can not make findings or recommendations.
Here are the elements (and my comments):
1. Defining “Joint Custody” is to provide by order or agreement the following elements:
A. Each Parents’ rights and responsibilities for personal care of the child
B. Major Decisions to be determined by “agreement of the parties” although the statute is specific on the following three areas, they are by no means the total items that may be inserted by agreement (not the word “agreement”)
a. EDUCATION: This can be as simple as to keep the children in public or private school or to keep them living in the same area. There are two sides to this and the first one involves costs of education which in a private school can be very considerable when added (and it is not a part of ordinary) to the child support. Also both parents may live near each other and the one who has the children decides to move (inside of Illinois) and all of a sudden the parenting becomes more difficult when the commute for the children is longer. This can also deal with “college” and joint decisions of where to go and what it may cost (this is an entirely whole other subject)
b. HEALTH CARE: Same doctor, or, who chooses the children’s doctor; who takes them there and do we need agreement regarding medication and course of treatment. While the joint part sounds good, what about that very expensive orthodontist and one of the parties decides to engage and expects that it will be paid for by the other party (or some portion of the obligation and this is not a part of child support)

c. Religious Training: I don’t even want to broach this subject in a short paper. It’s complicated and covers everything from weddings, baptisms, confirmations and bar and bat mitzvah (and the accompanying and traditional parties) . . . Who pays, who goes and how many guests does each get???
d. PROVIDE FOR PERIODIC REVIEW: while this sounds noble, except for very minor changes, it ends up in mediation (see below) and when serious, eventually ends up where I believe it belongs, in front of the Court.
e. METHOD OF DISPUTE RESOLUTION: This is a very specific requirement that affect all matters except emergencies (and any items that the agreement may specifically reserve) shall first go to mediation (an attempt to get an agreement) and failing that, then to the courts. I have mixed feelings about this entire process but I will discuss that later. Too often, it’s “here we go again”
If you detect a prejudice on my part against “Joint” anything, its just that I have 40 plus years of seeing this rarely work . . . If you could work together on the day to day decisions of life (and the children are probably the biggest ones), then you would still be married. Think about that. All of you spouses who feel your other spouse is “controlling or demanding”, do you really think that “joint” will magically eliminate the conflict that got you into the divorce court in the first place?
Here is my observation: One parent is the primary (and we don’t need to label this beyond a simple statement. That parent is making the daily decisions and if there is anything extraordinary or costing more money or interfering with visitation etc, then there needs to be advanced notice and an opportunity to discuss. If you can not agree (and you can provide a time limit in days) then the decision is made by the primary or the other can simply file a petition in the court and the judge will determine. (You may still end up in mediation, but at least the mediation won’t be imposed where the decision is obvious and the non-consenting party is just trying to be obstinate and controlling.
COPYRIGHT, ALL RIGHTS RESERVED, ARNOLD D. GOLDSTEIN 2009

In Illinois one child gets 20%, two children 28%, three children 32%, 4 children 40%, 5 children 45% and over 5 children 50% of net income.  Simple enough, well define “net income” it’s whatever is left after the deduction of Federal and State Income Taxes, Medicare & Social Security Taxes, health insurance (for the child), union dues and a few other deductions.  If you think about it, with a 3% Illinois Tax, a 6.75 FICA & MEDICARE tax, and average tax rates of 20-22% you could very easily pay taxes of 30% of your income and with 3 children another 22.4%  (32% of the 70% that’s left after taxes). So that the average wage earner with 3 kids has to live on less than half of his/her gross income.  While that seems difficult for the wage earner, the supported spouse and 3 children are living on child support of approximately half of the gross income.  This does not include maintenance (alimony . . . spousal support); for child support, the custodial (or primary residential) parent’s income is not even considered.  

