Friday, November 15, 2013

Must I have an attorney to get a divorce in Illinois?

You are not required to have an attorney to obtain a divorce in Illinois. A person proceeding without a lawyer is acting pro se (pronounced pro-say).  While permissible, representing yourself is rarely advisable if your case involves children, maintenance, significant property, or debts.  If you are considering going it alone, you should at least consult with an attorney to discuss your rights and duties under the law. Undoubtedly you will benefit from the opportunity to learn about the process and its pitfalls.  Meeting with a lawyer can also help you decide whether to proceed on your own.

While some cannot afford a lawyer, others choose not to use a lawyer as a way to save money. Today many people are empowered by information found on the Internet. But, the benefits of a lawyer are more than merely an information bank. Good lawyers possess skills such as judgment, wisdom, and the ability to help you make choices based upon your long-term interests. Lawyers know not only the law but the judge as well: what does the judge like and dislike in the presentation of a case. Also, when you represent yourself, you are deprived of the ability analyze your circumstances objectively and might make decisions based upon emotion rather than reason. As Abraham Lincoln famously observed, “A lawyer who represents himself has a fool for a client.” The same can be said about non-lawyers!

In order to help people conduct a simple divorce on their own, the Illinois legislature has created a “Joint Simplified Dissolution Procedure.” The statute can be found at 750 ILCS 5/451. This provides a streamlined procedure for people with no children or assets to get a divorce. If you are interested in using the Joint Simplified Dissolution Procedure, contact the clerk of the court’s office in the county where you live. The clerk’s office has a brochure and other printed materials to help you proceed on your own.

Excerpt from "Divorce in Illinois" by Steven N. Peskind, published by Addicus Publications (2013) 

Monday, September 30, 2013

Staying Out of the Courthouse to Save Money

Most temporary matters are conducted in the judge's chambers and no witnesses testify. At a status hearing or a case management conference, the attorneys discuss pending issues and work out timetables or set future hearing dates. Why can't all of these hearings be conducted by phone? Court is expensive for clients, particularly when they need to pay their attorneys for transportation time. From my estimation, 80% of all court could be conducted by phone, with appropriate documents circulated in advance via e-mail.  At the conclusion of the hearing, the judge could enter the appropriate order and send it to the attorneys. Thousands of dollars in legal fees could be saved and attorneys could be more efficient, avoiding the unnecessary busy work of getting to the courthouse and waiting around. Also, the judges would save time and be able to schedule matters around their schedules, rather than being beholden to specific motion calls. This seems like a win-win-win to me. Nothing is perfect but this is an idea worth considering.

Tuesday, August 27, 2013

Problem Solvers versus Problem Creators

The way I see it, there are basically two types of lawyers: problem solvers and problem creators. At my firm we are constantly looking for ways to solve problems, trying to find the best way to help our clients. Sometimes we do this at a conference table and other times in a courtroom. Either way, we are looking for the most effective way to help our client considering the issues and the personalities.

Problem creators, on the other hand, use the legal system to obstruct and damage. These personalities express their own anger by exploiting their client's anger.  Often they cynically run up the bill by filing silly, unproductive pleadings.  These lawyers just don't think through the consequences of their actions and walk away at the end leaving a wake of destruction and animosity. Regardless, these unprofessional lawyers create problems for their client, the opponent, and the system at large by wasting valuable resources.

I am not a wide-eyed idealist, and I understand that emotion is integral in family law cases. But family court is not properly served by lawyers looking to foment conflict rather than solve it. As the great Illinois lawyer, Abraham Lincoln, said, "Never stir up litigation. A worse man can scarcely be found than the one who does this... A moral tone ought to be infused into the profession, which should drive such men out of it."

Your family is a delicate organism. And while it will be altered by divorce, relationships need to remain in tact. Emotion management is key to a successful outcome. Address your anger and frustration in therapy rather than by hiring a destructive problem creator, who, like sugar and fat, will provide instant gratification at a significant long-term cost to your family's health.

Problem solvers respect the delicacy of the issues and try to help you transition to a new life in a constructive way. While people often don't like what we have to say, problem solvers address your issues honestly and directly, hoping to guide you onto a positive path.

Friday, June 21, 2013

New book "Divorce in Illinois," coming out later this summer

My new book, "Divorce in Illinois" will be published by Addicus Books later this summer. 

Here is an excerpt from the introduction:

"Lawyers have a vital and important role in helping you through the process. Unfortunately, if you get the wrong lawyer, it may affect you the rest of your life. I have a friend who once told me clients and their lawyers often resemble each other, not physically but temperamentally. Angry people get angry lawyers, and smart people get smart lawyers, etc. There may some truth to this anecdote. Even if you are angry––and at least initially you may have a right to be angry–––find a lawyer that will help moderate your emotions rather than exploit them. Lawyers that jump at your command, and don’t discuss the consequences of poor decisions, are not doing you a favor. While it is empowering to have a personal attack dog, you will be left with the consequences of  your poor choices long after that lawyer is gone. Find an emotionally mature lawyer that will help you make good decisions. This doesn’t mean that you need to be passive and accept whatever your spouse throws at you. Just the opposite: Don’t be a victim! But by the same token, choose your battles wisely with the help of a thoughtful and experienced divorce lawyer."

