Attorney Assisted Mediation: An Alternative to High Cost/High Conflict Divorce

Posted on June 12th, 2013 by Jason N. Sposeep

As mediation continues to build momentum as a viable, and often less costly, form of dispute resolution, so has the role of your attorney in the mediation process.  Mediation is a form of alternative dispute resolution in which spouses meet with a qualified neutral professional, usually and preferably an experienced divorce attorney, to discuss their child related and/or financial issues, exchange pertinent information, and work with the mediator to create an out-of-court settlement.  While this process does not involve retained experts or litigation, most parties do in fact consult with and obtain advice from an attorney prior to, during, and after the mediation process.

1.  Educate
The attorney’s role in the mediation process starts with providing the client with education.  Your lawyer must not only explain the process so you are more comfortable but he or she must provide you with the law and apply it to your case so that you have a proper framework for your discussions.

2.  Gather Information
Parties may need help in deciding what documents and information are necessary to evaluate issues in the case before the process begins.  Paystubs, corporate documents, tax records, real estate documents, retirement records, and other materials may be essential in clarifying your rights.  Your attorney should assist you in drawing up a list of such documents to bring to mediation and review those documents with you as they are gathered.

3.  Support the Mediation Process
It is possible that your attorney will not be present during the mediation session itself, but that does not preclude him or her from providing consultation throughout the process.  Your attorney can assist you in formulating strategy and evaluating proposals.   Attorneys present in the mediation can help you navigate legal issues as they arise while at the same time being there to coach you and provide moral support.  Your attorney’s role in the mediation is not to take every legal step to strengthen your position but rather to help you reach an acceptable and reasonable settlement.  The very best attorney will help you find your voice in the process and to constructively communicate with your soon-to-be ex-spouse.

4.  Review Options
Once mediation begins and the options and issues crystallize, your attorney can help you evaluate those options in terms of your legal rights and future needs.  Your counsel’s legal advice and expertise are essential in helping you appreciate which options are most and least favorable, the legal strength of the position on various issues as well as other issues that are or may be important and how each option might effect your goals.

5.  Review and Finalize Legal Documents
At the end of the mediation process, your attorney looks over the Memorandum of Understanding with you to make sure every relevant issue is addressed, parenting plans are workable, financial/property settlements are equitable, etc.  Your attorney should also review the Memorandum to ensure it will not be rejected by the court for any reason.  Assuming you are consulting with your attorney throughout the process, this is not the time to make massive changes.  It is time to review and finalize a working document.

Your attorney’s performing his or her job well enables you to mediate the divorce successfully and achieve an acceptable settlement without subjecting your family to the extreme emotional and financial expense often caused by litigation.

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The Gray Divorce Revolution

Posted on June 5th, 2013 by Michele M. Jochner

The graying of America is moving full speed ahead.  It is estimated that 10,000 people are turning 65 every day —a trend that will continue for the next 20 years. By 2030, almost one out of every five Americans—some 72 million people—will be 65 years or older. By 2050, the 65+ population is projected to be between 80 and 90 million, with those 85 and older accounting for nearly 21 million.

As the number of older Americans significantly increases, so has the percentage of those in this age group who have obtained a divorce.  A recent study conducted by the National Center for Family and Marriage Research has revealed that the divorce rate among those over the age of  50 has doubled within the last 20 years, and that roughly 25% of divorces now occur among the 50+ age group.  Although the report The Gray Divorce Revolution states that shifts were expected in the marital status of older adults in light of the overall upward trend in the age of our population, the pace of divorce among older adults has accelerated far more rapidly than anticipated.

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The Impact of Shared Custody on Child Support

Posted on May 30th, 2013 by Deborah A. Carder

Ever since the news reports revealed that the Illinois legislature had started reviewing the child support statute, I have been flooded with questions regarding the change.  The reports state that according to the new proposal, the statute will no longer apply a set percentage to net income based on the number of minor children.  Instead, the revised statute is expected to consider the incomes of both parents, as well as the amount of time each parent spends with the child.  The reports do not provide specifics because the changes are still being discussed.  Thus, for the past year, moms and dads alike have been anxiously waiting to learn the impact the new law is going to have on their finances.  This is especially true in cases where parties share custody, meaning that the parties have joint custody and share equal time with the children.

Most parents believe that if parenting time is a factor under the new statute, then only shared custody situations will be impacted. Yet, this may not be true.  Despite the fact that the future of child support is still being debated, one appellate court in Illinois has held that the current child support statute already requires the court to achieve the result expected in the new statute.  In the case of In re Marriage of Smith, 2012 IL. App (2d) 110522, the parties shared custody of their child and neither party was named the residential parent.  Mom earned five times more than dad.  The appellate court found that in a situation of split or shared custody, the court has two options when setting child support: (1) apportion the percentage of support between the parties or (2) consider the alternative factors in the current statute and in the court’s discretion, award an appropriate amount of support.

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Preparing For Summer Co-Parenting

Posted on May 20th, 2013 by Erika N. Chen-Walsh

Though many children look forward to the fun, freedom, and activities that typically come with summer vacation, it can be a challenging time for both the children and the parents in divorcing or post-divorce families.

Under many custody arrangements, children are with one parent or the other for longer stretches during the summer than during the school year. It’s a change in routine and in parenting time that can potentially produce anxiety for children and frustration for parents.

Here are some tips to help parents make the transition from the school year to summer vacation easier for children (and themselves) following a divorce.

Make Plans Early: Enroll children in summer camps and make vacation plans as soon as possible – definitely before the end of the school year. This gives kids a better idea of what the summer will look like and what they can look forward to doing during the summer. It also allows time for parents to resolve any schedule conflicts that might arise in the planning process.
Don’t Take On Too Much: While parents might want to make sure their kids are active and busy, scheduling your children for multiple camps, sports seasons and other activities could leave them exhausted or burned out. Make sure there’s time in the schedule for you and your kids to be together, and for your kids to spend time with their friends.

Remember, They’ll Remember: If you think back on your childhood, you’ll be reminded of how important summer can be in defining one’s childhood experience, and how vivid those summer memories remain after childhood. This means not only thinking about what your children will experience during summer vacation with each parent, but what they’ll remember about their parents’ interactions with each other in making plans. Work to maintain a civil tone in your summer scheduling, and seek compromise and negotiation to resolve any conflicts.

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

Posted on May 14th, 2013 by Shannon R. Burke

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

Posted on May 1st, 2013 by Michelle A. Lawless

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

Posted on April 1st, 2013 by Schiller DuCanto & Fleck LLP

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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Posted in Civil Unions / Gay Marriage, In the News, Recent Cases & Law

The Multi-Disciplinary Nature of Family Law: Expecting the Unexpected

Posted on March 21st, 2013 by Anita M. Ventrelli

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

Posted on March 4th, 2013 by Michele M. Jochner

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”

Posted on February 25th, 2013 by Michele M. Jochner

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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