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 considered 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: www.dol.gov/ebsa/faqs/faq-consumer-cobra.html.

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 Amazon.com by clicking here.

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 Amazon.com by clicking here.

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. Don’t 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 Amazon.com by clicking here.

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 Amazon.com by clicking here.

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 Amazon.com by clicking here.

What types of custody are available in Illinois?

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

Under Illinois law, there are two options concerning child custody: either one parent will have sole custody, or the parties will have joint legal custody.

If you have sole custody, you make all of the decisions concerning the welfare of the children. You have no duty to seek input or consent from the other parent. Ordinarily, the children reside with the sole custodian and the noncustodial parent has visitation time on a set schedule.

Each parent has scheduled time with the children regardless of who has custody. Provisions for days of the week, school breaks, summer, holidays, and vacations are typically made in detail. If you and your spouse decide that one of your children will reside with you and another will reside with your spouse, the arrangement is called split physical custody.

With joint legal custody, you and your former spouse make major decisions jointly. Only major decisions need to be decided jointly, not routine day-to-day decisions, which are decided by the parent with whom the children primarily reside. If you and the other parent have joint custody and you have a dispute over a major parenting decision, you must attend mediation to discuss the disagreement. If you can’t work it out in mediation, the judge will then decide the disputed issue.

Under a joint legal custody agreement, the children typically reside with one parent and the other parent has visitation or parenting time with the children. There is some confusion about the term joint custody. Under Illinois law, joint custody does not mean that the children live with parents 50 percent of the time. Joint legal custody only refers to decision making.

An equal time-sharing arrangement is commonly known as shared custody. Judges generally frown upon shared custody because of the belief that the lack of a “home base” destabilizes children. If both parents agree to shared custody, however, most judges will permit the arrangement.

Joint and shared legal custody is often encouraged by mediators, lawyers, and even judges as a way to avoid messy and costly litigation. But sometimes, in high-conflict or oppositional relationships, a joint custody agreement just kicks the can down the road for a few years, when chronic disagreements will require the appointment of a sole custodian. In high-conflict relationships, consider addressing the unpleasant issue of sole versus joint custody head on, at the time of the divorce, rather than putting it off for a later day. 

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

What factors does the judge look at in deciding how to divide marital property?

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

Property is ordinarily divided on a 50/50 basis, but under some circumstances the judge might consider dividing assets in other ratios. For example, the judge might give a homemaker 60 percent of the assets, to recognize the fact that her future financial circumstances are not be as promising as those of her working husband. In general, here are the factors that a judge considers in deciding how to divide marital property:

• The economic contributions of both parties
  
• Contributions of services to the marriage: homemaker contributions, for example
  
• Dissipation of either party: actions taken to deplete the martial estate during a period when the marriage was undergoing an irreversible breakdown
  
• The length of the marriage
  
• The relevant economic circumstances of both parties
  
• Whether any prenuptial or postnuptial agreements address the distribution of property
  
• The age, health, station, occupation, amount, and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties
  
• The amount of maintenance paid or received
  
• The arrangements concerning custody of the children
  
• The future ability of the respective spouses to acquire assets or build wealth
  
• The tax consequences of the property division on each spouse 
  
  You can purchase Steven Peskind's book titled, Divorce in Illinois: The Legal Process, Your Rights and What to Expect on Amazon.com by clicking here.
  

My spouse makes a lot more money than reported on our tax return. How can I prove my spouse’s real income?

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

First of all, tax returns don’t always tell the whole story about someone’s income. For example, regular gifts received would not be reflected on the return. If your spouse is self-employed, corporate distributions (distinguished from wages or dividends) would not necessarily show up on the personal return. Also, personal expenses paid by the family business will not always show up on the personal return. Finally, if your spouse has access to cash that he or she doesn’t declare, that may not be reflected on the return.
In these circumstances, your lawyer can take a number of actions to determine your spouse’s income with greater accuracy. These include:

• Conduct more-thorough discovery, including review of W-2s, corporate tax returns, K-1 disclosures on stocks, and personal financial statements prepared for creditors.
  
• Examine check registers and bank deposits. If income deposited exceeds income disclosed, that is a way to prove more income.
  
• Conduct a lifestyle analysis, determining if the cost of the lifestyle exceeds disclosed income.
  
