After Your Divorce Is Final: Tying Up Loose Ends

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After Your Divorce Is Final: Tying Up Loose Ends

By: Madilyn Keating Ellsworth / 2018

 

 

While your divorce may be over, your obligations under the terms of your divorce may be just beginning. It is imperative that you have a clear and complete understanding of the judgment and agreement. Once your divorce is finalized, you should review it carefully, perhaps with your attorney, to make sure you understand any actions required of you, your spouse, or your attorney, as well as the deadlines for doing so. It is important to remember that even if your divorce was amicable and reached by agreement, your divorce judgment constitutes a court order, which is enforceable and consequential. This article aims to highlight important aspects of your judgment and provide helpful tips on tying up loose ends after your divorce is final.

 

1. Create a To-Do List of Follow-Up Items
The first step in tying up loose ends following your divorce is to create a to-do list of actions to complete and follow up on after your divorce judgment is “entered” with the court and considered final. To accomplish this, you should review the terms of your judgment and outline any important dates, deadlines, and action items. Not only will this practice ensure you do not miss any important follow-up items, it will also help you understand your obligations under the terms of your judgment. This is also a great opportunity to discuss any final questions you have about performing or tracking obligations of the judgment with your attorney.

 

2. Keep Track of Important Dates and Deadlines
Divorce judgments commonly require parties to take various actions and meet certain deadlines following entry of the final orders. For example, your judgment may include timeframes within which you must list or refinance the marital home, transfer deeds and titles, divide bank accounts and retirement assets, retrieve personal property, and so on. It is imperative that you keep track of these important dates. In certain circumstances, missing a deadline can mean losing out on legal remedies to which you are otherwise entitled.

 

Prior to ending the professional relationship with your attorney, it is also wise to discuss what options you have in the event your ex-spouse fails to adhere to the deadlines and terms of your judgment. Some remedies are automatic. For instance, in many divorce judgments, a spouse may have a specified period of time within which he or she may retrieve their personal property and belongings from the former marital home. The judgment may provide that in the event the spouse does not retrieve the items within the specified period, the other spouse may retain, dispose, sell, or discard these personal property items. Other situations may require court intervention, including those in which your spouse may be held in contempt for not complying with the terms of the judgment. In these circumstances, you will have to file a petition to request the court to enforce the judgment. In some jurisdictions, the party enforcing the judgment may be entitled to reimbursement of attorneys’ fees and expenses incurred in enforcing the judgment from your ex-spouse, if his or her noncompliance was without good cause or justification.

 

3. Updating Your Estate Plan and Notifying Relevant Institutions of Your Divorce
For many clients, divorce can mean the start of a new chapter in life. As you stand on the verge of a new beginning, your estate plan may be the last thing on your mind. However, once your divorce is finalized, it is important to update your will, trust, or other estate planning tools to remove your ex-spouse from your estate plan. Additionally, update your beneficiary designations with life insurance policies and retirement plan administrators, and make new powers of attorney and directives.

 

You should also notify relevant institutions of your divorce in order to update legal documents and related information. If you are going to resume the use of your maiden name or otherwise change your name as part of your divorce, take the actions necessary to update your Social Security card, driver’s license, passport, employment records, insurance plans, and financial institutions. If you are moving at the end of your divorce, update your address and contact information if you haven’t already done so, and complete a mail-forwarding application with the post office to ensure receipt of your mail. Notify your employer that you are officially divorced, and update tax information such as withholdings and exemptions. You should also let your employer know about any changes in medical insurance coverage by, for instance, dropping your ex-spouse or adding yourself to employer-sponsored health coverage.

 

Be aware that some institutions require a certified copy of your divorce judgment for verification purposes in order to complete these actions. Check with your attorney to see if this is something he or she will handle for you or obtain instructions on where and how to obtain a certified copy from the court.

 

4. Transferring Assets and Deeds
The terms of your divorce judgment will specify the division and allocation of all marital and nonmarital property and will most often contain instructions and deadlines for the transfer and exchange of assets. Work with your attorney to ensure that you have a clear and complete understanding of what is required of both you and your former spouse so you can comply with and enforce your judgment as needed.

 

Division of certain retirement assets when your divorce judgment is final is typically accomplished through entry of a Qualified Domestic Relations Order (QDRO). QDROs are usually complex, and it is best to have your attorney or other qualified expert prepare it on your behalf. If your retirement assets require entry of a QDRO, you must follow up with the retirement plan administrator to ensure the QDRO is accepted and implemented. It is critical to make sure this is done.

