Illinois Divorce Lawyer Blog

The "Ask Amy" column today in the Tribune discusses marital affairs and the offended party's need to tell others, including the children, the reasons for the divorce:

I have been married for 25 years. My wife had an affair early in our marriage and we worked things out with counseling. Two years ago I caught her having another affair but for family and health reasons I did not divorce her at that time. We put on an act for others, including our two children, so no one knows how bad our marriage is. Now my kids are in college and I want a divorce.

Some of my clients first came to my office for an initial consultation with the damage of an affair at the forefront of their concerns. In some of these cases, the custody of the children is an issue. In other cases, there are no minor children of the marriage, and the concern is property division and spousal support.

In cases where child custody is concerned, a marital affair may or may not factor into the issues concerning the best interests of the children in divorce. It's easy to say that an adult affair shouldn't be a factor in a custody determination, but my view is that sometimes underlying the affair behavior are other behavioral and/or psychological issues. Some people that have affairs in marriage also present with underlying personality disorders; they act out impulsively, recklessly, or have narcissistic features whereby the needs of the children are ignored in favor of selfish pursuits. Where the betraying partner has underlying behavioral or psychological issues, these clinical issues of course need to be evaluated. In some cases, the affair itself has a direct impact on the children, and the party without fault would be the more stable and most fit party to have the custody of the kids.

Some states allow marital affairs to factor into the property division. Illinois is not one of those states. While some clients have a heartfelt need that the judge know that they were betrayed in the marriage, the judges are quick to tell litigants that affairs cannot be a factor that the court can consider in dividing the marital property. If a betraying partner has spent marital money on a paramour, that conduct, however, is dissipation under the IMDMA, and the court will consider the wasting of marital money during an affair and order the marital funds be reimbursed to the offended party.

Child support in a divorce case is often a contentious issue for divorcing parents. Divorce consultant and author Lee Block discussed child support issues in the Huffington Post's new Divorce section of this online journal. Ms. Block states:

Child support is always a hot bed of discussion. There are several reasons for this and the main one is, what exactly does child support cover? There are so many questions about child support and frankly no good answers. Child support becomes an emotional issue instead of a financial one, and everyone has a different view and opinion of what it should cover and how much should be paid.

Illinois child support statutes do not make the subject of child support easier to manage. While some of our neighboring states have adopted sophisticated matrices for allocating between both parents the burdens of financial support of children in a divorce, Illinois still requires that (a) the court determine a "residential parent" (ie a winner and loser of custody), and (b) for the "non-residential parent," a percentage payment based on their net income.

I understand the frustration and hurt of the "nonresidential parent" (most often a father) and the requirement that he have visitation and pay child support, without any statutory requirement that the residential parent account for how the child support payments are used. In some cases, the custodial parent uses the child support payments to augment his or her own personal lifestyle, leasing a new car or taking an adults only vacation with the child support funds.

I would like to see a fairer system of child support employed in Illinois. At the very least, the recipient parent should be required to use the funds received for the direct support of the child, and should account for the use of the funds, or at least be required by court order to use these funds for the children. I would also like to see Illinois adopt statutory presumed shared parenting, and create a child support matrix that would allocate financial support for the children between both parents. These changes would create a stronger sense of equity in divorce and take some of the sting out of contested custody cases.

Will Illinois ever make these changes? I feel this is doubtful. Illinois recently had a chance to consider a shared parenting statute, and this was jettisoned in favor of keeping the old, archaic status quo "winner and loser" custody statute. Illinois will balance its budget, I fear, faster that it will implement modern, equitable changes in its child custody and support statutes.

In representing parents in child custody cases, one must be diligent and employ cutting edge approaches to ensure the most equitable outcome for good parents. Illinois law makes these equitable results more challenging: all the more reason to have an experienced, creative lawyer on your side.

One of the hallmarks of an impending divorce is a noticeable change in financial status within the family household. Retirement plans get moved to new accounts. Joint checking accounts and credit card accounts begin to show unusual activity, such as unexplained charges or cash withdrawals. Some spouses will defer discussing the desire for a formal divorce until they have, in their mind, secured the family cash and the assets in a hidden account.

Judges will eventually require the return of marital assets to marital accounts, but all of us that work in the court system know that getting these injunction orders takes time and effort. It can be far better to be proactive in protecting marital assets, and securing copies of accounts, once the financial "red flags" of impending divorce start to appear.

I've provided a list of 12 items you might gather to ensure that you have most of the critical information in hand before your spouse has a chance to conceal, transfer or sell marital items. These include (but are not limited to) obtaining:

1. Copies of bank and credit card statements, either from the bank or from online access;
2. Copies of recent 1040 tax returns, W-2s and 1099's;
3. Copies of insurance policies;
4. Copies of retirement plan statements, including pension plans for qualified employees;
5. Copies of wills, codicils, and trusts;
6. Copies of titles to real property and vehicles;
7. Copies of receipts or statements for all nonmarital property;
8. Copies of small business ledgers, financial journals, payroll, sales tax returns and expense account records, for self employed individuals;
9. Copies of appraisals for art, antiques, jewelry and collectibles;
10. Video or Excel/photo inventory of each room and its contents in your home;
11. Copies of any loan applications or other docs that show sources of income/assets;
12. Copies of your spouse's pay stubs for the last months and recent end of year.

