Tag Archives: divorce

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5 Financial Myths in Divorce

Myth #1:  “Your spouse will have to pay all of the attorney’s fees”

TRUTH: While the spouse in control of the finances during the divorce proceeding may be ordered to contribute toward the other spouse’s attorney’s fees and costs, the money that is being paid on an interim basis will be considered a pre-distribution of that party’s share of the marital estate, which may be subject to reallocation later in the proceeding. Clients beware! Even if your spouse is the one writing the check, the money being used to pay your attorney is actually your own money that is being spent and that might otherwise be yours to keep as part of a settlement, so be cautious in how you approach the costs of your litigation.

Myth #2: “The assets of the marriage are always divided 50%”

TRUTH: While assets in many typical divorce cases are divided equally with each party receiving 50% of the marital assets, Illinois is an equitable distribution state, which allows for a disproportionate allocation of assets in certain circumstances. It should also be noted that the division of marital assets can take into consideration one party’s non-marital assets and the value thereof, even if one spouse is not entitled to the non-marital assets of the other spouse.

Myth #3: “Your spouse will have to pay enough money for you to continue to live the standard of living enjoyed during the marriage”

TRUTH: It is true that the standard of living the parties enjoyed during the marriage is a factor that the court will consider in awarding maintenance, but it is just one of several factors. The reality is that very few people are financially able to enjoy the same standard of living enjoyed during the marriage, because of the inherent reduction of the assets during a divorce for attorneys and experts fees, as well as litigation costs. Furthermore, two people sharing combined assets creates a far greater lifestyle than individuals living two separate lives supported by that same pool of assets. Litigation Tip: get through your divorce as efficiently and quickly as possible and pick your battles, so that you do not incur unnecessary litigation expenses that will just diminish the assets available to you to try to utilize for your lifestyle after divorce.

Myth #4: “You will receive the percentage guideline for child support no matter what”

TRUTH: It is true that in most cases the percentage guidelines in Illinois will be applied toward the net income of the payor spouse. However, percentage guidelines for child support may not apply to unlimited income of the other spouse, and may not apply if the payor spouse has an extremely high income, in which case, the court will determine the reasonable needs of the children in setting the child support award. Additionally, the court may consider the parenting schedule plan between the two parties and in many instances, the court may consider a deviation below statutory child support guidelines where the parties have equal time, or close to equal time with both parents.

Myth #5: “The spouse who is earning more in a marriage automatically has to pay 30% to the other spouse for maintenance.”

TRUTH: On January 1, 2015, the legislature passed formulaic guidelines for maintenance awards in the state of Illinois. 30% is a significant component of the new maintenance statute, but is an overly simplistic view of the entire formula. First, just because one spouse earns more income than the other spouse in a marriage, does not mean there will be a maintenance award. The courts must decide whether or not maintenance is even appropriate under the facts and circumstances of each specific case. Second, the maintenance formula only applies to families whose house combined incomes is $250,000 or less. For families whose household incomes combined exceed $250,000, the guidelines do not apply and the court will apply the statutory factors that existed prior to the enactment of the new Act in determining an appropriate amount of maintenance.

Be careful what you hear from individuals or what you might read online or in other sources. It is extremely important that you speak directly with an experienced divorce attorney who has the experience in litigating financial issues in divorce cases and can provide you with honest and direct answers to questions you may have regarding your finances in divorce.

Divorce Family Law Maintenance (Formerly known as Alimony)

Will I lose my right to Maintenance if I get a Job?

This was a question asked of me recently by a client, and one that I have been asked many times over the 23 years of my practice. Many divorce lawyers will specifically advise their clients not to go to work, or take a job, for fear that it may diminish and/or eliminate their clients right to receive maintenance.  I, however, generally do not take that position, but rather ask: are you comfortable being 100% reliant on your spouse’s income for the rest of your life?  What happens if your ex-spouse loses his or her job, or otherwise becomes unable to work and generate an income, do you have sufficient assets to sustain yourself for the rest of your life?

In many circumstances, one spouse going back to work after being out of the workforce for a very long time is not a realistic option, but in situations where the option exists, I believe it is in anyone’s best interest to try to be as self-sufficient as possible and not reliant on an ex-spouse, to the extent possible.  In those situations where meaningful employment is not possible due to the length of marriage, the length the individual has been out of the workforce, the age of individual, the health of the individual, or for another reason, that is where I work with my clients in developing an aggressive litigation strategy to secure appropriate maintenance, formerly known as alimony.

Don’t get me wrong, I do not advocate getting any job just to get a job, but where a positive opportunity presents itself, not only from a financial standpoint, but also from the standpoint of confidence and empowerment, as well, I generally recommend to clients they consider that type of option.

