How should an individual go about selecting a divorce attorney?
In a litigant’s ideal world, they would be able to take all the time they needed to interview lawyers, observe them in court, read their briefs, interview their previous clients and make a decision. Unfortunately, that is not realistic, and therefore a referral from someone the individual already trusts – like a business professional, a corporate or estate planning attorney, accountant, wealth manager, or former divorced friend is a good place to start. These people may be able to speak to the legal acumen of the divorce attorney, as well as their professionalism. Google and Yelp are not the way to go. One never knows who is writing the reviews and if they were the former client, the former opposing party or anyone else. Remember – the individual is placing their trust in someone they may have just met an hour prior. They are relying on the lawyer to meet their goals and expectations, as well as obtain for them the best possible result in light of what the law provides.
What are the pros and cons of a large law firm versus a solo practitioner?
With a large law firm, there is typically one lead attorney managing the case along with one or more associate attorneys as well as the assistance of paralegals. There are several advantages to this structure, including the client having more points of contact with those involved in their case, delegation of responsibilities to the level of expertise needed, as well as a greater ability to manage multiple aspects of the case. Moreover, a larger law firm has the ability to prepare for complex financial and children’s issues in the context of either mediation or litigation. With litigation, a larger law firm will have a full support staff such as clerks and administrative assistants to assist in preparation of trial and deposition exhibits, scheduling matters, and overall logistics such as computer and audiovisual support. With mediation, a larger firm is best equipped to prepare detailed financial analyses in advance of mediation. A sole practitioner preparing for a large trial or complex mediation session simply does not have the resources at their disposal to best represent a client.
With a sole practitioner, in theory at least, a client should be able to receive more personal service in the form of increased direct contact with the one attorney handling their case. However, often times a sole practitioner gets spread too thin among all their cases and is not fully prepared to manage all of the issues nor has the available time to keep the client fully informed of the status of the case or the strategies moving forward.
What are the advantages and disadvantages of resolving a divorce case through mediation?
The typical mediation involves a mediator, the parties and usually their attorneys. The process is not binding on either party and typically involves several non-consecutive days of mediation.
There are several advantages to mediation versus litigation. First, resolving a divorce case in mediation is a completely private process and therefore, all of the details are confidential. In litigation, the details of your divorce are mostly public knowledge and occur in open Court and any paperwork filed with the Court is part of the public record. Mediation also allows for more creative solutions in resolving your divorce case versus litigation where a Court is limited in its remedies. Mediation allows the litigants to control their own destiny and not put their lives in the hands of the Courts. Typically, the duration of the mediation process is many months shorter than going to Court and litigating your divorce case. Since the process is typically much faster, there is much less emotional cost on the parties and their children and the financial cost is typically less than litigation as well.
There are, however, some disadvantages to mediation. First of all, it takes two willing participants in the mediation process and typically, one spouse has superior knowledge of the parties’ financial circumstances so the other participant must trust at a certain level that the opposing party is providing the full, accurate and complete financial information. Similarly, there is a risk that the financially superior spouse takes advantage of the other spouse resulting in an inequitable agreement. However, with attorneys involved in the mediation, this risk is mitigated significantly.
Is 50/50 still the standard relative to parenting time?
50/50 is not necessarily the standard relative to parenting time. In some cases, parenting time is split equally but parties agree to, or Judges order, a myriad of different schedules. The standard for determining a parenting schedule is the “best interests” of the child or children and, in Illinois, there are seventeen (17) factors listed in the statute that the Court is directed to consider in determining a child’s “best interests”. In my experience, one of the most relevant considerations is a parent’s prior involvement in the caretaking of the child or children. While, it is not uncommon for a parent to be allocated more exclusive parenting time subsequent to a divorce than they had when the parties were married and residing together, the parties’ prior involvement is often used as a guideline. Given that every family is different - children’s ages, activities and needs vary, as do parent’s work schedules and other obligations - every parenting schedule is different. Parents should try to work together to determine what will work best for their child or children- and not feel that the parent allocated the majority of the parenting time somehow “wins.” In reality, everyone wins if the parenting time schedule works for the entire family and provides for an amicable resolution of one of the most emotional - and important - aspects of a divorce.
How much information about their pending divorce should parents share with their children?
The amount of information a parent shares about his or her pending divorce depends on the age of the child but, in all cases, a parent should limit details of any conflicts and disagreements. For very young children and elementary school aged children, nothing beyond basic explanations of changes in their lives needs to be explained. For middle school aged children, more detailed explanations of living arrangements and parenting schedules should be discussed. Parents can explain who will be at sporting events, how they can be in contact when not together, and other details of the schedule. Parents should even consider written calendars or online calendars or other tools to help children keep track of their schedule. For older, high school aged children, sometimes additional explanations beyond simply their schedule are required. Older children are inquisitive and may have more detailed questions about relationships and emotions and parents should exercise care in answering such questions while attempting to balance efforts to answer questions with care not to demean or malign the other parent. Children should be protected from the conflicts and ugliness of any divorce to the greatest extent possible. While in the moment sharing with a child details might seem important or even feel like a vindication, in the long run, children really do need both their parents - even if a parent has significant flaws and limitations - and oversharing or disparaging never is in a child’s best interests.
What kind of recordkeeping should divorcing couples do leading up to and during their divorce?
