Illinois Lawyer Referrals and Legal Guidance

With couples heading to the alter later in life, after each has had an opportunity to bank some money, the issues of whose property is whose when they come together gets more complicated.  If two financially struggling individuals become engaged, they grow their marital assets together.  But if one or both has significant income to start, and buys a house with one spouse’s funds, it may be challenging to decide whose house that is if they divorce after living there for some time.

Generally, if you have your own funds that you keep completely separate, you do not necessarily have to share that money if you divorce.  But money that once began as clearly separate, single assets, can change character and become joint, marital property if you are not careful to protect its separateness.  When it comes to a house that was purchased before marriage, Illinois law will look at more than who paid for it, when deciding if the house is marital property in divorce and has to be divided, or if it stays with one spouse.

A recent Illinois case told the story of a husband who put considerable money into buying a home that he and his wife later lived in.  Though it became the family home, according to this husband, he had purchased it before he was married, and he argued that it was his alone and not marital property.  The court saw it differently.  The home purchase was considered to be for the purpose of the marriage, and not just a single person’s real estate buy.

In these situations, several factors are looked at to see if the total picture together looks like the home is for the marriage and should be divided.  One factor to be looked at is where the money came from to buy the house.   But this alone does not answer the question.  The courts will also look at the surrounding circumstances, including how soon before the marriage the home was bought, and whether there are facts that show the house was bought in order to be the marital, family home.

In this case, the wife was able to show that even though a large amount of the husband’s money was used for the purchase, it was done with the intent to be the home they lived in together with their children.  The wife had been involved in helping to make designs changes that would be better for the children.  The husband had only purchased the house three months before the marriage.  Also, though a substantial portion of his money had been used, some of the money involved was also marital money.  These factors taken together showed that the husband’s funds he put in were not to be kept separate as his own money any longer. The home was marital property.

Apparently the husband was aware of the potential for his money becoming marital property if he bought their home.  He testified that he had purchased the house prior to the marriage, to keep this from happening, and to safeguard his investment.  This clearly backfired on him, and the house ended up being subject to dividing between couple during their divorce.  Before putting all your hard-earned savings into a home with the expectation you would get it back if you divorce, you should check out your particular situation with an attorney so you are not regretting it later.

2/9/12

Many couples going through a divorce enter into a marital settlement agreement to decide how to divide their property and other assets.  Rather than leaving it up to a judge to decide, the husband and wife attempt to reach an agreement, and then ask the judge to approve it.

When you are figuring out what each of you should get, it is critical to know what assets each of you has.  The process of finding out what your spouse owns, is called “due diligence.”  You are each supposed to take the time and necessary steps to find out for yourselves what assets your spouse has, and to disclose your own assets.

But in a recent Illinois case, a wife was told that she did not do enough to find out about her husband’s property, and as a result, she lost out on the chance to share in almost $2 million in assets she later found out about.  The court said that this was not a case where one spouse was hiding property from the other.  But instead, it was a case where one spouse should have used more formal, legal methods of discovering what her husband owned, and since she did not, she was out of luck.

The wife seemed to make a logical argument.  She had relied on her husband’s statements and disclosures in the divorce, and trusted that he was telling her everything.  She believed that relying on her husband’s statements in a divorce case was in fact “due diligence,” and she should be allowed now to have a chance at a share of the other property.

But the court made it clear that Illinois law does not allow one spouse to skip the formal steps of discovering the other’s assets, and call it “due diligence.”  Even in a situation where there is a marital settlement agreement, and each spouse is representing to the other that he or she disclosed everything, you still have your own duty to find things out for yourself.

If you do not, and you rely on the word of your soon-to-be ex, then you take a risk that you are not going to get everything you may be entitled to.  Because there is plenty of time to get all the facts yourself, and there are formal procedures for doing it, you cannot sit back and complain later.

This case shows another reason that having your own, experienced attorney representing you in your divorce can be important.  Sometimes, where there does not seem to be a lot of property to divide, there are no children involved, and the couple is getting along, they might be tempted to save money and go without an attorney.  Be sure if you decide to go this way, that you are certain that there is not much money involved, and you will not be in for a surprise later.

2/2/12

One option for parents that are going through a divorce, is to choose a joint custody arrangement.  While the name may sound like it would be an equal split of the time spent with the children, in fact, Illinois joint custody does not related to actual physical custody at all.

In Illinois, joint custody is really an arrangement to jointly parent the children.  It means that both parents share equally the rights and responsibilities for the children’s education, health care, and religious training.   Regardless of the physical custody arrangement, each parent has a say over what happens with the children in these major areas of their lives.

