Protecting your future in a divorce

Protecting Your Future

News + Insights

Protecting your future in a divorce

 

Ask any Illinois resident who has been through a divorce what the process is like and you are bound to hear stories about how difficult it is. The incredibly wide range of topics to be discussed and agreements to be made can be overwhelming.

 

Concerns for one’s immediate situation often feel so dramatic that giving thought to protecting the future can be even harder. However, the need to stay focused on how to preserve retirement assets through a divorce is critical.

 

Take care to avoid the loss of your future income
Retirement accounts, pension funds and other long-term investments are common assets that are often split in modern divorces. There are some ways that this can be done but there are also some all-too-simple ways that undue penalties and taxes can be assessed on these accounts, essentially wiping away a large part of a person’s investment.

 

Caution is urged in these situations and the following are some ways that you can help protect yourself:

  • Always use the QDRO: The Qualified Domestic Relations Order is your best bet for ensuring that all tax entities and other important agencies or companies identify your financial transaction as a part of your divorce settlement. If you receive money from a retirement account as stated in your divorce decree but the IRS views it as an early distribution, you will see a large portion of your money paid out to taxes and other penalties. The QDRO prevents this unfortunate situation and lets you keep your money as planned.
  •  

  • Only move money when allowed : Even with the use of a QDRO and clear divisions noted in your settlement agreement, the laws allow for the distribution or transfer of retirement money only within a certain time period. Make sure that your transaction happens at the right times or, once again, you could be facing big tax and penalty bills.
  •  

  • Divide assets by percentages, never dollars : Let’s imagine for a moment that you and your spouse have a retirement account that is valued today at $100,000 and you both agree to receive $50,000 when your divorce is final. Now let us look ahead to the date that your disbursement is to take place. The market may have dropped and your retirement account is now valued at only $80,000. If your original agreement indicated that each of you were to receive 50 percent, each person would then be owed $40,000. However, since your agreement indicated each person would receive $50,000, one party may be eligible to receive that amount leaving the other person with only $30,000. Citing divisions in percentages maintains the intended equitable sharing or distribution that was originally intended, even if ultimate dollar values change.
  •  

Sometimes it is a simple matter that can make a big difference and this is truly the case in the above situations. When you work with a legal professional who has the right experience, you can be assured that your current and future assets will receive the right care and protection when navigating your way through a divorce.

 

Illinois couples encouraged to consider prenups

PreNup

News + Insights

Illinois couples encouraged to consider prenups

 

The number of people opting to enter into prenuptial agreements has been on the rise in recent years. There are many factors that affect this and it is clear that what had long been thought of as necessary only for the very elite can now be beneficial to everyday couples.

 

While the thought of a prenuptial agreement may seem at odds with planning a marriage, the reality is actually quite different. Eliminating areas for discord within a marriage may be one of the best ways to create a happy and solid union.

 

Situations ripe for prenups Changes in society have led to many new circumstances that make the use of prenuptial agreements very helpful indeed. Following are some of the reasons that people opt for these marital contracts:

 

A need to protect business assets: When one member of a couple has an interest in a business, the ability to protect the business assets and keep them separate from the marital estate can be a critical way to also protect the business itself. When partners are involved, the need to do this becomes even more important. If both members of an engaged couple are involved in the same business, it could be useful to identify an up-front delineation of involvement to avoid unnecessary problems later on. These calculations can be amended over time as the business evolves if need be.

 

A complement to retirement and estate planning: Especially for couples that get married at later stages of life, looking at a prenuptial agreement as a means of estate planning and protecting retirement assets is one of the wisest things that can be done. A marital contract can help to identify what will happen to select assets upon the death of one or both spouses. It can also preserve retirement funds by dictating a desired allotment of account monies.

 

The wish to provide for existing children : When getting married with minor children already in existence from either a prior marriage or relationship, a prenuptial agreement can help to secure a financial commitment for those children and prevent the loss of prior agreements based upon a change of circumstance.

 

These are just some examples of circumstances that make a prenuptial agreement far more than simply a way to protect oneself in the event of a future divorce.

 

Get the full story
Before embarking upon a premarital contract, it is best to discuss your needs with a family law attorney who works with these agreements on a regular basis. This will help you and your future spouse to ensure that your document is created in the best way possible so that it can provide the protection you both desire.

The Impact of Domestic Violence on Property Division in Divorce in the U.S.A.

Impact of Domestic Violence

News + Insights

The Impact of Domestic Violence on Property Division in Divorce in the U.S.A.

 

I. Introduction


To understand the impact of domestic violence in the context of property division in the United States, one must view the concept of the “war” against domestic violence as a dynamic force, finally gaining acceptance at large, yet trying to find its place in the midst of the various “no fault” concepts that govern divorce law in each of the 50 states. The enormity of the changing American psyche on this subject is evidenced in the Public Service Announcements and ads at play on American television today, where young men of all colors search out their male elders and ask, ” Can you teach me how to change my attitudes toward women?” while the voiceover notes that violence toward women is never acceptable. Clearly, the American public has finally seen fit to address a once-hidden issue and focus on changes needed for future generations to eradicate this egregious problem.

 

During the last 10 years, numerous new federal and state statutes have been enacted to discourage and punish domestic violence and are evidence of the public and government sentiment that silence is no longer tolerable. At the same time as the primacy of ending domestic violence rises, it runs full force into the long embraced concept that one may divorce in America with the understanding that no one person alone is responsible for the divorce — the concept of “no fault” divorce. Given the construct in which divorce actions occur, many states direct that fault is not to be considered when dividing property. Thus, the dilemma arises: How do courts face the issue of domestic violence in the only arena available outside of the criminal justice system? One is left with the financial avenue.

 

This paper will examine the current state of statutory avenues directed at protection from domestic violence in America and the manner in which various state courts have meted out “justice” in the form of compensatory property division, even in the face of no-fault divorce statutes. Some of these cases make no sense whatsoever and one ponders the reasoning of the judge who promulgated the decision.

 

On the federal level, Congress enacted the Violence Against Women Act (” VAWA “) in 1994, 42 U.S.C. §13981 (2000), as part of the Violence Crime Control and Law Enforcement Act of1994. Congress stated its “goal” was to:

  • Treat violence against women as a major law enforcement priority;
  • Take aim at the attitudes that nurture violence against women; and
  • Provide the help that survivors need.

 

The Violence Against Women Act of 1991, S. Rep. No. 102-197, at 34-35 (1991).
VAWA is actually composed of numerous federal statutes to prosecute domestic violence offenders in the federal courts:

 

  • Subtitle A, Safe Streets for Women;
  • Subtitle B, Safe Homes for Women;
  • Subtitle C, Civil Rights for Women;
  • Subtitle D, Equal Justice for Women in Courts;
  • Subtitle E, Violence Against Women Act Improvements;
  • Subtitle F, National Stalker and Domestic Violence Reduction;
  • Subtitle G, Protection for Battered Immigrant Women and Children.

 

VAWA also created a civil rights remedy for gender-motivated violence, but this part of VAWA was ruled unconstitutional in United States v. Morrison, 529 U.S. 598 (2000).

 

Congress also enacted the Gun Control Act, which criminalizes possession of a firearm by or transfer to one who is subject to an order of protection or has been convicted of an act of domestic violence. 18 U.S.C. § 922 (2000).

 

The federal Full Faith and Credit to Orders of Protection Act provides that a qualifying civil or criminal domestic protection order issued by a court in one state or Indian tribe shall be accorded full faith and credit by the courts of other states or tribes, and enforced as would their own orders. 18 U.S.C. § 2265 (2000).

