The reality is that, in Illinois, a pet is viewed as an item of personal property.  In dividing the parties’ property, Illinois courts categorize property as either marital (i.e., belonging to both spouses) or non-marital (i.e., belonging to one spouse).  The court then awards each party his or her non-marital property and an equitable portion of the marital property.

Non-marital property includes property acquired by gift, legacy or descent; property acquired before the marriage; and property excluded by valid agreement of the parties.  In other words, if one of the parties owned the pet before the marriage or received the pet as a gift or part of an inheritance, or if the parties agreed who would own the pet after the marriage dissolved, the court would award the pet as part of that party’s non-marital property.

On the other hand, marital property includes all property that is not non-marital.  So if the parties acquired the pet in a manner other than one listed above, the pet will be considered marital property and the court will decide who will own the pet.  Just as the court would hear testimony and make findings of fact regarding other personal property held dear to the parties, including antiques, heirlooms, photographs, and other property to which the parties have sentimental attachment, so too would the court make such findings of fact relating to the parties’ pet.

So what can you do if you want to ensure that the court awards you Fido or Fluffy?  Purchase the pet before the marriage with your pre-marital funds.  Sign a premarital agreement prior to the marriage or postnuptial agreement during the marriage specifying who will own the pet should the marriage terminate.  If you are already married and do not want to sign an agreement, take affirmative steps to demonstrate that you are the pet’s primary caregiver: take the pet to the veterinarian and the park and purchase the pet’s food, vaccinations, and grooming supplies.  However, keep in mind there is no guarantee the court will view these actions as indicative of who should own the pet after the dissolution.  In the meantime, continue to enjoy your furry friend’s companionship.

Section 513 of the Illinois Marriage and Dissolution of Marriage Act allows the Court to allocate expenses between both parents, as well as the child, based upon an examination of factors which include the parties’ financial resources, the standard of living the child would have enjoyed had the marriage not terminated, the child’s financial resources, and the child’s academic prowess.  However, even in situations in which the issue of payment of college expenses has been reserved in a Marital Settlement Agreement, a spouse may wait too long to pursue college contribution from an ex-spouse, because his or her ability seek retroactive contribution to college expenses under Illinois law is limited.

The Illinois Supreme Court recently ruled that a petitioning party cannot obtain contribution from the other spouse for college expenses that were incurred prior to the date the petition was filed, if the Marital Settlement Agreement reserved the issue of how much, if any, each spouse should contribute to the cost of a child’s college education.  In re Marriage of Peterson, 2011 IL 110984.

In Peterson, a divorced mother of three boys filed a petition for college contribution under her divorce decree, which had reserved the issue of each party’s obligation to pay for their children’s college expenses.  When she filed her petition, the mother’s oldest son had graduated a year earlier, the middle son was still in college, and the youngest son was about to commence college.  The mother’s petition sought retroactive college contribution for the two oldest children, one of whom had already graduated from Cornell University, and looked to obtain prospective college related expenses for the youngest and middle children.  Her petition sought from her ex-spouse over $200,000 in past college expenses.

Unfortunately, for the wife in Peterson, her request for retroactive college expenses was denied in its entirety.  Thus, her failure to file a petition before or at the time her oldest son started college cost her over $200,000, as well as the legal fees she incurred.  The court’s ruling was designed to prevent litigants from waiting long periods of time before seeking contribution from their ex- spouses.  The decision makes sense and serves as an important lesson that a delay in seeking college contribution from an ex-spouse can have devastating financial ramifications.

Traditionally, a child’s custodial parent would be the primary residential parent and child support recipient and the non-custodial parent would pay child support and be granted “visitation.” Those of us raised in the 1970’s and 80’s remember the “one evening per week and every other weekend” schedule as the de facto visitation for all the divorced fathers we knew. Expanded parenting time, or even joint legal custody (the right to an equal say in the major decisions affecting a child’s life), were reserved for the most amicable of divorced parents.