The real point of this is that anyone going through the process of divorce should consider as many options as are available to that individual, and not be misguided by an attorney’s singular strategy without exploring all of the options available.  There is no template for every divorce and every family’s facts, circumstances and issues are different from the next.  Think big picture!

Family Law

Divorce and Surviving the Holidays

A common catchphrase heard regularly around this time of year is, “peace on earth, goodwill to men.”  Unfortunately, if you are in the middle of a divorce or contemplating divorce this time of the year, peace and goodwill may not be the first things that come to your mind, especially as it may relate to your spouse.  Nevertheless, I offer to you a few simple suggestions that will hopefully help you survive the holidays, and maybe, even find a little peace and goodwill:

1.         Put the children first:                        Whatever the issue or issues you may have with your spouse, they are not your children’s issues.  While you should always strive to focus on the children during your divorce, this time of the year is even more difficult for children, as children usually hold dear the time spent as a family around the holidays.  As those traditions that children have enjoyed throughout their lives are no more and new traditions are created, be particularly mindful of the stress and sadness your children are experiencing during this transition.

2.         Call a time out:          If for no reason other than the children, call a truce, even if it is only for a couple of months.  Ask your respective lawyers not to take any action in litigation and do whatever is within your power to not instigate an issue, even if it is only for a couple of months.  Even if you do not have children, take a couple of months to decompress and remove yourself from the stress and tension of a difficult process.  Take this down time to get away, take a vacation if you can afford it, go spend time with loved ones, or just some time to do some of the simple things in life that you enjoy.

3.         Be Thankful:                         When you are going through, or contemplating a divorce, it is easy to focus on what you do not have or what you may be losing, but if you are able to take some time away from the process of the divorce and focus on what you do have, you likely will find a reason, if not many reasons, to be thankful.  Being thankful may help you to refocus and enjoy the positive energy that comes from expressing gratitude.  It may help give you the strength and support you need as you move into your next phase in life.  If you are in the middle of a divorce, many things may be different or not the way you would like them to be, but you may, in reflecting, realize that you have good health, wonderful children, a fulfilling career, or just loved ones and others that support you, whether family, friends, co-workers, or even your divorce lawyer!

In the end, you will get through the process and will have a fresh start in your life.  Taking a hiatus and trying to refocus through the holidays may help you up along the way.  May you find peace on earth and goodwill to each of you.

Family Law

10 FIRST STEPS WHEN CONTEMPLATING A DIVORCE

1. Get counseling:      Before filing for divorce, I highly recommend seeing a counselor first in an effort to try to save the marriage. Divorce can be economically and emotionally devastating and forever will change your life. In the event counseling cannot save the marriage, then having a relationship with a counselor/therapist will be particularly useful on an individual basis in helping to navigate the emotional ups and downs of a divorce. When children are involved, a good mental health professional can also help provide insight and understanding into the particular sensitivities of the impact of divorce on children.

2. Consult with an experienced divorce/family law attorney:       Do your homework by researching attorneys online and if possible, try to speak with any lawyer you may know to get a good referral. Many attorneys will tell you that they can handle your divorce and that they do many different things, but having an attorney whose practice is exclusively in the area of divorce/family law can be a valuable asset to you. In considering a lawyer, you may want to consider whether the lawyer is a fellow in the American Academy of Matrimonial Lawyers. The AAML is a national organization that requires a certain level of family law experience and stringent testing requirements as part of both a written and oral exam for admission into the organization. Do not be intimidated by this process and try to consult with as many attorneys as is necessary for you to feel comfortable with the personality and strategy of the lawyer you selected.

3. Choose the process of your divorce:          Many individuals considering divorce are not aware of the fact that there are different approaches or processes to obtaining a divorce. Most individuals understand the historically traditional approach to divorce, which is adversarial litigation. However, there are a number of alternatives including the collaborative approach, mediation, or a combination of different styles. Whether you engage in a formal process of collaborative law or mediation, it is my opinion that an individual is almost always better served reaching a settlement without the cost and acrimony of contested litigation. I am successful settling almost all of my cases out of Court, but there are occasions where litigation becomes necessary and as a last resort, is in the client’s best interest. In exploring what process works best for you and your family, you should make certain that the Firm you are going to hire to represent you is going to handle any type of process you select for what the facts of your case dictate.

4. Develop a strategy:             Most people understand that as part of a divorce the marriage will be legally dissolved. What they do not always understand is what else should be expected out of the process or how to get from point A to point Z. With your attorney, you should develop a long-term strategy to determine what your long-term goals are at the conclusion of the divorce, but also to develop short-term strategies dealing with temporary issues. If your lawyer is unable to provide you with some type of short-term and long-term strategy, then you are destined to have problems throughout the process.