 

At the state level, the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) and the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act have sought to protect victims of domestic violence. Further, once the Supreme Court suggested in United States v. Morrison that states can regulate the type of conduct prohibited by VAWA, and can, under state law, provide civil causes of action and remedies similar to VAWA. 529 U.S. 616, state and municipal entities began to follow suit.

 

In 2000, New York City was the first jurisdiction to adopt a local version of VAWA, giving persons injured by domestic violence the right to sue their abusers for civil damages. N.Y. City Admin. Code §§ 8-901 to 8-907 (2001) (providing a civil cause of action for any person committing a “crime of violence motivated by gender” and authorizing compensatory and punitive damages, injunctions, and fees). California followed suit in 2002. Cal. Civ. Code § 52.4 (2002). Illinois followed thereafter in 2004. Ill. Public Law 93-0416 (effective Jan. 1, 2004). Similar legislation has been proposed in other municipalities, as well as in the states of Arizona , Arkansas , and New York . E.g., “Violence Motivated by Gender,” S.B. 1550, 45th Leg., 1st Reg. Sess. (Ariz. 2001) (providing damage actions when acts of violence are “motivated by gender,” as established by a “preponderance of the evidence,” but not if “random”); “Arkansas Violence Against Women Act of 2001,” H.B. 1691, 83d Gen. Assem., Reg. Sess. (Ark. 2001) (providing for protection of the “civil rights of victims of gender motivated violence and … promoting the public safety, health, and activities by establishing a state civil rights cause of action”); “An Act To Amend the Civil Rights Law, in Relation to Providing a Civil Remedy for Victims of Bias-Related Violence or Intimidation,” S.B. 2776, 224th Leg., Reg. Sess. (N.Y. 2001) (providing remedies for injuries based on gender and sexual orientation and authorizing civil suits to be brought by both the attorney general and individuals).

 

For family law practitioners, however, domestic violence continues to be most important when embedded into the issues of child custody/visitation, property division and mediation in the divorce context. This presentation will focus solely on the impact of domestic violence on property division in divorce.

 

II. Domestic Violence Considered in Property Division at Divorce

 

Domestic Violence May Be Considered in Property Division
At one end of the spectrum, in some states, the presence of domestic violence is a specifically enumerated factor in property division. In some other states, fault is generally a consideration, or fault is a consideration where such fault leads to marital breakdown or dissolution. Obviously, in these states, domestic violence is a valid consideration in property division. Brett R. Turner, The Role of Marital Misconduct in Dividing Property Upon Divorce, 15 Divorce Litig. 117, 129-139 (July 2003); Ira Mark Ellman, The Place of Fault in Modern Divorce Law, 28 Ariz. L.J. 773 (1996).

 

In these states, spousal abuse is a relevant factor in and of itself without specifically requiring particularly egregious abuse, and without expressly demanding a connection between the abuse and some other factor. It appears that the courts assume that the abuse was a cause of the marital breakdown. E.g., Crowe v. Crowe, 602 So. 2d 441 (Ala. Civ. App. 1992) (record clearly reflected husband’s physical abuse of wife; award of majority of marital property to wife not error); Utterback v. Utterback, 435 So.2d 105 (Ala. Civ. App. 1983) (division of marital property would be affirmed, particularly in light of evidence relating to physical abuse of former wife); Rowell v. Rowell, 406 So.2d 993 (Ala. Civ. App. 1981) (despite husband’s contention that trial court made excessive division of property and/or alimony in gross in favor of wife, trial court did not abuse its discretion, where husband’s adultery and physical abuse of wife were factors contributing to divorce); Bleuer v. Bleuer, 755 A.2d 946 (Conn. Ct. App. 2000) (husband abused wife and children; wife awarded 80 percent of assets); Crews v. Crews, 949 S.W.2d 659 (Mo. Ct. App. 1997) (wife awarded 88 percent of marital property); Dodson v. Dodson, 904 S.W.2d 3 (Mo. Ct. App. 1995) (marital misconduct, including numerous extramarital affairs and several instances of physical abuse, and other factors, supported trial court’s exercise of discretion in unequal division; testimony that husband dragged wife across floor by her hair on one occasion, put a loaded pistol in her mouth and threatened to kill her on two occasions, and locked her in a dog house on one occasion justified awarding wife the marital home); McMann v. McMann, 845 S.W.2d 159, 161 (Mo. Ct. App. 1993) (wife testified to ongoing spousal abuse of husband; wife awarded 63 percent of marital assets); Divine v. Divine, 752 S.W.2d 76 (Mo. Ct. App. 1988) (husband’s committing physical abuse, engaging in telephone harassment and making false accusations, placed undue stress on partnership and was thus factor to be considered in dividing marital property; appellate court ruled that ” [e]ven if Wife’s contribution was much lower than that of Husband, the trial court’s division of the marital assets could be supported by Wife’s testimony concerning ongoing spousal abuse of Husband”); Hogan v. Hogan, 651 S.W.2d 585 (Mo. Ct. App. 1983) (where there was evidence of husband’s misconduct relating to physical abuse of his wife, trial court did not abuse its discretion in dissolution action by awarding wife approximately 52 percent of marital property while husband was awarded about 48 percent); Reiser v. Reiser, 621 N.W.2d 348 (N.D. 2000) ( dividing estate in favor of wife despite short-term marriage where husband abused wife); Weigel v. Weigel, 604 N.W.2d 462 (N.D. 2000) (dividing home equally although husband made down payment); Viti v. Viti, 773 A.2d 893 (R.I. 2000) (60 percent to wife where husband abused wife); Thompson v. Thompson, 642 A.2d 1160 (R.I. 1994) (husband admitted to three incidents of physical abuse and trial court found that husband abused wife both physically and emotionally; wife awarded 65 percent of marital assets); West v. West, 431 S.E.2d 603 (S.C. Ct. App. 1993) (wife left husband as a result of his extreme physical and mental abuse and sought equitable distribution of property; wife awarded 40 percent of equity in marital home, in a short-term marriage, when the wife contributed little financially to the accumulation of the community estate); Faram v. Gervitz-Faram, 895 S.W.2d 839, 844 (Tex. Ct. App. 1995) ( awarding husband only 27.1 percent of assets where he had abused wife during marriage, citing husband’s “abusive and violent nature, which ultimately contributed to the divorce”).

 

1. Domestic Violence Relevant Only If It Precipitated Divorce
Some other courts have held that domestic violence is relevant only if was the precipitating cause for the divorce. See Shirley v. Shirley, 600 So. 2d 284 (Ala. Civ. App. 1992); Faram v. Gervitz-Faram, 895 S.W.2d 839 (Tex. App. 1995).
For example, in Mount v. Mount, 476 A.2d 1175 (Md. Ct. Spec. App. 1984), over the years, the husband beat the wife repeatedly, resulting in several hospitalizations. On one occasion, he hired two men to assault and rob her. The appellate court reversed the trial court’s equal division, holding that the facts and circumstances leading to the breakdown of the marriage, i.e., the domestic violence, were relevant and should have been considered.

 

On the other hand, in Tinsley v. Tinsley, 483 S.E.2d 198 (S.C. Ct. App. 1997), the wife testified:
He would lock her in the bedroom and beat her, once even breaking her nose. She introduced pictures taken in December of 1992 to show bruises allegedly inflicted by her husband. She also introduced a calendar on which she had noted the dates on which her husband slapped or beat her. On the night she left, her husband would not let her in the house and she felt threatened. When she returned the next day to get clothes for herself and the child, her husband was belligerent and ripped the windshield wiper off her car. She stayed with her husband as long as she did because she was a social worker and felt she should try to save her marriage. In August of 1993, however, she left her husband, she testified, as a result of his abuse.