 

If one of the spouses is transferring his or her interest in real estate to the other spouse, make sure the quitclaim deed is executed, delivered, and recorded at the same time that the divorce judgment is entered. As long as both spouses’ names are listed on the deed, both remain vulnerable to related liabilities. Furthermore, the failure to timely transfer real property could turn a nontaxable transfer into a taxable transfer.

 

Transfer vehicle titles and update car insurance policies. Divide and close all joint bank accounts. If your judgment requires debts to be paid from certain accounts or assets, follow the judgment instructions to pay off these accounts and close anything jointly titled to avoid unauthorized purchases or encumbrances. Likewise, for all accounts, review the authorized users and remove any if necessary.

 

5. Understanding What Warrants Modification of Your Divorce Judgment
Where alimony, custody, and child support are involved, a divorce judgment will typically contain provisions addressing circumstances warranting review, modification, and termination of support obligations. Both parties—the person who pays support and the person who receives it—should understand what triggers modification and the steps required to obtain appropriate legal relief.

 

As discussed above, ensure that you diary any and all deadlines regarding review, modification, or termination of support. Upon your divorce, if not sooner, discuss the following questions with your attorney.

 

  • Are there any obligations that the support recipient must meet during the support period?
  • What circumstances can trigger changes in alimony, custody, and/or child support?
  • If these circumstances occur, will the change in support be automatic or will it be necessary to file a petition with the court?
  • Who must file the petition?
  • Are there any deadlines within which a petition must be filed?
  • Are there any consequences for late filing?
  • What legal relief is obtainable?

 

Getting answers to these questions in advance will help keep expectations and
obligations clear and protect your rights.

 

6. Be Aware of the Effects of Remarriage and Consider a Prenuptial Agreement
If your divorce involves alimony, it is critical to know and understand whether the recipient’s future romantic relationships can affect his or her entitlement to support. In some jurisdictions, cohabitation and remarriage can end an alimony recipient’s right to support, even if the support period has not yet expired. In addition to terminating the recipient’s right to continued support, some states impose an affirmative obligation on a support recipient to notify the support payor of his or her intent to cohabitate or remarry. Furthermore, a support recipient can be required to pay back any support paid after the date of cohabitation. Prior to cohabitating or remarrying, contact your attorney to discuss any ramifications the relationship may have for your entitlement to support.

 

Many divorced individuals will agree that they are hesitant, or even unwilling, to remarry as a result of the problems they experienced during their divorce proceedings. If you are contemplating remarriage following a divorce, you may want to consider a prenuptial agreement to limit your financial exposure and vulnerability and to help ease your concerns. A related option for remarried individuals is a postnuptial agreement, which can address topics such allocation of property, estate planning, alimony, and payment of attorneys’ fees in the event of divorce from your new spouse.

 

7. Tying Up Loose Ends
Even if your divorce was finalized through an amicable settlement, do not trust or rely on your ex-spouse to look out for your interests. Be diligent in following through on the terms of your judgment. Additionally, parties should tie up all loose ends at the end of their divorce, including:

  • Changing your passwords and passcodes to protect your privacy;
  • Monitoring your credit report and understanding that your ex-spouse’s actions can continue to affect your credit score if joint accounts or debts remain open;
  • Closing all joint accounts and removing authorized users from individual accounts;
  • Dealing with bills you cannot pay by trying to consolidate or negotiate the balances down, if possible;
  • Keeping records, receipts, and copies of important communications and payments;
  • Completing, executing, and submitting all necessary paperwork; and
  • Working with a financial advisor or other qualified professional to responsibly and advantageously manage your financial future after divorce.

 

Discuss all questions with your divorce attorney. Get specifics and clarity on issues or items you do not fully understand. The more organized and educated you are
about the terms of your divorce, the better off you will be.

 

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After Your Divorce Is Final: Tying Up Loose Ends; Family Advocate, Vol. 41 No. 1 (Summer 2018)
©2018 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Maintenance and Cohabitation

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Maintenance and Cohabitation

By: Molshree “Molly” A. Sharma / October 11, 2017

 

 

What happens if a maintenance recipient does not marry but simply cohabits?

 

In the vast majority of cases, a divorcing party is entitled to maintenance or spousal support if they earned significantly less than their spouse or were primarily a home-maker during the marriage. Across the country, the law is quite consistent that if a maintenance recipient remarries they can no longer receive maintenance from their former spouse. However, the issue of a continuing obligation to pay support to a cohabiting ex spouse is more complex. The question, of course, is what happens if a maintenance recipient does not marry but simply cohabits? In many states, cohabitation is a terminating event for receipt of maintenance, but courts have been interpreting cohabitation much less literally and focusing instead on the financial aspects of the relationship to be a determining factor in whether to terminate support based on cohabitation.