Alimony or Maintenance (spousal support in a kinder and gentler word) is the payment that a high earning spouse pays to a spouse that earns much less.  This is a lot more complicated.  In some of the county in Illinois there are informal formulas and in others the formula is not formalized, but none the less there.  It’s a function of the number of years of the marriage (from the date of marriage to the date of dissolution) and the difference between the spouses’ gross earnings (some places give consideration to child support, others don’t but use a lower amount);  the only rule here is that there is no alimony or maintenance in a paternity case and perhaps that is the only distinction between the married and unmarried in the family law courts beside the differences in the property and debt distribution.   But even there are exceptions to the rule.  In a paternity case which has long since started a trend in both paternity and divorce cases, the court gave the non custodial parent the obligation of splitting the day care child care expenses for the custodial parent.  While it can’t be called alimony, it can be as expensive and does not stop just because you are married (its is in addition to child support, maintenance, and extra ordinary expenses).

If all this seems confusing, then look at the tax treatment: child support is not tax deductable and maintenance is generally taxable to the recipient and deductable to the payor but even with that general rule, there are all the exceptions and variations to complex and lengthy to cover here…  This is where the expert hand of the attorney who has concentrated his/her practice in family law and has experience will prove valuable. Striking the proper combination of these elements is an art akin to the alchemist who learned to turn lead into gold.  

For those of you who like to read rules the following is the child support statutes that apply in Illinois:

A guide to preparing for the divorce

I never started out to be a divorce attorney.  It just happened.  After years as a tax, corporate and business attorney who actually tried cases, my practice drifted into “family law”.  It is the most difficult and complex area of law because you are not only practicing “divorce and family law” but you have to understand everything from Real Estate, Corporate, Business, Commercial and Tax and trial law.  After 42 years of this practice, I am not sure how to spell “divorce attorney”, but I know that I am one. This paper is one of several that I am writing and the first in the series of “what does this all mean”

1. STOP LOOK AND LISTEN.  The lessons that you should have learned before the Divorce.
2. THE ANATOMY OF DIVORCE LAW: The basic legal issues in every divorce case
3. THE PROCESS: from initial meeting to entry of Judgment.  What happens, when and how long is it going to take.
4. A WORD ABOUT ABUSE, DOMESTIC VIOLENCE, ORDERS OF PROTECTION & BOTH ANGER MANAGEMENT AND COUNSELING. . .. (and who in their right mind thinks that “joint parenting” will work under these circumstances or even under any circumstances

Most of you have learned basic lessons in life before you grew up and perhaps the most important was “stop, look, and listen” which seems to be the operative three words of advice that I can give you before you take the journey down the long road that begins with a marriage and ends with a divorce. When it has become painfully obvious that the marriage is over, the first bit of advice that I can give you is “STOP”.

1. STOP talking and start listening.
2. STOP making stupid financial mistakes
3. STOP the abuse . . . that’s not something that anyone should tolerate.
4. STOP assuming that all you need to do is hire the “right” lawyer and your problems are over.

FROM THE POINT OF VIEW OF THE SPOUSE WITH LESSER FINANCIAL EARNING ABILITY (AND THAT IS TYPICALLY THE HOUSEWIFE). 

v     STOP TALKING about your complaints is much like the boxer who discusses his strategy (i.e.: two left jabs and then a right punch to the jaw). You need a plan, you don’t need a “broadcast”   Stop discussing the problem and prepare.

v     LOOK:  If you don’t read every incoming piece of mail your spouse has, at least look at the envelope and keep track of who is sending statements or accountings each month.  I can’t tell you the number of times we have discovered assets in places other than the bank statement that you receive by simply looking at the other mail coming in.  The statements may be going to the office (or in very clever cases, to a post office box) but the advertising comes to the home.  It’s not hard to figure out that something is going on at the First National Bank, when it sends a statement every month and your Spouse is writing the household checks from 3^rd 5^th Bank.   Brokerage statements come monthly (although sometimes strictly on the net) but those account executives still cannot resist some mail advertising.  LOOK and make notes. 