 

483 S.E.2d at 200. Nonetheless, the trial court divided the property evenly, and the appellate court upheld the award, finding a lack of significant evidence of fault relating to domestic violence as precipitating the divorce. Some decisions are “mind boggling”. This is one such example.

 

2. Domestic Violence as “Economic Misconduct”
In the center of the spectrum, some states do not allow the courts to consider “marital fault,” but do allow the courts to consider “ economic fault .” In these states, courts are more than willing to find that spousal abuse constitutes economic fault because of the economic impact that spousal abuse may have, such as increased medical bills or a decreased ability to work.

 

In Jones v. Jones, 942 P.2d 1133 (Alaska 1997), the court stated that the concept of economic misconduct is broad enough to include social or moral misconduct, which leads to an unreasonable depletion of marital assets, such as domestic violence. Therefore, a court may take into account economic misconduct under subpart (E), but it may not consider a party’s moral or legal marital failings, which do not amount to economic misconduct. Likewise, in In re Marriage of Coomer, 622 N.E.2d 1315 (Ind. Ct. App. 1993), the court upheld an uneven property division where a husband’s physical abuse of his wife caused health problems for her that created a substantial likelihood of future medical expenses. The court noted that:

 

“. . . while a party’s conduct or fault in the breakup of the marriage is not a proper ground for an unequal division of marital property, a party’s conduct during the marriage ‘as related to the disposition or dissipation of their property’ is.” Id. at 1319 (citation omitted).

 

It concluded that the trial court did not abuse its discretion in awarding the wife more of the marital property because “a good share of her income will be devoted to her medical care” as a result of the husband’s conduct. Accord, Mosley v. Mosley, 601 A.2d 599 (D.C. 1992) (trial court did not abuse its discretion in dividing marital property in such a manner as to give husband one-third and wife two-thirds, where husband left home on at least two occasions and frequently spent nights out drinking, which ultimately led to alcoholism problem and incidents of violence toward his family).

 

3. Domestic Violence Considered Only If “Egregious”
Near the other end of the spectrum, some states have taken the view that domestic violence is relevant in property distribution only if the abuse was egregious. In New York, for example, spousal abuse must be “egregious” to be factored into a property distribution. See Orofino v. Orofino, 627 N.Y.S.2d 460 (N.Y. App. Div. 1995); Kellerman v. Kellerman, 590 N.Y.S.2d 570 (N.Y. App. Div. 1992); Stevens v. Stevens, 484 N.Y.S.2d 708 (N.Y. App. Div. 1985).

 

In Stevens v. Stevens, the plaintiff wife struck and scratched the defendant husband, pulled his hair and bit him, and wounded him with a kitchen knife while attempting to break into his locked briefcase. The court specifically noted that the plaintiff’s misconduct took place in the “waning” months of the marriage. The court held that the abusive behavior did not ” work a divestiture of the property interest . . . earned over 15 years of marriage” and would not be considered. Clearly, the court was looking for a way to avoid penalizing the abuser wife, and perhaps believed that the husband was exaggerating his experience.

 

In Kellerman v. Kellerman, the trial court refused, on fault grounds, to award to the defendant husband the appreciation in value of the plaintiff wife’s separate property residence. The appellate court reviewed the allegations of the plaintiff’s complaint, which consisted of 27 specific incidents of physical assault, verbal abuse and threats during the parties’ brief marriage. The appellate court overturned the trial court’s finding that this conduct was sufficiently egregious as to warrant consideration in apportioning the marital property, and remanded the case to the trial court for a determination as to the amount the plaintiff wife’s separate property had appreciated during the marriage so it would be distributed as part of the divorce case.

 

In Orofino v. Orofino, the trial court found the defendant husband to have “consumed extraordinary amounts of alcohol,” to have verbally abused the plaintiff wife on a biweekly basis, to have physically abused the wife (including an episode in which he threw an ashtray at her, lacerating her scalp), to have threatened to commit arson and finally, to have placed the muzzle of a rifle against the plaintiff’s head and threatened to kill her. Nevertheless, the trial court held that this behavior should not lessen the defendant’s share in the nearly $2 million invested in a joint account/stock portfolio. Instead, the defendant husband was awarded 60 percent of the portfolio based on the fact that he solely managed the assets and plaintiff’s contribution consisted of “homemaker” activities. Reviewing this case causes one to ponder the abuse this homemaker suffered at the hands of the trial judge as well as her husband.

 

Few New York cases have found violent conduct to be egregious, except where the ongoing course of abusive conduct has culminated in an attempted murder. For example, in Wenzel v. Wenzel, 472 N.Y.S.2d 830 (N.Y. Fam. Ct. 1984), the husband had attacked the wife with a knife, inflicting numerous serious wounds, and then left the wife for dead. There, the court found the conduct “egregious” enough to consider in property distribution. See also Havell v. Islam, N.Y.L.J., July 30, 2001, at 21 (Sup. Ct. July 30, 2001); Murtha v. Murtha, N.Y.L.J., May 15, 1998, at 29 (N.Y. Sup. Ct. May 15, 1998); Debeny v. Debeny, N.Y.L.J., Jan. 24, 1991, at 21 (N.Y. Sup. Ct. Jan. 24, 1991) (husband used the wife as his personal punching bag through years of marriage). See generally Cheryl J. Lee, Escaping the Lion’s Den and Going Back for Your Hat – Why Domestic Violence Should be Considered in the Distribution of Marital Property Upon the Dissolution of Marriage, 23 Pace L. Rev. 273 (2002) (surveying New York law). Perhaps New York’s new law providing VAWA damage claims will substitute for the limited scope of relief available under past case law.

 

In Michigan, the courts have stated that fault is relevant to property division only if it is outrageous or shockingly unforeseeable. McDougal v. McDougal, 545 N.W.2d 357, 362 (Mich. 1996). Kansas courts have held that fault is relevant only if its “. . . so gross and extreme that failure to penalize therefore would itself be inequitable.” In re Marriage of Sommers, 792 P.2d 1005, 1010 (Kan. 1990). See also Stover v. Stover, 696 S.W.2d 750 (Ark. 1985) (property divided unequally where wife convicted of conspiracy to murder husband); D’Arc v. D’Arc, 395 A.2d 1270 (N.J. Super. Ch. Div. 1978), aff’d in part, 421 A.2d 602 (N.J. Super. App. Div. 1980) (husband offered third person $50,000 to kill wife).

 

4. Exclusion of All Fault
Finally, at the extreme other end of the spectrum, fault may not be considered in the division of marital assets. The Uniform Marriage and Divorce Act requires the division of assets without regard to marital misconduct. Uniform Marriage and Divorce Act, 9A U.LA. 238 (1987).

 

Even in UMDA states, however, the courts allow consideration of “economic fault,” thus opening the door to consideration of domestic violence that has an economic impact (see discussion II(B) above). For example, in Mellon Bank v. Holub, 583 A.2d 1157 (Pa. Super. Ct. 1990), the court noted that 23 Pa. Cons. Stat. Ann. § 3502 prohibits consideration of fault in the division of marital assets. It was not improper, however, to award all the marital assets to the wife when the husband had solicited a third person to murder the wife, since the solicitation of the murder dissipated marital assets.