 

The rationale for terminating a maintenance award when a resident, continuing conjugal cohabitation exists, is to avoid the supposed inequity created when the recipient spouse is essentially involved in a marriage-like relationship with all its benefits, but does not formalize the relationship through a legal marriage. At the same time, legislatures in the majority of states have made it clear that they did not intend to create a moral standard for people involved in less traditional relationships. Therefore, the courts consider several factors and the inquiry is an intense, fact-based one. Some of the most common factors are:

 

  • The length of the relationship;
  • The amount of time the parties spend together;
  • The nature of the activities they engage in;
  • The interrelationship of their personal affairs;
  • Whether the parties’ vacationed together; and
  • Whether the parties’ went on holidays together.

 

The case law previously focused on all these factors without outlining if more weight was being given to one or another. However, in the last decade there appears to be a discernible shift where courts are consistently less concerned about the length, frequency or intimate aspect of the new relationship, and more with the actual financial intertwinement of the recipient and new significant other. In fact, there are several instances of cases where the new couple spent holidays and vacations together, even several overnights a week. In some instances the parties, while actually living together, each paid their own expenses, and courts have found that the ex-spouse seeking termination based on cohabitation has failed to meet his burden as the need for financial support continued where the ex -spouse was not receiving financial benefits from a new relationship. Essentially, the need of the recipient spouse has become the biggest factor in determining whether the maintenance payments continue. In re Marriage of Herrin, 262 Ill.App.3d 573, 577

 

This shift in analysis can be evidenced from cases all over the country. In Illinois the case law indicates that even when a recipient ex-spouse is living with her significant other, or he is with her multiple nights a week, they vacation together, and in some instances have joint club membership, it is not a basis for termination unless there are economic factors such as equitable contribution to household expenses, loan of funds, purchases of significant items such as cars for one another and payment of bills on the others behalf, and an intended permanence to the relationship. Essentially, the courts are differentiating between a significant dating relationship and actual cohabitation in the sense of financial intertwinement and expectation of long-term commitment akin to a marital relationship.

 

Further, a seminal new Illinois Appellate Court ruling in May 2015 from the Second District adds to this analysis in a significant manner. The case of In re Marriage of Miller held that the key factor in determining cohabitation was economic intertwinement. In re Marriage of Miller, 2015 Il App (2d) 140530, 40 N.E.3d 206 (2015).

 

On the West Coast, which has notably had a long history of focusing on the economic aspect of the new relationship, the 2nd District California Appellate Court noted that an order for permanent alimony may be modified only when a change in the former husband’s ability to pay or the former wife’s need is shown. The court, in Double v Double (1967, 2d Dist) 248 Cal App 2d 650, 56 Cal Rptr 687, held that the former wife’s meretricious conduct, in living with a man to whom she was not married, was not sufficient to terminate the husband’s obligation to pay alimony.

 

On the East Coast while as evidenced by cases such as Gavet v. Gavet, there was a line of case law that focused on the economic aspect of the relationship, holding “while cohabitation constitutes changed circumstance that may justify modification of alimony, such modification is proper only if cohabitant supports or subsidizes alimony recipient under circumstances sufficient to entitle supporting spouse to relief,” Gayet v Gayet (1983) 92 NJ 149, 456 A2d 102. While the application of this holding was inconsistent before it is in fact much more consistent in the last decade.

 

There are instances where the court focusing on the financial need has not terminated maintenance but reduced it after determining the average monetary value of the benefit received by the new significant other. The New Hampshire Court in Bisiq v. Bisiq reduced maintenance to the recipient ex-wife because there was evidence her new paramour contributed to some expenses such as rent, utilities and travel, but his contribution was not significant enough to justify anything but a decrease in the amount. Bisiq v Bisiq (1983) 124 NH 372, 469 A2d 1348.

 

In Hawaii, a trial Court could not terminate the husband’s duty to pay spousal support since (although the statute terminated the payor’s duty to pay spousal support upon the recipient’s remarriage) the rule is not the same for cohabitation, inasmuch as in a marriage situation, where a recipient’s spouse assumes statutory responsibilities and obligations to recipient. This is not the same as cohabitation, and the recipient’s cohabitation is not relevant to the payor’s duty to pay spousal support unless the decree specifically authorizes or requires a reduction or termination upon cohabitation, and where (as cohabitation was not illegal) its alleged or perceived immorality was not relevant to the payor’s duty to pay spousal support. Amii v Amii (1985, Hawaii App) 695 P2d 1194

 

The main factors that seem to determine between a finding of one or the other is the existence of an intention of permanence akin to a level of commitment assumed in a marriage and the comingling of finances. Therefore, to avoid termination of maintenance it is imperative to advise clients to not co-mingle finances and avoid discussions leading to marriage, etc. Further, the consideration of whether to file a petition for termination of maintenance should focus more on financial intertwinement than other factors.

