Author: clunardini

In a divorce all the items, vehicles, property and the like purchased during the marriage, whether personal or not, are considered to be part of the marital estate.  In a divorce, the court will consider the value of these items and divide the items up between the spouses.  However, what happens to your collection of rare Beatles vinyl, your vintage Batman comics, your assortment of signed sports paraphernalia, etc.?  In most cases, the courts will not concern itself with personal properties such as clothes, everyday household items, electronics, jewelry and the like unless any of these items have a very significant monetary value, due to the time and legal costs involved in the court making these decisions typically far outweigh the value of the items.  However, collectibles may have a significant monetary value as well as a very significant sentimental value.

Collectibles tend to be in a different category of property, at least in the minds of the spouses.  Spouses can argue strongly over the division of collectibles.  This usually occurs for a couple of different reasons.  The first is that the spouses have differing and sometimes inflated opinions as to the monetary value of the collectibles.  The second reason is that each of the spouses wants the collection for personal reasons.  The personal reasons can vary from both spouses contributed time and money to growing the collection, to the collection may have emotional value to one or both of the spouses.  Further, one of the spouse may feel that the collection belongs to that spouse more than to the other.

However, divorcing spouses need to keep in mind that the courts do not take into consideration their differences in opinion as to the values of the collection or the varying personal reasons that one spouse may want the collection.  The court’s sole job is to divide the property.  If the parties cannot reach an agreement on dividing the collection, the court will treat it like any other property in the marriage, which will include having the collection sold and dividing any proceeds from the sale between the spouses.

One or both of the spouses do not want the collection sold due to the sentimental value .  A record collection, comic book collection, or coin collection usually means more to the collector given the time and effort involved in amassing the collection.  The collector usually has an emotional attachment to the items that far exceeds the “market” value.  As a result, the sale of the collection is often not a good option.

So, how can the issue of collectibles be handled?  Whatever the collection, whether it be comic books, sports paraphernalia, music paraphernalia, vinyl, etc., the first thing spouses should do is discuss their interest in the collection.  If one spouse wants the collection and the other does not have an interest, then this may resolve the issue.  If both parties are interested in the collection, go through the collection and determine if there is a way to divide the collection between the two parties.  It is better to retain some of the collection than to loose it all through a court ordered sale.

If one party has an interest in the collection and the other only in the monetary value of the collection, then have the collection independently appraised by a reputable and trusted expert who can provide a realistic value.  Keep in mind that such an appraiser will charge the parties for the appraisal.  From there, one party can buy out the other party’s interest in the collection.

The spouses can use one or a combination of all of these options.  The spouses can also devise their own creative solution.  The parties to a divorce should keep in mind that the value of a collection, despite the beliefs of the spouses, is usually only worth as much as the colleciton can be sold for, which is often far less than the “market” value of a collection.

Further, the parties should also keep in mind that if a settlement cannot be reached on the division of a collection, the court will often not divide the collection for the parties.  Nor will the court typically assign one spouse ownership of the collection.  So, if that is the decision you are hoping to get from the court, you will likely be disappointed.  Rather, the court usually handles the division of a collection by ordering the collection sold and then dividing the proceeds between the spouses.  Since it will be a forced sale, the spouses are likely to get far less than the “market” value or best price and will also loose the collection.  Finally, the cost in taking the collection issue to trial will often be more in time and legal fees than the collection is worth.  In conclusion, be creative, work with your spouse, and consider the options above in dividing your collection rather than placing the decision in the hands of the court.

 

You have decided that you are going to divorce your spouse and can no longer live with him or her.  You wish to move out with your minor children.  Whether you are going to find your own place, or you are going to move in with family or friends, you need to handle it correctly.  Otherwise, it could negatively impact your divorce.

