It is clear that children of non-divorced parents have no legal right to force their parents to provide them with higher education, at least not yet.  Whether or not to fund college is a family financial decision as well as a parenting decision.  Not all children appreciate higher education.  Some use college as a four year license to live “independently” on their parents’ nickel and to postpone their obligation to support themselves.  If the courts or the legislature takes away the parental prerogative to deny funding for higher education to children who don’t apply themselves in school, the courts are stepping into an area that goes beyond allocating the costs for an education that both parents agree upon.  Instead, they are substituting their parenting judgment for that of the parent.  Why should parents of divorce be the only ones subject to this type of parenting intervention?
Another situation with similar potential for undermining parental prerogatives is the one that arises when one parent is concerned about the other parent’s remarriage and wants a Marital Settlement Agreement to include mandatory estate planning provisions benefiting children of the marriage.  This can lead to thrusting the management of wealth on children who lack the maturity to deal with.  It can also foster an unintended sense of entitlement and lead to the same type of third party beneficiary claims.

While debates over parenting philosophies can go on indefinitely, the practical question really is, what can parents who wish to preserve their parental decision-making prerogatives do when drafting their divorce agreements?  While the courts and the legislature may ultimately decide otherwise, parents who wish to be cautious about creating entitlements in their children can include provisions in their Marital Settlement Agreements stating that they do not intend there to be any third party beneficiaries to their contracts.  They can also recite that with respect to college, there needs to be a parental agreement or an order of court that the child is deserving of the education before parents can be ordered to pay.

Parents should also give serious consideration to eliminating requirements that a parent be found to have the ability to pay for an education before he or she is ordered to do so.  The unpredictable financial events of recent years have made what was once an unthinkable prospect a stark reality, namely parents who had every intention of paying for college could not afford to keep a roof over their heads.  There is often pressure on the parent(s) with financial means at the time of divorce to remove the “ability to pay” condition.  Once removed, the “ability to pay” condition can’t provide the intended safety net for the parent who suffers an unexpected financial reverse.

An added bastion against a parent finding him or herself in the position of guaranteeing an education is the specification of the type of the institution a child may attend and whether the contribution is limited to the cost of an in-state college education or whether it may include private school or out-of-state tuition.  Parents should remember that they are always free to do more than what they are obliged to do by court order but that once an obligation becomes part of a Judgment, they need to show unforeseeable and/or changed circumstances to vary from what is required.

For parents with young children, even if, at the time their decree is entered they foresee having the financial wherewithal to afford the education, they might be better off indicating that if they are found to have the wherewithal to pay, they will allow the court to make a determination in accord with the statutory factors.  This will insure that they don’t find themselves in a position of having a commitment but not having a child who will appreciate the benefit or the resources to pay for the commitment when the time comes.

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.

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.

The study suggested several reasons to explain the surge in divorce among older Americans.  First, those in this age group are likely to be in second or even third marriages, and remarriages are more likely to end in divorce.  In addition, because divorce has become a common occurrence, older adults are more accepting of it in either their own lives or for those around them.  Further, because women have more fully participated in the labor force, they have established a level of economic security – including having their own retirement benefits – to allow them to support themselves without the assistance of a spouse.  Also, longer life-expectancies  decrease the likelihood that a marriage will end through death and increase the time period during which a divorce can occur.  Some researchers have also suggested that a heightened emphasis on individual fulfillment and satisfaction may lead to more divorces.  Today, expectations are greater for what constitutes a successful marriage than they were for  previous generations, and society no longer frowns on ending an unsatisfying marriage in divorce.

Analysts predict that the rise in divorce among older members of the population will also likely have a significant impact upon retirement.  A couple who had adequate resources to retire together may find themselves unable to fund retirement in two separate households.  The result may be to cause a delay in retirement and/or a scaling-back of the expected retirement lifestyle.  For those already retired, a divorce could force reentry into the workforce in some capacity.  Many experts recommend that when older adults are divorcing, it may be particularly helpful to  secure the assistance of a financial adviser who can provide an informed opinion regarding the effect of the divorce on retirement plans.

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.

What does that mean?  It means that the interpretation of the current statute by the Second Appellate District of Illinois (which applies to all northern counties, excluding Cook) is that the court is supposed to take into consideration the parties’ financial resources and the amount of time each is spent with the children when awarding child support.  In sum, in shared custody situations under the current law, the court should not automatically apply the guideline percentages.  Instead, the court should look at each family’s unique facts to determine the amount of support to be paid.  The result of this recent case is that many families may not be impacted at all by the new child support statute when it is finally approved.