 

As a practitioner representing a client in a dissolution proceeding, it may be strategic to consider a lump sum buyout of maintenance depending on the circumstance of the client. For example, take a younger client, someone who is actively dating or has already embarked on a serious relationship. This client may be an excellent candidate for a buyout of maintenance so that they are free to move on with their lives without economic hardship. It may even be attractive to the payor client to agree to a buyout as it provides certainty (no reviews of maintenance), and completely resolves the financial support obligation to the spouse. I have also negotiated agreements where maintenance continues for a period of time even after remarriage or cohabitation so as to incentivize the recipient spouse to cohabitate or remarry. It is also useful to take the advice of an accountant when negotiating these agreements because maintenance is tax deductible to the payor and includable in the payee’s income for tax purposes, but a buyout of maintenance is considered to be an asset division and therefore not deductible to the payor nor included as the payee’s income. It is indeed still a developing body of law, but per best practice, it is essential for divorce practitioners to ensure their clients are fully aware of the repercussions of how they develop a new relationship, and conversely, when it is an appropriate time to seek relief and termination of support obligations.

 

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Domestic Violence Harms the Child! The Seventh Circuit Puts Children First in International Custody Disputes

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Domestic Violence Harms the Child! The Seventh Circuit Puts Children First in International Custody Disputes

By: Jennifer S. Tier / 2007

 


Family Law—International Child Abductions

 

Abstract: What happens when a United States citizen parent takes her child from a foreign country, where they have been living, to the United States in order to escape domestic violence? Traditionally, under the Hague Convention, American courts would implement the "remedy of return," thereby returning the child to the foreign country, where the abuser resides. While the Hague Convention provides a defense to this remedy if there is a "grave risk of harm" to the child, some circuit courts have declined to extend this defense to cases of domestic violence or have nevertheless implemented the remedy of return. The Seventh Circuit, however, has set an example for other circuits by expanding the scope of the "grave risk of harm" defense under the Hague Convention to include cases of domestic violence, declining to return children to the country where the abuser resides. This Comment will provide background on the Hague Convention and an overview on American jurisprudence concerning application of the Convention in cases of domestic violence. It will then conclude that the Seventh Circuit, in Van de Sande v. Van de Sande, properly expanded the scope of the grave risk of harm defense in cases of domestic violence.

 

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Inter-country Child Abduction – Indian Legal Response

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Inter-country Child Abduction - Indian Legal Response

By: Molshree “Molly” A. Sharma / January 20, 2017

 

 

As the world shrinks and people travel all over the world to work and live so do they establish families and roots where they go. International marriages are becoming increasingly common as immigration and vast diasporas’ becomes a reality of the world. As a result, the development of a body of private international family law has been crucial to resolving the inevitable issues that arise. A significant issue is that of child custody where parents may not only be of different nationalities but also may simply live or be present in different countries for what become crucial periods of time. Before, the issue of custody and best interest of the child can even be addressed the first matter of inquiry is which country can rightfully adjudicate the custody matter. To avoid, competing jurisdictions and purposeful wrongful removal of children by a parent attempting to divest the other parent of any custody rights, the Hague Convention on the Civil Aspects of International Child Abduction serves as the comprehensive body of law that first establishes which country has the right to adjudicate custody which is crucial as stated above, to avoid, multiple jurisdictional fights, and entanglement of politics on what become emotional issues of nationhood, cultural standards for children and issues surrounding parental kidnapping. There has been a strong push by practitioners for India to sign the Convention. To be a part of the global community, the case is made, that India must be seen as a place where standard international Conventions especially as they relate to child custody will be honoured. In fact the Indian Law Commission in 2009 completed its report authored in part by Justice Lakshmanan, concluded that India must accede to the Convention and sign it rather than become a haven for parental kidnapping. This is however controversial for a number of reasons where realities of spousal abuse, fraudulent marriages and lack of ability to litigate are cited. Further, so far, the judiciary in India has been extremely quick to adjudicate custody disputes even when the child has not resided in India for any substantial period or arguably has been “wrongfully removed” per standards of the Convention. The chapter will explore the case law generated specifically in the Indian case law and also changes in it, while at the same time explore what reasons Court’s have applied to resolve these issues.