 

Consequences of Court Consideration of Domestic Violence
When domestic violence is weighed into the determination of an appropriate property distribution upon divorce, the most common result is that the wife (the spouse who is typically abused) is given a larger portion of the marital estate than she might have received otherwise. E.g., Crowe v. Crowe, 602 So. 2d 441 (Ala. Civ. App. 1992) (wife awarded exclusive possession of majority of marital property, both real and personal, in part because of husband’s physical abuse); In re Marriage of Coomer, 622 N.E.2d 1315 (Ind. Ct. App. 1993) ( wife awarded 60 percent of marital assets in part because her health was impaired as a consequence of the husband’s physical abuse); Dodson v. Dodson, 904 S.W.2d 3 (Mo. Ct. App. 1995) (testimony that husband dragged wife across floor by her hair on one occasion, put a loaded pistol in her mouth and threatened to kill her on two occasions, and locked her in a dog house on one occasion; court awarded wife the marital home); McMann v. McMann, 845 S.W.2d 159, 161 (Mo. Ct. App. 1993) ( wife awarded 63 percent of marital assets; appellate court ruled that ” [e]ven if Wife’s contribution was much lower than that of Husband, the trial court’s division of the marital assets could be supported by Wife’s testimony concerning ongoing spousal abuse of Husband”); Thompson v. Thompson, 642 A.2d 1160 (R.I. 1994) ( wife awarded 65 percent of marital assets in part because of husband’s physical and emotional abuse of wife); Faram v. Gervitz-Faram, 895 S.W.2d 839, 844 (Tex. App. 1995) ( 72 percent of community property awarded to wife in large part because of husband’s “abusive and violent nature, which ultimately contributed to the divorce”).

 

III. Conclusion


When Congress enacted VAWA, it made specific findings regarding the enormous impact domestic violence has on the health and safety of spouses. H.R. Conf. Rep. No. 103-711, p. 385 (1994), U.S.Code Cong. & Admin.News 1994, pp. 1803, 1853; S.Rep. No. 103-138, p. 40 (1993); S.Rep. No. 101-545, p. 33 (1990). Congress also found that gender-motivated violence affects interstate commerce “. . . by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved in interstate commerce; … by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products.” H.R. Conf. Rep. No. 103-711, at 385, U.S.Code Cong. & Admin.News 1994, pp. 1803, 1853. Accord, S.Rep. No. 103-138, at 54. Given the impact of domestic violence on the abused individual, there is every reason for courts to consider the economic impact of the domestic violence when dividing marital and community property, and counsel for the abused spouse should be prepared to so argue, and, when necessary, either directly in the divorce action or under the various municipal, state and federal statutes available, seek appropriate remedies. The tensions between no-fault statutes and the economic impact of domestic violence have been tested and the result is the recognition of viable avenues for victim compensation.

Facebook and Divorce

Social Media and Divorce

News + Insights

Facebook and Divorce

 

Facebook, Twitter, Tumblr and other social media and networking sites have become primary methods for people to stay in contact with each other. They have also become a primary source of information for family law attorneys representing parties to a divorce.

 

For example, if you post a photo of yourself at a party on Facebook and the divorce lawyer representing your spouse obtains a copy, it could be used to distort your ability to be an effective parent. A broader net is cast in some instances, and electronic discovery is used to obtain emails, phone records, text messages and other information that could be damaging.

 

If You’ve Got Something To Say, Say It In Person
With the evolution of electronic communication and the increased capabilities of data forensics specialists and other experts, there is a good chance that anything you post, email or store electronically will be found and used against you down the line. In short, if you have something that you want to say, have a face-to-face conversation.

 

Do not trust a site’s “privacy settings” or features on your computer that claim to encrypt or otherwise protect your information. In too many cases, divorcing spouses have found themselves in difficult situations because of electronically stored or distributed information that was later recovered by the opposing attorney. Some examples include:

 

Admissions about hidden assets

  • Disparaging or fraudulent comments about the other spouse
  • Photos depicting alcohol consumption or drug use
  • Vacation photos, particularly those with a partner who is not your spouse
  • Reliable Illinois Family Law Attorneys

 

At Feinberg Sharma, our top family law attorneys in Chicago represent clients across the Chicagoland area and North Shore communities in all facets of divorce. From the moment you retain our top-rated family law firm, we will pursue every available option in an effort to protect your interests and advise you on strategies for limiting the risks associated with using social media and other electronic communication.

 

Contact us to schedule an initial consultation regarding your family law concerns. You can reach us by phone at 312-376-8860, or via email.

Top Ten Fears of Divorce

top 10 Fears

News + Insights

Top Ten Fears of Divorce

 

The family law attorneys at Feinberg Sharma, devote their entire practice to resolving complex matrimonial and family law matters, including divorce and child custody, for clients in Chicago, Illinois. We are sensitive to the anxiety our clients face in the process of working through a divorce. We have assembled a list of the top ten fears of divorce expressed by our clients and some clarifying information that you may find beneficial.

 

1. My spouse just filed for divorce. Am I at a disadvantage because I didn’t file first?
A: No. Under Illinois law, each spouse is treated equally regardless of which one is listed as the petitioner (the person who filed for divorce) or the respondent. The court does not discriminate against either party based on who filed first.

 

2. I thought I was entitled to half of the marital property. How is it possible that assets aren’t divided 50/50?
A: Only “community property” states have the statutory requirement of a 50/50 division. As an “equitable distribution” state, Illinois law requires that marital assets are divided equitably. While “equitable” does not necessarily mean 50/50, equal divisions occur in many cases. In the process of dividing marital property, a strategic approach can provide a better long-term result even if the initial division is not equal.

 

3. I had an affair. Does that hurt my standing in the divorce proceeding?
A: No. Illinois law is clear with regard to marital misconduct. It is not a consideration in the calculation of spousal maintenance, the calculation of child support, determining child custody or the division of marital property. One exception to the misconduct rule involves the spending of marital funds on items not related to the marriage after the relationship has undergone an irretrievable breakdown. This is referred to as dissipation, and each spouse can be held personally accountable for the full amount of such expenditures.

 

4. What happens if my spouse refuses to pay my attorney fees? I can’t afford a good lawyer on my own.
A: Do not let this be a concern. Illinois law gives the court the authority to help spouses who do not have sufficient finances to hire a qualified attorney. The more financially secure spouse can be ordered to pay his or her spouse’s attorney fees while the divorce is pending. The total amount of money paid by one spouse for the attorney fees of the other is reimbursed as part of the marital property settlement.

 

5. My spouse wants joint legal custody. Does that mean our children will spend half of their time with each of us? I’m not comfortable with that.
A: No. Joint legal custody refers to a situation where each parent has equal decision-making authority in matters involving the children’s religious upbringing, education and medical care. Legal custody does not impact where the children will live. The parenting-time agreement delineates which parent will care for the children on which days.

 

6. My spouse is seeking equal parenting time as a way to avoid paying child support. Is this possible?
A: Almost certainly not. There are extremely few situations where there would not be some type of child support order established. If one parent is even marginally more financially secure than the other, the more financially secure parent would likely be required to pay some level of child support as long as the recipient parent is caring for the children at least 50 percent of the time.

 

7. My spouse is between jobs and has historically been the breadwinner in our family. Am I at risk of not receiving child support?
A: No. If a parent is unemployed, it is expected that he or she will actively seek employment commensurate with his or her abilities. If the parent does not find gainful employment in a timely manner, the court can seize personal assets to be placed in a 503(g) trust and use the proceeds toward his or her child support obligations. In addition, if a parent is underemployed — that is, he or she could be making more money based on his or her capabilities — the court can impute income and order the parent to pay child support based on the amount of money he or she could be making.

 

8. Are my child support and spousal maintenance payments tax deductible?
A: One yes, one no. Spousal maintenance can be tax deductible to the payor and considered taxable income to the recipient. Child support is not tax deductible for the payor, nor is it considered taxable income to the recipient.