5. Educate yourself:                 Do not hesitate to ask questions of your attorney and if so inclined, feel free to review the Illinois Marriage and Dissolution of Marriage Act. I caution prospective clients to be careful in what they read on the internet or what they hear from non-divorce lawyers as to what they might expect as part of the process. Also, educate yourself not only in understanding the law to the extent that you can, but educate yourself in terms of the finances of your marriage. Before you even file for divorce, you should try to gather copies of financial statements, tax returns, business records, insurance documents, appraisals, etc., that might assist your lawyer in establishing and identifying assets of the marriage. Do not be fearful if you do not have access to these records, as your attorney has power through the Illinois Supreme Court Rules to request documentation and to issue Subpoenas and take depositions to gather that information.

6. Protect yourself:               In the event you are contemplating divorce as a result of domestic violence and abuse, it should be your number one priority to have a safe exit strategy for you and your children. Your lawyer can assist you in obtaining an Order of Protection, but that should not be relied upon as your sole source of safety. In the event there is domestic violence and/or abuse, the police should be called immediately and if necessary, remove yourself from the situation and seek assistance from family or even a shelter for domestic violence victims.

7. Secure funds to retain your lawyer:              An established divorce/family law attorney is going to require a retainer of anywhere from $5,000 to $25,000, depending on the type of case. Most lawyers accept credit cards and all divorce/family law attorneys are required to bill by the hour. An established divorce/family law practitioner will likely charge between $300 and $600 per hour. It may be to your advantage to hire a divorce lawyer from a larger firm that has greater resources, as it is typical in larger firms to have associates, paralegals, law clerks and other staff billed at reduced hourly rates under the direction and supervision of a partner. Not only will this help manage costs, but having additional attorneys and staff familiar with your case will allow for better communication between you and your attorneys. Typically, if you hire an experienced and seasoned family law attorney or divorce lawyer, his or her time will be in demand, because his or her particular skill, talent and experience, so additional support is critical. Understand that paying a retainer is not the same as paying for a divorce. A retainer is just an initial deposit, but depending on the complexity and contention of your case, the attorney’s fees and costs might far exceed the initial retainer. If you are a spouse who is not in control of the family finances, you may have to borrow an initial retainer, but there are provisions in the laws of the State of Illinois that allow an individual who is not in control of the money to be able to request that the Court Order the spouse who is in control of the income and assets to advance funds for the other spouse, so that one spouse is not disadvantaged in a proceeding because they do not have control of the income or assets.

8. Establish individual credit:              It is particularly important to have credit established in your individual name prior to divorce for two reasons. First, and especially if you are the spouse who is not in control of the assets and income, you may need to access credit for day-to-day living expenses in the event your spouse does not approach the dissolution of the marriage in an amicable fashion and tries to “cut you off” from having access to necessary finances. Typically, the Courts will not treat temporary financial issues as an emergency, so it may be a couple of months before you are able to obtain a Court Order securing funds for day-to-day expenses. Second, in situations where the divorce is not collaborative, but rather very contentious, sometimes an irrational spouse will do, or not do, certain things with respect to regular monthly financial obligations that may negatively impact upon both parties’ credit. If your credit is damaged in divorce, it may be very difficult to obtain credit after the divorce, so even if you may not be able to establish access to new credit after the divorce, you will still have credit in your name.

9. Have realistic expectations:                    It is not uncommon for a divorce to last between six (6) and eighteen (18) months, with some cases being done sooner and some cases actually taking longer than eighteen (18) months. Many factors will determine the length of time it takes to get divorced including who the attorneys are, the approach to the process, how the Judge runs his or her courtroom and other factors. Ultimately though, the only way to have a divorce done quickly is for you and your spouse to reach an agreement through the assistance of your respective attorneys. This is where it becomes critical that the lawyers both share the common goal with the parties to be attentive and diligent in trying to reach an efficient and equitable resolution of all issues. Simply put, the more parties in a divorce fight, the more expensive and longer the process is going to take. Also, be weary of attorneys that continue to focus on having to do their “due diligence” before finalizing the divorce. You and your spouse should openly exchange all financial information, so as to avoid the attorneys having to spend substantial time and money in the discovery process. There will have to be an open exchange of all financial information for your attorney to properly advise you as to an appropriate settlement, but typically, hiding information only results in greater delay and more expense.

