How Do Courts Calculate Child Support When a Parent is Unemployed or Underemployed?

Every parent has a legal and moral obligation to financially support his or her child.  When parties divorce, the court will usually require the noncustodial parent to pay a percentage of his or her net income as child support.   What happens, though, when the noncustodial parent’s net income is difficult to calculate or fluctuates from year to year?  Or, what happens when the noncustodial parent is unemployed or underemployed?

In some instances, Illinois courts will impute income to the noncustodial spouse.  Essentially, the court will, for purposes of calculating the amount of child support owed, assume that the noncustodial parent is making a certain amount of money even if he or she is unemployed or earning less than the stated amount.  Illinois courts may impute income where the noncustodial parent (1) is voluntarily unemployed, (2) is attempting to evade a support obligation, or (3) has unreasonably failed to take advantage of an employment opportunity.  A common theme running through these circumstances is that the court may impute income where the noncustodial spouse has acted in bad faith.

An example of a parent being voluntarily unemployed occurred in In re Marriage of Adams, 348 Ill. App. 3d 340 (3rd Dist. 2004).  In that case, the trial court ordered the father to pay child support.  He had previously been employed as a television news helicopter pilot earning $55,000 per year.  However, he voluntarily quit his job and moved to Germany where he thought he would have better career opportunities and where his girlfriend lived.  The Court found that it was proper to impute income to him based on his prior employment.

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How to Plan for College Expenses Post-Divorce

Paying for a child’s college education is a significant financial issue in any family, but with divorcing or divorced families, it can be especially tricky.  Often times, if parents divorce when their children are young, the marital settlement agreement does not specify each parent’s obligation because that event is many years down the road.  Therefore, when the time eventually arrives, planning for college should include not only traditional items such as exploring potential schools, financial aid packages, and travel and boarding arrangements, but also a review of the settlement agreement well before enrollment in a specific institution.

Is the issue reserved? The first item to evaluate is exactly what the language of the agreement specifies.  While attorneys often speak in terms of “reserving” the issue, the meaning of the term is not always as clear as it would seem.  If the language of the agreement states that the Court expressly reserves the issue of each party’s obligation to contribute to the college (or other similar language), neither party has a court-ordered obligation to pay for college.  The parent seeking contribution to college expenses must file a petition with the court, and relief will be granted only back to the date of the filing of the petition.

Can retroactive contribution ever be achieved? If the agreement states that the parties shall pay for college based on their respective financial abilities (or other similar language), retroactive relief may be allowed because the agreement already contemplated that the parents would contribute to the college expenses.  However, it is still advisable to file a petition as early as possible so that an order may be obtained prior to the child’s enrollment.

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The U. S. Supreme Court Hears Marriage Equality Cases

Article written by Michele M. Jochner and Shannon R. Burke


Recently, the United States Supreme Court heard oral arguments on two consecutive days in two cases which have generated national headlines and filled the broadcast airways with the topic of marriage equality.  The Court’s decision in these two cases, Hollingsworth v. Perry and United States v. Windsor, will be delivered by the end of the 2012-2013 Term in mid-June and may likely have a profound effect upon the view of marriage in this country.

On March 26, 2013, the United States Supreme Court conducted oral arguments in  Hollingsworth, which presents the issue of whether California’s Proposition 8, which amended the California Constitution to prohibit same-sex couples from marrying, violates the United States Constitution. The fact that more than 100 amicus curiae briefs have been filed with the case shows the high level of interest it has garnered.

In May 2008, after the California Supreme Court held that state statutes limiting marriage to opposite-sex couples violated the California Constitution, same-sex couples were permitted to marry in that state.  Later that year, through a ballot proposition known as “Proposition 8,” the California voters passed a constitutional amendment stating that “only marriage between a man and a woman is valid or recognized in California.”  Since then, same-sex couples have been unable to marry in California.

In August 2010, a federal district court held that Proposition 8 was unconstitutional as it violated the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution.  That decision was upheld by the United States Court of Appeals for the Ninth Circuit.  The High Court thereafter granted certiorari to decide this issue.
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The Multi-Disciplinary Nature of Family Law: Expecting the Unexpected

When people ask why I chose family law, I tell them that it’s one of the few areas of law where one not only deals at close range with clients, but one that touches on a plethora of areas of the law.  After over 20 years in practice, it has become obvious that the multi-disciplinary nature of divorce extends far beyond the issues of income taxes, bankruptcies, and the business entities that we deal with to value the estate.  It extends into areas of trust and estate planning, insurance and a variety of other areas that those experiencing divorce often don’t foresee. The purpose of this Article is to highlight a few of the most common areas where what appears to be ordinary planning can have an unexpected negative result in the event of a divorce.

It is a common occurrence for couples to jointly consult estate planners with the single focus of passing along their wealth to future generations in the most tax effective manner possible.  Sometimes these estate plans involve putting assets into trusts that are irrevocable which means that the spouses can not reverse the transfer and the assets that go into the trust are no longer available to be awarded in divorce.

