No rational person would allocate a marital residence to one party without first assigning the responsibility for the payment of the mortgage (and in today’s world, the dreaded home equity line of credit “HELOC”

Before you can consider debt, you need to look to the history of the debt. If it predates the marriage, it is probably non marital.

This might be a good time to explain the term “Marital” and “Non Marital”; it is probably an over simplification but if you look at all assets and liabilities in the name of either or both parties or held for the benefit of either or both parties, directly and indirectly are “Marital” (and here is the key language) except for those that are non marital.  You can get one idea from this: if you can’t fit into a non marital exception, then it’s marital.  Generally the effect of such a classification is that a court (the Judge) has the authority to allocate a Marital Asset or Liability to either party, but cannot change the ownership of a Non Marital Asset or obligation of a Non Marital Liability

This becomes important in today’s world where the marital residence is the major asset of the parties. Its fair market value (valued as of the effective date of the dissolution of marriage unless otherwise provided in the orders or agreement of the parties) is more frequently, less than the debt associated with the residence, i.e.: the mortgage and/or HELOC.  Add to that complication which has more and more evolved is the fact that the residence is in both names (joint) but the debt which is a lien on the residence is only guaranteed by one of the parties; this even occurs where the residence was owned by one party who has personally guaranteed the mortgage and then the residence is transferred into joint tenancy during the marriage but not refinanced (transferring non marital property to both parties gives rise to a rebuttable presumption that it was converted into Marital Property (but what about the debt . . .??)

I try to utilize a simple balance sheet approach to sorting out the problems and that should be a cooperative effort with the client.  To first establish a list of the assets and liabilities and then determine:

a.       Are they Marital or Non Marital

b.      Are they associated with certain assets (i.e.: a car with a car loan, a residence with a mortgage or HELOC etc)

c.       How are they titled (in whose individual or joint name on the asset or on the account) for example a credit card may be incurred during the marriage by either or both of the parties.

d.      Valuation: what is the balance on the mortgage, charge card or credit card; Fair market value of the asset (and historical cost); who paid for it and was it purchased with Marital Debts?

Before we go on, there are the issues of hidden assets and (I’m sure you will be surprised), hidden (contingent) liabilities.  What about that IRS lien of two years ago that hasn’t bothered you recently and then closes your checking account or seizes your savings account a year after the divorce is over.

The law relating to hidden assets is clear:

a.       if you did not know and were not able to discover an asset (this has to do with “diligence” which means that you did all the legal steps of discovery and the asset was concealed;

b.      its effect is material (it would have made a difference at the time of the divorce); and,

c.       most important, the Petition to Vacate the Judgment (the technical term to reopen the case) must be filed within two years from the date of entry of the Judgment or of your discovery of the asset (that is not the actual date of discovery, but the date that you could have discovered it if you were diligent);

Opening up a judgment for additional assets or to asset liability from concealed or hidden assets or debts, is not an ideal way to conduct your divorce, the time to do this is always before the final judgment is entered.

Aside from the issues of concealed assets or liabilities, one these and the associated questions are answered, then a balance sheet of the marriage will arise and the process of the allocation and division of the assets and liabilities (debts) can be achieved.

If you don’t get anything else from this essay, you should understand that the focus on asset allocation without the similar focus on the debts of the marriage will cause unexpected and harsh results.

There is a great deal of unneeded power that we have ascribed to words in the practice of family law.  Even the simple process of getting to the point of titling this little essay was the choice of the referring to this article as relating to the word “divorce” or “domestic relations” law unnecessarily sets the reader on the mistaken belief that by calling the issues custodial rather than referring the same issues as “child related” changes the effect.  Not so . . .  For example, in recent child custody related dispute one parent had the “control of the children” and called the other two hours before a visitation to say, that the child was running a fever and would not go to the visit.  Faced with the dilemma of not knowing if the illness is real or just an excuse to push the other side, the other parent called for advice to her “sage” attorney.  The attorney suggested an email to the parent saying that she hoped the child felt better and would be pleased to move the visit to the next evening if the child was feeling better.  This “kindness” in the face of an obvious provocation turned what could have been an ugly situation into one where the parent with the sick child, simply said thank you for the consideration and in fact the visit occurred without incident the next evening.  How often, does the choice of angry or sarcastic remarks cause the incident to escalate into something those benefits no one?

Somehow the word “family law” is more tolerant than either of the “d” words.  When we look at the way that the parents of children can relate to each other and to the children we have loaded words: SOLE, JOINT CUSTODY, CHILD SUPPORT, SUPERVISED, VISITATION, RESTRICTED VISITATION  . . . . . .