 

9. Can I modify my divorce agreement if I’m not satisfied with the outcome of the trial?
A: It may be possible in some aspects, but not in all of them. Items that may be modified include child support, spousal maintenance and child custody. A substantial change in circumstances must be shown in order for the court to consider a modification. The property order cannot be modified. However, it may be possible to seek relief from the order if unconscionability, fraud or duress can be shown.

 

10. My spouse has a strong case for permanent maintenance. Will I have to pay for it forever?
A: Probably not. Permanent maintenance is modifiable if there is a substantial change in circumstances. Job loss, an illness or injury that prevents the paying spouse from working or another circumstance that causes a marked reduction in the paying spouse’s income level can all be grounds for a reduction in the amount of spousal maintenance. In addition, permanent maintenance payments end under Illinois law upon the cohabitation, remarriage or death of the recipient spouse.

 

Contact Our Office To Learn More About Your Rights And Legal Options

 

Contact top-rated family law attorneys of Feinberg Sharma, P.C., with an office located in Chicago, to schedule an initial consultation regarding your divorce issues in Chicago. You can reach us by phone at 312-376-8860, or via email.

Three Red Flags That a Spouse May Be Hiding Assets During Divorce

Red Flags

News + Insights

Three Red Flags That a Spouse May Be Hiding Assets During Divorce

 

Hiding Assets During Divorce
Even in the bitterest divorce, few people would like to believe that their spouse would conceal assets from them in order to affect the outcome of a property settlement, alimony or child support order. Unfortunately, however, asset concealment during divorce occurs more often than many people are aware. Therefore, it is important for divorcing spouses to be on the lookout for potential warning signs that a spouse may be hiding assets during divorce.

 

Being secretive about financial matters
If your spouse suddenly becomes cagey about financial matters, it may be because he or she has something to hide. While it is common among married couples for one spouse to take a more active role in paying bills and managing the couple’s financial affairs, both partners should have access to all relevant accounts and financial information, and should stay informed about the state of their finances.

 

This becomes all the more important when divorce is on the horizon, since it is much easier for a deceptive spouse to conceal assets from a partner who is inattentive or ill-informed on financial matters. If your spouse discourages you from taking an active role in your finances or seems unwilling to share passwords or account information with you, it may indicate that he or she is attempting to hide assets.

 

Complaining about money or debts
Some people attempt hiding assets during divorce by complaining about sudden financial hardships, such as failed investments or business difficulties. To an unwary spouse, this can create an impression that the complaining individual has fewer assets than he or she really does. As a result, it may be easier for the deceptive spouse to conceal assets without detection.

 

A related tactic involves taking out unusual amounts of debt in order to create the illusion that an individual’s assets are less extensive than they really are. Exaggerating or overstating debts in this manner can result in a divorce settlement that is unfairly skewed in favor of the spouse who is hiding assets.

 

Making unusual purchases
Another way that some people attempt to hide assets from a spouse during divorce is by purchasing expensive items like art or antiques, whose value is easy to overlook or underestimate in a divorce settlement. After the divorce is finalized, these objects are then sold and the profits retained by the spouse who purchased them. If you notice that your spouse has been making unusual purchases, be sure that the purchased items are thoroughly accounted for and accurately assessed at their full value during the divorce.

 

Contact an attorney for help uncovering hidden assets
If you suspect your spouse of hiding assets from you, be sure to seek help right away from an attorney who is experienced in uncovering hidden assets during divorce settlements. A knowledgeable divorce lawyer can help you locate and identify all marital assets and will work hard to see that you get your fair share during the divorce.

 

Contact, Feinberg Sharma, a top-rated family law firm with an office in Chicago, Illinois, to schedule an initial consultation with experienced Chicago divorce attorneys regarding your divorce issues and divorce settlement. You can reach us by phone at 312-376-8860, or via email.

Joy M. Feinberg Named To The Top 100 USA Family Law Trial Lawyers

Joy Headshot

News + Insights

Joy M. Feinberg Named To The Top 100 USA Family Law Trial Lawyers

By: Feinberg Sharma / October 16, 2019

 

 

Feinberg Sharma (FS) is pleased to announce that partner Joy M. Feinberg has been elected as a Diplomat of the American College of Family Trial Lawyers (ACFTL). The ACFTL is a select group of 100 of the best family law trial lawyers in the country. Fellowship is extended by invitation only to those who have mastered the art of advocacy and whose careers exemplify the highest standards of ethical conduct, professionalism, civility and collegiately. Excellence in family law trial practice is a prerequisite for fellowship. Admission is limited to those family law trial lawyers who are regarded as the best in their state.

 

“I am honored to receive this prestigious selection from ACFTL,” said Joy M. Feinberg. “I have focused my career on providing exemplary client service with integrity and professionalism as well as delivering crucial continuing education to family law colleagues. I am deeply grateful and humbled to be recognized for my commitment to clients and professional achievements. ”

 

Feinberg is not the only FS partner to be honored this year. Molshree A. Sharma has been invited to speak at the Chicago Humanities Festival in 2019. Her talk will focus on one area of her expertise – International Child Abduction. The Chicago Humanities Festival has been in existence for almost 30 years. It is very rare for a divorce lawyer to have the honor of speaking at the festival.

 

Feinberg Sharma is a renowned divorce and family law firm serving Chicago, its suburbs and surrounding counties. Our attorneys specialize in resolving complex family law issues by trial or alternative dispute resolution methods such as mediation and collaborative law.

 

Premarital Agreements

Pre Marital Agreement

News + Insights

Premarital Agreements

By: Michael Rhoades and Joy M. Feinberg

 

 

Family business owners endure the long hours, pain, stress and strain of building and growing a business so that they can provide their family with an environment of financial security and stability, with the ultimate hope of future generations running the business. When planning for the future, the family business owners want to ensure that the succession of the business is in accordance with their wishes, and they take steps to ensure that the wealth generated by the business stays within the family. But what happens when a family member divorces?

 

The best protection available to guard against wealth generated from a family business falling into the hands of a divorced spouse is to enter into a Premarital Agreement, provided such agreements are recognized in the state. This article explores the use of Premarital Agreements to protect your business interests from spousal rights in death and divorce in states that recognize such agreements, and recommends other protections in those states that do not recognize Premarital Agreements.
A Premarital Agreement is a legal contract designed to protect the property of individuals acquired prior to marriage. Premarital Agreements generally focus on two contingencies: death and divorce. Premarital Agreements are frequently used to release, waive or give up certain future spousal rights and interests. These spousal rights are normally acquired at the time of marriage and extend to retirement plan interests, income, property either owned before or acquired during the marriage, and other assets of the other spouse.

 

People frequently sign a Will and Trust to provide for their spouse and children and to minimize estate taxes due as a result of death. Most states permit a surviving spouse to elect a statutory percentage of a deceased spouse’s estate in lieu of receiving under the decedent’s Will. Premarital Agreements can modify or even eliminate the spousal statutory percentage so that a greater portion of the decedent’s estate (and even retirement plan assets) can pass to descendants or other desired heirs instead of a surviving spouse. Premarital Agreements are often used in second or subsequent marriage situations to delineate what, if anything, a surviving spouse is entitled to at death. When a family business interest is among the decedent’s assets, Premarital Agreements often require that the surviving spouse waive the right to the business interest.

