Friday, September 15, 2017

What is the role of the judge in a divorce case?

Image result for judge

When one files a divorce case, the clerk of the court randomly assigns the case to a presiding judge.  The presiding judge serves various roles during the divorce.

First the judge oversees the progress of the case. The judge makes sure that the lawyers are taking steps to move things forward. The Supreme Court's rules require the parties to promptly work out all parenting issues. The judge ensures compliance with that rule. The judge may order the parties to attend mediation or appoint a guardian ad litem. The guardian's role is to investigate each parent’s claims about the other and to suggest beneficial arrangements for the children.  The guardian will report to the trial judge, to help the judge determine how to help resolve the dispute.

As part of the judge's role as case manager, the judge will insist on periodic court dates for the lawyers to provide case updates.  At those "status hearings," the Judge will request information about whether the parties are negotiating or if there is a stalemate. The attorneys may also request the judge's input on other matters at that time. The judge will schedule follow up dates to track the case. If the parties cannot reach an agreement, the judge will schedule the case for trial. At the trial the same judge who oversaw the case will hear the evidence and decide the contested issues. As the vast majority of all cases settle, it is rare that the judge presides over a divorce trial.

The presiding judge must also resolve interim or temporary issues. Those issues include temporary financial or parenting disputes. Also, under court rules, both parties need to exchange financial and other information. The judge may need to resolve disagreements about compliance as well. When an attorney asks the judge resolve an interim dispute, it is called a "motion" or a "petition." Motions or petitions are ordinarily in writing, and scheduled on the judge's calendar by the clerk of the court. The opposing party usually has an opportunity to file a written response to the motion. When there are emergency matters, judges relax the formal rules to resolve things more quickly.

 If the parties and their attorneys cannot work out the disputed issues, the attorneys will either argue the matter in court or meet with the judge in his or her chambers to discuss the dispute. In advance, the attorneys will give the judge copies of the motions, case law, and other documents supporting their arguments.  The judge will do one of three things: enter an order either granting or denying the motion, request an extended hearing to hear formal evidence, or defer the issue until a later date.

One of the most helpful aspects of the judge's involvement is during the settlement negotiations. Most parties can work out most of the issues on their own. Sometimes however they reach a stalemate on one or two matters. In that event, the attorneys will ask the judge to make recommendations at a pretrial conference. Before the conference, the attorney's will provide a memorandum summarizing the important facts and his or her client's position. The judge will tell  how he or she would likely rule if the parties cannot settle and the judge tries the case. This input is very helpful in getting the case settled. If one knows how the judge is likely to rule in advance, it is often futile or unproductive to take the matter to trial. While sometimes issues need to go to trial for certain reasons, parties can resolve most issues with the help of the judge at the pretrial.

If the parties do reach an agreement, the judge will need to approve the agreement. If the judge feels an agreement is improper or grossly unfair, the judge will reject the agreement and the parties will need to keep negotiating. This rarely happens. Judges approve the vast majority of all agreements.

There is an old saying that it is better to know the judge than the law. Cynically, one might interpret this as meaning the judge can be swayed by a prior relationship. More legitimately, however, this saying reflects the benefits of knowing the judge's temperament, tolerance for certain arguments, likes or dislikes, etc. By knowing the judge's proclivities, the lawyer can better advise his or her client and resolve cases more advantageously.

Monday, January 4, 2016

Summary of the Changes to the IMDMA

A Summary of the Significant Changes to the 2016 Illinois Marriage and Dissolution of Marriage Act

Commencing January 1, 2016, Illinois family laws will significantly change.  The new laws are applicable to divorce cases filed after January 1, 2016 and those cases pending before January 1, but not yet resolved as of that date. Here is a summary of some of the major changes:

Grounds for divorce. Formerly a party seeking a divorce was required to allege and prove grounds before a divorce was granted. Those grounds included fault based grounds (e.g. physical or mental cruelty) and no fault grounds (irreconcilable differences). Under the new law, if couples are separated for at least six months, the party seeking the divorce may obtain one, regardless of whether the opposing party agrees to the divorce.  In other words, one no longer needs to prove fault grounds to obtain a divorce judgment. Under the former law “separation” did not require parties to live separately; a separation was accomplished if the parties were emotionally separated and not acting as a married couple. Presumably this definition of separation will remain under the new law.