In theory this may sound simple, but in practice it can get complicated.  Two people who likely may not agree on much in their own personal lives need to be able to make joint decisions about significant areas of their children’s personal lives.  For this reason, there are some tight controls on joint parenting in Illinois.

First, joint custody has to be approved by the court, and will only be granted if it can be shown that the parents will be able to cooperate with each other in the parenting decisions.  A high level of cooperation is needed by the couple to be able to have success at joint custody.  The judge will look at how likely the parents are to comply with the parenting agreement, other factors that show the ability and willingness to work together towards these important decisions.

Second, joint custody arrangements are controlled by either a joint parenting agreement that the couple comes up with, or a joint parenting order by the court.  These joint parenting documents set out the specific parameters of each parent’s rights and responsibilities for the care and decisions of the children.  Just to say that the parents share jointly in their parenting duties is not enough.  Each family situation is unique, and so each joint parenting agreement or order should specify the areas of care and decision that will be decided together, and what each parent’s rights and duties are.

Third, the joint parenting agreement or order also needs to specify what the process will be when there is a disagreement in concerning the plan.  Since the plan will govern the relationship for many years, it is likely there could be issues that arise.  So each joint parenting plan should set out what happens when there are changes needed, disagreements, or the plan is not followed.

The issues that are involved in joint parenting can be challenging decisions to make even among married parents.  If attempting to make these decisions by jointly parenting with an ex spouse, it is important that it be a cooperative situation, and that a very solid agreement is put in place.

1/30/12

When a couple is divorcing, it can be an advantage for them to reach an agreement about money, property, and other issues between them.  They can sign a Marital Settlement Agreement which spells out the resolution of these issues.  Rather than fighting in court about these matters, the judge will look at the terms of the agreement, and decide if they are fair.  If the judge approves, then the agreement takes effect.

But before you agree, be sure you know what you are getting into.  Some Marital Settlement Agreements can have effects lasting far into the future.   What may seem to make sense under your current financial and lifestyle circumstances, may feel quite different a decade later.  If you want the terms to have some flexibility to change with your changed situation, then do not lock yourself in to an agreement that cannot modified.

In a recent case decided in an Illinois family court, a husband was likely wishing he knew then what he knows now.  He and his former wife signed a Marital Settlement Agreement, where he promised to pay her a fixed amount every month for maintenance (alimony), and other payments, unless or until either of their deaths or the wife remarries or cohabitates.  The Agreement said that the payments could not be modified even by a judge, unless both of them agreed to the change.

The problem was, though, that 10 years later the husband’s financial situation was not at all what it had been when he was signing that agreement.  He claimed that to continue the same payments would mean that he had to liquidate his assets, and would be unable to support himself.  The husband tried to argue to the judge that the agreement was unfair and should be modified.

Unfortunately for the husband, once he signed the Marital Settlement Agreement which said a judge could not modify the maintenance terms, he was stuck with them.  The fairness determination was made at the time the agreement was entered in the divorce, and the fact that it might be unfair under his current conditions could not be considered.

He locked himself into paying a fixed amount of money each month, rather than a percentage of whatever his current income would be.  And he locked himself into the amount being virtually unchangeable.

Sometimes locking in the terms for maintenance could be an advantage.  If his finances had changed for the better, he would not be required to pay more.  The uncertainty of being brought into court to reopen the payment amounts is erased.  But the downside is that where circumstances make the old arrangement an impossible fit for the present financial situation, you could be stuck.

1/24/12

If you are going through a divorce and splitting assets, you are probably focusing on the most apparent items, such as your house, car, bank accounts. But, have you thought about your retirement plans, such as 401(k)s, IRAs and pensions? If a spouse acquired any of these items during the marriage, then it is considered “marital property” in Illinois and is to be divided equitably. That is where a QDRO comes in.

What is a QDRO?

QDRO (typically pronounced “quadro”) stands for Qualified Domestic Relations Order and is a legal document that divides a retirement plan between two spouses at the time of divorce. It is a separate document from a marital settlement agreement.

In Illinois, retirement plans acquired by a spouse during the marriage are considered “marital property” and are to be divided equitably. This means that if any of portion of the retirement plan was acquired before the marriage, that portion is likely to be considered separate property and can be retained by the spouse who acquired it before the marriage.

What a QDRO does is direct the retirement plan administrator to create two separate accounts (one for each spouse) with the ‘gaining’ spouse having complete control over their new account with the same rights to the account as the former spouse has to their own.