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.

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 (3^rd 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.

An example of a parent attempting to evade a support obligation occurred in In re Marriage of Sweet, 316 Ill. App. 3d 101 (2^nd Dist. 2000).  In that case, the trial court ordered the father to pay child support.  He subsequently began his own pest extermination business, which was not as profitable as his prior employment.  The trial court found that he was not acting in good faith where he was more interested in being his own boss and buying a new truck for himself than in supporting his children.  Accordingly, the court properly imputed income to him.

An example of a parent failing to take advantage of a business opportunity occurred in In re Marriage of Hubbs, 363 Ill. App. 3d 696 (5^th Dist. 2006).  In that case, the trial court ordered the father to pay child support.  His income for the previous three years had been $133,000; $114,009; and $169,319.  He had also rejected an employment opportunity that would have paid him a salary of $120,000 per year.  The court properly imputed income to him of $115,000, which was slightly below his average income for the past three years and slightly below the salary he could have earned.

In each of the above instances, the trial court calculated the amount of child support based on the income the noncustodial parent could have earned.  Behind every adorable, toothless baby grin is a long list of expenses.  Courts try to ensure that one parent does not avoid responsibility for his or her child by purposely reducing or eliminating income as it is unfair and unjust to make one parent shoulder all of the expenses.

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.

A child’s right to college expenses.  If the agreement provides that each of the parties shall contribute to the college expenses of their child, the parties’ obligation to contribute to the expenses has already been ordered. Therefore, a child could also petition the court as a third party beneficiary to enforce the agreement.

It is clear that all college expenses provisions in marital settlement agreements are not created equal.  Whether you are a parent preparing to begin the college search with your child or a professional giving a client advice, it is important that the exact language of the agreement be chosen carefully.

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.
After hearing oral arguments in Hollingsworth on March 26th, the following day the High Court heard arguments in the Windsor case.  The issue presented in Windsor is whether the Defense of Marriage Act (“DOMA”) (28 U.S.C. § 1738C) is unconstitutional.

DOMA, which was enacted in 1996, defines “marriage” as “a legal union between one man and one woman as husband and wife,” and defines “spouse” as “a person of the opposite sex who is a husband or a wife.”  Pursuant to Section 3 of DOMA, the federal government need not recognize same-sex marriages for the purpose of federal laws or programs, including insurance benefits for government employees, social security survivors’ benefits, immigration, and the filing of joint federal tax returns, even if the couple’s home state or country recognizes their marriage.

In Windsor, two women were married in Toronto, Canada in 2007.  In 2009, one of the women died, leaving her estate to her widow.  Although the marriage was recognized in the women’s home state of New York, the widow was required to pay more than $363,000 in federal estate taxes on her inheritance.  It is undisputed that if the federal government would have recognized their marriage, the widow would have paid no taxes.  The widow filed a lawsuit and challenged Section 3 of DOMA.

The federal district court found Section 3 of DOMA unconstitutional as applied, in that it violated the widow’s rights under the Equal Protection component of the Due Process Clause of the Fifth Amendment of the United States Constitution.  This judgment was affirmed by the United States Court of Appeals for the Second Circuit.

In both cases, before addressing the merits of these actions, the High Court must initially rule upon issues of standing.  If the Court gets past this threshold, it will reach the constitutional issues.  It is only a short matter of time before we will know if, and to what extent, the Court’s decisions will change the legal landscape in terms of “marriage.”

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.

Many times a spouse in divorce will explain to his or her lawyer that he or she did not understand the consequences of the estate plan that gave away a significant portion of the couple’s wealth, but if the transfers were done in a manner that prevents them from being set aside, no recourse exists.  Proving a transfer colorable or illusory or fraudulent in divorce presents many challenges.  Spouses can avoid these situations if they consult with a family law attorney to understand how things they sign even while happily married will operate if they are divorced.

Family businesses present another unique set of challenges in divorce.  Just because two people are married doesn’t mean that they are exempt from the statutes, rules and written agreements that govern their business relationships.  In addition to the rights that an owner spouse has by virtue of being a spouse, he or she also has rights to information and to influence decision-making that can add a measure of control in the business if properly invoked as part of a divorce action.  For this reason, discussing the formation of a business from a family law perspective before the form is documented will eliminate surprises if there is ever a divorce.

