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. 

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.