v     If you are the income earning spouse and there are children, you need to understand the economics of child support.  You will have your spouse (his/her attorney) looking at your pay check to determine net income.  Net Income is what you get after deducting taxes, but adds back in your 401(k or credit union payment.  Sounds reasonable.  Two kids, 28% of your net.  For example: you gross 2,000 per week with taxes (federal, state, Medicare, & FICA) of $700, and a $400 contribution to the 401K.  Result, child support of 28% of $1,300.00 a total of $368.00.  You have paid your share and the rest is yours.  What about that $400 you’ve put in your 401k, its marital property and you will be giving your spouse at least 200.00 of it (50%)   Now you have paid 364 in child support and lost 200 of your 401 k.  That’s 564 from your 1300 take home pay (which leaves you $736) and we have not yet begun to cover spousal support (alimony) and that pesky attorney fee that your spouse never paid.    STOP making a contribution to your 401k, pension, credit union saving or anything else.  It just “feeding the enemy”

v     And now for my favorite subject “legal fees”   As you all may have heard, this is how I earn my living! Lincoln said, “All I have is my time to sell” Lawyers take post graduate courses on how to collect fees.   The good news is that in the not so distant past, your courts and the legislature have stopped the feeding frenzy and fees are “supposed to be” some relation to the time spent and difficulty of the case that determines “legal fees”.  Retainers are “deposits” not signing bonuses and lawyers must account.  That said, remember the lawyers time is not only spent in his office with you in conference, or in court, but also in drafting documents, research (yes every case has something unusual that requires some reading that you must pay for), but also reading your emails, letters, faxes, and the correspondence from the other side.  Reviewing the documents and preparing for hearings, meetings, etc.   You may think that every time you get an idea or question in your head, you must call and he or she must answer the phone.  Consider this, your call causes him to interrupt what he is doing (don’t believe that you are the most important case in the office); he must stop, remember your facts, that nasty spouse who is hiding money, the children’s special needs, and how he must communicate with you.  Then you ask and he answers (or thinks about how to best answer your inquiry)   finishes the conversation and then spends a minute or more to make a note in the file (that he needs to spend another couple of minutes finding).  That call gets you a charge of a quarter of an hour and that is reasonable.   Wouldn’t it be better if you made same notes, listed out your questions and made a call or better, sent an email with more than asking the question, “what’s new in my case”?; If you are simply wondering when the next court date is or where the court is located, what time etc. or do I need to be there, ask his receptionist to get the info and call you back (generally there is no charge, and that is what he/she is paid for)

v     Speaking of retainers . . . . We have “leveling the playing field” or the Illinois version of the “Attorney Relief Act”.  The theory is that the working spouse can afford to hire the most expensive attorney leaving the lesser working spouse to go to Legal Aid.  It’s not fair and thus we “level the playing field” your attorney is entitled to a retainer as great as your spouses (or your spouses attorney can simply give one half of his retainer to your lawyer).   The second option is known as the “dirty little secret” because I can’t remember any opposing attorney calling me to offer me one half of his fees.   Balance this with the feeling that your attorney should not have to “beg” your spouse (and his attorney) for fees.  A very famous man, 2000 years ago said “I can only serve one master” and I am sure that if he was an attorney, he was very reluctant to call his opposing attorney to ask for fees.  Buckle your belt, pay a reasonable retainer to your attorney. . . he or she will work harder with your money in his account; and he will catch up on fees later since the fees seem to always come out of the “marital estate”, but that’s the subject of another speech.

v     EMAILS AND FAXING.  If you have an attorney who does not have email, you’re as dumb as he or she!   If you are receiving notes that are dictated to a secretary, or worse, written by the attorney, you are going to be paying dearly.  With the advent of the fax machine and later email, clients assume that you are waiting at the machine, with nothing to do but to read their “missiles” That is a problem that every attorney faces.  We try to educate our clients; this is a way to get to us with information or to ask questions, but not to abuse us.  STOP using the same password or account that your spouse and you got when the computer was something to amuse you and write your friends.  You need a complete  computer and fax as a confidential method of sending and receiving (yes I said “receiving” correspondence), copies of opposing attorneys letters and pleadings, and copies of things that are being sent to the other side.”   Another word, you need your lawyer to keep you informed, and copies of emails, correspondence, etc. are the best way to learn what is “going on”.   Recognize that some emails or correspondence are simply “cc to client” “FYI” and don’t require a long phone call, urgent message etc.  This is the fastest way to break down that smooth line of communication and you and your attorney should employ.