The following is a hypothetical example, but a very real description of a family dealing with legal issues in a recession:

When Patrick and his wife divorced, they agreed to sell their home. Yet, once a buyer gets close to making an offer, his wife backs off, believing she can buy him out of the house with housing prices (and the equity buy out price) dropping each month.

To complicate matters, Patrick, not his real name, recently lost his job. He is going to go back to court and ask that his child support be reduced. According to legal experts from around the country, Patrick’s tale isn’t unusual. The recession that’s affected every other aspect of America is now affecting family court as well. Clients are returning to court as a way to deal with financial hardships that are affecting their support obligations and property settlement agreements.

Despite the recession, many families need to re-engineer their family structure through a divorce process. Many couples need to separate and divorce. Psychologists that are studying the impact of the recession on couples in marital distress believe that despite financial concerns, couples whose marriages have failed should separate and divorce. Living under the same roof, to save money, is usually not a healthy option for the couple, and the children.

My law office has introduced some new payment plans to allow families in transition to afford the process of divorce. Payment plans, credit facilities, and even flat rate plans can be implemented to allow families needing family law services to afford them. My office has always worked on a cutting edge, creative, cost effective basis. I take pleasure in saving my clients money on legal costs, even in complex, difficult cases.

In a recession, we all have to work together to get through this difficult time of recession, and emerge down the road stronger, financially and emotionally.

Just as fuel efficient cars become more popular during a period of high fuel prices, cost effective legal representation in divorce cases becomes a welcome path for people looking to end their marriages. The Law Offices of Michael F. Roe has consistently advocated cooperative, mediated, and collaborative divorce as a lower cost, efficient, and low stress means of helping divorcing parties complete their divorce in a financially healthy way, even in a deep recession.

The deepening recession, increased unemployment, and a stalled housing market have negatively impacted most parties' financial situations. Many divorcing couples' homes are "under water" because of declining values and high mortgages. Other divorcing couples who are fortunate enough to have equity in their most significant marital asset, their home, cannot sell their house due to the slow real estate market. Combine that with the plummeting values of retirement accounts, and we are looking at marital asset balance sheets that are nothing less than bleak.

Although, historically, divorce rates tend to rise during a bad economy, divorce attorneys nationwide have noticed a change in the legal landscape. Some experts attribute the decline in divorce filings to the severity of the economic downturn. Typically, a recession results in decreased divorce rates for couples with limited financial resources. The prospect of incurring expenses for two households seems overwhelming for those with limited resources. On the other hand, high net-worth clients may seek to take advantage of the diminished value of their homes, stock and investment portfolios, and businesses to decrease their overall financial liability to their soon-to-be ex-spouse.

Continue reading "Cost Effective Divorce in a Recession " »

1. Hanging onto the house at all costs.

Many couples scrambling to obtain a divorce settlement wish to keep the house at any cost. However, keeping the four bedroom marital home may be a financial undertaking that neithe rparty can absorb in the post-divorce environment. Maintenance and child support to the recipient parent can help fund the mortgage and taxes, but some parties find that the burdens of keeping the marital home post-divorce outweigh the benefits, especially in this current home market/mortgage environment.

2. Failing to make a clean financial break.

Clean separation of assets and debts is another difficult task, but one that Howard Dvorkin, the founder of Consolidated Credit Counseling Services says is absolutely necessary, or the consequences can be devastating. Although the task may seem insurmountable, “the alternative is much worse,” says Dvorkin. “Having a spouse drive up your debt when you’re not married anymore” can seriously affect one’s credit score.

3. Counting on your ex to honor financial commitments.

Depending on your former spouse to comply with financial arrangements is also a huge mistake, according to this article. Although both parties in a divorce are beholden to a court-ordered divorce agreement, creditors are not bound by the terms of the divorce judgment. If your ex fails to pay on debts or loans, you may be hurt when applying for future financing.

4. Forgetting to change your will and beneficiary forms.

Wills and trusts can also be seriously impacted by divorce proceedings. Parties in divorce should separately seek counsel for the redrafting and execution of new estate plans, reflecting the wishes of the maker of the will and/or trust prior to the time of the divorce.

5. Overlooking taxes.

Finally, never forget which amount of money in your divorce settlement is maintenance, and which amount is child support. While child support payments are not taxable to the recipient, maintenance payments are.

Source: "Breaking Up Is Hard To Do Financially" by Kathy Chu, published in USA Today. Thanks to South Carolina Law Blog for the highlighting of this article.