The Contractual Approach to Assisted Reproductive Technology Litigation

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The Contractual Approach to Assisted Reproductive Technology Litigation

By: Jennifer S. Tier / April 1, 2020

 

 

Current laws fail to protect parties making agreements relating to their frozen embryos. Courts using the contractual approach to Assisted Reproductive Technology litigation must carefully examine these so-called agreements to determine whether they are valid in a divorce context.

 

In 2002, there were approximately 346,000 frozen embryos in the United States1. By 2017, the number of frozen embryos grew to approximately 1,000,0002. People are turning to assisted reproductive technologies (ART) at an exponential rate. Yet, as so often happens when technology accelerates at lightning speed, the law is slow to catch up.

 

Take the scenario of a married couple who have trouble conceiving and use in vitro fertilization (IVF). The couple is under extreme stress, both emotionally and monetarily. At the fertility clinic, they are given a stack of paperwork six inches thick. One of the forms is a lengthy questionnaire about the disposition of any remaining frozen embryos. One of the questions states “In the event the patient is divorced any remaining frozen embryos will, A) Be awarded to Wife, B) Be awarded to Husband, C) Be donated to research, D) Be donated to another couple, or E) Be destroyed.” The Wife fills out the form; checks the box that the embryos will be awarded to her; and the Husband signs. The couple has no actual discussion about this issue nor do they receive any legal explanation or advice.

 

The couple successfully has one child and six remaining frozen embryos. Then they get divorced. Husband is adamant that he does not want Wife to be able to use the remaining frozen embryos as he does not want more children with Wife. Wife wants more biological children. She argues that because Husband signed the form, she should be awarded the embryos. Further, Wife argues Husband would not be the legal “father,” although the form makes no mention of the conditions that would determine whether Husband is the legal father.

 

The Contractual Approach to Assisted Reproductive Technology Litigation (ART)
State courts are trending towards a “contractual” approach for deciding the complex problems presented by this scenario. Under this common approach, Wife would be awarded the embryos because the parties had an agreement (the form where Wife checked a box at the fertility clinic). In fact, a similar scenario is presently before the Supreme Court in the case of Bilbao v. Goodwin. In adopting this contractual approach, courts have shown a preference toward honoring agreements between parties.

 

Courts want to encourage people to have serious and lengthy discussions about these highly personal issues. Specifically, in Kass v. Kass, 91 N.Y.2d, 544, 5673 N.Y.S.2d 350, 696 N.E.2d 174, 180 (1998), the court noted:

 

“… parties should be encouraged in advance before embarking on [in vitro fertilization] to think through possible contingencies and carefully consider their wishes in writing. Explicit agreements avoid costly litigation in business transactions. They are all the more necessary and desirable in personal matters of reproductive choice, where the intangible costs of litigation are simply incalculable…to the extent possible, it should be the progenitors – not the State and not the court – who by their prior directive make this deeply personal life choice.”

 

Courts in California, New York, New Jersey, Tennessee, and Illinois have all made rulings consistent with the contractual approach to ART agreements. The trend is that these very personal decisions should be made by the parties involved – not the court.

 

Should ART Agreements Be Binding in Divorce?
In theory, honoring the parties’ ART agreements seems like a sensitive and practical approach to resolving such weighty emotional issues. But is simply having an “agreement” enough? What if the parties are not having serious discussions about the implications of their decisions because they are highly emotional or rushed because of medical concerns? What if the parties are filling out hundreds of pages of forms? What if the forms are not explicit and do not address fundamental issues like whether the Husband will be treated as the legal father of any resulting children in the event of a divorce?

 

It is unlikely that a layperson could truly comprehend the complex legal implications of everything they must sign when seeking IVF. Courts are trending toward the contractual approach, but so far, they have not delved deeper to discuss whether parties should meet certain requirements to create a valid agreement.

 

This is in stark contrast to laws surrounding gestational surrogacy contracts. Many states have adopted statutes obliging parties to meet a long list of requirements to have a valid surrogacy contract. For example, statutes require the parties to be represented by independent legal counsel, to notarize signatures, and for two witnesses to sign the agreement. The list of requirements can be lengthy and onerous.

