Illinois Spousal Support Laws: Cohabitation Conundrum

Posted on August 23rd, 2011 by Andrea K. Muchin

Illinois is one of only a few states where spousal support (commonly referred to as “maintenance”) statutorily terminates short of remarriage.  Specifically, the Illinois Marriage and Dissolution of Marriage Act provides that one of the several factors which will justify a termination of maintenance is the cohabitation of the maintenance recipient with another person on a resident, continuing conjugal basis.  750 ILCS 5/510(c)(3).

In many cases, both payors and recipients of spousal support find this provision upsetting.  Many spousal support recipients, the majority of whom are women, are bothered by the fact that their spouse can leave the marriage and pursue a new relationship without any repercussions, while they are restricted in moving on with their lives regardless of the duration of the marriage, the number of children, and their prior contributions to the marriage.  The payor spouses, on the other hand, many of whom are still men, also complain about this statutory provision.  Understandably, the support payors become resentful if they feel that they are making support payments to someone who is cohabiting, as they feel that they should not have to “support” this new relationship.  Over the years, I have represented clients on both sides of the equation.  Regardless of which side, I find myself counseling clients that while I recognize their feelings of frustration, and the statute may seem unfair, they really have no choice…it’s the law.

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Protection of Animals Under the Illinois Domestic Violence Act

Posted on August 11th, 2011 by David H. Hopkins

Protection of animals in cases of domestic violence is not a topic discussed to often, but there are laws in place for such.  Effective January 1, 2008, a new remedy under Section 214 of the Illinois Domestic Violence Act (“IDVA”) was established, captioned “Protection of Animals.”  This remedy reflects increasing awareness throughout the country of a significant “linkage” between animals and domestic violence.

Significantly, the new remedy is sequentially placed in the IDVA immediately after the remedy relative to protecting property.  Such placement, of course, reflects the traditional view in Illinois that pets are personal property, assignable or allocable between parties in a dissolution of marriage case in the same way non-marital assets are assigned or marital assets are equitably allocated.  Notably, this new remedy is remarkably broad in scope, permitting a court to grant “exclusive care, custody, or control” to a petitioner and/or to order the respondent to altogether “stay away” from the animal.  Especially important is the new remedy’s use of the word “harming” – i.e., a court may order that a respondent is prohibited from “harming” the animal.

“Teeth” inherent in an IDVA order of protection are substantial.  This Act, which traces back to 1982 (when the forerunner to the present statute was first-enacted), entails a unique interplay between civil and criminal law.  In general, any proceeding to obtain, modify, reopen, or appeal an order of protection is civil in nature; but a proceeding as to a violation of such an order may be in the form of a prosecution in criminal court.

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Understanding Your Client’s Mental Health Needs

Posted on July 26th, 2011 by Andrea K. Muchin

When working with a client going through the often difficult process of divorce, taking any mental health concerns into consideration is critically important, especially when the issues include custody and parenting time.

Whether you represent the client who has always been the primary caretaker of the children, or the party who has not historically played that role but now thinks that he or she should take on that role, making sure your client’s mental health is in “good shape” almost always pays off.  Keep in mind that anger, depression and fear are common emotions that your client may be confronting during this difficult time, all of which can have an impact on his or her ability to best parent the children.

In almost every case in which these issues arise, you should consider asking your client if he or she is in therapy.  If the answer is no, suggest that they consider doing so.  Keeping  a list of therapists nearby so you can make a referral if asked is usually a good idea.  If your client questions why you would make this suggestion, you may want to explain that this is likely going to be a difficult process, and having a support system such as a therapist in place, can be tremendously helpful in getting them through this time in their life.  If your client fears that this may “look bad,” you can assure them that, in your experience, being in therapy is usually seen as a positive by professionals who are investigating one’s custodial situation.

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Parents Can Strengthen Family Relationships, Even During Divorce

Posted on July 14th, 2011 by Deborah A. Carder

Father with ChildrenThe word “divorce” does not conjure up positive thoughts of family wellness, but emotionally fit  parents can strengthen family relationships even during the legal process and later as a divorced family.  Typically, parents are so trapped in their own emotional chaos, not to mention the arduous divorce procedure, that they involve their children in the process without even knowing it. Commonly heard statements such as, “Your mother is a liar” or, “I can’t afford that because your father has not paid support this month,” are damaging to children. Equally damaging is the inability of a parent to manage his or her emotions. Being emotionally neutral about the issues in the divorce while in the presence of your children is the most difficult yet most critical skill a divorcing parent must have.