Oh how times have changed. In today’s negotiations, more non-custodial parents are asking to expand their weekends to include Thursdays and/or Mondays, so that they too can participate in the children’s school routine, whether that be helping with homework, packing lunches, or just staying involved in the day-to-day lives of their children. Overnights on school nights, extended weekends and the like are much more prevalent today than in the past.

Our traditional model of parenting time was predicated on the notion that most families were single income earning families. Mom was staying home with the kids and Dad was out working 9:00 to 5:00 Monday through Friday. That is not the world we live in anymore, and our parenting schedules are reflecting that trend. In today’s economy, two income earner households are the norm and more married parents divide responsibilities for the children. If the parents in dual income families divorce, the allocation of shared responsibilities established during the marriage may lend itself to a shared parenting time schedule post-divorce.

But shared parenting time is not a given for even dual income families. It takes the highest degree of cooperation and trust between the divorced parties to make shared parenting time work. First, the parents must live in the same school district so as to have immediate access to schools, extracurricular activities and the like. Second, both parents need to share in the logistical obligations necessary to maintain such a schedule. If one parent travels for work every week, or works long burdensome hours, he or she may not be consistently available to do his or her share of the school pickups and drop offs. Working spouses must be flexible in their work schedules and make sacrifices in order for a shared parenting time schedule to work effectively.

Third, effective communication and coordination between the divorced parents is a must. With the children splitting their time between two homes, cooperation in getting homework done and coordination of transportation responsibilities is essential. Inevitably, emergencies will arise when a parent is stuck at the office and the other must fill in, even though it may not be his or her scheduled time. The failure to effectively cooperate and coordinate in a shared parenting time schedule will harm the children first and foremost.

Importantly, a parent should not use a shared parenting schedule as a basis to avoid the obligation to pay child support. Custodial and financial rights and obligations are not tied together under the law, and the designation of a custodial (i.e. child support recipient) parent is predicated on a variety of facts that do not necessarily include the allocation of parenting time between the parents. Too many non-custodial parents attempt to leverage parenting time against their obligation to pay child support, and a court will not be receptive to a parent’s argument for shared parenting time if the court believes that parent’s motivation for seeking such shared time is financial.

Extended parenting time allows both parents to remain intimately involved in the daily lives of their children. For those parents who are willing to cooperate and make the necessary concessions to stay involved in the lives of the children, extended parenting time may be possible.

One option is to file an appeal with the reviewing court.  An attorney specializing in appellate law will be able to assist you.  An appeal is a formal request that a higher court review the lower court’s decision.  In Illinois, a party generally files an appeal first with the Illinois Appellate Court.  If you are the party bringing the appeal and challenging the court’s decision, you are referred to as the appellant.  If you are the party defending the appeal, you are referred to as the appellee.  However, if both parties are dissatisfied with the judgment, both parties may simultaneously appeal the judgment, which is called a cross-appeal.

What is the process of an appeal in an Illinois state court?

Generally, within 30 days of the final judgment, the appellant files a notice of appeal indicating his or her desire to appeal the decision.  The appellant then files a docketing statement, which generally informs the other side and the court what it is being appealed and the basis for the appeal.  Next, the appellant compiles the record, which consists of the common law record (i.e., all of the pleadings filed and orders entered in the case) and the report of proceedings (i.e., all of the relevant transcripts of court hearing and trial testimony).  Finally, the appellant drafts a brief, not to exceed 50 pages, outlining the reasons the trial court’s judgment was erroneous.  Occasionally, the reviewing court may grant a party’s request for oral arguments, in which case both parties’ attorneys appear before the reviewing court and set forth their respective positions.

Will I get a chance to testify?

No.  The appeal is limited to the record made in the trial court.  As a result, the reviewing court does not hear any testimony or receive any additional evidence.  Rather, the reviewing court bases its decision solely on the record, on appeal, the parties’ briefs, and oral argument by the attorneys, if the court decides to schedule one.

