Tag: divorce

Illinois Divorce Law Won’t Look the Same Come 2016

Posted on by Louis Fine

ChangesNo more grounds for divorce other than “irreconcilable differences.” No more “custody” and “visitation,” only allocation of “parenting time” and “parental responsibilities.” These are just a few of the sweeping changes coming to Illinois divorce law when the calendar changes to 2016.

This summer, Gov. Bruce Rauner put his signature on SB 57 (now Public Act 099-0090). This law modifies a number of sections of the Illinois Marriage and Dissolution of Marriage Act as well as other related statutes. The changes are effective as of January 1, 2016.

No One Ever is To Blame

One of the biggest changes is the elimination of all grounds for divorce other than “irreconcilable differences.”

As the law stands now, you can file for divorce alleging any number of grounds (such as adultery, physical cruelty, or mental cruelty) or you can simply assert that there are “irreconcilable differences” between you and your spouse, which is the legal term for “this just isn’t working out.”

However, if you filed on that latter “no-fault” basis, you would either have to live separate and apart for two years before you could seek a divorce or agree to a waiver, which would still require a six-month wait.

Under the revised law, the only basis for filing for divorce is “irreconcilable differences” and, if both parties agree, they can proceed with a divorce immediately (if they don’t agree, there is still a six month living separately requirement).

Allocation of “Parental Responsibilities” and “Parenting Time”

Current law about where children reside and how much time they spend with each parent is framed in terms of “custody” and “visitation.” The revised law throws those ideas out the window, drilling down to and specifically allocating all of the individual “parental responsibilities” involved in raising a child as well as allocating “parenting time.”

As has always been the case, “the best interests of the child” is the North Star on which all decisions relating to kids are made. In the new framework, the parties can either reach agreement on a “parenting plan” or the court “shall allocate to one or both of the parents the significant decision-making responsibility for each significant issue affecting the child.” Section 602.5(b). These “significant issues” include:

  • Health
  • Education
  • Religion
  • Extracurricular activities

As to allocation of “parenting time,” the court will look at many of the same factors it currently does in making “custody” determinations, including:

  • the amount of time each parent spent performing caretaking functions in the previous two years
  • any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child
  • the child’s needs
  • the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement
  • the willingness and ability of each parent to place the needs of the child ahead of his or her own needs

Relocation Restrictions

Parental relocation is often a sticky issue. Currently, a parent with residential custody can move anywhere within Illinois. Under the new law, some moves require notice to the other parent and ultimately approval by the court if the non-moving parent objects. Specifically, notice and/or approval is required if:

  • a parent with residential custody residing in Cook, DuPage, Kane, Lake, McHenry, and Will counties is seeking to move more than 25 miles from their current residence
  • a parent in any other Illinois county is seeking to move more than 50 miles from their current residence

Additionally, a parent with residential custody can move up to 25 miles away without agreement or approval even if the new residence is across the Illinois state line.

Call Me If You Have Questions

There are many other changes to Illinois divorce law that are part of this overhaul as well. If you are considering a divorce and have questions about how these changes to the law may impact your decision-making, please give me a call at (312) 236-2433 or fill out my online form to arrange for a consultation.

 

Like It or Not, Your Social Media Posts Can Hurt Your Divorce Case

Posted on by Louis Fine

FB - DivorceSocial media use has exploded over the past decade. Facebook, Twitter and Instagram are currently the most popular sites for sharing the latest news, gossip and photos, and new social media websites are launching almost daily. Social media users share the most intimate details of their lives in countless status updates, including where they were, what they did, what they ate, who accompanied them and what they saw and heard. Strangers can learn a great deal of personal information about a Facebook or Twitter user simply by visiting his or her page.

So can divorce lawyers and soon-to-be-ex-spouses.

What You Post Can and Will Be Used Against You

According to the American Academy of Matrimonial Lawyers, more than 80 percent of divorce attorneys surveyed reported an exponential increase in the amount of evidence collected from social networking sites in the past few years. It’s not hard to understand why. Proof of infidelity, pictures or posts that seem to contradict claims as to assets or wealth, statements that may call into question a person’s fitness as a parent – everything that you say or that someone else may say about you online can and will be used against you.