 

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Affidavits of Support: Another Option for Divorcing Immigrant Spouses

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Affidavits of Support: Another Option for Divorcing Immigrant Spouses

By: Molshree “Molly” A. Sharma / April 2015

 

 

In addition to seeking spousal maintenance, divorcing immigrants who moved to the United States to get married might have another, and perhaps better, way to seek support - suing to enforce the affidavit of support signed by their sponsoring spouses.

 

In Illinois, spousal maintenance is a complicated issue with a vast body of interpretative case law. As a result of the inconsistent outcomes from the circuit courts, the Illinois General Assembly recently passed statutory maintenance guidelines, which judges can only deviate from if there is a strong justification for doing so.

 

But in addition to traditional maintenance, another option might be available for immigrants who move to the United States for the specific purpose of getting married. Sponsors of these immigrants must sign an affidavit of support, agreeing to support them at an annual rate of not less than 125 percent of the federal poverty line.

 

As courts are beginning to enforce these affidavits in concert with divorce proceedings, family law practitioners need to be aware of their impact. This article will first take a brief look at Illinois' new maintenance guidelines, then explore this additional support option for immigrant spouses.

 

Illinois' maintenance guidelines
Illinois' new statutory maintenance guidelines took effect on January 1, 2015. (For more about the guidelines, see Brian A. Schroeder, The New Illinois Spousal Maintenance Law: Retroactive or Prospective?, III. B.J. (Jan. 2015).)

 

Under the guidelines, which apply to couples with a combined annual gross household income under $250,000, the court must first determine whether it is appropriate for either party to receive maintenance. For example, if both parties have a comparable income and are well educated, young, and healthy, the court may decide maintenance is not necessary.

 

If, however, the court deems it a "maintenance case," the guidelines provide a formula for determining the amount and duration of the maintenance award. Under the formula, the payee receives the difference between 30 percent of the payor's income and 20 percent of the payee's income. Maintenance may not exceed 40 percent of the sum of the parties' combined gross income and the payee's gross income.

 

The duration of support is calculated by multiplying the number of years of marriage by the appropriate guideline factor. Specifically, the factor is .2 for marriages of 0-5 years, .4 for marriages of 5-10 years, .6 for marriages of 10-15 years, .8 for marriages of 15-20 years, and for marriages of 20 years or longer, maintenance may be permanent.

 

If the parties' combined annual gross household income is over $250,000, the court considers the length of the marriage, the needs of the recipient party, the earning capacity of each party, the duration of the marriage, and other factors.*

 

The problem for immigrant spouses
Under both the new maintenance guidelines and pre-guidelines case law, the longer the marriage, the higher the likelihood of a maintenance award. The length of the marriage is a key factor in determining both the amount and duration of maintenance, and a short marriage generally results in minimal maintenance. For example, a woman married for two years could receive little or no maintenance if she is young, healthy, and well educated.

 

For an immigrant marriage, this has serious consequences. A young woman moving from overseas may not know anyone in the U.S. Her husband is likely sponsoring her immigration application, and she might not be legally permitted to work (depending on her visa) or might need to retrain and complete credentials that are more acceptable in the U.S., requiring her to make the necessary contacts in a foreign land. Women who move to join their husbands already living here often find themselves totally beholden to their spouses financially.

 

Moreover, due to cultural pressures, these women may be reluctant to return to their countries of origin. Young women in particular may be subject to abuse and isolated without access to the resources they need. While the same could apply to immigrant men, statistics indicate that the majority of people affected are young women.

 

Illinois' new maintenance guidelines provide little relief for an immigrant spouse whose marriage doesn't last long, because the duration of the maintenance is directly related to the length of the marriage.

 

Enforcing an affidavit of support
Importantly, in addition to pursuing traditional maintenance awards, immigrant spouses can also seek to enforce their sponsoring spouse's affidavit of support under contract principles. Pursuant to the Immigration Nationality Act ("INA"), the affidavit of support is a legally enforceable contract that the sponsored alien can sue to enforce in any state or federal court."

 

By filing an affidavit of support, a sponsor agrees to support the sponsored immigrant at an annual rate of not less than 125 percent of the federal poverty fine. The support must continue until a triggering termination event occurs - e.g., the sponsored immigrant becomes a naturalized citizen, completes 40 qualifying quarters (approximately 10 years) of work, dies, or becomes capable of providing for himself or herself. Divorce, however, is not a terminating event.

 

Since the INA explicitly grants subject matter jurisdiction over affidavit of support enforcement actions to any court, claims are often raised in divorce proceedings. One of the seminal cases in this area is Naik v. Naik, decided by a New Jersey appellate court.

 

The case involved parties who were married in India. After the marriage, the husband, Sumeru, first returned to the U.S. and then sponsored the immigration application of his wife, Urvi. The parties had contact solely via telephone for 15 months and had only met in person briefly before their wedding.