A  common misconception about transactions between married people is that a person who trusts his or her spouse to manage the household financial affairs can avoid the legal effect of such management if he or she later claims a lack of knowledge or a lack of understanding.  In reality, it is not that easy to do.  A person is presumed to have read and understood any document he or she signs.  Many lay people presume that a fiduciary duty exists between husbands and wives.  This is not the case, and the elements of fiduciary duty need to be proven before a spouse can make a claim for a breach of that duty to avoid the legal effect of signing a document.  Since lay people frequently lack the training to understand the effect of legal documents or the impact they can have in the event of divorce, having a divorce lawyer to consult before they are signed insures that nothing is missed.

Gifts are another area ripe for controversy during divorce proceedings.  When a couple marries, they may receive gifts of cash or property from family.  People seldom pay attention to whether the documents reflecting the gift prove that it was intended for only one or for both members of the couple.  Parents or other family members considering gifts need education on now to make their intentions clear to be sure that gifts to one spouse alone can be protected as non-marital property.

As distasteful as it may be to scrutinize every transaction on multiple levels, it is better to decide consciously that other concerns are more important than to take action without being fully advised.

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.
The instances are few and far between when this State’s highest tribunal departs from its well-settled precedent to reverse course and forge a path in a new direction.  In Karbin, the court believed that the doctrine of stare decisis – which calls for courts not to disturb settled points – was not compelling, acknowledging that its own case law on this issue had been inconsistent.

Jan and Marcia Karbin were married in 1984. After a car accident in 1997, Marcia suffered brain damage and became totally disabled.  For the next seven years, Jan was Marcia’s guardian.  However, by 2004, Jan had Parkinson’s disease, and he could no longer care for Marcia. Jan transferred his plenary guardianship of Marcia to her daughter Kara in Ohio.  In 2007, after living apart for nearly three years, Jan petitioned for dissolution, alleging non-cohabitation and irreconcilable differences. In 2008, Marcia, through Kara, filed a verified counterpetition, alleging the same bases as Jan.

After the parties had engaged in litigation for nearly 19 months, the trial court granted Jan’s motion to voluntarily dismiss his dissolution petition. Jan thereafter moved to dismiss Marcia’s counterpetition. The trial court agreed, holding that under Drews, Kara had no authority to pursue a dissolution proceeding on Marcia’s behalf.  A majority of the appellate court affirmed.

The Illinois Supreme Court reversed the rulings of the lower courts and remanded this cause to the trial court for further proceedings.  The court acknowledged that although Drews narrowly construed provisions of the Probate Act to deny standing to a guardian to bring a dissolution action on behalf of a ward because that action is “personal” in nature, it soon thereafter abandoned Drews’ strict construction without offering an explanation.  The court observed that in In re Estate of Longeway,133 Ill. 2d 33 (1989) and In re Estate of Greenspan, 137 Ill. 2d 1 (1990), it read the identical provisions of the Probate Act expansively to contain “implied powers” authorizing a plenary guardian to decide on behalf of the ward to end life-sustaining measures.  It then adopted this same broad construction in In re Marriage of Burgess, 189 Ill. 2d 270 (2000), concluding that a guardian’s authority to continue an already-filed dissolution action on behalf of a ward “may be implied” from these same provisions.

After tracing its own inconsistent interpretation of the Probate Act, the court in Karbin found additional grounds for reversal of Drews.  It noted that the policy foundation for the traditional rule espoused in Drews reflected the view that marriage is sacred – on both religious and moral grounds – and that only the most serious offenses should be allowed to dissolve the marital bonds.  The court further observed that this view was intertwined with the belief that the decision to divorce involved a deeply personal choice, and that where one spouse’s incompetence prevented making such a choice, no other person could exercise that option on his or her behalf.

The Karbin decision held that the principles which animated Drews are no longer consistent with current Illinois policy on divorce, as reflected in the enactment of no-fault divorce provisions in 1984.  Further, the court emphasized that continued application of the traditional rule results in inequity to disabled spouses.  Although a competent spouse could file for divorce against an incompetent spouse at any time, an incompetent spouse was barred from filing a similar action, trapping that person in the marriage with no recourse and potentially endangering him or her in cases of abuse or neglect by the other spouse.

Thus, the Illinois Supreme Court’s decision in Karbin brings Illinois law in line with a growing number of States that hold that a guardian may file a petition on behalf of his or her ward to seek to dissolve the ward’s marriage.  Once the petition has been filed, in order for the dissolution action to proceed, the trial court must thereafter hold a hearing during which the guardian has the burden to prove by clear and convincing evidence that such an action is in the ward’s best interests.