 

Legislatures have reacted swiftly to enact these comprehensive gestational surrogacy laws after several high-profile cases received widespread media attention. Unfortunately, there has been no such widespread attention to the disposition of frozen embryos. The lack of guidance is all the more striking because IVF is so much more common than gestational surrogacy.

 

State Courts Must Weigh-In on What Constitutes a Valid ART Agreement
Legislatures and courts should treat the disposition of frozen embryos more like surrogacy agreements and put safeguards in place to protect the populace. Although this would place a greater burden on parties using IVF, it would also ensure that the most fundamental rights of the parties are protected: the right to be – or not to be – a parent. Parties should be advised of the consequences of their ART agreements regarding the disposition of embryos upon divorce and whether the Husband (or partner) would be the legal parent of any resulting children after divorce.

 

Bright-line laws could also limit litigation. For example, the Uniform Parentage Act (Uniform Law Commission 2017) suggests the following law: “Section 706(a). If a marriage is dissolved before placement of eggs, sperm or embryos, the former spouse is not a parent of the resulting child unless the former spouse consented in a record that if assisted reproduction were to occur after a divorce, the former spouse would be a parent of the child.” This Act only governs whether a spouse is considered a parent and does not dictate who may control embryos after a divorce. Nonetheless, such legislation provides much-needed guidance to couples considering IVF.

 

Until state legislatures actually change the law, if courts are to use the contractual approach to Assisted Reproductive Technology litigation, then they have a responsibility to look at parties’ so-called agreements more closely. Statutes are often a codification of case law. Therefore, State courts should start to weigh-in on what constitutes a valid agreement over frozen embryos rather than stopping their inquiry as soon as they see a signed form with a checked box. This would ensure parties meet the Kass court’s goal that parties have serious and lengthy discussions over this “deeply personal life choice.”

 

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Habitual Residence: The Supreme Court Speaks

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Habitual Residence: The Supreme Court Speaks

By: Shannon M. Luschen / March 2020

 

 

For years, federal courts across the country have differed in defining the term “habitual residence” for purposes of Hague Convention child abduction cases – the first element which the left behind parent must prove when seeking to have the child returned to their home country. Some circuits, such as the 6th circuit, relied almost exclusively on the child’s experience and acclimatization to a place when determining where that child was habitually resident. See Robert v. Tesson, 507 F.3d 981, 989 (6th Cir. 2007). Other circuits, such as the 9th circuit, relied more heavily on the parent’s shared intentions of where the habitual residence of a child is. See Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). Still other circuits, like the 7th circuit, took a hybrid approach to the two factors and looked at both the shared intentions of the parents and the child’s acclimatization to a place. See Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013). Clarifying these variations, the U.S. Supreme Court recently resolved the issue in Monasky v. Taglieri, on February 25, 2020 siding with the 7th Circuit.

 

FACTS
Monasky and Taglieri were married in the United States and later relocated to Italy. At that point, they had no plans to return to the United States. About a year after they moved, Monasky became pregnant. The marriage, however, began to crumble as Taglieri became physically abusive towards Monasky. Monasky considered moving to the United States; applied for some jobs and inquired about divorce with attorneys. At the same time, however, the parties were still making plans to raise their child in Italy who was born in 2014.

 

In 2015, Monasky eventually fled to the United States with the child. Taglieri first asked an Italian court to terminate Monasky’s parental rights, and, ex parte the mother’s rights were terminated. Taglieri then filed a Hague Convention petition to return the child to Italy on the grounds that Italy was her habitual residence. The District Court decided that since the child was too young to have acclimatized to her surroundings in the United States, it relied on the last shared intention of the parents - who had lived in Italy with the child. Thus, the child was ordered back to Italy to live with the father, Mr. Taglieri. The Sixth Circuit eventually affirmed the return.