Will the reviewing court look at my case anew?

It depends.  The reviewing court gives deference to the trial court on issues of witness credibility, factual determinations, weight of the evidence, and the like.  However, the reviewing court reviews questions of law, such as the interpretation of a statute or a contract (such as a premarital agreement or marital settlement agreement), without any deference to the lower court’s findings.  In other words, the level of scrutiny the reviewing court will apply depends on the issues raised in the appeal.

When will the reviewing court make a decision?

It varies.  If the appeal involves an issue of child custody, it is placed on an accelerated schedule.  As a result, the briefs are completed and submitted to the court on a comparatively shorter timeline than appeals that do not address issues related to child custody.  Also, in custody cases, the appellate court is to issue its decision within 150 days after the filing of the notice of appeal.  However, if the appeal does not involve an issue of child custody, there is no set time by which the court will make its decision.  It could take a few months or longer than a year.

I was afraid that I would not be able to keep up with the younger students because I thought it was harder to learn as you get older.  However, I learned that my years of work experience actually helped me to understand the concepts more readily than did some of the youngsters who had never worked.  I also enjoyed getting to know the other students and the professors, whom I otherwise would never have met.

I did find, however, that I was at a disadvantage when it came to technology.  When I attended law school, no one had a laptop computer.  Now, everyone has one and everything is done on line.  Want to sign up for a class?  Do it online.  No more standing in line and turning in registration forms.  Want to check your grades?  Do it online.  Nothing is mailed out.  Want to know what special speakers or other events are being offered by the school?  Check it online.  There is no school newspaper or newsletter announcing events.  Everything is all online.  Classes can even be taken on line instead of in person.  All of these changes turned out to be more challenging for someone like me, who is less technically sophisticated than the younger students, than learning the actual subject matter.  I even had to break down and buy a laptop.  Then there was the fun of explaining to my family and friends what the degree was that I was working toward.  What does LLM stand for?  Legum Magister or Master of Laws.

I worked full time while I worked toward the LLM, so it took me three years to complete the program.  Students who attend full time are able to complete the program in one year.  I had to keep my nose to the grindstone (eyes on the prize?) and used my commuting time, most weekends, and a lot of vacation time to complete mid-terms, finals, research and written papers.  Honestly, one of the hardest parts was keeping focused on completing the school work when I was exhausted by everything and just wanted to sleep.  But once I start something, I am compelled to finish.

So here I am, three years later, an LLM graduate (with honors!) with a new expertise beneficial to my employer and our clients.  I am glad I attended and completed the program.  I obtained a lot of useful information that I actually enjoyed learning.

If you are thinking about returning to school to upgrade your skills in some way, I strongly encourage you to do so.  It is a struggle while you are doing it, but the time will really fly by, and before you know it you have reached your goal.

For couples contemplating a divorce, the volatility in the financial and real estate markets has created an impediment that has left many questioning how they will achieve future financial security while attempting to establish two households.  A common goal may be to split assets equitably, not necessarily  50/50, but all assets are not created equal, and establishing fair market value can be challenging at best.

In these uncertain times, we are focusing on two key messages with our clients.  Number one, make sound financial, not emotional decisions.  And number two, work to create mutual benefit.  This is important at all times, but especially in unpredictable ones like we’re experiencing today.

As you navigate the financial aspect of the divorce process, you should

Develop a realistic budget.

Recognize the financial reality of establishing and maintaining two separate households by developing a realistic budget during and after the divorce.

Thoroughly review your assets and establish fair market value.

Calculating the fair value of your assets can be challenging.  It’s important to consider both the cost and value of assets such as real estate, investments, personal property and a business.

Strive for diversification in division of assets.

The new normal in dividing assets is to understand the risk factors associated with all classes and diversify.  Just as with investing, you don’t want to put all your eggs in one basket.