College expense contributions. Under the former law, the court could order a parent to contribute to a child’s post high school education (college or trade school). Under the new rules, a parent can only seek contributions for a student under the age of 23 (or 25 upon good cause shown). Further, the costs of education and housing are now to be capped using the costs of a child attending the University of Illinois in Champaign Urbana as a standard.  Regardless of where the child attends college, the court is to limit a parent’s responsibility based upon the cost of that child’s attendance at U of I.  As a condition of the contribution, the child must maintain a C average and grade reports must be shared with the contributing parents.

Child custody. The concept of “child custody” is abolished. Now, rather than orders of child custody, parents will be allocated decision making rights and parenting time.  Within 120 days of the beginning of the case, the parents are to submit, either jointly or separately, a parenting plan. At a minimum, the plan is to include:

1.      allocation of decision-making responsibilities;
2.      provisions for the child’s living arrangements and parenting time for each parent;
3.      a provision for mediation if the parties intend to make joint decisions regarding the children;
4.      provisions for access to medical and other records;
5.      a designation of the parent having the majority of the time;
6.      a designated address for the child for school enrollment purposes;
7.      contact information for each parent;
8.      notification procedures for future relocation by either parent;
9.      notification procedures in the event of emergencies, healthcare, travel or other issues;
10.  communication procedures for the child is with the other parent;
11.  provisions anticipating possible future relocations of the parents (if applicable) ;
12.  provisions for future modification in the event certain contingencies occur (e.g. if a parent becomes incapacitated);
13.  applicability and terms of a right of first refusal;
14.  Other arrangements to facilitate cooperation between the parents.

Abuse of parenting time.  The legislature has created new remedies for parents improperly deprived of parenting time. Those remedies now include a “fine per incident” provision, make up time, and the option of requiring a parent to post a cash bond to ensure future compliance. If a parent is found in contempt of court as a result of non-compliance with a parenting time order, that parent’s driving privileges can now be suspended and the court can also incarcerate the offending parent.

Parental relocation. If a parent has equal or the majority of parenting time with a child, that parent must notify the other parent, in writing, of plans to relocate within 60 days prior to the potential move. This provision applies to any move more than 25 miles for residents of Cook County or the Collar Counties (including Kane County) and 50 miles for any move for a parent residing outside the Chicago metropolitan area. If the parties do not agree to the relocation or a revised parenting schedule, the parent desiring to relocate must file a petition with the court seeking permission to relocate with the child. The court is to either allow or deny the relocation based upon the best interest of the child.

For more information, consult Steven N. Peskind’s book, "The Changing Face of Illinois Family Law: 2016 Marriage and Dissolution of Marriage Act Overhaul” published by the Illinois Institute of Continuing Legal Education or click here to be redirected to purchasing information for the book.

Monday, July 27, 2015

Will I continue to have health insurance through my spouse’s work after the divorce?

Excerpt taken from Steven N. Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect.

Once the divorce is finalized, you are no longer consid- ered a spouse. You are no longer eligible for health insurance coverage unless you pay for continued coverage.

Federal law requires your spouse’s employer to offer insurance to you for a period of thirty-six months after the divorce. Commonly known as the COBRA law, this federal law ensures continued coverage, subject to your paying for the coverage. Investigate the cost of continuing on your spouse’s employer-provided plan. Ordinarily, the cost for continued coverage is very high, and a private policy may be less expensive. And with Patient Protection and Affordable Care Act, passed in 2010, the advantages of COBRA coverage may become even less attractive.

If you are interested in accessing your rights to continued coverage under the COBRA law, you will need to make the election for coverage within sixty days from the entry of the divorce decree. More information concerning your rights under the COBRA laws is available at:

Begin early to investigate your options for your future health insurance. The cost of your health care is an important factor when pursuing maintenance and planning your post- divorce budget. 

You can purchase Steven Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect on by clicking here.

Friday, June 12, 2015

My husband and I own a dry cleaning business. Who gets the business in the divorce?

Excerpt taken from Steven N. Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect.

