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. 

Are there other benefits to mediating or negotiating a settlement?

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

Yes. A divorce resolved by a mediated or negotiated agreement can have these additional benefits:

Recognizing common goals. Mediation and negotiation allow for brainstorming between the parties and lawyers. Looking at all possible solutions, even the impractical ones, invites creative solutions to common goals. For example, suppose you and your spouse both agree that you need to pay your spouse some amount of equity for the family home you will keep, but you have no cash to make the payment. Together, you might come up with a number of options for accomplishing your goal and select the best one. Contrast this with the judge who simply orders you to pay the money without considering all of the possible options.

Addressing the unique circumstances of your situation. Rather than using a one-size-fits-all approach as a judge might do, a settlement reached by agreement allows you and your spouse to consider the unique circumstances of your situation in formulating a good outcome. For example, for the Thanksgiving holiday, the judge will likely order you to alternate the holiday each year, even though you both would have preferred to have your child share the day.

Creating a safe place for communication. Mediation and negotiation give each party an opportunity to be heard. Perhaps you and your spouse have not yet had an opportunity to share directly your concerns about settlement. For example, you might be worried about how the temporary parenting time arrangement is impacting your children, but have not yet talked to your spouse about it. A mediation session or settlement conference can be a safe place for you and your spouse to communicate your concerns about your children or your finances.

Fulfilling your children’s needs. You may see that your children would be better served if you and your spouse decide their future rather than have it decided by a judge who does not know, love, and understand your children like the two of you do. Judges do their best to be fair, but without knowing the temperaments and personalities of your children, it is hard for them to structure a parenting plan that maximizes the children’s interest.

Eliminating the risk and uncertainty of trial. If a judge decides the outcome of your divorce, you give up control over the terms of the settlement. The decisions are left in the hands of the judge. And, despite their best efforts, judges sometimes make mistakes. If you and your spouse reach agreement, however, you have the power to eliminate the risk of an uncertain outcome.

Reducing the risk of harm to your children. If your case goes to trial, it is likely that you and your spouse will give testimony that will be upsetting to each other. As the conflict increases, the relationship between you and your spouse inevitably deteriorates. This can be harmful to your children. Contrast this with mediation or settlement negotiations, in which you open your communication and seek to reach agreement. It is not unusual for the relationship between the parents to improve as the professionals create a safe environment for rebuilding communication and reaching agreements in the best interest of a child.

Having the support of professionals. Using trained professionals, such as mediators and lawyers, to support you can help you reach a settlement that you might think is impossible. These professionals have skills to help you focus on what is most important to you, and shift your attention away from irrelevant facts. They understand the law and know the possible outcomes if your case goes to trial.

Lowering stress. The process of preparing for and going to court is inherently stressful. Add to this the mounting costs and the uncertainly of the result. While negotiation or mediation is not stress free, it usually pales in comparison.

Achieving closure. When you are going through a divorce, the process can feel as though it is taking an eternity. By reaching agreement, you and your spouse are better able to put the divorce behind you and move forward with your lives.

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.

Is Illinois a “no-fault” state or do I need grounds for a divorce?

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

Although Illinois requires grounds for a divorce, you may be eligible for the no-fault grounds of “irreconcilable differences.” If you have been separated for two years prior to the final divorce hearing, you may get a divorce if you can prove that irreconcilable differences have caused the irretrievable breakdown of the marriage, that past attempts at reconciliation failed, and that future attempts would be impracticable and not in the best interest of the family. Couples can agree to waive the full two-year waiting period if they have been separated for at least six months. Separation does not require living in separate homes; rather, separation refers to the emotional relationship. If you both consider the marriage dead at a given point, you are considered separated even though you continue to reside in the same home.

