The New Tax Law and Its Impact on Illinois Divorce

By  Melissa Rister, CPA, CDFA at Peskind Law Firm

There has been a lot of concern and excitement surrounding the new tax laws.  Here are several changes that could impact already divorced couples or those considering a divorce in the future:

1. Net Incomes are changing.  Standard deductions have been increased while the deductions for dependents have been eliminated.   Also there are now caps on the amounts allowed on common deductions like mortgage interest, state and local taxes paid.  Tax brackets and tax rates have also changed.  All of these adjustments will change the after-tax or “net income” for some, especially those with higher income levels.  Because the state of Illinois support guidelines base child support on “net” income of the parents, there could be a significant impact on the calculations for child support.

2. Expansion of the Child Tax Credit.   In the past, parents frequently alternated claiming the children as dependency exemptions.  While the dependency exemption is no longer available, determing who claims a child as a dependent is important because it allows that parent to claim the child as a tax credit. Going forward, the credit is $2,000 per eligible dependent.  Single filers with an income up to $200,000 and married filers with an income up to $400,000 will qualify for this benefit.  This is up from the previous limitation of $75,000 for single and $110,000 for married filers.  Thus an eligible parent with the credit may deduct the sum of $2,000 per child from his or her tax liability.

3. Expanded Use of 529 plans. For families that have 529 plans for college savings, the new law expands the use of these funds for additional educational expenses for their children.

4. Alimony deductions end in 2019. For couples signing divorce decrees after January 1, 2019, the payment of alimony is no longer deductible to the payor or taxable to the payee.  This will be a significant factor in the negotiation of payments starting in 2019, but all divorces signed previously will not be impacted by the new laws.  This is also the case if alimony payments change in the future via a post-decree action; i.e. if the payment was previously deductible, it will remain deductible in the future.

Please contact one of our attorneys or me (Melissa Rister) at melissa@peskindlaw.com if you have any questions how the changes in these laws may affect an existing order or a pending divorce.

What to do if you are considering a divorce

Consider these tips if you expect a divorce in the near future:

·        Avoid new financial obligations. This is not a good time for major purchases or new financial commitments. Limit new debt, keep your credit card balances low, and stay as liquid as possible. If you don't have individual credit, apply for a credit card, using your spouse’s income in the application.

·        Don’t quit your job! Sometimes people think they gain tactical advantage by quitting their job. If your judge suspects financial gamesmanship it will backfire. Maintain the status quo with your employment unless there is good reason to change jobs.

·        Get a checkup. Now is a good time to determine if you have any potential health problems. If you depend on your spouse’s health insurance, get treatment while covered under your spouse’s plan.

·        Keep your eyes open. Investigate financial matters if you lack information about your family finances. If you can get copies of tax returns or other important documents, do so. Don’t worry if you can't get the information; they will be accessible during the discovery phase of the case.

·        Use a journal. Write down important conversations or information as a reference for future use. This is particularly important if you expect custody disputes. Keep the journal in a safe place to avoid access by your spouse.

·        Run a credit report on yourself. Check your credit to make sure there are no surprise debts that you are unaware of.

·        Don’t record conversations. Recording conversations between you and your spouse is illegal. Don’t do it!

·        Stop using social media. Don’t post anything to Facebook or Instagram; the posts may come back to haunt you. While it is illegal to delete information in anticipation of a divorce filing, you may and should deactivate your account.

·        Play to your audience. There is only one person you will need to impress: the judge. Check all behavior through the lens of, “how will the judge react to me doing this?” If you think your conduct may offend or irritate the judge, don’t do it. Because we can't always be objective about ourselves, it’s important to hire a lawyer who knows the judge and has good common sense.

·        Control your emotions. Don't send text messages, e-mails and Facebook posts when you are angry--your spouse will use them against you if given an opportunity. Remember: the judge may read your angry text or incriminating social media post. Only write or say something that will not offend the judge or something you wouldn’t mind seeing on the front page of the newspaper.

·        Turn down the volume. Everybody feels scared and vulnerable shortly before a divorce starts. This results in people making threats or acting out. Don’t do it, and don’t respond. Call the police if your spouse misbehaves or file for an order of protection (which you can get without filing a divorce). Try to maintain normalcy during this difficult period, particularly if you have children.

·        Don’t hit the panic button. Don’t start disposing of money or hiding accounts. Your spouse’s lawyer will likely find it anyway. This conduct will likely boomerang and cause the judge to mistrust you. If you worry about your spouse removing money, contact us immediately so we can seek court orders to protect you.

·        Watch your back. Don’t be paranoid, but some track their spouse’s comings and goings via GPS, or watch their spouse’s computer using spyware. Change all your passwords and exclude your spouse from any of your cell phone accounts. If you are still concerned, take caution and call us. We can take action to stop this conduct after you file the case.

·        Take care of yourself. Divorce is stressful and will take a toll on even the healthiest. To maintain your strength and emotional health during this difficult time: watch your diet, get enough sleep, exercise, and avoid using alcohol to excess. Keep perspective and if necessary, contact a clergyman or a therapist for counseling. And remember, this too shall pass. While you are feeling overwhelmed and uncertain, your life will get better. Things always look darkest right before the dawn. People not only survive divorce every day, they often thrive in their new life. And you can too! 