Dividing an ongoing business poses certain challenges in a divorce. If both parties are actively running the business, they must decide who will keep the business after the divorce. Some people agree to continue on as co-owners, but that is rare. Usually, one of the parties keeps the business and buys out the other party. If you and your spouse can’t agree on who keeps the business, the judge will decide, usually awarding the business to the party more involved with ongoing operations. Sometimes people agree to sell the business and divide the proceeds.

The party who keeps the business will need to pay the other party their share of the value of the business. This principle also applies to professional practices, such as a medical, dental, or law practice. When the ongoing business or practice is profitable and owns assets, lawyers often hire a business evaluator to value the business. A business evaluator will consider the level of profitability of the business, the value of its assets, and its overall economic circumstances. Generally, more-profitable businesses have a higher value. The business evaluator will render an opinion concerning the value of the business. Often, both parties hire their own business evaluators as expert witnesses. Trials are often necessary when both parties' experts disagree on value and they cannot meet somewhere in the middle. In that event the judge will listen to the testimony of both experts and determine the business value based upon the evidence presented.

Once the value of the business is determined, either by agreement or by the judge, arrangements need to be made to pay the nonowning spouse his or her share. Assume a business has a value of $1,000,000. If the owner has sufficient assets to pay off the spouse at the time of the divorce, the judge will usually order the spouse keeping the business to pay the other spouse his or her share at the time of the divorce ($500,000 in this example). If sufficient funds are not available, the judge may allow the business owner to pay the spouse in installments over a period of time. For example, the judge might make the owner spouse pay annual payments $100,000, securing the debt with business assets to ensure payment. 

You can purchase Steven Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect on by clicking here.

Thursday, May 21, 2015

10 Things to think about if you are considering a divorce

Most approach divorce slowly and cautiously. Even when people are in bad relationships and know it is time to move on, fear and anxiety slows them down. But the world doesn’t stop turning while you deliberate; your action (or inaction) can have a profound effect in the event a divorce is filed later. Here are some things to think about when deciding how to proceed:
  1. Take care of yourself. Now is not the time to fall apart…conserve your resources and energy. Physical health and emotional wellbeing are interrelated. Take care of your body, spirit and mind. Don’t let anticipated life changes overwhelm you: eat healthy food, meditate, exercise and get enough sleep. Take care of yourself first, so that you can take care of your family. 
  2. Stay liquid. Avoid incurring debt or assuming any large financial commitments. If you own a business, don’t undertake any major expansions or commit to obligations that will stretch your resources. Preservation––not growth––is critical at this time.
  3. Keep your eyes open. Watch and listen. Does anything seem suspicious about family finances?  Are there any unidentified withdrawals from bank accounts? Keep notes of anything important. While large scale copying of financial records is unnecessary, selectively copy important financial documents, such as tax returns. Also, consider ordering a credit report on yourself to determine potential issues with your credit.
  4. Keep your cool. Don’t lose your temper––stay composed. Threats or aggressive comments won’t get you anywhere and may come back to haunt you. Nobody ever got into trouble listening. Say less and listen more. Avoid making any incriminating posts on social media as well. While it may feel good to blast the other woman on Facebook, don’t do it.  Keep the drama to a minimum. Also, remember: anything you put in writing, including text messages or e-mails, will be used against you in court. Think before you write. If you need help managing your emotions, seek therapy or counseling.
  5. Dont involve the kids. Regardless of your children’s ages, don’t make them confidants or complain to them about your spouse. Use your friends or a therapist to confess your spouse’s sins; don’t dump your problems on your children. Remember: regardless of your relationship, your spouse is still your child’s parent and your child loves him or her.
  6. Keep a journal. Particularly if you expect contested custody issues, keep a journal of notes for future reference. And don’t leave the journal lying around the house. Make sure to keep it in a safe place. If it is a digital journal, make sure it is password protected.
  7. Maintain perspective. While it may seem so, divorce is not the end of the world. Although everybody’s life will change, often it is for the better. Psychologists confirm that divorce doesn’t affect children as much as the level of conflict between parents. Stay focused on being a great parent and don’t become paralyzed with fear. Life goes on…
  8. Make an inventory. If you have substantial collectibles or physical things that can be removed from the house, inventory the property, either in writing or in a video recording. If there are items that have great sentimental value, and your spouse is a punitive personality, you may want to get those things out of the house.
  9. Watch the cash. If you or your spouse has cash at the house, it may disappear at some point. Get a detailed inventory and if possible, place the money in a safety deposit box or bank account. If you are worried about your spouse cleaning out bank accounts, you have three options:  (1) transfer funds in a joint account into an account under your sole control, (2) remove half of the funds and leave the balance, or (3) do nothing and hope for the best. If your spouse removes money for an improper purpose during a period that the marriage is undergoing a breakdown, he or she must account for the use of the money. Unsubstantiated claims that, “I spent it on family expenses” is insufficient. If the judge does not get a full accounting, the judge can charge your spouse with the loss of that money as part of the final judgment.
  10. Consult with a lawyer. While you may not be ready for a divorce, at least learn your rights and have a lawyer lined up just in case. A good motto is, “hope for the best but plan for the worst.” Often emergency action needs to be taken to preserve assets or address parenting issues. Choosing a lawyer in advance permits you to act quickly to protect yourself or your children.
You can purchase Steven Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect on by clicking here.