There are times in joint estate planning where only one of the spouses will interact with the estate planner to decide how to structure the plan.  While practical, a spouse who is uninvolved in the planning loses out on the chance to understand the plan structure and its implications.  Each spouse needs to be advised about not only the consequences on death, but consequences on divorce of any estate planning technique they use.

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The Illinois Supreme Court Allows Guardians to File Petitions for Dissolution of Marriage on Behalf of Wards in Karbin v. Karbin

The population of the United States is getting older.  The most recent census, conducted in 2010, revealed not only that there are now more Americans age 65 and above than at any other time in U.S. history, but also that this age group grew at a faster pace during the prior decade than the total population.  Moreover, the 65-and-older set is expected to increase even more rapidly over the next decade as more baby boomers start to turn 65 and as new medical advances continue to extend life expectancy.

As the age of the population increases, so, too, does the likelihood that more people will experience competency issues, which may necessitate a guardianship during their later years.  Article 11a of the Illinois Probate Act provides for the appointment of a guardian for a “disabled person,” defined as anyone over the age of 18 “not fully able to manage his person or estate” because of “mental deterioration,” “physical incapacity,” “mental illness,” or “developmental disability.” The guardian – most often a friend or family member – must always act in a ward’s “best interests” and work to “promote the well-being of the disabled person, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence.”

Although a guardian has authority to make all types of innately personal decisions on behalf of his or her ward, until recently, a guardian was unable to file a petition on behalf of an incompetent ward for the dissolution of his or her marriage, even where the guardian believed such action to be in the ward’s best interests as a protection from physical or emotional abuse, financial exploitation and/or neglect by the ward’s competent spouse.  This changed, however, with the Illinois Supreme Court’s decision in Karbin v. Karbin, 2012 IL 112815, which overruled the court’s prior ruling in In re Marriage of Drews, 115 Ill. 2d 201 (1986), which held that a plenary guardian lacks standing to institute dissolution proceedings on behalf of a ward.
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Illinois Enacts “Erin’s Law”

The statistics are deeply troubling.  1 in 4 girls and 1 in 6 boys will be the victim of child sexual abuse by the time they reach 18.  Ninety-three percent of these victims are abused by someone they know who is in a position of trust or authority.  However, only 1 out of 10 victims ever disclose their abuse.

Erin Merryn was one of these children.  A Schaumburg native, she was sexually abused as a child between the ages of 6 and 8 by a friend’s uncle.   She was again abused from age 11 to 13 by her cousin.  Both of her attackers threatened her and told her no one would believe her if she spoke out.

Now 27, Merryn was in high school when she confronted her cousin about what he had done to her.  After he asked for her forgiveness, she realized that she could transform her hurt and anger into something positive by using her own experiences to raise awareness about this issue.  After publishing two books that told her story, she focused on becoming a vocal advocate for other abused children.

Three years ago she quit her job as a youth and family counselor to start a national campaign to enact laws mandating that all students –pre-school through 12th grade—be educated about sexual-abuse prevention as part of the school curriculum.  The goal of this law – now known as “Erin’s Law” – is to help give young victims a voice by teaching them to speak up if they are assaulted or sexually abused.  The law supports the belief that from a young age children should be told they are not to blame for abuse and encouraged to come forward and tell their parents or teachers if they are victims.

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Joseph N. DuCanto (1927-2013)

It is with great sadness that Schiller DuCanto & Fleck (SDF) announces the death of founding partner Joseph DuCanto. A lawyer and man of many pasts, Mr. DuCanto, 85, died after a brief illness Friday evening.

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Joseph N. DuCanto

Joseph N. DuCanto

Joseph (“Joe”) DuCanto, a founding partner of the Chicago law firm Schiller DuCanto & Fleck LLP in 1981,  devoted himself professionally to the elevation in status of the practice of matrimonial law. In 2003, he was inducted by the Academy of Illinois Lawyers as a ”Laureate” of the Illinois State Bar Association, a rare and highly distinguished title, in recognition of his many outstanding contributions and achievements. With his dedicated guidance, love and support, shared equally by his partners, Schiller DuCanto & Fleck has become the most distinguished matrimonial law firm in the country, having been named the number one Family-Law divorce law firm in the United States. Many of its 45 members have participated legislatively, judicially, as well as in law practice, initiating progressive solutions for those facing divorce and transition.

Mr. DuCanto was known throughout the country for preparation and distribution of divorce-tax related materials, including his annual Federal Income Tax Charts, dating back to 1977, that are circulated and in use today by lawyers, judges, accountants, bankers and financial planners.

Joe, a prolific essay and technical writer, authored and contributed to state and national publications including the Journal of the American Academy of Matrimonial Lawyers. From 2000-2008 Mr. DuCanto wrote “All in the Family”, a monthly column for the Chicago Lawyer,  where he examined newly issued cases, movements, trends and ideas in the practice of family law. Ultimately, those articles were published in book form, entitled “All In The Family”.