Fortunately, local resources are available to keep you and your family legally and mentally fit. One such resource is a parent-education program that teaches parents to deal with adult problems in ways that avoid harm to their children’s emotional well being. By learning the coping techniques to deal with the emotional impact early in the divorce process, a parent can be both more effective in coping and more easily available to their children.

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Professional Sports & Family Law: Lockout Does Not Necessarily Equal Support Modification

Posted on July 6th, 2011 by Evan D. Whitfield

NBA LockoutAs of July 1, 2011, both the National Football League (NFL) and the National Basketball Association (NBA) are embroiled in labor disputes, which have resulted in the owners instituting “lockouts” against the players.  This battle of millionaires versus billionaires has spurred a number of professional athletes, either at the behest of their agents or on their own, to file petitions to modify their child support obligations.

Articles posted on solo-practitioner’s websites, as well as on corporate news sites, have greatly oversimplified this matter.  These articles would have both the athletes and their dependents believe that due to the lockout, they are certain to have their petitions for modification of child support granted.  Regardless of which side of the issue an individual falls, the professional athlete-payor, or the mother and/or former spouse-payee, receiving a child support modification is not as simple as filing the initial petition for modification.

The athlete’s argument for modification is simple and succinct; it goes as follows:

Player X plays professionally in the NFL or NBA.  On or about March 4, 2011, or July 1, 2011, the NFL and NBA respectively instituted lockouts.  A substantial change in circumstance has occurred as a result of said lockout.  Player X is no longer earning money pursuant to his contract and cannot afford to pay the previously ordered amount of child support.  Player X respectfully requests that his child support obligation be reduced.

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Far Reaching Effects of New York’s Legalization of Gay Marriage

Posted on July 1st, 2011 by Karen Pinkert-Lieb

The New York State legislature and Governor Andrew Cuomo legalized same-sex marriage for the state of New York on June 24, 2011.

A same-sex marriage bill known as the Marriage Equality Act passed the State Senate by a vote of 33-29 on June 24, 2011.  Governor Andrew Cuomo signed the measure that night, allowing the law to go into effect the same day.  As a result, the number of Americans living in states covered by same-sex marriage laws has more than doubled, including the 45,000 gay couples currently living in New York, according to census estimates.  New York is now the sixth and largest state to permit same-sex marriage, joining the ranks of Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia.   States that recognize same-sex marriage but do not grant same-sex marriage licenses include Rhode Island and Maryland. Other states, including Illinois, will recognize gay marriages as civil unions under their respective civil union statutes.

New York has a twenty-four hour waiting period to get married, but no residency requirement.  What this means is that gay couples from anywhere in the country can become legally married in New York State and their marriage will be recognized by an increasing number of states.  While twenty-nine states have a constitutional ban on gay marriage and twelve others have laws against it, the May 2011 Gallup poll found that a majority of Americans support same-sex marriage, so the future status of those states may be in for a change.

Posted in Civil Unions / Gay Marriage, In the News Tagged , , , , |

Civil Unions and Employment Benefits Issues in Illinois

Posted on June 7th, 2011 by Dorothy A. Voigt

Employment BenefitsThe Illinois Religious Freedom Protection and Civil Union Act went into effect on June 1, 2011.   A civil union creates a legal relationship between two persons of either the same or opposite sex who now may be defined as a “spouse,” a “dependent” or some other term that denote the spousal relationship.  Many individuals obtain retirement benefits through employment; some of those benefits also are provided to spouses or dependents.  The Civil Union Act will impact those benefits.

Whether or not partners in a civil union are entitled to benefits as a result of the employment of their partner depends upon the source and type of benefits offered.   You will need to know if the plan you or your partner participates in is an ERISA (Employee Retirement and Income Security Act) plan or not.   ERISA is federal law, and under the federal Defense of Marriage Act (DOMA), a spouse is defined as an opposite sex marital partner only.  Employers who offer benefits under ERISA plans have to comply only with DOMA and do not need to offer benefits to partners in a civil union.  A plan can choose to offer benefits to civil union partners, but is not required to do so.   An employer can always offer benefits greater than required.  For instance, Illinois has a minimum wage higher than the minimum wage required by the federal government.  An employer may choose to offer benefits to same sex couples if they operate in a number of states with conflicting laws regarding same sex marriage to be consistent and for administrative ease.  For example, Iowa allows same-sex marriage, Illinois has civil unions, and Indiana recognizes only opposite sex marriages.  Employees will have to check their plan document to see how a spouse is defined and if benefits are provided to a same sex partner.