Tuesday, May 19, 2015

Will my spouse need to contribute to our children’s college expenses?

Excerpt taken from Steven N. Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect.

A judge can order either of you to contribute toward your children’s college expenses, assuming you both have an ability to pay. The judge will ordinarily not address the issue of college expenses at the time of the divorce unless a child is in college or will be attending college shortly. If the children are deemed too young, the judge will sometimes specifically reserve the issue. At the time that the children do attend college, either party can come back to court and seek contribution from the other. Even without a specific reservation, either of you could come back to court later, seeking an order requiring the other parent to contribute.

Judges consider a number of factors in allocating respon- sibility for college expenses. Here are some of them:
  • The financial resources of both parents
  • The standard of living the child would have enjoyed had the marriage not been dissolved
  • The financial resources of the child
  • The child’s academic performance
Judges frequently cap a parent’s responsibility based on the costs of attending the University of Illinois or other pub- lic state school. So, if the child attends a private school, the contribution will be based upon the costs of attendance at the University of Illinois, regardless of the actual costs.

In addition to tuition, the court may order the other parent to contribute to other costs: room and board, fraternity or sorority costs, spending money, and other incidentals. Judges often use a formula when the parents’ incomes are roughly equal: mom pays one-third, dad pays one-third, and the child pays one-third. The child’s contribution may include grants or scholarships they obtain. There are no absolute formulas here, and the court employs a balancing test to come up with a fair result.

Finally, the judge can order contribution for costs incurred when the child is living with the other parent during extended breaks, or for other miscellaneous expenses incurred while the child is living with either parent. 

You can purchase Steven Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect on by clicking here.

Thursday, April 30, 2015

Will the children be exposed to details of the divorce?

Excerpt taken from Steven N. Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect.

While most parents try to shelter their children from the conflict, some parents use poor judgment. These misguided parents talk to the children about the details of the case or share court documents with them. If this behavior is brought to their attention, judges will usually enter restraining orders restricting either parent from revealing any details to the children. If your spouse is talking to the children about the case or talking negatively about you, speak with your attorney about your options. It might be a good idea to seek court- ordered counseling for the children to try to counter your spouse’s negative behavior.

Parents who share information with the children under the pretense, “I am not going to lie to my children,” are fooling themselves, if not being outright dishonest. There is a difference between lying to the children and being discreet for the sake of their emotional welfare. White lies that protect the children are acceptable and good common sense.

Parents who use their children as confidants also hurt the children. Even though everyone needs a friend and confidante during a difficult period in his or her life, don’t make your child that person. You don’t help your children by placing them in that role. During a period when there is much upheaval for children, they need the guidance and protection of a parent who knows when to say no. And it is much harder to say no to a friend. Don’t give up your parenting responsibilities during this difficult time.

Even if your spouse has mistreated you, it is rare that the disclosure of the mistreatment will in any way benefit the children. The children need a relationship with both of you. They need the security of knowing that it is okay to love both of you. When you rage to the children about your spouse, this will inhibit the children from expressing their love for the other parent. Put your feelings aside for the best interest of your children. 

You can purchase Steven Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect on by clicking here.