 

When Urvi came to the U.S., she discovered that the parties were completely incompatible, and the marriage broke down shortly thereafter. In fact, the Naiks contend that the marriage was never consummated, and each alleged severe mental cruelty against the other.

 

The New Jersey trial court entered a dual judgment of divorce and denied Urvi any maintenance. Specifically, after hearing testimony, the trial court contended that maintenance was unwarranted based upon "the very short duration of the marriage; the young ages of the parties; the fact that no children were born of the marriage, and that both parties are in good physical and emotional health."

 

The judge found the wife to be a well-educated person, who had a diploma in mechanical engineering and was fluent in Hindi and Gujarati and practically fluent in English. The marriage did not keep the wife from the job market, and she demonstrated no plans to return to school or to rehabilitate herself in any way.

 

Urvi successfully appealed the trial court's judgment and (remarkably) argued the appeal pro se. Urvi contended on appeal that Sumeru was bound by the affidavit of support that he filed when petitioning to sponsor Urvi's permanent residence, or green card, application. The appellate court agreed and, in determining how much support Urvi was entitled to, wrote as follows:

 

the sponsor is not necessarily required to pay the sponsored immigrant 125 percent of the Federal Poverty Guidelines.... Rather, considering the sponsored immigrant's own income, assets and other sources of support, the sponsor must pay any deficiency in order to meet this minimum level or floor. In short, the sponsored immigrant is expected to engage in gainful employment, commensurate with his or her education, skills, training and ability to work in accordance with the common law duty to mitigate damages. When the sponsor and sponsored immigrant are married, alimony, child support (if any) and equitable distribution of income-producing assets must be included in the sponsored immigrant's available support. Therefore, although (the Affidavit of Support] is an independent obligation, it is impacted by other monetary obligations set by the court in a matrimonial action.

 

Therefore, after setting spousal and child support and equitable distribution, the court should only consider (an Affidavit of Support] if the sponsored immigrant's sources of support fall below 125 percent of the Federal Poverty Guidelines....

 

In that case the sponsor is required to pay the deficiency only. If the sponsored immigrant's sources of support exceed this level, then no [additional) support is mandated by the INA. Moreover, the duration of standard alimony and (support pursuant to an Affidavit of Support] may differ. The [divorce court] sets the amount and duration of spousal support pursuant to N.J.S.A. 2A:34-23b and its interpreting case law. The obligation to pay...support (pursuant to an Affidavit of Support] continues until one of the statutory terminating events occurs....

 

Illinois precedent
A 2011 Rule 23 opinion from the Illinois Appellate Court, Second District, arguably supports the notion that an affidavit of support is relevant to awarding maintenance.in Amin, the trial court awarded an immigrant wife 18 months of maintenance, and she was allowed to seek further maintenance upon filing a petition for review within the 18-month period.

 

Note that the maintenance lasted roughly as long as the marriage itself (it began in January 2006 and the parties separated in September 2007). This could be construed as a nod to the extenuating circumstances of an immigrant spouse, who leaves a home thousands of miles away to start afresh in a new country.

 

On appeal to the second district, the immigrant spouse argued that the trial court failed to properly consider the affidavit of support that her husband had completed when applying for her green card. Ultimately, the second district held there was no abuse of discretion since the trial court did consider the affidavit of support and awarded $1,200 per month in maintenance when 125 percent of the federal poverty guidelines was only $1,128 per month.

 

The court stated that "[t]he record clearly reflects that the trial court considered the Affidavit of Support, in addition to the statutory factors and the applicable case law in discussing and ruling on the issue of maintenance."10 While the court did not elaborate on the mechanics of how the trial court should consider an affidavit of support, it nonetheless supports the proposition that consideration is proper.

 

Conclusion
Despite the new Illinois maintenance guidelines and the other statutory factors, the affidavit of support should bind the sponsor. The amount of support awarded should not be less than 125 percent of the poverty guidelines, and the duration of support can be up to 10 years.

 

Ironically, the same immigration sponsorship system that has held so many women financially hostage might now give them a way to leave a marriage by choice. Interestingly, these cases have not only been brought by immigrant women but, in some instances, argued - in appellate courts, no less - pro se by immigrant women themselves.

 

The challenge for practitioners is how to counsel both clients who intend to marry and sponsor an immigrant and those who plan to immigrate and be sponsored. A prenuptial agreement might be the best way to define parties' obligations. In the meantime, matrimonial lawyers who serve immigrant clients should monitor the developing case law.