 

Premarital Agreements can protect from the two most common concerns of a divorce (i) the division of pre-owned, gifted or inherited assets and (ii) the limitation or exclusion of a spouse from receipt of maintenance (also known as “alimony”). In the 25 states and jurisdictions which have enacted the Uniform Premarital Agreement Act (UPMAA), limitations on maintenance are valid so long as the spouse not entitled to maintenance is not left impoverished. An ex-spouse is impoverished if he or she, due to insufficient income, is eligible for support under a program of public assistance at the time of separation or marital dissolution. If this occurs, a court can require that the monied spouse pay to the impoverished spouse sufficient funds for that spouse to avoid eligibility for public assistance. This standard is a pittance of what the monied spouse would normally be required to pay in the absence of a Premarital Agreement.

 

Planning When Acquiring a Business Interest
Careful planning is necessary before the senior generation transfers any ownership interest in the family business to the next generation. When a business owner wants to transfer, gift or sell an ownership interest in the family business to a child, it is wise to do so in a manner that (i) protects the business interest from subsequent division, dilution or redemption by compensating payment to a non-family ex-spouse and (ii) avoids involvement of the family business in a divorce proceedings.

 

Lifetime Transfers. When lifetime transfers are contemplated, the business interest is transferred either by gift or by sale. Lifetime gifts are considered taxable gifts by the donor for Federal estate tax purposes based on the value at the time of transfer. Generally gifts made in trust can provide the donee family member the benefit of ownership, but will not result in the business interest being treated as marital property.

 

Alternatively, if the purchaser is married at the time of purchase of the business interest, the source of funds (from marital funds or non-marital funds) generally determines the character of the business interest. Care should be taken so as to avoid purchasing a business interest with marital funds.

 

At death transfers. If the business interest is transferred at death, the interest would be treated as the recipient’s separate non-marital property. Again, the safest way to transfer the interest is generally by transferring the interest to a trust created for the benefit of the desired family members.

 

Protections Provided by a Premarital Agreement
When a shareholder of a family business with pending nuptials signs a Premarital Agreement, other family shareholders receive a level of comfort in knowing that the future spouse will not have an interest in the family business. With this extra level of comfort, senior generations may be more inclined to begin or to continue to transfer additional shares to the family member to be wed.

 

Similarly, Premarital Agreements for the senior shareholders contemplating a second marriage provide the younger shareholders a level of comfort that the business will stay in the family. This becomes increasingly important as the younger generation invests a greater amount of time, money and energy in operating the business.

 

When To Discuss Premarital Agreements
As each family business and as each family unit is unique, there is no single right time to discuss Premarital Agreements. That said, the authors’ experience has been that the earlier the subject is discussed, the better. Generally it is the senior family member who encourages the younger family member to consider a Premarital Agreement. Although the senior family member often has the ability and the means to be very persuasive, one of the legal requirements for Premarital Agreements is that both parties enter the agreement voluntarily. The notion of a Premarital Agreement will be received much better if the Premarital Agreement is presented as a means to protect the family business and, as such, the entire family.
In larger families the idea of a Premarital Agreement can be presented by the senior generation during an annual board meeting (if all family) or during a family meeting. If discussed before nuptials are contemplated, no specific family member feels singled-out or that the selection of that member’s spouse necessitated the discussion of a Premarital Agreement. This can temper feelings and ultimately permit the process to proceed smoothly, as a forethought rather than an afterthought. Additionally or alternatively, lawyers can lead the discussion about the need to consider a Premarital Agreement, and, by being an outside party, can reduce some of the friction of the process. If friction does occur, the lawyer should take the heat – after all, the lawyer will not be the in-law.

 

Protection for the Family Business
A Premarital Agreement can be drafted to avoid having any ownership interest of the family business transferred to the ex-spouse. The last thing that any family wants is the ex-spouse non-family member as a shareholder of a family business, thereby granting the ex-spouse shareholder certain legal rights, including the ability to attend shareholder meetings. If an ex-spouse obtains an ownership interest in a family business, the cost of purchasing the interest can result in financial hardship to the family and to the business as well as being an emotional “thorn” in everyone’s side.

 

If a divorce occurs and the family business interest is marital property, the interest must be valued. Each party will hire an appraiser to review the family business’ financial information and assets to determine the value of the business. Not only is this process very disruptive to the family business, but a soon to be ex-spouse will obtain very confidential information, some of which may become part of the court record. As court records are generally available to the public, the business’ confidential information may be obtainable by its competitors. In such cases, it is wise to demand a “Protective Order” or such other device designed to keep vital information confidential.

 

In a divorce proceeding if an interest in the family business were marital property, the non-family member would secure appraisers in an effort to value the interest at the highest possible value. This high value may undercut valuations that other family members may be claiming for gift tax purposes or for estate tax purposes.

 

Miscellaneous Items
No Surprises. The eve of a marriage can be a tense time. Emotions often run high. A shareholder of a family business should mention the need for a Premarital Agreement to his or her intended before the engagement is announced. The Premarital Agreement should be negotiated and signed well before the wedding day. Although there is a tendency to wait until the wedding is close at hand, the entire process is much less stressful if the agreement can be signed at least several months before the wedding.

 

One size does NOT fit all. Premarital Agreements can be entered into by couples in their twenties or couples in their eighties. Each Premarital Agreement must be tailored to the parties’ needs, concerns and assets. Although some jurisdictions permit the modification of Premarital Agreement after a wedding, in the event of a divorce, post-marriage modifications usually receive a higher level of scrutiny when enforcement is sought.

 

Experience. The authors suggest that clients inquire about their lawyer’s experience in this field. Clients should know how many Premarital Agreements the lawyer drafts each year and how many times the lawyer has successfully defended and defeated such agreements. The lawyer should possess both a strong legal background in these areas of law and the negotiation experience that comes with drafting numerous Premarital Agreements.

 

Business Succession Planning in Lieu of or In Addition to Premarital Agreements
As mentioned above, the senior generation should carefully consider the manner in which a family business interest is transferred to the younger generation. The use of trusts may avoid having any value of the family business be included as marital property.

 

Restrictive Buy-Sell Agreements provide additional assurances to keep the ownership of a family business in the family. Some family businesses create two classes of stock, voting and non-voting. By exercising greater care in the transfer of voting stock, it becomes less likely that a non-family member will acquire voting rights. This can solve some, but not all, of the problems mentioned above. The creation of voting trusts is another means to keep voting rights in the family.

 

Conclusion
Given all of the possibilities, it is imperative to engage an experienced corporate and estate planning attorney who is very familiar with family law, or a matrimonial practitioner experienced with drafting and defending Premarital Agreements. The law of each state must be considered. In those states where UPMAA does not exist, or where Premarital Agreements are not recognized, you will need to understand how your state categorizes property as either “marital”, (subject to division at divorce) or “non-marital” (not subject to division at divorce) and plan accordingly.

 

Armed with such knowledge, planning through the use of gifts and documenting those gifts may keep the property separate and safe from non-family members. Assuring that the stock transfers to couples are not in the joint names of both the family member and non-family member helps maintain a “separate” character to the stock. Buy-Sell Agreements can prevent unwanted transfers of the stock by first allowing the company and/or the other shareholders to approve the proposed transfer. Buy-Sell Agreements can also permit the stock to be purchased at a price substantially below “fair market value.” Transferring family business interests to a trust solely for the benefit of a family member may also help in keeping the business interest separate, as well as clearly defining, in writing, that the property is solely intended for the direct descendant and not the spouse, which is always helpful in the event of divorce.

 

Many planning opportunities exist. To take advantage of these planning opportunities in a manner that minimizes family conflict and protects the family business, consult your corporate and estate planning attorneys and prepare your upcoming generation with these concepts long before they enter into serious relationships.

