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.