Let’s go for the toughest of the words “sole legal custody”. .  why do we really need to use words that assume on parent is “sole & legal” and the other is “neither a custodian” or worst “not legal”; Illinois law does not even use the descriptive term “sole” which is a puzzle since most people want “sole custody” The correct Illinois statutory terms are Custody or Joint Custody and even there both terms are in my opinion too harsh and probably unnecessary to accomplish the purposes that such a designation is intended to mean. The “pain” which is inflicted on the parties by the use of those terms would be better served by calling the issue and the resulting agreement a “Parenting Agreement” and talk about the rights, obligations and duties of the parents and how the process of decisions for the day to day management and the extraordinary management of the children

The word “visitation” is another powerful word, one “visits” a zoo or a museum, isn’t it more appropriate and much less volatile to refer to the time with our children as “parenting time” and take the “win or lose” out the description of the time we spend with our children.

It is probably inevitable that the children spend more time with one of the parents and less with the other, but does that make on parent “less” a parent?  If you really want to make the process less combative, labeling him or her as sole custodian sounds like the winner . . . is the other person less a parent.  Suppose you say one parent is the primary residential parent still leaves the other as “non residential parent”. Thus both are parents, but the children spend the work week (school week) in one place and alternate   Perhaps the insulting term of “obligator” as the one almost equally the weekend, extended weekends and vacation time; both parents have the children when they are able to spend more time with them and each parent has a weekend off so to move forward on their personal lives . . . which is presumably the reason the divorce occurred in the first place.  If the parents did not want personal time away from the other, they would still be together.

Another area of pain caused by the “words” is the area of child support.  Both parents are equally obligated to support the children and their activities.  Generally child support is given from one to the other as recognition that the parent who has the children might need financial help with the children’s expenses.  Just because you are no longer living together, should not diminish the child’s life style.  If you take this approach then the labels “obligor” and “obligee” which are contained in most of the court’s child support and withholding forms are unnecessary.

One parent provides financial support to the other for the benefit of the children.  Using the kinder descriptive phrase of “making a contribution to the other parent for the use of the child” eliminates the inference that the “obligee” has a debt to the “obligor” or payee/payor . . . even though one parent writes a check, both parents pay the expenses of the child.

Here is another set of words that inflame rather than help. . Alimony or maintenance . . . we don’t even need to say what is wrong with alimony, the word itself says it all. …”maintenance” why would I want to continue to maintain someone who I don’t want to live with???  Wouldn’t be better to call it ”spousal support” or  even better “family support” or just “support” because he or she was a part of my family and although we no longer live together, I recognize that she or he needs assistance to survive after the breakup of our family.

If we want to take a more humanistic approach to the breakdown of a marriage (or any other relationship) then we need to recognize that it cannot be a “win or lose” contest, but really a breakdown of a “business relationship” which requires that the obligations created by the “business” (the children) need to be able to thrive as they would if the parents remained together; and the parents need to be able to survive the “business” break down and get on with their lives.

I approach each case with an open mind . . . . can we accomplish a termination of the relationship without creating the “war of the roses” or is someone so unreasonable that they (he or she) or his or her attorney needs to be persuaded . . . the Chinese scholar Sun Tzu in his “Art of War” makes it clear that the best way to win the war is to avoid it by convincing your opponent that your position is so overwhelming strong that a battle would be futile.

Arms are tools of ill omens – to employ them for an extended period of time will bring about calamity.  As it is said, “Those who like to fight and so exhaust their military inevitably perish”

A strong stance, without the use of inflammatory language, is my approach to these problems.  The use of certain words not only inflames the situation, but makes the inevitable solution much harder and more painful to reach.

ADG

The time frame in divorce cases depends on two issues: the complexity of the issues and the attitude of the parties; The simplest divorce can take a month but its “all in the details”: No children, no marital property or debts, no reason for maintenance (alimony or spousal support) because both parties can support him/her self and most important both want to be divorced and will sign off in advance. This is in the best of worlds and the costs are the filing fees, appearance fees, and in most cases court reporters (various between 400-600, depending on which Illinois County has jurisdiction). This is the court costs, the legal fees depend on the time that it takes to the attorney to get the paperwork (Petition, Appearance, Response, Stipulation to hear as a default matter, Stipulation to waive the 2 years requirement for Irreconcilable differences as the grounds, motion and order to set hearing, Agreement (Marital Settlement Agreement) Judgment, and clerk statistic form) Remember this is the time line and documents for the simplest, fastest, and least expensive divorce.

Once you add children which involves
1. custody & visitation issues,
2. child support (a payment that is set based on the non custodial parent’s net income)
3. division of the child care payments that is needed for the custodial parent to work (assuming he or she is capable of working . . . and
4. if not there is liability for supporting (alimony, maintenance, or spousal support) the custodial parent in addition to the child support, the payment of insurance for the benefit of the children (Health & Life),
5. the division of unreimbursed or extra ordinary health or educational expenses) and
6. Finally the whole issue of college and attorney’s fees.
This is only when there are children who are either minors or still in school.