v     STOP using your employer’s, friends, child’s email or computer.  Grow up, get into this century and get a computer of your own.   Don’t depend on your spouse to set it up or you will lose all tactically advantage.

v     STOP showing up at every status call.   Judges are reaching a point where they want cases to move along and set up status calls on a regular call.  A status call is generally a one minute opportunity for the attorneys to appear before the judge and report what’s going on.  Even more important, it gives your attorney a chance to “stay on” with his or her counterpart.  It’s the excuse to talk settlement (or at least agree on what they disagree about).   Divorce cases are complex and no mater how simple you think they are, multiple issues arise (this is probably the subject of another paper).  It always helpful for the attorneys to know what issues are agreed, disagreed and impossible to settle.  Sometimes, in looking for agreed items, the disagreed become so identified that they can be isolated, compromised and the economic impact of “over lawyering” can be diminished.

v     LISTEN: It’s hard to get clients to really listen without interrupting when the adverse spouse or his/her attorney is explaining their position.  You may have “all the answers”.

v     LOOK: When was the last time that you really looked at a tax return?  It’s not the first page that is interesting, it’s the items that make up income and more important the deductions.  You will probably see your tax return for the last time on the day before you announce (or the summons announces for you) that the marriage is over.  If you have already copied the tax returns, house papers, bank statements, brokerage accounts etc. before your spouse makes them disappear, think of how much money you will save in the discovery process.

v     LOOK: If you signed a prenuptial, where is it and just what does it say?  Does it exclude temporary alimony and legal fees or simply advance them against the settlement and make them your responsibility.  Many agreements have “sun down provisions”.  These provide that the limitations on divisions of property or alimony will expire in “so many years”. . . . When?  This document will be read by your spouse’s attorney, why not has a copy for your attorney.

v     LOOK: One more word . . . . If you don’t want to waste time with subpoenas for documents, legal fees that eventually diminish the “marital estate” which means wastes “your money”, get copies of all documents BEFORE you announce the divorce.   Any lawyer with a word processor or secretary will tell you that he or she can get that document with a subpoena . . . . Ask about the time charges for preparation and enforcement of a subpoena to get a tax return that you could have copied before the spouse new what was happening.  Another word of advice “lawyers lose documents” you can always give the lawyer a copy of a document and keep the original until the time “he really needs it”.  I don’t want the responsibility of original documents in the files . There are too many times the files are used, left untended or worse, lost. .

v     Finally, you need to have a wish list of what you want.  This is not rocket science and you know that if there are kids you want to establish custody and visitation (my feelings about “joint visitation” are the subject of another paper). 

v     If there are kids, they:

1. Must have shelter and food etc.  This by necessity means someone is paying support for the children, medical, dental etc., educational, and insurance expenses.
2. If both spouses are not earning the same amounts of income, we need to figure how the lesser income spouse if going to make it.  Please don’t tell me that public aid is the solution. . . . you married him/her and take responsibility

HERE IS THE SUMMARY:  These are relative simple ideas and now you see that you should have some idea what you want at the very beginning.  Your attorney will tell you your rights and obligations, but don’t fall for the “cop out” that you don’t have any idea of what you want.  Give yourself a break and think about what you want (and convey this information to the attorney at the first meeting) then ask him/her if you are being reasonable (note I am not using the word “fair” because nothing is ever fair). You need to be prepared before you decide to hire the attorney.  Gather the documents, look for the information, understand what has been going on, and get a good idea of how you want the litigation to end (what are your goals).  Then you can hire the attorney who can best serve you because you have done your homework and understand your own case. So, STOP, LOOK, LISTEN, pretend you’re a kid, your parent’s advice was not so wrong after all!