Illinois Case Law on Parental Abduction

Parental Abduction

News + Insights

Illinois Case Law on Parental Abduction

By: Joy M. Feinberg

 

 

In situations where a court has found a REPEATED, continuing, ongoing pattern of interference with the non-custodial or non-residential parent’s right to have access to and an ongoing relationship with the child of the parties, Illinois courts have ordered a change of custody to rectify the perception of alienation by one parent to another from the child of the parties. The acts which courts have relied upon to formulate the basis for concluding that alienation has/is occurring include:

 

  • Unfounded allegations of physical or sexual abuse, usually with reportings to DCFS
  • Changing the child’s name on school records, often associated with compelling the child to call a stepparent the “mother” or “father” of that child
  • Repeatedly canceling visitations and obstructing make-up visits
  • Creating an impression in the child that visits or time spent with the other parent is “unsafe”
  • Staging confrontations during visitation exchanges.

 

While most Illinois cases involve post-judgment matters, these same patterns of behavior are not foreign to initial custody disputes. The same method of proof of the alienation and the results of either an award of custody or a change of custody is the result which the court will order. The real question, and one that is not answered under the case law, is whether or not the award of custody, initially or in a modification proceeding, can or will stop the effects of alienation and allow the children to have an unfettered relationship with both parents. It is in the worst of these cases where a custody order will not satisfy this goal.

 

While a pattern of acts is required in all cases, individual actions or acts independent of any combination are not likely to be looked upon as a pattern of alienation. Several cases will be examined where the claim of “alienation” was not met with the standard of proof necessary to elicit the desired result. Finally, there are times when various legal issues will prevent the claim of “alienation” from moving forward.

 

Alienation acknowledged

KNOCHE v. MEYER, 322 Ill.App.3d 297; 750 N.E.2d 297, 255 Ill.Dec. 716 (5th Dist., 2001)
Change of custody ordered where mother hostile to father; interfered with father’s visitation rights. Child was almost 10 at time of custody change and had an older half-sister from mother’s first marriage. Mother reported her third husband for masturbating in front of her oldest daughter and had been beaten by her fifth husband. The court-appointed expert stated father more capable of setting aside parental differences than mother; consistent disallowance of visitation between father and child by mother, even when police attempted to intervene; and mother engaged in “dramatic scenes” and “histrionic outbursts” during visitation transitions. (Mother married and divorced two additional times plus lived with four more men between this divorce and change of custody).

 

EVIDENCE OF MOTHER’S VISITATION INTERFERENCE included the court record and numerous transcripts of answering machine messages, where her “hostile” and “angry” attitude toward the father was noted. Mother blamed this on father’s new wife’s “interference” and “lies.” Between July 1998, when the custody change was ordered, and February 1999, mother retained possession of the child while motions to reconsider were decided. In camera interview of child, the child’s preference was to stay with mother.

 

HUFFMAN, 50 Ill.App.3d 217, 365 N.E.2d 270, 8 Ill.Dec. 32 (5th Dist., 1977)

 

NO CLAIM OF ALIENATION; CLAIM OF UNDUE OR IMPROPER INFLUENCE
In this joint custody modification action, mother awarded sole custody. Father claimed mother grabbed and shoved children during transfers; calling police to enforce custody rights and her pre-decree suicide attempt. (Her reason for the suicide: reaction to being informed that husband falsely promising future reconciliation and then going on vacation with family by former babysitter and student in husband’s class.) The father, a psychology student and teacher, was found to have used his training and experience to influence the children’s preference. The father’s driving by the children’s school during recesses and getting their attention; his having the children in the original home with the original babysitter, who became his second wife; and his lavish treatment of them during his time was called a “calculated effort to influence the children.” The children’s unexplained “hostility” toward their mother and great affection for their father’s new wife affected the court’s decision. On appeal, the decision states:

 

“… assuming there was insufficient evidence to prove the plaintiff {father} deliberately alienated the children from their mother, we still believe a man of his qualifications and experience could have asserted enough influence on them so that they would not take the hostile attitude toward their mother as they did.”

 

SCHULTZ, 38 Ill.App.3d 678, 347 N.E.2d 749 (3rd Dist., 1976)
Nine months after divorce, mother petitioned that father refused her visits and sought change of custody. Denied. One month later, father’s continuing refusal to allow visits, with such games as telling mother she came too late, that child was sick or not being present for visit, caused contempt finding; 30-day jail sentence stayed by turnover and $250 payment and change of custody. Appellate court allowed child to stay with mother pending hearing on whether change of custody was in child’s best interests. NO CLAIM OF “ALIENATION.”

 

HARTMAN, 252 Ill.App.3d 481, 621 N.E.2d 917, 190 Ill.Dec. 464 (3rd Dist., 1993)
Two-year-old daughter awarded to father’s custody where mother had alleged sexual abuse against father (she saw him sleeping naked with daughter from prior marriage); the reporting occurred two years after incident occurred; 14-year-old testified it never happened. Mother alleged father abusive to her; allowed their child to watch father urinate and see him naked. Court found both parties misused DVA; “…no community standard prohibited nudity in privacy of one’s own home or urinating in front of a child.” Father, never had been primary caregiver; however, he had good support system and was only ill-tempered around wife. He found both parties hit each other, although the wife received more “souvenirs.” The court’s finding that the wife had “deliberately lied” about the sexual abuse allegation and had “attempted to destroy the relationship between” father and daughter. Court said mother had lost custody — father had not won it.

 

MULLINS, 142 Ill.App.3d 57, 490 N.E.2d 1375, 96 Ill.Dec.170 (1st Dist., 1986)
This is the most detailed of all cases of repeated interference with visitation, even when supervised; canceling visitation and not agreeing to make-ups; acknowledging a desire to thwart the court’s visitation orders; name changing; attempt to move out of state; the seeking by mother of the father to allow the adoption of the children by her new husband and false DCFS complaints (two). Change of custody ordered. Initial DCFS report was founded and supervised visitation ordered. The second allegation was that the father had sexually abused child in a restaurant, refused to set make-up visitation unless his witness sat at another table; canceled next visit because her then-husband was unable to supervise; she refused to act as supervisor; refused to set another date and hung up on him after swearing at him. When he asked to visit at a restaurant closer to his home, she stated that he could “take the court order and shove it.”

 

When next seeing the children and explaining that he was sorry he didn’t see them the previous week, step-father called out that he was a liar and said that the kids should not to pay attention to anything he said.

 

Step-father supervisor would not allow children to sit with father when restaurant had only one table ready and wouldn’t agree to extend time of visit to including waiting time. Then step-father grabbed children by wrist and pulled them out of restaurant saying loudly for all to hear, “I can’t leave them here with you — we have you under investigation for sexual molestation to your daughter and I won’t leave them here with you.”

 

KRAMER, 211 Ill.App.3d 401, 570 N.E.2d 422, 155 Ill.Dec. 909 (1st Dist., 1991)
Bennett Leventhal testified that mother, by trying to eliminate father from child’s life, was compromising her own relationship with child and father better able to isolate child from conflicts between mother and father and to foster a relationship between child and both of his parents. Attempted name change; told child his father didn’t love him. Custody changed from mother to father under CLEAR AND CONVINCING EVIDENCE supported the change to be in child’s best interests. There were 60 days of trial with specific incidences recounted over a seven-year period from date of parties’ separation through trial.

 

In every phase of child’s relationship with his father, mother had fostered anger, confusion and turmoil to one purpose and to one purpose only: to destroy every vestige of the relationship. The fights, the visits missed, the incidents of the exchanges or visitation, the make-up visits never provided, the telephone calls caught in the vacuum of the unresponsive telephone answering machine, the examinations that never took place, the illness of her and child that delayed and frustrated, the orders of court that never were complied with in any real way, if at all and all the other scenarios presented here, have one common thread running through them: the denial of access between a son and his father and thereby destruction and prevention of a fundamental natural human right — the right to a nurturing relationship.