Next is the issue of Spousal support (maintenance or alimony): if the parties have very difference earning abilities or one is not working (or worst disabled) then there is a question of how much the better earnings spouse should pay to lesser or non earning spouse and for how long (and this is in addition to child support expenses);

Finally there are property and debt issues: what is marital and non marital; what portion of the marital property should be given to each. Was that 40lk earned or partially earned during the marriage and how to divide.

From these brief comments, you can see that unless the divorce is simple, there is no hard answer to the question of how long it will take or how expensive it will cost for a more complex divorce. Lawyers work on an hourly basis and generally require a deposit (called a retainer); Rates per hour depend on the experiences of the attorney. The more experienced the less time it will take and the more the hourly rate (the theory is that a lower hourly rate denotes a less experience, less hands on attorney, will require more time); The retainer is the attorney’s best guess on how much time and expense it will take to get to a point of determining the complexity and attitude of the opposing attorney and client. There is an art to determining who much retainer to require. You don’t want to be called to replenish the retainer in the very beginning of the case and you don’t want your attorney to stop working so early in the case, that the momentum is lost, simply because your attorney is waiting for you to catch up . . . my advice, discuss the case first, let the attorney tell you what he/she thinks the issues will be once you have made a “complete” disclosure of the issues, financial & personal. The retainer will be very easy to understand once the initial discussion has begun. To make your attorney quote you in advance of a meeting, limits both you and the attorney and will never be in your advantage. I can’t tell you the number of times that I am in a case and the opposing attorney tell me, that he or she cannot go further until paid and the entire case stops. At the same time, it would be unfair for you to waste the attorney’s time, if you cannot pay a retainer. This is preliminary. No attorney is going to give legal advice, if you are just shopping. The attorney’s time is his/her stock in trade. . . you wouldn’t expect to go to a grocery store and open the inventory, have lunch and leave without paying.

My personal policy is to determine that a client is serious about engaging me, and ready to retain. Then I will meet for 15 minutes more or less to determine if the client and I are going to work well together (do we really communicate and do I understand the motivation and goals of the client); after that we discuss the details and I expect a retainer to be deposited
(c)all rights reserved ARNOLD D GOLDSTEIN 2009

AND WHY DO I CARE

Illinois is a “Marital Property State” and that is a mouthful.  What does it mean and why do I care or should I care?  Here’s the short version: everything you or your spouse own, have title to, have held for him or her by another in trust or any other way, is  Marital  Property  except for Non Marital Property.  Sounds  confusing . . .  it  really is not.  We need Marital Property because that is the only thing that a judge (the one with the black robe) can award or divide between the parties.  The Judge cannot award property of one spouse that is Non Marital to the other.  This is important so now, look to the exclusions for Non Marital, and find that:

1. If you owned it before the marriage and did not later put your spouse’s name on it, it’s Non Marital.
2. If you acquired it during the marriage by gift or inheritance and did not later put your spouse’s name on it, its Non Marital.
3. If you and your spouse decided that something should be Non Marital and did not later put your spouse’s name on it, it’s Non Marital.
4. Finally if it starts out as Non Marital and you sell or exchange it to another asset with your name on it, it is Non Marital. Did not later put your spouse’s name on it, its Non Marital.

If you get the idea that “not putting your spouse’s name on your Non Marital property is important then you have got the concept.  Is it fatal to add his or her name to the property?  Well that’s what pays the attorneys fees to unscramble and the answer is “perhaps”.  Placing a spouse’s name on your Non Marital property gives rise to a rebuttable presumption that you intended to convert the property to Marital.  Do you get the idea . . . well let me illustrate.

You owned a condo before the marriage and sold it during the marriage, perhaps when you got married you lived there until you started your family (or got pets that required more space . . . whatever); you sell the condo and buy the house in your own name.  Years later, when you discover that your great aunt dies and because she kept her house in her name, your uncle had a hell of a time getting it and had to go through probate (legal fees, court costs, creditors, delays etc).  You consult your real estate lawyer (who does not understand marital property because he is not a divorce attorney and has not only never been married, but never was divorced and has no clue) and he suggest joint tenancy “the poor man’s version of a will and estate plan. “  This way the property passes on your death to your loving spouse.  Sounds good but what happens 10 years later when your loving spouse . . . well you can see the disaster coming.  The presumption is “marital” but you can overcome the presumption, you need an experienced and understanding attorney.