Despite the frequent use of the no-fault grounds of irreconcilable differences, Illinois law still allows one spouse to allege fault-based grounds such as mental cruelty, physical cruelty, adultery, abandonment, and a variety of other grounds. If you do allege fault grounds, you will need to prove those grounds at a trial. If you can’t prove grounds by sufficient evidence, you cannot proceed with other issues, and the divorce cannot be granted. Today, grounds are mostly symbolic, and the court can’t consider them when deciding other divorce issues such as maintenance, support, or property division. You gain no advantage in the divorce by alleging fault versus no- fault (irreconcilable differences) grounds.
Sometimes people allege fault grounds because they are angry with their spouse––often rightfully so. But once you start the fight it is often hard to stop it when you become less angry.
Although there is nothing wrong with symbolically ex- pressing your dismay over your spouse’s conduct, the better approach is to go to counseling and learn to emotionally pro- cess the betrayal. Don’t use the divorce proceeding as your method of choice to seek revenge. That frequently backfires and will only hurt you (and your children) more. 

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.

I’m unsure about how to tell our children about the divorce. What's the best way to tell them?

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

Your discussion with your children will depend upon
their ages and maturity. Consider consulting with a therapist or
psychologist to determine the best way to approach this delicate

topic. When possible, both you and your spouse should

tell the children about the divorce together so that the children

can see a united front. If your spouse won’t participate, do

your best to communicate the fact of the divorce in a way that

does not malign your spouse, even if he or she is legitimately

blameworthy. For the sake of your children, do your best to

control your emotions.

 

Children often blame themselves for their parents’ divorce.

Be sensitive and reassuring to them. Emphasize that the divorce

is not their fault. In this instance, less is more; don’t get into the

nitty-gritty causes for the breakup. This information just hurts

the children. Reassure the children that everything will be OK

and that they will continue to see both parents regularly.

After the initial discussion, keep the door open by creating

opportunities for them to talk about the divorce. Use these

times to acknowledge their feelings and offer support. Always

assure them that the divorce is not their fault and that they are

still loved by both you and your spouse, regardless of mom

and dad’s breakup. If necessary, you and your spouse should

discuss having the children attend counseling to help them

understand and cope with their emotions.

 

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 and I both want our divorce to be amicable.

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

An amicable divorce is not always possible, but all should strive for one. An amicable divorce will not only make your lives easier and save you money in attorney fees, but will result in an outcome you both are more satisfied with. Lower-conflict divorce will help you transition more easily after the divorce.

 

Find a lawyer who understands your goal to reach settlement and encourage your spouse to do the same. Some lawyers are incapable of compromise, so when you research potential attorneys, try to determine whether a particular attorney can work cooperatively with the other side. Personal references from former clients are always the most insightful. Lawyers who can’t compromise are not likely to help you settle your case amicably.

Be proactive: compile and provide all necessary information to your lawyer and urge your spouse to do the same. Then ask your attorney about the options of mediation and negotiation for reaching an agreement. Even if you are not able to settle all of the issues in your divorce, these actions can increase the likelihood of agreement on many of the terms of your divorce.
 

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.

During my divorce, what am I responsible for doing?

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

Your attorney will explain what actions you should take,
but consider the following:

• Keep in regular contact with your attorney. Get a new
password-protected e-mail address to communicate
with the attorney. Make sure you check your e-mail
daily.
• Update your attorney regarding any changes in your
contact information, such as address, phone numbers,
and e-mail address.
• Avoid any major decisions (like selling an asset or
moving in with a boyfriend or girlfriend) without first
advising your attorney.
• Provide your attorney with all requested documents
and information promptly.
• Complete forms and questionnaires. Confirm with
your attorney any deadlines for completion.
• Appear in court on time and dressed appropriately.
• Be direct about asking any questions; you are not
bothering your attorney if you have a question.
• Tell your attorney your thoughts on settlement or
what you would like the judge to order in your case.
• Remain respectful toward your spouse throughout the
process.
• Be respectful to your attorney and his or her staff (we
all have crabby days but they are there to help; don’t
take out your frustration on them).
• Scrupulously comply with any temporary court orders,
such as restraining or support orders. Notify your
attorney immediately if you are unable to comply with
the order.
• Advise your attorney of any significant developments
in your life or your case.

By doing your part, you enable your attorney to partner
with you for a better outcome while also lowering your attorney
fees. If you don’t cooperate with your attorney, he or she may
fire you as a client, causing you the expense and inconvenience
of starting over with another attorney.

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.