The book is a comprehensive guide to all aspects of divorce in Illinois; answering your questions on the various aspects of divorce: child custody, property division, taxes, child support and maintenance.

Tuesday, June 11, 2013

Maintenance Madness

With the exception of children's issues, no topic is more controversial in divorce litigation than maintenance. Known as alimony or spousal support in other states, maintenance in Illinois is designed to assist an unemployed spouse achieve financial parity with the primary wage earning spouse. I see both sides of the dispute.

Payers (usually men) cannot believe that they are often ordered to pay approximately half of their wages to support a former spouse who may not be exercising reasonable efforts to become employed. And the payment often continues until retirement (and sometimes beyond)! On the other side of the debate, those eligible for maintenance (usually women) are frequently displaced homemakers who have spent decades raising children while their spouse advanced in his career. Shouldn't she be able to share in the fruits of success now that the children have left home?

Some have tried to cope with the debate by suggesting concrete guidelines or term limits. Illinois already has in place provisions that automatically ends maintenance if one "cohabits on a continuing conjugal basis." In other words, it may if a recipient enters a new serious long term relationship and other conditions are met.

I personally am not a fan of strict rules here. In that respect, my thoughts run counter to trends nationally. I think we need less hard and fast rules rather than more. Every family situation is different. If maintenance is designed to recognize the lost economic opportunities resulting from a homemaker caring for children, should she be automatically penalized by having a new relationship? Or, when appropriate, should we disallow a judge from ordering  just a couple of years of maintenance? (Illinois law currently disallows a court from entering a term definite amount of must be left open ended).

The law constantly pushes and pulls between the predictability of definite rules and the opportunities to do the right thing, which judicial discretion allows. Here I believe the latter is preferable.

Wednesday, June 5, 2013

Reevaluating Child Removal

I just read a great article by Philip M. Stahl entitled, "Emerging Issues in Relocation cases." It was published in the Journal of the American Academy of Matrimonial Lawyers (Vol 25, No. 2) published in Spring of 2013. Stahl discusses the research on children due to  relocation (which is inconclusive, just like everything else in this thorny area of law) and recommends factors courts should consider when weighing these types of cases.

For 25 years, Illinois has used the case of In re Marriage of Eckert 119 Ill.2d 316 (1988) as the benchmark in child removal cases:

"In deciding whether removal is in the child's best interest, a trial court should hear any and all relevant evidence.  A determination of the best interests of the child cannot be reduced to a simple bright-line test, but rather must be made on a case-by-case basis, depending, to a great extent, upon the circumstances of each case. There are, however, several factors which may aid a trial court in determining the best interests of the child. The court should consider the proposed move in terms of likelihood for enhancing the general quality of life for both the custodial parent and the children. The court should also consider the motives of the custodial parent in seeking the move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation.  Similarly, the court should consider the motives of the noncustodial parent in resisting the removal.  It is also in the best interests of a child to have a healthy and close relationship with both parents, as well as other family members. Therefore, the visitation rights of the noncustodial parent should be carefully considered.  Another factor is whether, in a given case, a realistic and reasonable visitation schedule can be reached if the move is allowed. "

I never found these so-called "Eckert factors" particularly helpful. The factors are too abstract and don't give enough guidance to litigants or courts. Stahl's article appealed to me because he addresses specific factors to consider, based upon clinical research. Those factors include:

  • The age of the child.
  • The Distance of the move.
  • The child's psychological functioning, including strengths and vulnerabilities.
  • The degree of nonresidential parent involvement
  • The strengths, resources and vulnerabilities of the moving parent
  • Parenting effectiveness of both parents
  • The history, nature and degree of parental conflict
  • The history of any domestic violence
  • Social capital in each location (family members and connections)
  • Each parent's ability to be a responsible gatekeeper and support the child's relationship with the other parent
  • The recency of the Separation and Divorce
I find this list of factors much more helpful than the Eckert factors, which again, provide little guidance to judges trying to determine the best interests of children. I urge everyone to read Phil's well written and thought provoking article. 


Friday, May 17, 2013

"The Family Law Evidence Handbook: Rules and Procedures for Effective Advocacy"

I am excited to announce the publication of my new book,"The Family Law Evidence Handbook: Rules and Procedures for Effective Advocacy," published by the ABA. 

I wrote this book as a true trial handbook: a quick counsel table reference for matrimonial trial lawyers. The goal of the book is "how to get it in and how to keep it out." While the book relies mainly on the Federal Rules of Evidence, many states (including Illinois) follow them closely if not exactly.