Do You Trust Your Attorney?

A legal relationship rests on a platform of trust. If you don’t trust your attorney, you will be miserable and the attorney cannot effectively represent you. Many people are awed by their attorneys education and pedigree and don’t question their attorney’s competence until after the case is concluded.  By then it probably too late to remedy any problems. There is nothing wrong with questioning your attorney about his or her case assessment or thoughts about strategy. The professional relationship is a joint effort and the client should never be kept in the dark about the direction of the case. Here are some things to think about when determining your level of trust in your attorney:

• Level of communication. Does the attorney keep you informed about all aspects of the case? Do you receive updates after court dates? Are your phone calls and emails promptly returned? While most attorneys are busy, there is no reason that an assistant or another lawyer in the firm can’t respond to your questions promptly. A lack of a timely response may be a warning sign that your lawyer is spread too thin to effectively represent you.

• Do you get clear answers to your questions? Good lawyers will answer your questions directly and not evade your requests for answers. Sometimes a lawyer will not know the answer to a question but the lawyer should tell you so, rather than giving you double talk. Good lawyers admit when they don’t know the answer to something. They then use their best efforts to figure out the answer.

• If it seems too good to be true it probably is. Some unscrupulous lawyers tell clients what they believe the client wants to hear rather than the unvarnished truth. Nobody wants to convey bad news but a lawyer has a duty to be honest with their clients, even when bad news must be reported. If things are being presented as unreasonably rosy, beware!

• Manipulative spouses. Sometimes spouses, “just trying to be helpful,” will try to get in your head about your attorney’s competence. Remember this person has a motive to generate mistrust, particularly when the spouse is afraid that the attorney outmatches his or her own attorney. If your spouse really believes your attorney is incompetent, he or she would silently cheer and not bring it to your attention. There are few altruists in divorce court. Don’t fall for it. If you have any doubts, meet with your attorney to discuss your concerns.

Trust your intuition! Your subconscious has a great store of wisdom. If you have the funny feeling that things aren’t right, you need to pay attention to that feeling. Often that “feeling” manifests itself in the stomach with some general queasiness, or you may feel some free floating anxiety that never goes away. Your subconscious may be telling you that you need to act sooner rather than later. On the other hand, beware of paranoia generated by your spouse or general circumstances. If you have questions about your lawyer, advise your lawyer of your concern and talk it out. Or seek a consultation from another attorney for a “reality check.” One thing is certain—a lack of trust in your attorney can be legally fatal. You must address it before it is too late.

Divorce Storytelling

What are the stories people tell themselves when they are going through a divorce? That question is the biggest indicator of the trajectory of the divorce itself. We all make sense of our lives through stories. We have processed information through stories since early childhood and continue to do so as adults. What are the stories divorcing people tell themselves? Do they identify as victims or as survivors? A victim gives up control to another whereas a survivor confronts the challenges of starting over, and looks for new opportunities. Does one look at herself/himself as a failure or accept herself/himself as imperfect. If one identifies as a failure, one lives in the past, oppressed by circumstances that are no longer within her or his control. If people accept their imperfections, they recognize that sometimes bad things happen, and that we need to learn from our mistakes and move on.

Few want a contentious or hostile divorce. This is possible based on the stories we tell ourselves. What are the stories you are telling yourself?

Post-Divorce Checklist

Resolving your divorce marks the end of a difficult season in your life.   This is a great time to review your financial goals and develop a game plan to ensure your future security and success.  Here are also a few things to consider:

1. Review the judgment with your attorney and determine what legal documents you will need to conclude the case.  These might include: Qualified Domestic Relations Orders (required for dividing some retirement plans), Quit Claim Deeds for real estate transfers or an Order to Withhold Support.

2. Close any joint bank accounts that you have.  You may need to visit the bank and complete specific forms or put your requests in writing to close accounts or remove your ex-spouse as a signer on your accounts.

3. Determine what you are going to do for health insurance.  If you have insurance available through your ex-spouse via a COBRA policy, contact your spouse's employer’s human resources department to evaluate the policy and its costs.

4. Decide how to handle debts and existing credit cards even if the current balance is zero.  Close any joint accounts. Usually you can call the credit card company and have your account closed.  If there is an existing balance, see if you can freeze any future activity. You may have to submit a new application for credit in your name only.  Review your credit report to be sure all your marital obligations are resolved and you haven’t overlooked any accounts.

5. Find your own team of professionals to help you in building your new life:

• An estate attorney to help you in preparing a new will, power of attorneys, or establishment of trusts for your children.
• An accountant to help you determine an adequate plan for tax payments; especially if you are receiving maintenance that you will need to pay taxes on.  You may have to file quarterly tax payments to avoid underpayment penalties of your tax liability.
• A financial planner to help you establish a new budget for your lifestyle and develop a financial plan for your future financial needs.  It’s especially helpful to have a projection that details when support payments will change or end.
• An Insurance Agent to help evaluate your insurance needs and change beneficiaries where appropriate.

6. Splurge on one thing you’ve wanted that you couldn’t or wouldn’t do when you were married. Then, enjoy the freedom of doing so!

These are important “to dos” for moving on after divorce.   To ensure a positive financial future take ownership of your situation and be realistic.  When you do so, you can move forward with great confidence and peace of mind.

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

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.

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.