10. Talk to your spouse:                     There are divorce lawyers who will tell their clients not to speak with their spouse and that they should only communicate through lawyers. In certain, limited circumstances, that may become necessary, but typically that is more in the nature of a strategy designed to divide and conquer. It is in your best interest to try to come to as many agreements as possible, with the advice and direction of your divorce attorney, to avoid protracted litigation. This is particularly critical with issues pertaining to your children, as far as custody and visitation. No parent should want a Judge deciding his or her relationship with his or her children. Remember, the more you can agree upon with your spouse, the less you need to litigate over and the less you will have to spend in attorney’s fees. Attorney’s fees are seldom paid by one party or the other, but rather get paid out of the marital estate, even if it is from another parties’ income. Being reasonable and negotiating an agreement will make much more financial sense to you in the long-run.

Should you wish to discuss any of these general recommendations in greater detail, as it relates to your individual situation, please do not hesitate to contact me, James M. Quigley, at: 312.621.9700, or by email at: jmquigley@beermannlaw.com.

Family Law

“The Cost of Removal”

Later this month, I am scheduled to conclude a removal trial, which first began in February 13, 2013.  I say “scheduled” because as far as trials go, there is a very real likelihood the case will push into June.

I am representing a 45-year-old father who is fighting to prevent his seven-year-old, first grade son, from being permanently removed to the state of California by his mother.  After exploring more than 200 job opportunities in California and less than 15 in Illinois over the course of more than a year and a half, the mother has alleged that she cannot find work in Chicago, even though she has a Masters Degree and significant work experience, combined with a broad range of skill sets that would make her extremely marketable.

The father, whom I represent, coaches his son’s Little League team, brings him to extended family functions regularly, picks up and drops him off at school several times during the week, and by all accounts, including by the mother, has an outstanding relationship with his son that is close, caring and loving with a very strong bond.

So, while the mother has chosen to make the issue about money, as I reflect on the case, I find irony in the fact that the parents, combined, will end up spending over a quarter of a million in legal fees alone. Wouldn’t you think that kind of money would go a long way in raising a child if that were the true basis for having to move to California?

While there is irony in the cost of litigation in terms of dollars and cents, the real “cost” in this case is to the relationship of a young boy with his father. The mother has testified that she does not believe there will be any negative effect on the boy, which either completely shows her lack of understanding of the child’s relationship with his father, or that she simply doesn’t care.  Growing up all the way out on the West Coast, and seeing his father occasionally, will have a tremendous negative impact on this young boy as he grows up and becomes as a man.

Don’t get me wrong, there are situations where removing a child out of state may be in the child’s best interest, and I have even tried cases where I have successfully litigated for removal. However, in cases like the one I am in the middle of trying now, where the father is intimately involved in his son’s life on a regular and weekly basis, what is more important than the child’s relationship with the parent wanting to keep the child in Illinois?

Had my client had a limited relationship with his son that could be replicated even if the child were living in California, then we would not be this far along into such a costly process. Aren’t there enough fatherless children already in this world?

Family Law

Social Networking and Divorce

Congratulations go out to Facebook CEO Mark Zuckerberg on recently changing his marital status from single to married.  However, as a wedding gift to Mr. Zuckerberg, I may give him a little bit of free advice, and that would be to suggest he and his new wife avoid the use of Facebook or other social networking options.

Does Facebook or other internet social networking cause divorce? Of course not. What Facebook and other similar sites do is help create opportunities to do things that ultimately lead to divorce. I am a member of the American Academy of Matrimonial Lawyers, an organization that requires both national and local testing to become a Fellow, and according to the AAML, 80% of US divorce attorneys say they have seen an increase in the number of divorce cases where social networking is at issue in the case. I have seen it in my own cases.

Just this week I was consulted on a case where the parties separated and after the separation occurred, the wife learned that her husband had “friended” her female cousin, which has now purportedly sparked a new love interest between the husband and the wife’s cousin.  Astonishingly, this is a trend that is not unfamiliar in my family law practice.

How many of you have joined Facebook and immediately began to search for an old boyfriend, girlfriend or even an individual with whom you had a casual sexual relationship with at some point in the past, just to “see what they were up to?” once the connection is made, temptation follows and then ultimately I end up getting a telephone call from an individual needing the services of a family law attorney for a possible divorce.

For me, Facebook can be a great way to investigate allegations that may be relevant in the case. You’d be surprised, or maybe you wouldn’t be, of some of the information people post on Facebook and how helpful that can be to me in a case as a divorce lawyer.  Photographs, connections with certain individuals, direct statements made by people on their Facebook page, all can be used as evidence in a divorce case.

As I said before, social networking sites, such as Facebook, do not cause divorce, people’s actions or inactions in a marriage cause divorce. That said, the next time you are thinking of “friending” that old love interest, maybe you might want to consider “friending” your grandma or grandpa instead!