Record keeping can generally be divided into three primary categories. The first is simply retaining all relevant paperwork such as bank statements, credit card statements, bills, receipts, insurance documents, estate planning documents, real estate documents, and tax returns and all documents used to prepare the same. Typically, one should have all of those documents going back at least three years prior to the divorce. Second is obtaining any documents that are not already in a party’s possession. Even though records can be obtained through discovery requests and subpoenas, it is far quicker and cost effective for the parties to obtain these documents on their own either online or through contact with the keeper of those records. For example, most banks and credit card companies allow individuals to download at least the past year or two of account statements directly from a website. For tax and insurance documents, a call to the accountant or broker is usually all it takes to obtain the records. Finally, the logical organization of all of these documents will go a long way toward making the divorce process more efficient and less costly. The best structure is to organize the documents by calendar year and then further into subsets for each account or category for each particular year. As an added step to the organization of records, it is always helpful when parties have a contemporaneous or after-the-fact breakdown of their sources of income, annual or monthly expenses, and a basic balance sheet of their assets and liabilities.
How will changes in the federal tax laws taking effect in January 2019 impact how maintenance is calculated?
For divorces occurring after January 1, 2019, maintenance will no longer be tax deductible by the payor and no longer is taxable to the payee according to the new Federal Tax Code. As such, the Illinois State Law regarding maintenance for families with a gross income of less than $500,000 per year will need to be amended because the guidelines in the law as to the amounts to be paid contemplate that the payor receives a federal and state income tax deduction. Consequently, the guideline of 30% of a payor’s gross income will need to be adjusted to account for the fact that the payee no longer pays income tax on the amount they receive, thus receiving a windfall. This could be accomplished in at least a couple ways. The percentage of the payor’s gross income could be lowered from 30% or there could be a new guideline based on a payor’s net income (net of taxes). Specifically, the first step is usually an analysis of the after-tax dollar amount of maintenance needed and the gross income available to pay the same. Now there will also need to be an analysis of the payor’s net income. Ultimately, this change in the tax treatment of maintenance, while creating more complexities than with the prior law, will not be creating any unique challenges inasmuch as child support has always been calculated on a net dollar basis with the same types of annual true-ups to account for actual taxes paid. The maintenance analysis will not change because both sides will still want to know the net impact to their individual cash flow, but the implementation of the payments will now be the same or similar to the more cumbersome way child support has always been addressed. In cases where guidelines do not apply, the Courts, mediators and litigants need to adjust the numbers accordingly.
What are the potential pitfalls and safeguards of prenuptial agreements?
If a prenuptial agreement is drafted by a competent and skilled attorney, there should only be safeguards - and no pitfalls. Under Illinois law, a prenuptial agreement should be in writing and signed by the parties. A prenuptial agreement will be considered valid if it was executed voluntarily and if it was not unconscionable when executed. A Court may only find an agreement unconscionable if there was not a proper disclosure of assets and obligations. Thus, one of the most important aspects of any agreement is ensuring that assets and obligations are properly and completely disclosed. This ensures both parties fully understand the terms and provisions of their agreement in the context of their assets. In addition to ensuring full disclosure, a skilled attorney should draft a clear and comprehensive agreement. Unclear or contradictory provisions can result in extended litigation, which is exactly what the parties hoped to avoid by entering into an agreement. Also, of note, no agreement can address the allocation of parenting time or decision-making for children nor can the agreement address issues of support for children. These are issues that cannot be dictated in advance in any type of prenuptial agreement. Finally, it is important to contact your attorney well in advance of your wedding date to ensure an agreement can be finalized without undue stress and pressure and possibly even financial concessions in the days leading up to a wedding.
What impact does international jurisdiction have on custody cases?
It all depends on in which country the case is pending. We have dealt with cases involving international jurisdiction with Singapore, Thailand, China, Canada, Brazil, Israel, Russia and England. For the most part, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), in a newly filed case, jurisdiction is presumed to be where the child is located, unless they have not been in that location for the past six (6) months. The UCCJEA expressly provides that our Courts are to treat a foreign country as if it were a state of the United States for the purposes of applying certain portions of the UCCJEA. Subject to limited exceptions, a child custody determination made in a foreign country must be recognized, unless the foreign country violates fundamental principles of human rights. The UCCJEA does not limit the jurisdictional reach to countries who have signed on to The Hague Convention. Of utmost importance is knowing if the foreign country you are dealing with has signed on to the relevant portions of The Hague Convention or are considered to violate the fundamental principles of human rights. In addition to the UCCJEA, laws that sometimes come into play include The Hague Convention, and the Federal Parental Kidnapping Prevention Act.
What are some current trends you’re seeing in family law?
Since the revamping of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), maintenance has become more formulaic (in some instances), reducing some of the arguing about the amount and duration of maintenance. However, left open for argument is the amount of maintenance to be paid when the combined income of the parties exceeds $500,000. Further, in light of the duration of the maintenance being based on a formula, determining when a person with a maintenance obligation has retired in good faith is becoming hotly contested. Also with the changes to the IMDMA, what used to be the unwritten non-custodial parent schedule of alternating weekends and a midweek dinner/overnight has changed to judges awarding significantly more time to a non-custodial parent. Cases dealing with family owned and operated businesses are dealing with issues with regard to sufficiency of the distributions taken compared with the retained earnings left in the business, as well as the adequacy of the salary a party is receiving. Finally, the propriety of using trusts to transfer money from the estate as well as in lieu of a Premarital Agreement has been a new trend.