November 30, 2006

DuPage County Divorce: Child Support Modification

Child support is an important feature of divorce and parentage actions. The primary residential parents needs the financial support from the non-residential parent. The non-residential parent typically pays 20% of net income for one child, 28% for two children, 32% for three, and so on.

Often, the party paying statutory child support suffers a change of work circumstances..he or she is fired, laid off, or suffers an illness or injury that causes them to lose work. Paying on a support order then becomes impossible.

When a party paying on an order of support suffers a change in circumstances that he or she did not cause, the payor party must then file a petition to abate (interrupt) or modify the prior support order. Support orders are like runaway trains..they just keep on moving unless stopped, and it's not enough to lose your job and hope to come to court a year later to expalin why you couldn't pay support. The court will require that the unpaid support be paid back, even though your job loss was not your fault.

In the Marriage of Chenoweth, the court found that changes in an economic circumstance sufficient to justify modification of a child support order, must be "fortuitous in nature and not the result of deliberate action by the party seeking reduction or termination." In Chenoweth, the non-residential parent voluntarily terminated his employment on the basis that he felt depressed at the time, although he never sought medical attention. The key word here is volunatrily.

The court held that unless good faith is shown, such voluntary change of employment would not be considered a sufficient material change to warrant modification of child support.

November 25, 2006

Holidays a Time for Concern over Visitation

The holiday season begins, and for many people in a divorce or in the aftermath of a divorce, the season raises concerns and stresses beyond the usual stresses of the holidays. Some of the concerns develop over the sharing of the holidays with children. Which parent will have the children on which days? Do the parents split Christmas Day, or alternate it each year? Whose church, synagogue or temple will host the children this holiday?

Judges are especially attuned to the holiday concerns...it is during this time of year that many courtrooms are filled with litigants...parents seeking a ruling on whether a parent can travel with the kids to New Jersey this year, to see aging relatives for the holidays, for example. Mnay of the judges will refuse to hear new cases once their holiday dockets fill up.

What to do with your new and worrisome holiday concern?

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November 17, 2006

Bargaining Away Each Other: Not in the Children's Interest

In Blisset v. Blisset, 123 Ill.3d 161, 526 N.E.2d 125 (Ill., 1998), the parties attempted to enter into an enforceable agreement whereby the mother waived her rights to future child support from the father in exchange for the father waiving his future rights to visit with the children. The Illinois Supreme Court held that the agreement was not an enforceable waiver between the parents since the parents were attempting to “bargain away their children’s interest.” Blisset, 123 Ill.2d at 168, 526 N.E.2d

The Blisset parents seem to have formed an agreement to bargain each other away. Dad essentially disappears from the lives of his children (and Mom), in exchange for Mom giving up her claim to financial support of the children. This is a very negative arrangement on many levels, and it's not surprising the Court determined that an agreement like this is not consistent with Illinois' best interest standard and public policy.

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November 16, 2006

Divorce & Financial Fitness for Women

One piece of advice from this news package was particularly good, among a lot of good information... the benefit of a job. Not only can a new job provide much needed new income to the new family system, but the social and emotional benefits of a well selected job can really help women mainstream back into the world (assuming they may have been homemakers previously), and provide new social contacts that help one navigate the emotional ups and downs of a new life.

One of my clients, who had not worked for many years, took a job with Crate & Barrel and found the experience very positive. The job was something of a stepping stone, but I believe it helped her adjust to her new life, and put some additional dollars into the family budget. She worked while her children were in school. The kids came home to a happier Mom, and Mom made some social contacts that helped her in her new life. Bravo to her!

November 12, 2006

The Appeal of the Collaborative Divorce

The Law Offices of Michael F. Roe practices collaborative law, and our collablaw divorce clients have saved time, stress, and money. Sounds appealing, doesn't it? How does a collabortative divorce work?

First, both spouses meet with their respective collaborative attorneys to discuss individual needs and concerns. Then, the couple and their attorneys meet in four-way sessions to reach a settlement without involving the court. Every issue – including property division, custody, and support – is put “on the table” in these sessions. Divorcing parties benefit from the skills, advice, and support of attorneys while striving to work things out in a positive, future-focused manner.

When a settlement is reached, we file the appropriate paperwork required by the court. The parties then reconvene for one final court date: the "prove up," when the judgment and the agreements are presented to the judge for approval.

November 5, 2006

Divorce Practice Must Lead to Resolution of Disputes

One of the reasons that I have been a proponent of alternative dispute resolution systems in divorce (such as collaborative divorce and mediation) derives from the sheer savings that can accrue to the parties by bypassing stressful and costly litigation, and implementing cutting edge alternative strategies that lead to settlement. Divorce is rough enough on the parents...it is a difficult life transition, and when children are involved, the issues concerning custody and parenting plans can really create anxiety and stress. The lawyers should promote positive resolution of difficult issues, when possible.

The story below from California (where I started practice as a domestic violence prosecutor) illustrates what lawyers managing divorce cases should never do: aggravate the already difficult status of the divorce case with outrageous conduct.

.....San Francisco, CA......A California appellate court recently rejected the request of John Fuchs, a divorce attorney, for $250,000 in fees -- and referred him to the State Bar of California for possible discipline -- on the ground that his tactics in a divorce proceeding aggravated a simple case into a costly legal feud that wasted the parties' money.


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