Illinois couples encouraged to consider prenups

PreNup

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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

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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

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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

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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

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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.

In re Marriage of Allen, 2016, 1st District

Marriage of Allen

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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.

 

Hacking Spouse’s Email

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Hacking Spouse’s Email

 

In the highly emotional time of a divorce, it can become tempting for people to cross lines that should not be crossed. Hacking into your spouse’s email account or computer to try and find some damning evidence against them is that step too far. Recently a husband sued his wife for reading the private emails he was sending to other women. The wife had set up her husband’s email to automatically forward any emails sent by him to her. This case eventually reached the U.S. Appellate Court where under the existing Federal Wiretap Act the court found that the wife had violated the law by accessing her husband’s computer without his consent. The wife’s actions were found to be illegal despite the fact that she had uncovered her husband’s adultery. Although not often prosecuted, adultery remains an illegal act in Illinois. One Judge expressed his concern that this law protects the husband’s illegal act by allowing his dishonesty and deception. However, as the law stands you must always get consent before accessing your spouse’s personal email account. Hacking your spouse’s email on a non-shared computer violates the Wiretapping Law. This criminal offense carries a possibility of prison time if convicted and the illegally obtained evidence cannot be used in Court.

 

Recognizing Unreasonable Divorce Demands

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Recognizing Unreasonable Divorce Demands

 

As an Illinois couple considers a divorce, financial issues and child rearing can be some of the most contentious matters under the scrutiny of both parties, their lawyers, and the court system. In trying to avoid litigation, an individual might suggest negotiating an agreement without legal help in order to save money on fees. Alternative methods such as collaboration or mediation could also simplify the process, but an individual might want to proceed with caution if the other party seems to be making unreasonable demands.

 

It can be helpful to have an understanding of divorce laws related to property division and child custody. For example, funds that were received by one spouse as a gift might not be considered marital property. However, the use of such gifted funds to purchase a family home might be viewed as commingling, which could leave an inheritance or gift vulnerable to being split. Retirement benefits might be viewed as marital assets, but there is not a responsibility to split future retirement savings. A court order to split such benefits can typically be processed by the administrator overseeing the retirement fund in question, which will allow each party’s share to be managed independently.

 

In dealing with a marital home, one spouse might insist on remaining at the property in spite of joint ownership. In such a case, an agreement that no other adult moves in for at least two years from the time of the split is appropriate. In a contentious case, it might be helpful to request the appointment of a guardian ad litem to represent the needs of the children.

 

In a high asset divorce case, spouses could spend a huge amount of money in fees as they bicker over minor matters. A divorce lawyer could be helpful in streamlining the matter to ensure that a fair settlement is proposed. In reviewing a settlement offered by the other party, a lawyer might bring inappropriate demands to the client’s attention.

 

Millionaire Ex-spouses Have Been in Court for 7 Years

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Millionaire Ex-spouses Have Been in Court for 7 Years

By: Feinberg Sharma / October 6, 2016

 

 

A divorced couple in Illinois has failed to reach a final divorce settlement after seven years of litigation. In April, Cancer Treatment Centers of America founder Richard Stephenson and his former wife Alicia Stephenson formally dissolved their 18-year marriage. However, the couple still has not been able to reach a final agreement about property division.

 

Though there is no argument that Richard is a multi-millionaire; however, Richard’s attorneys have disputed Alicia’s attorney’s assessment of his wealth. According to Alicia’s attorneys, Stephenson owns assets with a total value exceeding $1 billion. There is a prenuptial agreement in place, but Alicia’s attorneys have argued that Alicia has been denied ownership rights to several businesses that are in her name. The ex-couple has not been able to reach a final agreement about spousal support.

 

Richard and Alicia’s attorneys have butted heads many times during the seven-year divorce proceedings. An attorney for Alicia claims that he has never seen a court allow a divorcing spouse to withhold financial documents the way that Richard has. Richard’s attorneys have denied allegations that they are hiding financial information and argued that Alicia’s attorneys have inflated the value of the marital estate. Soon after the divorce paperwork was filed, a judge awarded Alicia temporary alimony payments of $65,800 per month.

 

When divorce proceedings are prolonged, the divorce process can end up costing both spouses a lot more money than it is worth. An attorney may be able to represent a divorcing spouse during property division hearings and work toward an efficient settlement. If a spouse is concerned that they will lose certain assets, an attorney may be able to help them to assert their property rights.

 

Source: Chicago Tribune, “With millions at stake, trial looms in cancer center founder divorce,” Robert McCoppin, Sept. 22, 2016

Safeguarding a Child’s College Savings During Divorce

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Safeguarding a Child’s College Savings During Divorce

By: Feinberg Sharma / September 20, 2016

 

 

An Illinois parent who is going through a divorce might worry about the future, especially with regard to finances. Even those who have saved carefully can see their resources decimated in contentious situations, especially if litigation is focused on minor issues. The best interests of one’s children might be the goal of all parties involved, but expensive settlements could leave options for paying legal bills and settlement costs limited. In such a case, some types of college savings plans might be diverted.

 

Those involved in high asset divorce situations may have saved a significant amount of money to assure their children of the best possible post-secondary education. A custodial 529 savings plan is one of the safest in terms of how the funds can be used. The beneficiary must remain constant for the life of the plan. A traditional 529 plan, however, could be changed for the use of another beneficiary in paying for college. A new spouse or child could become the recipient of these benefits in some instances. ESAs are similarly flexible in terms of possible beneficiary changes.

 

To head off the potential diversion of college funds, a concerned parent could request that details related to the accounts and their intended use be specified in the divorce settlement. It is also wise for a concerned party to request that they be listed on the account as an interested person, which can help in obtaining duplicate statements. This provides a method of oversight and accountability.

 

Because high asset divorces can be complicated, it may be sensible to discuss the situation with a divorce lawyer as early as possible. There may be a need to enlist accounting professionals to evaluate the values of family businesses, investigate possible hidden assets, and determine which assets are subject to property division rules. Not all high asset divorces have to be contentious, and in some cases, a collaborative approach could be considered.