 

ISSUES

  • When an infant is too young to acclimate to her surroundings, is a subjective agreement between the infant’s parents necessary to establish her habitual residence?
  • What is the proper standard of review of a District Court’s decision of habitual residence?

 

OPINION
The Supreme Court first considered the standard of habitual residence and whether an actual agreement between the parents on where to raise their child was a necessary element towards establishing an infant’s habitual residence. The Court stated that habitual residence is heavily fact-driven and should be determined by a totality of the circumstances. The courts should make a fact-driven inquiry that is “sensitive to the unique circumstances of the case and informed by common sense.” It held that “[t]here are no categorical requirements for establishing habitual residence – least of all an actual-agreement requirement for infants.” Although parental agreements are relevant in determining habitual residence, they are in no way dispositive across all cases.

 

The Court rejected Monasky’s arguments that an actual agreement was necessary for a finding of habitual residence. It stated that since there are a wide array of factors for courts to consider when determining habitual residence other than an actual agreement, this bright-line rule is unnecessary. It also rejected Monasky’s arguments that this requirement would protect young children from domestic violence because it would leave many children without a habitual residence and thus unprotected by the Hague Convention. The Court explained that domestic violence is an issue that should be more fully explored in the custody determinations after the child is returned. Further, the Hague Convention already provides protection from the problem of physical abuse in its Article 13(b) defenses which would prevent the return of the child based upon that defense.

 

For the second inquiry, the Court determined that the appropriate standard of review is clear-error review. This is based on the fact that the habitual residence inquiry is a mixed question of law (what is the appropriate standard for habitual residence?) and fact (was the child at home in the particular country at issue?).

 

The Supreme Court refused to disturb the decision to return the child to Italy and thus affirmed the 6th Circuit’s judgment. Ultimately, this decision now allows courts across the United States to better handle Hague Child Abduction Petitions with uniformity and fairness. The clarity of the standard upon which the determination should be made is set forth for every circuit to follow. Uniformity better serves the prime goal of the Hague Convention to allow quicker determinations and ultimately to resolve these most difficult matters.

 

Edited by Joy M. Feinberg, 2020

The Second Time Around Could Ring Your Bell: The Dangers of Child Support for the Non-Owing Spouse

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The Second Time Around Could Ring Your Bell: The Dangers of Child Support for the Non-Owing Spouse

By: Shannon Luschen / October 28, 2019

 

 

Beware: If you are married to someone who pays child support, your income now can be combined with your spouse’s income for purposes of calculating your spouse’s child support obligation. Illinois has ventured into new territory with In re Marriage of Rushing. In Rushing, the appellate court affirmed a trial court child support decision that calculated child support by combining the separate net incomes of the father and his current wife and then applying the somewhat new Illinois guidelines to this combined total.

 

Here are the facts: Mr. Rushing had not paid his reduced child support obligation of $200/mo from 2010 up through the time of trial in mid-2016. He was off to a bad start. Mr. Rushing claimed that the parties had agreed to terminate his child support entirely – something his former wife admitted. {This oral agreement was never entered as a written court order. Even the admission of the oral agreement by the ex-wife was insufficient to protect Mr. Rushing from having to pay the accumulated unpaid child support arrearage – consistent with long-held case law in this area.} He reported monthly expenses that far exceeded his monthly income – a scenario that requires an explanation or suggests an additional source of income from somewhere else, such as his current wife. Mr. Rushing’s current wife earned over $300,000 annually, enabling him to live well while ignoring the lifestyle of his children or their household. The court determined that the father had ample resources from which to pay his child support obligation, including his current wife’s income, in its calculations of child support. Mr. Rushing’s claim that he and his wife separated (albeit while living in the same home) was insufficient to change the inclusion of her income in this calculation; however, if there was an actual separation or divorce, Mr. Rushing was free to bring these matters to the attention of the court at the time such facts arose. See In re Marriage of Rushing, 2018 IL App (5th) 170146.