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What the Kardashian Pregnancy Could Mean to the Divorce Property Division

Sarane C. Siewerth Contributed to this Blog Post

A big news story recently has been the announcement that Kim Kardashian and Kanye West are expecting a baby together. The announcement is inevitably followed by the statement that Kim is still married to Kris Humphries despite filing for divorce in October 2011 after 72 days of marriage.  And then the speculation begins: How much will Kim earn from the pregnancy?  It is estimated that fees for photographs taken during the pregnancy and of the new baby, income from lines of maternity and baby clothing, payments for product placements, and other sources of revenue could net Kim up to $15 million dollars from the pregnancy and birth.

Kim and Kris Humphries signed a premarital agreement, according to which neither of them will receive maintenance from the other and both will keep everything they individually earned during the marriage, including the split of the millions received in connection with their wedding.  However, Kris is vigorously contesting the agreement, so whether it will control the ultimate property division remains to be seen.

What makes the case interesting comes when Illinois law is applied to its facts.  A couple divorcing in the state of Illinois is still considered married until the final decree of dissolution is entered, no matter how long the divorce process takes.  Marital property in Illinois is defined, with certain specified statutory exceptions, as all property acquired by either spouse during the marriage, the presumption being that all property acquired during the marriage by either spouse is marital property regardless of how title is held.  Non-marital property, on the other hand, is (1) property acquired by gift, legacy or descent; (2) property acquired after a judgment of legal separation; (3) property excluded by a valid agreement of the parties, such as Kim and Kris’ premarital agreement, or (4) property acquired before the marriage.  Unless the premarital agreement is upheld, if Kim lived in Illinois, up until the entry of a final judgment of divorce from Kris, the funds she earns as a result of her pregnancy by Kanye would be considered marital property subject to division.

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A Fresh Start in the New Year

Typically, each new year brings a sense of anticipation and a fresh start. However, it may not feel this way for those going through or contemplating a divorce. In fact, the new year may create uneasy feelings and a concern about the future. Planning and forward thinking can make the process easier, reducing anxiety, stress, or uncertainty. The following are a few tips to help couples contemplating divorce get organized and approach the beginning of the new year more positively.

Gather Financial Documents
Requesting financial information as soon as possible is important as it can take weeks or even months to obtain. Tax returns are a great source for updated information about your family’s income and assets. Get a head start on the process in the new year by beginning to pull together financial information about accounts and assets.

Plan For The Holidays
The turn of the year is the best time to begin planning for next year’s holidays. Buy a calendar and highlight which holidays and breaks you want to spend with your children. Having a clear vision of all upcoming holidays and school breaks will prepare you for more effective communication with your spouse and minimize unnecessary stress when planning trips and vacations.

Set Goals
If you are contemplating a divorce, meet with an attorney and ask questions about the divorce process and the general legal principles to be aware of. Then set goals and review these goals with your attorney. The more clear and realistic your goals, the better chance you and your attorney can achieve them.

Seek Assistance
If the divorce process or your family living situation have become too difficult to manage, reach out for help with finances, counseling, or even just to vent. The most dangerous effects of divorce can be the emotional trauma on you and your family as a result of friction and stress. Speak with friends, family, or professionals who are available to assist you. Contact your attorney who can refer you to virtually any kind of professional to guide you through tough times, whether financial, legal, or emotional.

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Tips on How to Reconnect with an Estranged Child

Some parents have estranged relationships with their children. Whether the estrangement was caused by bad decisions, alienation by the other parent, geographical constraints, service in the military and separation from the child for a long period of time, or other reasons, there is no better time than the present to take the first step. Some parents might be afraid of being rejected by their child, but children need their parents. Taking the first step to reconnect can sometimes be the hardest, but it is also the most important.

Take the initiative to reconnect.

There is no manual on how to be a perfect parent, and there is no perfect parent. As a parent, if you do not have a relationship with your child, the worst thing you can do is sit back and think, “He will come to me when he is ready.” If you are a parent in this situation, you must take the initiative and set a good example by doing the right thing. Reaching out to let your child know you care or going to court to get court ordered time to spend with your child is an important first step.

Focus on the present, and get to know your child.

When you are with your child, focus your time on the present and the future. What events is your child involved in? What school projects is your child involved in? Who are your child’s teachers? What is your child’s best friend’s name? What activities is your child interested in? Is your child being bullied at school? Ask questions. Your child will appreciate your interest and will derive confidence from having a positive relationship with you. Do not focus on the past. Do not speak ill of the other parent. Do not discuss your hardships, whatever they may be.

Set a schedule and be committed to building the relationship.

If you go through the court system to establish or re-establish a regular schedule with your child, be proactive, prepared and persistent. There may be steps you have to take before you can get the schedule you want, and it may take time. Do whatever you have to do to rebuild the relationship, and do not give up. It will mean the world to your child.

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