Be civil.

Recognizing the real financial hardships of divorce can be challenging, but it’s important to divide your assets constructively without causing resentment.  The decisions are difficult to make, but with the guidance of a good family law attorney you can reach an agreement that is mutually beneficial to both partners.

Recently a 200-pound 8-year-old was removed from his home and placed in foster care because the state claimed that his parents were not doing enough to control his weight.   Normal weight for a child his age would be about 60 pounds.  While rare, other morbidly obese children have been removed from their homes in the past.   All of these cases have arisen as abuse and neglect cases in Juvenile Court, not as custody issues in divorce cases.  However, all turned on the best interests of the child, the standard for all child custody decisions in Illinois.

Experts argue whether or not it truly is in the best interest of obese children to remove them from home.   The issue is that generally, the entire family needs to revise its eating and exercise habits, not just the child.  The child may learn better eating and exercise habits in another care situation, but the psychological harm of removing the child from home may damage the child emotionally.   Removal is a last resort option in all cases in order to provide help that the parent(s) can’t provide.  Prior to removal, other counseling and treatments were recommended or ordered, but unfortunately, for a variety of reasons, such interventions failed.  The better solution would probably be to get the entire family a diet counselor and trainer to learn healthier habits.

In many divorce situations, the parents and children experience a lot of stress as well as depression.  Stress and depression are known to disrupt a normal eating and exercise pattern.   It is possible that an obesity problem could start or be aggravated because of a divorce.    It would be better, if necessary, to seek professional guidance from a doctor, dietician or trainer to get help to reduce the child’s weight before making the child’s obesity a contested custody issue.  But both parents would have to cooperate with the program, and that is where the trouble starts.

The factors considered by Illinois Courts in determining the best interests of a child are  1) the wishes of the child’s parents covering custody; 2) the wishes of the child; 3) the interaction of the child with parents, siblings or other persons who may significantly affect the child’s best interest; 4) the child’s adjustment to home, school and community; 5) the mental and physical health of all individuals involved; 6) physical violence or the threat of such violence; 7) ongoing or repeated abuse against the child or another person; the willingness and ability of each parent to encourage and aid a close and continuing relationship between the child and the other parent; 9) whether one of the parents is a sex offender; and 10) terms of a parent’s military family-care plan.

If obesity of a child ever becomes an issue in an Illinois custody case, the most relevant factor would be the physical health of the child, although several others could also be applicable.  So far, no cases have been reported in Illinois in which the obesity of a child was an issue.   I believe the court could consider the issue if the child’s health was in danger, but neither parent nor their counsel would want to raise this issue frivolously.

The holidays are the time of year where we all tend to indulge, many New Year’s resolutions focus on losing weight and beginning an exercise program.  In the spirit of good will and peace to all people, parents should cooperate to help children overcome what could turn out to be a lifelong eating problem.  An unfit child does not necessarily mean that the parent is unfit, but parents who are doing what they can to aid the child’s fitness will be in a better position if obesity of the child ever becomes an issue.

A good plan is like a road map, and although members of families coping with divorce may be traveling somewhat different routes, it is possible to find joy during the holiday season if parents think ahead and carefully plan ways to anticipate and avoid unwelcome detours.

To help develop such a plan, an attorney skilled in family and divorce law can work with parents to chart the best route for all concerned, since both parents and children benefit from knowing in advance how the holidays will be celebrated. Transitions are difficult for everyone, including the children, but a fair plan will allow everyone to take advantage of time together and to make the best of it.  When developing the plan, parents should consider the following:

Be creative: Consider new traditions.

Yes, things will be different.  “Different” is hard but it doesn’t have to be bad.  Although there is only one Thanksgiving day, that doesn’t mean you can’t celebrate the holiday, just do it on a different day.  Giving thanks certainly isn’t limited to one day a year, and the spirit of hope and generosity is not confined to Christmas.