 

The old law: Traditionally, Illinois courts held that the financial status of a new spouse may not be considered when calculating a child support obligation. See In re Marriage of Keown, 225 Ill. App. 3d 808, 813 (Ill. App. Ct. 1992). The long-standing justification for this rule was that new spouses are generally under no legal obligation to financially support their step-children. Illinois law even states that:

 

“[n]either husband or wife shall be liable for the debts or liabilities of the other incurred before marriage, and (except as herein otherwise provided) they shall not be liable for the separate debts of each other, nor shall the wages, earnings or property of either, nor the rent or income of such property, be liable for the separate debts of the other.” 750 ILCS 65/5 (West 2014).

 

Despite this, courts have held that the financial status of a current spouse could still be considered when determining “whether payment of support would endanger the ability of the support-paying party and that party’s current spouse to meet their needs.” In re Marriage of Deike, 381 Ill. App. 3d 620, 627 (2008). This notion of equity allowed for courts to consider how a new spouse’s income could “free-up” the support-paying spouse’s income to the extent that that spouse could then pay more of his or her own income as child support. Courts then use these equitable principles to deviate from child support guidelines after finding, among other things, that the child support paying party’s “resources and needs” warranted such a deviation. 750 ILCS 5/505(a)(2)(b) (West 2016). “Resources,” as applied here, has been long construed as a broad term that could encompass all of the money or property to which a parent has access, including a new spouse’s income or property. See In re Marriage of Drysch, “314 Ill. App. 3d 640, 644-45 (2000). Under this theory, the income of a new spouse can be considered when setting a child support obligation to the extent that it warrants a deviation from the guidelines that would have been applied against the spouse’s separate income for support purposes.

 

So long as equity requires it, courts may now require spouses to financially support their step-children to some extent. Spouses married to those paying child support need to be wary of this trend.

New Year, New Divorce Laws

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New Year, New Divorce Laws

By: Madilyn Keating-Ellsworth, Esq. / January 10, 2019

 

 

Starting January 1, 2019, more than 250 new laws became effective in Illinois, including significant changes to Illinois’ divorce laws. This article summarizes the major changes to the Illinois Marriage and Dissolution of Marriage Act taking effect this year:

 

I. Maintenance (750 ILCS 5/504)

As of January 1, 2019, maintenance is no longer tax-deductible to the payor spouse, and no longer includible in the gross income of the recipient spouse. In light of this new federal tax reform, numerous changes were made to Illinois’ maintenance statute effective January 1, 2019, and are summarized below:

 

Maintenance Barred if Award is Not Appropriate (750 ILCS 5/504(b-1))
Unless the court finds that a maintenance award is appropriate, the court shall bar maintenance as to the party seeking maintenance regardless of the length of the marriage at the time the divorce action was commenced.

 

Guideline or Non-guideline Maintenance Awards (750 ILCS 5/504(b-1))
Only if the court finds that a maintenance award is appropriate, shall the court order guideline maintenance or non-guideline maintenance. However, if the application of guideline maintenance results in a combined maintenance and child support obligation that exceeds 50% of the payor’s net income, the court may determine non-guideline maintenance, non-guideline child support, or both.

 

Guideline Maintenance Awards (750 ILCS 5/504(b-1)(1)(A))
If the parties’ combined gross annual income is less than $500,000, and the payor has no obligation to pay child support or maintenance or both from a prior relationship, the amount of maintenance shall be calculated by taking:33 1/3% of the payor’s net annual income, minus 25% of the payee’s net annual income. The amount calculated as maintenance, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties.

 

Modification of Maintenance Orders Entered Before 1/1/19 (750 ILCS 5/504(b-1)(1)(B)) and (750 ILCS 5/504(b-4))
Modification of maintenance orders entered prior to 1/1/19 that are and continue to be eligible for inclusion in the gross income of the payee for federal income tax purposes and deductible by the payor shall be calculated by taking:

 

30% of the payor’s gross annual income minus 20% of the payee’s gross annual income, unless both parties expressly provide otherwise in the modification order. The amount calculated as maintenance, however, when added to the gross income of the payee, may not result in the payee receiving an amount that is in excess of 40% of the combined gross income of the parties. For any order for maintenance or unallocated maintenance and child support entered before 1/1/19 that is modified after 12/31/18, payments thereunder shall continue to retain the same tax treatment for federal income tax purposes unless both parties expressly agree otherwise and the agreement is included in the modification order.