NBC News surveyed numerous divorce and family law attorneys a few years back who shared some examples of ill-advised social media use that played a big role in the outcome of the proceedings, including:

  • Husband goes on Match.com and declares his single, childless status while seeking primary custody of said nonexistent children.
  • Husband denies anger management issues but posts on Facebook in his “write something about yourself” section: “If you have the balls to get in my face, I’ll kick your ass into submission.”
  • Father seeks custody of the kids, claiming (among other things) that his ex-wife never attends the events of their young ones. Subpoenaed evidence from the gaming site World of Warcraft tracks her there with her boyfriend at the precise time she was supposed to be out with the children. Mom loves Facebook’s Farmville, too, at all the wrong times.
  • Mom denies in court that she smokes marijuana but posts partying, pot-smoking photos of herself on Facebook.

In a recent Illinois case (In re Marriage of Miller), the court terminated maintenance payments to an ex-spouse after finding that she was cohabitating with someone else.  The court based its conclusion in large part on Facebook posts in which the ex-spouse and her new boyfriend clearly held themselves out as a couple and in which it was made clear that they were living together.

There is No Reasonable Expectation of Privacy on Facebook

If you think that your privacy settings will save you, think again. A number of courts have ruled that social media postings are not private, even when users adjust their privacy settings to shield their page from public view. Facebook and Twitter’s privacy policies warn users that the purpose of the sites is to share information, and that the public can view the posts on the sites.

Additionally, there have been cases where courts have ordered litigants to turn over social media passwords so that opposing counsel or prosecutors could gain access to the information, posts, and photos found there.

Deleting Won’t Help

Deleting potentially damaging posts while your divorce litigation is pending can also do more harm than good and get you in trouble with the court for spoliation of evidence. Last year, the New York State Bar Association as well as the Philadelphia Bar Association issued advisory opinions in which they stated that attorneys can advise clients to adjust their privacy settings and remove or delete content from their pages so long as the information is preserved such that it can be produced in litigation if requested.

Post Like EVERYBODY is Watching

Obviously, the best course of action for someone who is contemplating divorce or who is currently going through one is to avoid posting on social media altogether. For many people, however, this is simply unrealistic. When I advise clients about social media use during their divorce, I am reminded of the saying “dance like nobody’s watching.” When it comes to your online life, post like EVERYBODY – your spouse, their attorney, your kids, the judge – is watching.

If you have questions or concerns regarding any issues relating to divorce, please give me a call at (312) 236-2433 or fill out my online form to arrange for a free initial consultation.

Who Should Pay for U? – College Costs After Divorce

Posted on by Louis Fine

tuitionOverjoyed or crushed? For high school seniors across the country at this time of year, acceptance or rejection letters from the colleges they wish to attend are determining which of those emotions they feel upon opening their mail. For parents of those seniors, the pride they feel about their child’s acceptance is likely accompanied by confusion and anxiety about the financial aid process and how they will help pay for four (or more) years of tuition that seems to increase at an exponential rate every year.

For divorced parents, a child heading off to college also means the end of child support and with it the question of who is going to foot the bill for their child’s college expenses. In Illinois, college costs are referred to as “post-majority expenses” and the question of who pays them depends on several factors.

Look to Your Judgment of Dissolution First

First, check your judgment of dissolution. If your marital settlement agreement, which divided all your property and set forth provisions regarding child custody and support, addressed post-majority expenses, they will be incorporated into the court’s final judgment. Illinois law gives family law courts the right to require one or both parents to pay a child’s higher education costs, even after the child graduates high school and turns 18.

The Illinois Marriage and Dissolution of Marriage Act

If your marital settlement agreement says nothing about college costs, and the judgment of dissolution is also silent on the issue, all hope is not lost. In Illinois, either parent can petition the court for college expenses, both before and after a child becomes a legal adult. More importantly, it doesn’t matter if your marital settlement agreement or final divorce decree failed to address the issue of post-majority expenses.

Section 513 of the Illinois Marriage and Dissolution of Marriage Act allows both moms and dads to ask the court to order the other parent to contribute to “the educational expenses of the child or children of the parties, whether of minor or majority age.” Such an application for educational expenses “may be made before or after the child has attained majority” and any order for the payment of college expenses terminates when the child receives a baccalaureate degree,” so no order will include the costs of graduate school.