The topics I cover in the book include:

Chapter 1    Trial Process and Procedure

Chapter 2    The Fundamentals of Evidence
Chapter 3    Relevance
Chapter 4    Evidence of Character and Habit
Chapter 5    Other Miscellaneous Relevancy Issues
Chapter 6    Hearsay
Chapter 7    Hearsay Exceptions
Chapter 8    Judicial Notice and Presumptions
Chapter 9    Authentication of Writings and Other Tangible Evidence
Chapter 10  Original Writing Rule and Rule of Completeness
Chapter 11  Competency of Witnesses
Chapter 12  Evidentiary Privileges
Chapter 13  Expert Witnesses
Chapter 14  Examination of Witnesses
Chapter 15  Tendering Exhibits, Objections, and Offers of Proof
Chapter 16  Procedures for Streamlining Admission of Evidence

Helpful information includes the procedure to admit social media, such as Facebook pages, websites and other digital evidence. Oklahoma lawyer and  expert on electronic evidence, Joe Howie, noted about the book, "I've read countless articles and blog posts on e-discovery and sat through many a webinar and live presentation on electronic evidence but nobody has done as good a job of offering practical advice on how to authenticate and use electronic evidence...Peskind's handbook demystifies actually using electronic evidence at trial."   

As I state in my introduction, "Judges identify lawyers who can try cases well, and appreciate their skill. And good settlements come from superior trial skills. A lawyer who knows how to try a case can often secure a better settlement than the lawyer who is less comfortable in the courtroom. Lawyers who do not recognize their limitations will try cases unsuccessfully against opponents who know the rules and can apply them. It is axiomatic, but knowledge is power. This book is the starting point for lawyers pursuing excellence in family law trial advocacy."


Click here to purchase copies from the ABA store:

Tuesday, March 12, 2013

Why Family Law?

Clients often ask me, incredulously, how can you do what you do? My typical response is that I am not getting a divorce, so it doesn't affect me the same way it does them. Regardless, they still sometimes suspect that I may be a masochist for choosing to work in an area as emotional as family law.

Why do I do it? I marvel at the human condition: I am fascinated by the intersection of law and society, dwelling largely in family court. We live in an era that is redefining the nature of the family, parenthood, and people's rights of access to children. No other area of law allows you to see society literally recreating itself daily.

Through my work, I've observed heroes and scoundrels and have seen the response they each elicit from the legal system. I've seen the graciousness of some juxtaposed by the pettiness of others. I don't need to read Shakespeare to understand human drama; it is played out before me in every case I have. I thrive on helping people through the difficulties of divorce, focusing them on positive aspects of their life rather than dwelling on their temporary misery. There are few rewards as great as helping those in pain survive their ordeal and ultimately flourish.

Undoubtedly, I see sadness and loss, despair and frustration. But I also see healing and growth, hope and contentment. Family law gives me the opportunity not only to witness the multifaceted human experience, but to shape it as well. This is why I am a family lawyer.

Monday, February 11, 2013

10 Things a Divorce Lawyer Should Know About Appeals

Appeals are complex, and preparation starts far before the trial ends. On February 13, Peskind Law Firm is presenting a free lunchtime seminar addressing strategies and techniques that can make the process less confusing, more efficient, and ultimately more successful. "10 Things a Divorce Lawyer Needs to Know About Appeals" will discuss:

  • Offers of proof
  • Preserving the record- facts;
  • Preserving the record- arguments;
  • Post-trial motions;
  • Final orders;
  • Interlocutory appeals;
  • Standards of review;
  • Exhibit organization;
  • Appellate fees; and,
  • Overall strategies and rules

Tuesday, January 15, 2013

Issues in Transgender Family Law

A transgender person may find it difficult when it comes time to get married or divorced. Most laws do not take into account the identity of a transgender person.  A person’s identity can play a large role in the world of family law. 

Ultimately, the validity of a transgender’s marriage is viewed in relation to each state’s recognition of same sex marriage. While Illinois recognizes civil unions, the state does not recognize marriage between parties of the same sex. Those marriages are considered “prohibited” and thus invalid.

Therefore, for purposes of entering into a marriage, a transgender person must discover whether they are considered, legally, their pre-transition sex or post-transition sex.

In some states, courts have upheld post-transition marriages where a different-sex spouse legally changed his/her sex and then married his/her different-sex partner. In these cases, the courts acknowledged that the person is able to legally change their gender and therefore able to marry a person that would otherwise be of the same sex. In opposite, some states have concluded that a person’s birth sex is unchangeable and therefore a post-transition person cannot marry a person who originally was the same sex. Illinois edged closer to this second line of reasoning in 2005 with the Illinois Appellate Court’s decision in In re Marriage of Simmons.  In Simmons the court invalidated a marriage entered into between a transgender male and female. The court found the husband was legally female.  In its decision, the Court did mention that the husband had not undergone a “full” transition, leading to the conclusion that the court may have found the marriage valid had their been a full transition.

-Emily Rapp