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First Divorce Filing For Same Sex Couple in Illinois

Posted on June 2nd, 2011 by Karen Pinkert-Lieb

As of June 1, 2011, same-sex couples are permitted to apply for civil union licenses under the new Civil Union Act.  On the same historic date, another same-sex couple was filing for a divorce.

On Wednesday, June 1st, Mark Bayer filed his Petition for Dissolution at the Peoria County Courthouse, the first of two such petitions filed yesterday in Peoria and possibly the first same sex divorce filing in the state. The two men were married in Canada in 2006 and moved to Peoria two years later.  The Bayer case could set precedent for the application of the Illinois Marriage and Dissolution of Marriage Act to a same-sax couple.

Joshua Haid, the Chicago attorney who is representing Bayer, says he expects the court will treat Bayer’s divorce no differently than any other.  Before June 1st, Illinois recognized Bayer and his partner only as two people living in the same house. Now, they have all the rights and obligations of any other couple undergoing a divorce.  “Yesterday my client could of been kicked out of the house,” Haid said. “Today, he could not.”

As reported by Michael Boren of the Peoria Journal Star.

Related Post: What You Need to Know About Civil Unions in Illinois

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Protecting Your Lifestyle During and After Divorce

Posted on May 23rd, 2011 by Eric L. Schulman

Divorce can be an emotionally stressful and challenging time.  Unfortunately, the divorce process can be made even more difficult when one spouse acts punitively to hurt their former partner by engaging in tactics that manipulate one party’s financial resources in order to injure the other spouse’s means of support.  While the goal of all divorce cases should be to try to reach an amicable resolution by minimizing the conflict, time, and money spent, one party’s ability to support his or her lifestyle should not be compromised.

Maintenance, which was formerly known as alimony, is the payment of spousal support from one party to another during and after a divorce.  Illinois law provides that a spouse is entitled to receive maintenance in an amount necessary to maintain the marital standard of living as long as the other party can maintain that lifestyle and still meet his or her own needs.  Further, a spouse seeking maintenance is not required to sell assets in order to maintain the standard of living enjoyed during the marriage.

Many contested divorce cases involve the payor spouse attempting to minimize the amount of maintenance to be paid.  The spouse seeking maintenance then must be able to prove his or her reasonable needs, historical expenses, and any anticipated or projected costs.  To do this, it is important to maintain records to demonstrate and establish one’s historical lifestyle.

Because Illinois law views marriage as a partnership, courts consider spouses as co-equals, recognizing that homemaker services are as significant as financial contributions. While the amount of maintenance paid may depend upon various factors, including the party’s income, earning capacity, and standard of living, the court looks to the same factors in assessing the length of the maintenance to be paid, including contributions to the career of the other spouse and time absent from the workplace due to children or domestic responsibilities.
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Can There Be Such a Thing As a Civil Divorce?

Posted on May 16th, 2011 by Timothy M. Daw

Can couples part in a way that is respectful and does not add to a distressing situation?  Yes they can, by following a few guidelines. By its nature, divorce is fraught with emotional issues, especially when there has been marital misconduct. But many of these issues— however real and upsetting have little relevance to the divorce process itself.  If couples can set hurt aside and instead look to the future and the life they want to create for themselves, a more dignified divorce is possible. Here are some hints to keep in mind:

If you can’t say anything nice…

While difficult to accept, believing in the truth of this old adage makes a great deal of difference. Often, a messy divorce becomes a competition as to who can act the worst. The process becomes further distorted and painful when emotions drive the case. If the case goes to trial, the spouse who conducts himself or herself appropriately and rises above the fray caused by the other spouse may be seen sympathetically by the person who will be making monumental decisions affecting the rest of the parties’ lives; namely, the Judge.

Focus on what’s really important

The most important concern should be the emotional well being of the children and the financial well being of both spouses and the children. Unfortunately, parties often become fixated on proving the other spouse is morally wrong. Illinois does not allow marital misconduct to be used in any way to gain a financial result. Occasionally, such misconduct may be relevant to the extent affects a parent’s relationship with the children. But peripheral issues should rarely be the primary focus when their resolution will make very little difference in the long run. Concentrate on crucial areas to keep the divorce from becoming an emotional battleground.

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