 

This was an interesting case because standard language of parenting agreement was used against violating parent: “Both Husband and Wife will use their best efforts to foster the respect, love and affection of the child towards each parent and shall cooperate fully in implementing a relationship with the child that will give the child the maximum feeling of security that may be possible.”

 

DIVELBISS, 308 Ill.App.3d 198, 719 N.E.2d 375, 241 Ill.Dec.514 (2nd Dist., 1999)
Court found mother unwilling to facilitate close and continuing relationship between former husband and child. She repeatedly denied him visitation, generated problems to resist visitation and staged confrontations during exchanges in order to videotape them, recruited her then-husband (police officer) in scheme and unfounded allegations of sexual abuse all supported change of custody from mother to ROTATING CUSTODY: November through May with mother and June through October with father for 15-year-old girl, plus a visitation schedule, holidays and telephone contact.

 

Court’s witness said change of custody not indicated; found “parental alienation syndrome” by mother against father over child EVEN THOUGH IT WAS NOT INTENTIONALLY DONE BY THE MOTHER; suggested daughter spend 30 days with father with NO CONTACT BY MOTHER (which she violated), followed by counseling to help the child “extricate herself from her parents’ divorce and the way that she had become emotionally entangled in their divorce.” When this pattern of interference continued even afterward, court-appointed “conciliator” recommended change of custody and this rotating schedule. No “custody evaluation done” — rather a “conciliation evaluation” was performed. {NB: Held that this type of evaluation, even if not reviewed by professional organizations, did not result in HAZARD disallowance of testimony.}

 

Court also found that the mother had “recruited and involved” the child in staging incidences for videotape, but factual basis for same not set forth in appellate decision.

 

USE OF AUDIOTAPE IN PROVING ALIENATION CLAIM: ALMQUIST, 299 Ill.App.3d 732, 704 N.E.2d 68, 234 Ill.Dec. 910 (3rd Dist., 1998)
Father on telephone call with 7-year-old child, audiotapes the conversation, which is held to be a violation of the law and inadmissible; however, the audiotape recorded the mother’s playing of a LOUD AUDIOTAPE in the background (a “suicide” tape made one year earlier by the father) — this occurred on two occasions — and found that the only purpose of the act was to interfere with the father’s telephone visitation with the parties’ daughter. Mother held in INDIRECT CRIMINAL CONTEMPT and sentenced her to two years’ court supervision. The mother testified that she would tell the daughter to answer the phone when the father’s caller ID number showed and then she left the room. In her testimony, the daughter played the tape herself.

 

Alienation not found

 

HELDEBRANDT, 301 Ill.App.3d 265, 703 N.E.2d 939, 234 Ill.Dec. 839 (4th Dist., 1998)
Parties divorced after five children born. For more than a year after divorce, father “did not want to see children” and then tried to initiate visitation. Children resisted. Children testified about father’s bad temper, giving specifics on remembered incidents: ripping phone out of wall, throwing things, chasing them with a knife and plastic baseball bat, used belting as punishment, and threatened them with physical punishment. Supervised visitation ordered but father only saw three of the five children three times in one year. After another court modification and another attempt to visit where children refused to go, father and children did not see each other nor did father attempt visitation. After three years, father sought termination of CHILD SUPPORT, although it was modified based upon each parties’ changes in income. The court rejected this argument, especially given the circumstances of this case and stated:

 

“To grant James’ motion would have the effect of punishing his children for their apparent inability to forgive and forget his outbursts and absences during their childhoods. James never claimed that the mother engaged in egregious behavior designed to interfere with his visitation rights.”

 

MELTON, 288 Ill.App.3d 1084, 681 N.E.2d 1046, 224 Ill.Dec. 425 (5th Dist., 1997)
Five months after joint custody agreement and judgment entered, father filed for change of custody. When mother also sought change, 610(a) standard no longer required and court looked to best interests. Facts which support court’s finding that mother on several occasions made immature choices and put her own welfare above that of children not reported. NB: Youngest doing well in school; older daughter with behavioral and learning disabilities told court in camera mother more helpful and understanding of her issues. Custody awarded to father. NO EXACT CLAIM OF ALIENATION.

 

Alienation claim obstructed by other legal issues

 

ZUBATY, 288 Ill.App.3d 284, 681 N.E.2d 1, 224 Ill.Dec. 19 (1st Dist., 1997)
Here, the father faced a RURESA (Revised Uniform Reciprocal Enforcement of Support Act) action to get child support, medical coverage and arrears paid. The Floridian mother was awarded support and enforcement as requested. Thereafter, the father sought to have the Illinois court hear his complaints relative to VISITATION INTERFERENCE. This claim was held to be beyond the scope of jurisdiction in a RURESA action. The father would need to go to Florida to seek relief from his concerns.

 

BLANCHARD, 305 Ill.App.3d 348, 712 N.E.2d 374; 238 Ill.Dec. 652 (2nd Dist., 1999)
Father filed Rule to Show Cause seeking child’s return to Illinois when mother moved with child to Georgia. However, divorce judgment allowed relocation from Illinois to Virginia. She did move to Virginia; however, she also moved back to Illinois and left for Georgia without court or father’s permission. The timing of all of this is not clear in the decision. HELD: Illinois inconvenient forum and jurisdiction ceded to Georgia per UCCJA.

 

IN RE PARENTAGE OF: MATTSON (Slauf v. Mattson) 240 Ill. App.3d 993, 608 N.E.2d 1284, 181 Ill.Dec. 810 (2nd Dist., 1993)
Father alleged that mother’s attempt to change child’s name was “ALIENATING” child from him. Name change not allowed because mother did not meet standard of clear and convincing evidence.

 

GORDON, 233 Ill.App.3d 517, 599 N.E.2d 1151, 175 Ill.Dec. 137 (1st Dist., 1992)
This case probably has enough of the facts to be an “alienation” case; however, and EX PARTE ORDER of PROTECTION was used to change custody and that was overturned on appeal.

In re Marriage of Allen, 2016, 1st District

Marriage of Allen

News + Insights

In re Marriage of Allen, 2016, 1st District

By: Feinberg Sharma / February 10, 2017

 

 

Keith and Debra Allen had lived together for 13 years prior to getting marriage. They had been married for less than 7 months when they filed for divorce. Before their case went to trial, Debra sought leave to amend her Petition with common law claims based on their 13 pre-marital years of cohabitation. The primary dispute was whether Debra was entitled to a greater share of the marital property and to maintenance due to the length of their relationship and cohabitation.

 

In Hewitt v. Hewitt, 77 Ill. 3d 49, 394 N.E. 2d 1204 (1979), an unmarried woman, who was in a relationship for 15 years, filed a Petition for Dissolution of Marriage and in an attempt to claim property from her boyfriend. The Illinois Supreme Court rejected all of her claims, stating the Judiciary should not recognize mutual property rights between nonmarried couples.

 

In In re Marriage of Blumenthal, 2014 IL App (1st) 132250, 28, 24 N.E. 3d 168, a lesbian couple was allowed to bring common law claims regarding property they accumulated together. The Court came to this holding because in contrast to Hewitt, the couple in Blumenthal did not have the right to marry in Illinois and Illinois’ public policy favored the recognition of same sex domestic relationships.

 

In the Allen case, the Court denied Debra leave to add common law claims to her divorce proceedings based on her relationship with Keith. Since they are an opposite sex couple who had the option to marry throughout their relationship, any other holding by the Court would contravene Illinois public policy which bans common law marriage.