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.

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 maintenance...it 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.

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. 

-SNP

"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:

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.

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

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