        Another equally complex brain twister.  Two high school friends HUCK FINN and TOM SAWYER have started a repair service . . . . they work part time and at night with HUCK & TOM HANDYMAN’S and during the day go to college and get business degrees or engineering and in the meantime their H&T HANDYMAN’S business becomes full time.  In college each marries his true love.  Sometime after marriage and before the divorce war, they incorporate their business into H&T, INC and two years later, buy a lumber yard, then those businesses blossom into a construction company and they change the name to the GENERAL WOOD HOME CONSTRUCTION COMPANY a multimillion dollar business partnership or corporation.  Well, fate being what it is, love dies and divorce war’s begin and, “yep”, the wife’s position is that that business was acquired during the marriage and it’s marital (and of course her next question is “how much is mine, your honor . . . it’s marital, isn’t it”   Get experienced divorce attorneys at this point because HUCK & TOM never put their wive’s names on the business and it really is based on HUCK & TOM HANDYMAN . . . . Non Marital.   Well, it’s never that simple, because although the court can’t transfer the property to the wife, they sure can transfer everything else or if there is nothing much, this is where the alimony (maintenance) can really get serious.

        What’s the lesson? Experienced attorneys, who practice in the divorce field, will understand and can help (whichever side of the property you are on); this is a far cry from a simple property issue.

The divorce is over, isn’t it?  The Judgment is entered, property settlement done, custody and visitation worked out and lawyers paid.  Now what. . . Unfortunately, it’s the beginning of a very difficult time in your divorce . . . post judgment, collection of support, enforcement of visitation; and that very nasty duo: change of custody and removal from the State of Residence.  I need to emphasize, I am an Illinois lawyer and while I believe some principals are universal, I can only speak Illinois law where I am quite experienced

I. CHANGE OF CUSTODY

Here is the rule in a nut shell: If it’s under two years from the entry of the Judgment, you cannot change custody (and this is the general rule) unless there is eminent danger to the “child’s physical, moral or emotional health”   This is an extremely specific standard and is not the same as “bad dad” or “bad mom” or “unhappy child”, it is serious endangerment.  For those of you who like to quote statutes, the Illinois Marriage & Dissolution of Marriage Act (IMDMA)  750 ILCS 5/ . . . .

  Sec. 610. Modification

(a)          Unless by stipulation of the parties or except as provided in subsection (a‑5), no motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health.

The grand daddy of exceptions is always:

A parent who intends to marry or reside with a sex offender, and knows or should know that the person with whom he or she intends to marry or reside is a sex offender, shall provide reasonable notice to the other parent with whom he or she has a minor child prior to the marriage or the commencement of the residency.

After two years, the standard is less dramatic:

“clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child.

CHANGE OF CUSTODY: So here is the short summary, under two years, really difficult unless there is something very dangerous to the child’s physical, mental, moral or emotional health; after two years although the burden of proof is high (clear and convincing evidence), the issue is more focused on the “best interest of the child”

II.  ENFORCEMENT

There are several approaches to enforce an order of court or agreement which is part of the marital settlement incorporated into the Judgment. 

The first method is “contempt” or “let’s try to put the poor spouse in jail.”  Contempt is the power of the court’s to enforce its orders and to require respect for the court.  In Illinois, contempt is either criminal or civil, and either direct or indirect.  For the sake of this article, we will briefly talk about the indirect civil contempt that occurs where a party who is required to do something (like pay alimony or maintenance or even child support) decides that his/her own needs (a car, a vacation, etc) is more important then the support obligation to his spouse or children.

The court has no sympathy, it issues an order which we affectionately call a “show cause” which says:” You are ordered to explain why I (the Judge) should not find you in contempt (and punish you with fines, jail or something else) for not following the order of court or agreement of the parties”.  The alleged “CONTEMPTOR” (he who commits contempt) has to show a reason, such as he lost his job, went broke, got robbed, or lost his money . . . if not there are consequences: those consequences are the choice of going to jail or paying what you owe, being fined, going to jail and perhaps from the lawyer’s point of view, the most effective: paying the other person’s attorney’s fees.

            Another method of enforcement is getting a Judgment and collecting the money owed by a wage garnishment (order to withhold) or attachment an asset (such as a bank account or car) and liquidating it to pay the bill.

III.  A FAILURE TO SIGN A DOCUMENT

            In an even stronger case, a person ordered to sign over real estate (or a car) who has failed to follow a specific Order, might find out that the Judge has signed the Title and transferred it.

            Other violations can result in losing rights.  For example, a party with a visitation right, can lose or forfeit the visit if he/she is consistently late in pick up or delivery of the child to the other parent.

III.  I NEED MORE . . . OH NOT, I CAN’T AFFORD THIS

Increasing and decreasing support payments are the yin and yang of the Divorce Attorney’s practice.  For every parent collecting child support, it’s never enough and the paying spouse is not paying what he or she should.  For every parent paying support, it’s too much and the ex-spouse is making a profit on the children.  Here is the story: in Illinois child support is generally “guide lines” which means it’s a calculation of take home pay (gross income generally less the applicable.

COPYRIGHT, ALL RIGHTS RESERVED, ARNOLD D. GOLDSTEIN 2009

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!