• Take depositions of third parties who have knowledge of income or spending by your spouse. For example, if you know someone paid your spouse cash, your lawyer can subpoena that person to testify to that fact. If the money wasn’t deposited into any accounts or reflected anywhere as income, that would help support your claim.
  
• Subpoena records of places where your spouse has made large purchases or received income.
  
• Subpoena banks where your spouse has received financing to obtain personal disclosures concerning your spouse’s income. 

Lawyers often hire forensic accountants, who are trained to investigate these types of matters. The accountant will at- tempt to ascertain your spouse’s “real” income rather than the sums disclosed on the tax return. Also, lawyers sometimes hire experts to help you prepare a lifestyle analysis. A lifestyle analysis reconstructs your expenditures over a sample period of time. Assuming your paid family expenses exceed your spouse’s declared income, the analysis confirms the existence of other undisclosed income. Discuss your options with your lawyer. 

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

How Maintenance and Child Support Will Change

Effective January 1, 2015, Illinois maintenance and child support laws have significantly changed.   Formerly a trial judge had broad discretion to determine proper maintenance. Now maintenance is determined using specific predetermined guidelines for specified time periods. Under the new law, the court shall first determine whether a maintenance award is appropriate, and if so, the court is to order maintenance in accordance with the guidelines set out in the statute. Alternatively, the court may reject the guidelines after considering all of the relevant factors, set out in the statute. Child support is to be calculated after the maintenance is determined. While Judges still have discretion, their options are more limited now.

Guidelines

Here’s how the new guidelines work. The guidelines are based on the parties “gross income” which is defined as “all income from all sources.”  This includes wage income, investment income, business distributions and various other types of income. When the combined gross income of the parties is less than $250,000 and no multiple family situations exists, the amount of maintenance is calculated by taking 30% of the payer’s gross income, minus 20% of the payee’s gross income.  The amount calculated under the guidelines may not result in the recipient receiving an amount in excess of 40% of the combined gross income of the parties.

 Duration of the Maintenance

The duration of the maintenance shall be calculated by multiplying the length of the marriage by the ratios set out in the statute:  0-5 years (.20); 5-10 years (.40); 10-15 years (.60); or 15-20 years (.80).  For example, take a marriage of 8 years. The multiple for a marriage lasting between 5-10 years is .40. Thus, 8 X .40 = 3.2 years of maintenance. For a marriage of 20 years or more, the court, in its discretion, shall order either permanent maintenance or maintenance for a period equal to the length of marriage.

Other provisions

The new law provides that the court shall make specific findings of fact regarding the following: (1) the court shall state its reasoning for awarding or not awarding maintenance and shall include references to each relevant factor set forth in the statute, and (2) if the court deviates from otherwise applicable maintenance guidelines, it shall state in its findings the amount of maintenance or duration that would have been required under the guidelines and the reasoning for any variance from the guidelines. 

The statute further provides that unless the parties otherwise agree, the court may not order unallocated maintenance and child support in any dissolution judgment or in any post-dissolution order. The court may however, in its discretion, order unallocated maintenance and child support in any pre-dissolution temporary order. 

Finally, the statute provides that if a court grants maintenance for a fixed period at the conclusion of a case, which has been commenced before the tenth anniversary of the marriage, the court may also designate a specific termination date. Maintenance is barred thereafter.  This is a material change to the former law that disallowed a judge, under any circumstances, from providing that maintenance  automatically terminates on a given date.

Child support 

The child support statute has also been amended. Now, child support is calculated after deducting any sums paid as maintenance, “Obligations pursuant to a court order for maintenance in the pending proceeding actually paid or payable under Section 504 to the same party to whom child support is to be payable.” Under the former statute, child support was determined independent of maintenance. Now, in addition to all of the other deductions provided for in the statute, maintenance actually paid is deducted, and that net sum is applied to the child support percentages.  This feature of the new statute reduces child support for parents also receiving maintenance. 

Summary

There is tremendous uncertainty in light of the dramatic change in the law. It will take years before there is any meaningful consensus on how the new statute will operate in practice. While the goal of the statute was to eliminate subjectivity by applying a predetermined formula, confusion will likely ensue from the radical departure of our former law. The law usually evolves slowly and incrementally. This seismic change will force the law to respond quickly and decisively to clarify how the new law should be applied.