 

Maintenance Findings (750 ILCS 5/504(b-2)(3))
The court shall state whether the maintenance award is fixed-term, indefinite, reviewable, or reserved by the court.

 

Gross income for Maintenance Purposes (750 ILCS 5/504(b-3))
Gross income means all income from all sources, except maintenance payments in the pending proceedings shall not be included.

 

Net income for Maintenance Purposes (750 ILCS 5/504(b-3.5))
Net income has the meaning provided in Section 505 of the Act (i.e., Child Support), except maintenance payments in the pending proceedings shall not be included.

 

Maintenance Designation (750 ILCS 5/504(b-4.5))

  • Fixed-term maintenance (750 ILCS 5/504(b-4.5)(1)) – If a court grants maintenance for a fixed term, the court shall designate the termination of the period during which this maintenance is to be paid. Maintenance is barred after the end of the period during which fixed-term maintenance is to be paid.
  • Indefinite maintenance (750 ILCS 5/504(b-4.5)(2)) – If a court grants maintenance for an indefinite term, the court shall not designate a termination date. Indefinite maintenance shall continue until modification or termination under Section 510.
  • Reviewable maintenance (750 ILCS 5/504(b-4.5)(3)) – If a court grants maintenance for a specific term with a review, the court shall designate the period of the specific term and state that the maintenance is reviewable. Upon review, the court shall make a finding in accordance with 504(b-8), unless the maintenance is modified or terminated under Section 510.

 

II. Child Support (750 ILCS 5/505)

The Illinois child support statute was amended to align with the federal tax law changes concerning maintenance, and to create uniformity with the new Illinois maintenance statute outlined above.

 

Gross income for Child Support Purposes (750 ILCS 5/505(a)(3)(A))
Gross income includes maintenance treated as taxable income for federal income tax purposes to the payee and received pursuant to a court orer in the pending proceedings or any other proceedings and shall be included in the payee’s gross income for purposes of calculating the parent’s child support obligation.

 

Net Income for Child Support Purposes (750 ILCS 5/505(a)(3)(B))
Net income includes maintenance not includable in the gross taxable income of the payee for federal income tax purposes under a court order in the pending proceedings or any other proceedings and shall be included in the payee’s net income for purposes of calculating the parent’s child support obligation.

 

Spousal Maintenance Adjustment (750 ILCS 5/505(a)(3)(F)(2)
Obligations pursuant to a court order for spousal maintenance in the pending proceeding actually paid or payable to the same party to whom child support is to be payable or actually paid to a former spouse pursuant to a court order shall be deducted from the parent’s after-tax income, unless the maintenance obligation is tax deductible to the payor for federal income tax purposes, in which case it shall be deducted from the payor’s gross income for purposes of calculating the parent’s child support obligation.

 

III. Modification and termination of provisions for maintenance, support, educational expenses, and property disposition (750 ILCS 5/510)

 

An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances. The court may grant a petition for modification that seeks to apply the changes made to Section 504 by these amendments to an order entered before the effective date of these amendments only upon a finding of a substantial change in circumstances that warrants application of the changes. The enactment of the amendment itself, does not constitute a substantial change in circumstances warranting a modification. 750 ILCS 5/510(a-5).

 

IV. Disposition of Property and Debts – Designation of Life Insurance Beneficiary (750 ILCS 5/503)

 

A large aspect of divorce is the division of property and debts, including life insurance policies and proceeds. Newly enacted Section 503(b-5)(2) addresses treatment of a life insurance beneficiary designation upon entry of a divorce judgment, and is summarized below:

 

If a divorce judgment is entered after an insured has designated the insured’s spouse as a beneficiary under a life insurance policy in force at the time of entry, the designation of the insured’s former spouse as beneficiary is not effective unless:

 

The divorce judgment designates the insured’s former spouse as the beneficiary;
The insured re-designates the former spouse as the beneficiary after judgment entry; or
The former spouse is designated to receive the proceeds in trust for, or on behalf or, or for the benefit or a child or a dependent of either former spouse.