 

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Reprinted with permission of the Illinois Bar Journal, Vol. 103 # 4, April 2015. Copyright by the Illinois State Bar Association. isba.org

Family Law Support Awards for Adult Disabled Children in Illinois

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Family Law Support Awards for Adult Disabled Children in Illinois

By: Molshree "Molly" Sharma / December 2012

 

 

As social-service resources grow more scarce, parents will increasingly be called on to support disabled children past the age of majority. This article looks at the factors that affect support awards under 750 ILCS 5/513 and discusses national trends.

 

Parental support for disabled children past majority is a moral duty, but is it a legal one? Many states have established divorce statutes that obligate parents with the means to do so to provide for their disabled children well past the age of majority.

 

Yet this has always been an issue of split opinion in the United States. The opposition reasons that society is responsible for supporting the adult disabled members of our population instead.

 

This article looks at the statutory factors Illinois courts consider when deciding whether to award support to adult disabled children and reviews selected decisions from other states.

 

Supporting disabled adults: low marks for Illinois
Indisputably, the weak economy is hurting public programs that serve the disabled adult population. While the need for financial support for disabled adults is increasing, funds are less available. For example, in 1985 2.2 percent of American adults ages 25-64 received disability insurance through the Social Security Administration, a percentage that grew to 4.1 percent in 2005 and is predicted to continue to grow with no foreseeable increase in funding. This could result in strict screening for SSI applicants that could deny much-needed support to disabled adults.

 

In Illinois the crisis is especially severe. Illinois has historically received low marks for how it cares for disabled individuals. Within the last five years, the National Mental Health Association (NAMI) has ranked Illinois 51st in the United States3 and United Cerebral Palsy (UCP) has placed Illinois 48th in the country in serving those with developmental disabilities.4 As for housing adults with developmental disabilities, Illinois ranks last nationally in the availability of residential settings with six persons or fewer.

 

This means Illinois families must rely even more on personal resources for expensive private services, while more and more Illinoisans are unemployed (state employment rates are in the bottom half nationally).

 

Most states require parental support
With no foreseeable change likely in the quality or availability of public support services for disabled adults in Illinois, how will existing disability and divorce law be applied to meet the needs of this aging population? As litigation in this area increases, what test will the courts apply to achieve consistency?

 

Nationally, on the question of parental support for post-majority age children, states remain split along public policy lines. A handful of states do not mandate that parents support their adult disabled children as part of a dissolution agreement or otherwise. In New York, for example, courts have consistently upheld that the financial burden for adults with disabilities belongs to the state.

 

However, most states have followed the common law that developed in accordance with the Poor Law Act statutes that were generally in place at the end of the 19th century. These statutes allowed for the support of disabled children with special needs, except when parents were unable to provide any such support.8 Divorce statutes in the majority of states adopted this perspective in favor of parental responsibility.

 

Illinois gives courts equitable power to order support
In Illinois, the common law rule is that parents are not obligated to support their adult children.9 However, The Illinois Marriage and Dissolution of Marriage Act at 750 ILCS 5/513 gives the court powers of equity to provide support past majority in cases of need due to a child's disability or post-secondary education.

 

According to section 513(a)(1), "When the child is mentally or physically disabled and not otherwise emancipated, an application for support may be made before or after the child has attained majority."10 Although not specified in the statute, Illinois case law consistently supports the majority view that the disability must begin before the child reaches age 18.

 

A child's disability must be specified in a dissolution order and accompanied by a provision allowing for modification after the child reaches majority. Illinois courts then consider the factors identified in the statute to determine an appropriate amount for continuing support. Section 513(b) provides as follows:

 

In making awards under paragraph (1) or (2) of subsection (a), or pursuant to a petition or motion to decrease, modify, or terminate any such award, the court shall consider all relevant factors that appear reasonable and necessary, including:

 

  • (1) The financial resources of both parents.
  • (2) The standard of living the child would have enjoyed had the marriage not been dissolved.
  • (3) The financial resources of the child.
  • (4) The child's academic performance.12

 

Parents are not liable if they can prove they cannot support the child.13 Note, however, that Illinois courts have ruled that third-party income can be considered as a financial resource when calculating child support.14

 

The effect of a disabled child's income
Although the financial resources of parents are central to calculating post-majority support for adult disabled children, the financial resources of the child are also a factor. Because adults with disabilities are often unable to work, their financial resources are usually minimal and do not figure as prominently in support calculations as do the financial resources of the parents. But they are part of the calculus.

 

There is no definitive rule in Illinois that dictates how child support will be determined for a disabled adult child. Therefore, courts have discretion to apply the child support guidelines outlined in section 505 of the Illinois Marriage and Dissolution of Marriage Act or, alternatively, to apply a needs-based analysis to individual cases.15 There is no indication that Illinois would buck the national trend in favor of awarding support to disabled adult children.

