Publications

The Divorce Court’s Control of Parental Conduct

Published in Chicago Lawyer Magazine, October 2014
by Daniel R. Stefani

On May 28, 2014, in a 2-1 decision, the First District Appellate Court dismissed an appeal by a mother who disagreed with an order entered by the Trial Judge, which prohibited the parents from participating in certain behaviors when with their three children. While the trial court dismissed the appeal based on their holding that the order at issue was not an injunction for purposes of permitting an interlocutory appeal, the majority went on to analyze the order and hold that the order did not violate the mother’s right to due process. The dissent’s position was that the order was an injunction and that the order was defective on both procedural and substantive grounds. The case is In re Marriage of Eckersall, 2014 IL App (1st) 132223. It is fascinating the level of control a Judge has over parents once they avail themselves to the Court System.
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Disability Benefits – Marital Property or Income?

Published in Chicago Lawyer Magazine, August 2014
by Daniel R. Stefani

Since 1980, Illinois law has consistently held that disability benefits in pay status are marital property, subject to an equitable division between the parties. Other jurisdictions have held that disability benefits in pay status are income which can be considered for child support and maintenance issues. As such, in Illinois, any disability policy acquired during the marriage that begins paying benefits during the marriage is presumptively marital property. The case law is silent as to whether a disability benefit policy that is acquired before the marriage but begins payment during the marriage is marital or non-marital property. One could argue that if the policy is acquired prior to the marriage and payments begin during the marriage, the payments are non-marital property because the policy (the “asset”) was acquired prior to the date of marriage, versus the acquired “asset” being the disability payments. In such a case, it could be argued that the non-marital property could then be considered in the owner spouse’s ability to pay child support and/or maintenance. Also, it is unclear what, if any, authority the Court has over disability insurance policies that are not in pay status.
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Mediation of Financial Issues in Divorce

Published in Chicago Lawyer Magazine, June 2014
by Daniel R. Stefani

Effective March 17, 2014 Local Cook County Rule 13.4(e) regarding mediation of certain domestic relations issues has been revamped and expanded to allow for all aspects of a domestic relations case, including financial matters, to now be mediated by Court order.
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Who Gets the Pre-Embryo?

Published in Chicago Lawyer Magazine, April 2014
by Daniel R. Stefani

With the advance of technology comes new and interesting issues. For a while now, couples can freeze and use the male’s sperm and the female’s eggs to create pre-embryos. The eggs are fertilized in vitro and then the pre-embryos are frozen for potential impregnation in the egg donor or some third party. The issue resulting from creating frozen pre-embryos is who controls the disposition of cryopreserved pre-embryos when and if the couple decides to split up. In June 2013, the Appellate Court of Illinois, First District decided a case dealing with frozen embryos and the disposition of same.
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Same Sex Marriage in Illinois Becomes Law

Published in Chicago Lawyer Magazine, February 2014
by Daniel R. Stefani

On November 20, 2013 Governor Pat Quinn signed into law the Religious Freedom and Marriage Fairness Act (“Act”).  The Act becomes effective June 1, 2014.  Illinois becomes the sixteenth state in the nation to allow same sex couples to get married.  It is also allowed in the District of Columbia.
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A Divorce, A Bonus, A Dispute

Published in Chicago Lawyer Magazine, November 2013
By Daniel Stefani

Most compensation these days has two component parts – base salary and discretionary cash, also known as a noncash bonus.
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Amendments to Illinois Supreme Court Rules

Effective July 1, 2013, Illinois Supreme Court Rules 11, 13 and 137 have been amended. The new amendments enable an attorney to represent a client on a limited part of their lawsuit and then withdraw from the case.

Be Careful Who You Talk To

Published in Chicago Lawyer Magazine, July 2013
By Daniel R. Stefani

The Illinois Appellate Court First District recently issued a Supreme Court Rule 23 Order affirming a decision by the Honorable William S. Boyd in the Circuit Court of Cook County.  The case centered around whether an attorney-client relationship was established which prohibited an attorney from communicating with the opposing spouse during a divorce while that opposing spouse was represented by counsel.  It also centered on whether the attorney represented the litigant or was merely acting as a “third-party neutral” as defined by Rule 2.4(a) of the Illinois Rules of Professional Conduct of 2010.  This case, while having limited precedential value, reminds us all as attorneys that we must never lose sight of our ethical obligations even when presumably attempting to do a favor for our friends or family.
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Disgorgement of Attorney Fees

Published in Chicago Lawyer Magazine, November 2012
By Daniel R. Stefani

The Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) allows for one party to petition the court to order another party to pay their attorneys’ fees during the pendency of a case. If the court finds that both parties lack the financial ability to pay their own attorneys’ fees, the court shall enter an order that allocates available funds for each party’s counsel in a manner that achieves substantial parity between the parties. Available funds include “retainers or interim payments, or both, previously paid”. In such a situation, an attorney for one party may be required to disgorge “retainers, interim payments or both” pursuant to the statute. The Court’s ability to reach into attorneys’ client trust accounts and/or operating accounts to achieve such disgorgement is an issue that the Appellate Court has had to deal with on two occasions in 2012.
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Compelling Payment of College Expenses

Published in Chicago Lawyer Magazine, May 2012
By Daniel Stefani

Ever since I was a young practitioner, I have struggled with Section 513 of the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) which allows a divorced parent to compel the other to contribute to their child’s post-high school educational expenses.
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