If you are considering appealing a family law case.....

Appellate planning starts in the trial court.

All good trial lawyers are conscious of “preserving the record” in the event of an appeal. It is vital to have a court reporter at trial in order to do this. A court reporter’s job is to record the proceedings, including all of the witness testimony and the comments by the attorney’s and the judge. In the event an appeal becomes necessary, the court reporter prepares a transcript, which is given to the appellate court as part of the appeal. The appellate judges review the transcript as part of their consideration of the appeal. Without a transcript, it is much more difficult for the appellate judges to determine errors in the trial court. Since the person appealing needs to convince the appellate judges of an error in the trial court, the absence of a transcript can be fatal to the appeal.

Certain issues need to be raised in the trial court or they are waived on appeal. This means that if an issue is not raised at trial, one cannot raise the issue for the first time on appeal. For example, if the issue at the hearing only involved the question of the modification of maintenance, one cannot complain on appeal of a child support issue.

Also, trial court mistakes must be brought to the attention of the trial judge or they are waived on appeal. For example, if the judge considers improper evidence, and no objection is made at the time of the trial, the impropriety cannot be raised for the first time on appeal. It is vital that all errors be properly preserved in order to raise the issue in the appellate court.

Appeals are very time sensitive. One only has a limited amount of time after the entry of a final order to file the appeal. In the event an appeal is considered, action will need to be taken right away in order to meet the strict time requirements.

Appellate law is very complicated and success often depends upon good planning.

The Peskind Law Firm has substantial experience at both the trial and appellate court. Mr. Peskind is available to consult concerning appellate planning in the trial court and all other matters related to an appeal. If you are considering an appeal, Mr. Peskind will evaluate the appeal and explore opportunities for a successful result. Contact him at steven@peskindlaw.com or call the Peskind Law Firm at 630-444-0701.

What is an appeal?

At the conclusion of any family law trial, the trial judge court will make a ruling. If the ruling is considered a final ruling, either party may file an appeal. An appeal does not mean that you get to try your case over with a different judge; rather an appeal involves taking your case to an entirely different court, who will review the trial judge’s ruling. The appellate will determine if the trial judge made a mistake, and if so, it will reverse the ruling. If the appellate court does not believe an error was made, it will affirm the ruling. A ruling by the appellate court can then be reviewed by the Supreme Court, but only if the Supreme Court permits the matter to be reviewed.

The procedure for an appeal involves asking the clerk of the court to prepare the trial court record and then submitting a written argument to the appellate court outlining all of challenges to the ruling.  The trial court record includes: the court file with all pleadings and trial court orders, all of the exhibits submitted at the trial and the transcript of the testimony at the trial. The written argument, known as a “brief,” summarizes the facts of the case and presents legal arguments supporting a reversal of the trial judge.

Once the appeal is filed, the appellate court assigns the case to a panel of three appellate judges who will review the case and determine if the trial court acted properly and consistent with the law. Sometimes the appellate court will request “oral arguments.” If an oral argument is ordered, the attorneys appear at the appellate court and argue the case before the panel of judges.

Preparing an appeal is very involved. The procedures are complicated and the rules differ greatly from those rules in the trial court. An attorney who comfortably navigates daily in the trial court may not necessarily be the right person to handle your appeal. Advocacy in the appellate court is dramatically different than in the trial court, and requires different skills than are required to present a case to at trial judge.

The Peskind Law Firm has extensive experience handling appeals throughout the state. Steven N. Peskind has successfully appealed court decisions both in the appellate court and the State Supreme Court. Mr. Peskind and his team understand how to effectively present the case to the appellate court to maximize chances of success. Whether the case involves appealing a trial court ruling, or defending an appeal, the Peskind Law Firm can help. Contact Mr. Peskind at steven@peskindlaw.com or call the office at 630-444-0701.

Divorce vs. Legal Separation

Excerpt taken from Divorce in Illinois - The Legal Process, Your Rights, and What to Expect by Steven N. Peskind, Esq.

People with marital problems sometimes consider a legal separation rather than a divorce because a separation seems less permanent, less drastic. Some look at a legal separation as "divorce-lite." If you and your spouse want to just separate or take a "time out" from each other, work out an informal agreement regarding payment of bills and child-related matters, and then just separate without going to court. A legal separation is a formal court proceeding with the costs and expenses that go along with any court case.

If you do file a petition for legal separation, the judge will enter orders for maintenance, support, and custody. If you both agree, you can also divide your assets. 

Once the court enters a decree of legal separation, you are still married. You can file joint taxes as a married couple and may be eligible for health insurance and retirement benefits as any other spouse. If your spouse dies, you are considered a surviving spouse for the purposes of inheritance and probate laws. Any assets or debts that either of you acquire after the decree of legal separation remain your separate property or debt, in the event you later decide to divorce. 

Today people rarely use legal separations. The procedure is temporary and provides no real closure of the relationship. Since you are legally married, even if legally separated, you will need to get a divorce if you want to remarry or later decide to end the marriage with finality.

Most commonly today, people file legal separations to protect assets from creditors if one of the spouses needs long-term care. Sometimes people use this procedure if they anticipate a long-term separation and want to benefits from tax deductions for the payment of maintenance. A legal separation status of their marriage, but isn't ready to "pull the trigger" for the divorce. Separate and get a good counselor. Don't incur the unnecessary cost of the legal separation. If the marriage can't be salvaged through counseling, proceed with a divorce at that point.

My spouse says we should use the same attorney for the divorce. Is this a good idea?

Even amicable divorcing couples have differing interests. Consequently, lawyers’ ethical rules disallow them from representing both parties to a divorce. When parties negotiate their own agreement, it is not uncommon for one party to retain an attorney and for the other party not to do so. In such cases, the party with the attorney files the petition for dissolution, and prepares the marital settlement agreement. The party without the attorney should at least consult with a different lawyer to review the agreement on their behalf. Independent legal advice on matters such as the taxes, retirement, and health insurance issues helps clarify the implications of your agreement.

While it is appropriate to trust your spouse and his or her lawyer, know your rights before signing off on any agreement that will affect you for the rest of your life. A judge will not likely let you come back and change the agreement later based upon a lack of knowledge of your legal rights at the time of the divorce.

Insert taken from: Divorce in Illinois by Steven N. Peskind. Published by Addicus Books.

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) 

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.

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.