Develop a budget.

Be sure your plan includes a realistic budget based the experience of past years. Remember that while gifts are important, the best gift you can give your children is the time you spend together.

Pay attention to your emotions.

Resist the urge to allow past grievances to cloud the potential for enjoying happy times. Put unresolved issues on hold and let yourselves savor the moment.

Focus on finding joy in the holidays.

When you know that your children will be away, plan ahead to be with friends or other family members so you are not alone on holidays.

In short, careful planning enables you to enjoy the pleasures of the holidays. These occasions don’t sneak up on us, yet even at Christmas time it is not uncommon to see family lawyers and their clients standing before a judge on December 23^rd because of poor planning. Emotional turmoil like that can be prevented if divorcing parents and their attorneys are proactive and prepare for the holidays. The earlier this is done, the better, and now is a good time to begin.

While the true number of victims may never be known because the crime often goes unreported, research confirms that domestic violence in affluent families is a grave and epidemic issue.  “Elevated socioeconomic status can make domestic violence more difficult to report,” acknowledges Bradley Bloom, Chief of Police for the Hinsdale Police Department.  “For many victims they don’t want to come forward because it serves as affirmation of the demise of their marriage,” added Gary J. Schira, Chief of Police for the City of Batavia.  Both chiefs agree the stigma alone is a major deterrent to reporting the abuse.

For those victims who are ready to take the first step in asking for help, there are many protections that today’s laws now offer.  If there is an immediate threat to one’s health or welfare, contacting the police should always be the first call a victim makes.  For those victims who are considering divorce, but where there is no immediate threat, a family law attorney should be the resource relied upon.  One of the first steps an attorney can help with as part of an exit strategy is to secure a civil order of protection.  Such orders offer many levels of security for a victim, such as preventing the abuser from having any contact with the victim and the children, removing the abuser from the residence, or preventing the abuser from coming to the victim’s place of employment or the children’s schools.

Once the order of protection is in place, it is critically important that the protected party call the police if the order of protection is violated and the victim feels his or her (or the children’s) safety is in jeopardy.  At a minimum, the victim should contact his or her attorney.  First and foremost, domestic violence presents the issue of physical safety.  Second, reporting violations is a matter of taking back control.  By reporting violations of the order of protection, the victim stops the cycle of abuse.  Further, if a violation is reported, the abuser will be arrested and while in custody can do no harm.  If the abuser is released from custody, evolving tools such as GPS-like devices have been effective in tracking violators and keeping victims safer.

In all, great strides have been made since the days when the abuser was told to simply take a walk around the block and cool off.  By collaborating with the police, attorneys, and other groups offering valuable services to victims of domestic violence, we can provide the necessary support to victims of abuse and bring an end to domestic violence in financially upscale families.

The simple answer is that a freeze on a pension plan means that the plan does not make any further additions to the employee’s benefit.  Benefits in a traditional pension plan are generally based upon a formula that considers salary and years of service.  The benefit grows larger with the number of years employed and salary increases.  When a pension plan is frozen, the benefit ceases growing.  The benefit is locked in at the amount earned when the plan is frozen.  A frozen pension plan still pays benefits.  However, the amount of the benefit is limited to the sum accumulated when the plan was frozen.

Since many people earn their largest income right before retirement, when a pension plan is frozen, the benefit increase that would be expected based upon those final working years and income is lost.  A younger employee may have time to save more for retirement.  An older employee may not.

In the event of a divorce, a frozen pension can be divided using a Qualified Domestic Relations Order (“QDRO”), just as a normal un-frozen pension would be.  One spouse cannot freeze the other spouse out of a portion of a pension just because the pension is frozen.

A party contemplating divorce may want to check the status of any pension plans either spouse participates in prior to filing for divorce to see if the plan is frozen, although there is no guarantee that the plan will not freeze the pension at some point in the future after your divorce is final.