In the majority of cases, the parent with the higher income is required to pay a larger percentage of the expenses, although courts occasionally order the child to kick in a portion of the bill.

Act Quickly to Receive the Support You Need

Too often, parents delay filing a petition for post-majority expenses until college fees are upon them. If you wait until your child is packing up for the first day of school, you could get stuck with the bill for the first semester.

If you have questions or concerns regarding your child’s college costs after a divorce, please give me a call at (312) 236-2433 or fill out my online form to arrange for a consultation.

Consistency, Clarity, and Calculators: New Formula for Spousal Maintenance in Illinois

Posted on by Louis Fine

alimonyA new Illinois law effective on January 1st of this year establishes for the first time specific formulas for calculating the amount and duration of spousal maintenance payments after a divorce.

While child support payments in Illinois have long been determined by statutory factors and formulas, spousal maintenance awards have been subject to wild inconsistency, leading to similarly situated couples receiving vastly different outcomes and making it difficult for the individuals and their attorneys to predict and plan for the ultimate order that will govern their obligations.

The amendments to Sections 504 and 505 of the Illinois Marriage and Dissolution of Marriage Act provide guidelines for judges in the event that they determine that a maintenance award is appropriate (based on the factors listed in Section 504(a)).

Calculating the Maintenance Amount

Notably, the new guidelines only apply where the combined gross income of the parties is less than $250,000 and no multiple family situation exists. For couples within that threshold, the new law provides that a maintenance award should equal 30 percent of the payor’s gross income, minus 20 percent of the payee’s gross income.

Example:

  • Husband’s annual gross income = $100,000 (30% = $30,000)
  • Wife’s annual gross income = $45,000 (20% = $9,000)
  • $30,000 – $9,000 = $21,000 in annual spousal maintenance to wife.

One nuance is that the new law provides that regardless of the result of the foregoing calculation, the resulting award cannot be greater than 40 percent of the parties’ combined gross income when added to the payee’s gross income. The higher the payor’s income is in relation to the payee’s, the less likely the 40-percent rule is to limit the payee’s award.

Duration of Maintenance

How long a spouse will be required to pay maintenance is based on the duration of the marriage.  A judge is to use the following formula in determining how long payments must continue:

  • Married 0 – 5 years = 20% of the duration of the marriage
  • Married 5 – 10 years = 40% of the duration of the marriage
  • Married 10 – 15 years = 60% of the duration of the marriage
  • Married 15 – 20 years = 80% of the duration of the marriage
  • 20 or more years = court has discretion to order either permanent maintenance or maintenance equal to the length of the marriage.

Under this formula, for example, a 5-year marriage would result in a 1-year maintenance obligation, while a 10-year marriage would result in 4 years of maintenance payments.

Judge May Deviate From Guidelines But Must Explain Why

While a judge is not required to follow the new guidelines, if they deviate from them they must specifically state in their findings the amount of maintenance or duration that would have been required under the guidelines and the reasoning for any variance from the guidelines.

In addition to the new formulas, the amendment to the law also:

  • Prevents a judge from ordering unallocated maintenance unless the parties agree to it;
  • Authorizes a judge to permanently bar maintenance for marriages of 10 years or fewer;
  • Specifies that judges must subtract maintenance payments from the payor’s income for purposes of calculating child support.

The hope is that the new law will make it easier to predict and determine spousal maintenance amounts and thus reduce the amount of both acrimony and uncertainty involved in finalizing such amounts during divorce proceedings.

If you have questions or concerns regarding the new law or spousal maintenance generally, please give me a call at (312) 236-2433 or fill out my online form to arrange for a consultation.

This article has been prepared by the Law Offices of Louis R. Fine for informational purposes only and does not, and is not intended to, constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

Mediation Can Be a Path to a Less Painful Divorce

Posted on by Louis Fine

There is simply no getting around that fact that the end of almost any marriage is a time fraught with intense emotions, tension, and conflict. Hurt feelings, worries about the future and the well-being of any children, and the practical issues of property division and support can create a perfect storm for lengthy, expensive, and destructive divorce litigation.

It doesn’t have to be that way.

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