Then, the retirement plan assets are divided. Assets with known values, such as a 401(k) plan are easier to divide whereas a pension – which has a value in the future like $1000 per month starting at age 65 – is not as easy to divide and may require the retention of an expert.

When should you draft and sign the QDRO?

It is highly recommended that you have the QDRO drafted and signed by the judge at the time of the divorce. This may require extra work on the part of your attorney, including calling in financial and accounting experts but it is the recommended course of action.

Oftentimes a marital settlement agreement will state that the retirement plan is to be “divided equally” but there is no accompanying QDRO outlining the specifics. The problem with this is that after the divorce is finalized and a QDRO is then prepared, you run the risk of learning that some of your retirement assets are the type that cannot be split. This changes the dynamics and possibly what you would have agreed to in the divorce. It is best to address these issues at the time of the divorce before it is too late. So, finalizing the QDRO post-divorce only racks up further attorneys’ fees and the possibility of retirement plan assets not being divided properly.

Is a QDRO my only option?

A QDRO is not the only mechanism for splitting retirement plan assets. Instead of drafting a QDRO, you can value the retirement plan assets and then the spouse without the retirement account can have property of the same value, such as real estate, investments or other assets, to compensate him or her. This is called the “offset” option.

Now what?

The above options may sound extremely simple but they are not. Valuing assets, particularly those in a retirement plan, can be a complicated endeavor with a number of factors to consider, such as future value, fees and penalties, etc.

Whichever option is ultimately right for you can only be determined by careful consultation with your attorney and accountant. A QDRO must be carefully drafted to cover all possible future scenarios, such as death before retirement age, for instance. It is worth the time and effort now so that you are not left undercompensated in the future.

1/13/12

Reports of child abuse and neglect are investigated by the Illinois Department of Children and Family Services and anyone can contact DCFS to make a report if he or she suspects or has reason to believe a child is being abused or neglected. While most reports target the parent of the child, DCFS will investigate anyone who regularly interacts with the child, such as a teacher or daycare provider, as well as anyone who lives in the child’s home.

It is important to note that even though a DCFS report may not result in police involvement or a criminal case, it can. One of their reports can lead to criminal charges against you, loss of physical custody and even termination of your parental rights as well as prevent you from pursuing a certain line of work or job. So, it is strongly recommended that you speak with an attorney as early as possible.

In instances where criminal charges are not sought, DCFS may allow you to retain custody as long as you follow a certain plan. In other cases, they can keep your matter out of court as long as you agree to relinquish physical custody and place your child with someone else. Each case is different and depends on the facts and the investigation.

As noted above, anyone can make a report to DCFS but there are certain individuals who must make a report if they have reason to believe or suspect neglect or abuse. These “mandated reporters” include childcare providers, teachers, doctors, law enforcement officers and social workers, for example.

The parent or person being investigated will not be able to find out who reported them in most cases. Sometimes, in child custody cases, one parent may try to make a false report against the other parent. It is illegal for an individual to knowingly make a false report of child abuse or neglect and it can result in jail time and fines.

When a call is made to DCFS to report abuse or neglect and they decide there is enough information to make a formal report, it will then begin an investigation. During an investigation, an investigator interviews the initial caller as well as the accused and family members and anyone else who may have additional information. It is then up to the agency to decide whether to elevate the matter to the police.

After an investigation, if their finder of fact believes that a child has been abused or neglected, the report is entered into a Central Registry. This is called an “indicated” report. Once a report against you becomes “indicated,” you can appeal it.

This type of appeal is an administrative hearing with an administrative law judge, rather than a traditional court case. You have 60 days to request a hearing and at a pre-hearing conference, the judge will discuss the evidence and what witnesses will be called and if the child will testify. After the actual hearing, where the administrative law judge hears the case, the judge will make a recommendation to the Director of DCFS. The final decision is up to the director and you can appeal that decision in court.

Keep in mind that, through an appeal, you can review the results of the investigation, but you may still not learn the name of the person who initially made the report.

If the report is not “indicated,” but is instead “unfounded,” then DCFS can destroy all records of the report and investigation.

The area of DCFS defense is not an area of law that many attorneys practice. In reality, many people who are investigated cannot afford an attorney. However, having one can make a major difference in a process that may have huge implications on your life, your family, your work, etc. Illinois has some excellent attorneys who know and have experience with Children and Family Service rules and procedures for the state of Illinois.

Even if you are worried that you can’t afford an attorney, we still strongly recommend that you speak to someone for a consultation at the very least and explore your options.

1/3/12