 

Also, courts that follow that trend would not allow supplemental benefits from the government to offset standard support calculations. Additional benefits, such as Social Security and Medicaid, would still be awarded independently of judicially determined post-majority parental support.

 

What does "emancipation" mean?
Although the meaning of section 513(a)(1) appears transparent, two factors inherent in the statute, emancipation and employment, remain open to inconsistent interpretation. In Illinois, the age of emancipation is 18. Legal emancipation occurs when one is not only permitted to live apart from parents but has the intent to do so.16 A look at rulings in other states is instructive.

 

The intent to be self-sufficient is typically manifested by marrying, moving out, and taking employment, among other things. Emancipation cannot be presumed, but must be established by evidence.17 As long as a child is still under the care, custody, and control of his parents he or she is not emancipated.18

 

Courts look to the law to determine the criteria for emancipation, and they look to the facts to determine if it has taken place.19 For example, adult children who reach the legal age of majority and live away from home are not necessarily emancipated. If a parent enables independent living by providing a high level of financial support, there is no emancipation.

 

Presumed emancipation is particularly unsuited to cases involving disabled children. The legal age of majority is an artificial benchmark for most.21 Disabled children who reach majority do not suddenly become self-sufficient. Some may be legally able to marry or live away from home but still require substantial parental support.

 

Disabled-but-employable = ineligible for support
Emancipation is an implied element of 513(a)(1) in the same way that employability is also inferred by the wording of the statute. Case law suggests that, in Illinois, the term "disability" is most frequently interpreted to mean "the inability to pursue an occupation or perform services for wages because of physical or mental impairment."23 In addition to the ability to work, many courts in other states also consider whether employment is available to a disabled person at a supporting wage.

 

Although courts differ from state to state concerning relevant and convincing evidence as proof of (un) employability, the majority of states apply a reasonableness standard25 and place the burden of proof on the person claiming the disability.26 In Illinois, courts have ruled accordingly. Without proof that the disabled adult child is incapable of or ineligible for employment, a court will not order parental support.27 In the absence of clear evidence, such as expert testimony regarding diagnosis or work experience, courts will abuse their judicial discretion if they approve an application for support.

 

Constitutional challenges
Illinois will struggle with the same issues related to post-majority support for adult disabled children that challenge the nation as a whole. Alternative approaches bypassing dissolution statutes altogether, like those in Florida that encourage disabled adults to file individually for support,29 raise problems of their own. Such approaches create an extra procedural complication for disabled adults and delay much-needed support.30 Additionally, requiring 10 million disabled adults across the country to sue their parents to receive support is not a reasonable solution.31

 

Furthermore, statutes such as 513 continue to face constitutional challenges in various states. If a married parent has no legal obligation to support a disabled adult child, can a divorced parent constitutionally be ordered to provide support?32 In the Pennsylvania case Curtis v. Kline, post-majority support was ruled unconstitutional because it violated the Equal Protection Clause33 by treating similarly situated children unequally.34 The distinction between children of divorced parents and children of married parents was found to be inequitable.35

 

However, South Carolina's law withstood constitutional challenge when a court found no equal protection violation because the statute treated divorced parents like all other parents.

 

In 1978, the Illinois Supreme Court reversed the judgment of a trial court that declared section 513 unconstitutional.37 The supreme court said the imposition of a support obligation on divorced parents, such as the one created by section 513, is constitutional because it is "reasonably related to a legitimate legislative purpose."

 

However, a recent decision illustrates that the constitutionality issue continues to concern at least one member of the Illinois Supreme Court. In Clark v. Children's Memorial Hospital, Justice Freeman wrote in dissent that "if divorced parents may be required to provide support which married parents have no obligation to provide, this presents serious, potential constitutional questions concerning both equal protection and due process."

 

Regardless of this larger legal issue, Justice Freeman's dissent includes the following observation about the disabled child in question: "Timothy will never become emancipated; he will never be able to care for himself...It is beyond question that Timothy's condition will not improve once he achieves the age of majority."40 This gives hope to those who think section 513's minority/majority age analysis overlooks the fact that nothing changes in a disabled condition at the age of majority.41 Supporters of this view feel that "[t]he arbitrary age chosen for the age of majority should not override...policy" and that "inconsistency and inequity" will follow.

 

Molshree Sharma of the Chicago firm Feinberg Sharma is experienced at negotiating the impact of special needs on all areas of family law.

 

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Reprinted with permission of the Illinois Bar Journal, Vol. 100 # 12, December 2012. Copyright by the Illinois State Bar Association. isba.org