 

If a designation is not effective under one of the foregoing examples, the proceeds of the policy are payable to the named alternative beneficiary, or if there is not a named alternative beneficiary, to the estate of the insured.

 

An insurer who pays the proceeds of a life insurance policy to the beneficiary under a designation that is not effective under the above examples is liable for payment of the proceeds to the person or estate, only if:

 

Before payment of the proceeds to the designated beneficiary, the insurer receives written notice at the home office of the insurer from an interested person that the designation is not effective under the statute; and
The insurer has not filed an interpleader (i.e., a lawsuit to compel two parties to litigate a dispute).

 

Note: the provisions of the new statute do not apply to life insurance policies subject to regulation under ERISA, the Federal Employee Group Life Insurance Act, or any other federal law that preempts application.

 

V. Visitation by Certain Non-Parents (750 ILCS 5/602.9)

With certain exceptions, certain non-parents may bring an action requesting visitation with a child.

 

The list of “appropriate persons” includes grandparents, great-grandparents, step-parents, and siblings of a minor child age 1 or older. These individuals may bring a petition for visitation and electronic communication if there has been an unreasonable denial of visitation by a parent and that denial has caused the child undue mental, physical, or emotional harm, and one of the following qualifying conditions exists:

 

  • The child’s other parent is deceased or has been missing at least 90 days;
  • A parent of the child is incompetent as a matter of law;
  • A parent has been incarcerated in jail or prison for more than 90 days immediately prior to filing the petition;
  • The child’s parents have been granted a divorce or legal separation, or there is a pending dissolution proceeding or other action involving parental responsibilities or visitation of the child and at least 1 parent does not object to the grandparent, great-grandparent, step-parent, or sibling having vitiation with the child; or
  • The child is born to parents who are not married to each other, the parents are not living together, the petitioner is a grandparent, great-grandparent, step-parent, or sibling of the child and the parent-child relationship has been legally established.

 

The newly amended Section 602.9(c)(E)(iv)-(v) clarifies that if the petitioner is a grandparent or great-grandparent, the parent-child relationship need be legally established only with respect to the parent who is related to the grandparent or great-grandparent. If the petitioner is a step-parent, the parent-child relationship need be legally established only with respect to the parent who is married to the petitioner or was married to the petitioner immediately before the parent’s death.

 

For help with your divorce and/or allocation of parenting time and responsibilities, contact Feinberg Sharma (FS) at 312-376-8860 or 847-394-3940.

In re Marriage of Allen, 2016, 1st District

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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.

 

Gaining Financial Skills Important When Preparing for Divorce

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Gaining Financial Skills Important When Preparing for Divorce

By: Feinberg Sharma / June 29, 2016

 

 

Most married people in Illinois don’t want to think about the possibility of divorce. Since a large percentage of marriages will eventually end, however, it may be wise for spouses to develop good financial skills.

 

Individuals should think ahead to their retirement, and both spouses should increase their individual contributions to their plans if they are able to do so. As people get older and their incomes increase, they should continue contributing more to their retirement accounts. This may help to ensure that a person will be able to retire on time even if the marriage ends in divorce.

 

It is also important for both spouses to develop other financial skills. These include the ability to balance a checkbook, budget money and pay bills. In many divorces, one spouse will be much more financially prepared than the other. People who take the time to learn and implement good financial decisions may be better prepared to deal with the financial impact that a divorce can bring.

 

If a couple has been married for a number of years, they may have finances that are intermingled. Over time, they may also have accumulated numerous assets, including real property, retirement accounts, stocks, bonds or businesses. The property division of a high-asset divorce can be very complicated. When a person is considering filing for divorce, they may want to get assistance from a family law attorney. A lawyer might be able to locate assets that the other spouse is attempting to hide. The attorney may also be able to work out a property settlement agreement that protects a client.