If you are planning to move with your minor children more than 25 miles away from your spouse, whether you remain in Illinois or leave the state, this move is called “relocation” under Illinois Divorce law.   In order to properly relocate, you must either have your spouse’s written consent or an order of court.  If you do not have either of these items, then your spouse can take legal action with the court, and a judge will likely make you return with the children to within 25 miles of your spouse or return the children to live with your spouse.  Attempting to relocate with the children without permission or court order could also negatively impact the eventual parenting time you may have with your children.  If you plan to move with the children but stay within 25 miles of your spouse, you can do so without violating Illinois’ Relocation law.

If you are moving more than 25 miles away, you want to follow the proper procedure for relocation.  First, you should attempt to obtain your spouse’s written permission.  In order to do so, you must send your spouse written notice of your intent to move at least 60 days before you intend to move.  The notice must at least include the following:  1) your intended move date; 2) your intended new address; and 3) the length of time you plan to relocate (whether permanent, indefinite, or for a set period).  If your spouse signs the notice, then  you must file the notice with the court.  You may then move without issue.  If your spouse does not sign the notice or refuses to give you permission, then the only way to properly relocate is to bring a motion before the court and request an order permitting you to relocate.

Bringing a motion to allow you to relocate is usually a complicated matter and typically results in a hearing before the court.  If you need to file such a motion, you should seek the advice of an attorney before doing so as preparing for such a motion and hearing without the help of an attorney will be very challenging.  Further, whether you have your spouse’s permission to move or not, consider the impact of moving on the parenting time you and your spouse will have and be prepared to discuss with your spouse, your attorney, and potentially the court your plan for minimizing the impact of the move on your spouse’s parenting time.  This may help to alleviate many of the isues that arise from such a move.

If you have any questions regarding these or other family law issues, please feel free to contact me at 630.434.0551 or at clunardini@spydavlaw.com.

 

In Illinois, as in many other states, many of the courts have effectively “closed” the courtrooms to most matters until at least the middle of April due to the COVID-19 pandemic and the Illinois State Mandate, which encourages sheltering at home and the temporary closing of all non-essential businesses.  The courts, like most other businesses, are attempting to practice “social distancing” and have suspended many, but not all services.

As a result, many clients in divorce and other family law matters are at a loss as to how to handle their matters without judges available to make or enforce decisions.  Here are some actions you can take to move your case forward.

Orders of Protection and Emergency Matters

First, if you circumstances involve an abusive spouse or a serious financial loss such as a spouse withdrawing all funds from marital bank accounts to the serious detriment of the other spouse, most courts remain open to handle motions related to such matters.  Judges are available for rulings on emergency motions, restraining orders, and orders of protection involving such serious situations.  You can still file these motions during the shutdown and receive a prompt ruling with the necessary protections.

If your matter does not involve such serious issues, then in most circumstances you will be unable to have a judge hear your matter until courts return to regular business.  In the meantime, the options below can help you prepare your matter so that it can proceed efficiently when the Illinois Mandate is lifted.

Filing Court Documents

One option is to use this time to file your family law matter or any pertinent motions in your case.  Illinois courts remain open for filing any legal documents, this includes filing a new divorce or family law case.  You can also file any motions or other documents pertinent to the handling an existing case.  Be aware that your corresponding court date will not occur until after courts resume regular business.

Assemble Financial Documents

Another option to move your matter forward while the Illinois Mandate is in place is to assemble and prepare all your financial documents.  In most divorces matters and in cases where child support or maintenance will be set or changed, your spouse, your co-parent, opposing attorney and the judge will need information showing you current income, your assets, and your obligations or debts.  This information is needed for calculation of support or maintenance and to determine the division of all of the money, assets, and debts accumulated during the marriage.  Some of the documents typically needed are W-2 statements, paystubs, bank and credit card statements, mortgage statements, and retirement account statements.  You can start assembling these documents and requesting those that you do not have from your different financial institutions.  Ask your attorney, which documents you need.

Discuss Settlement

Next, you can examine and discuss with your spouse the possibility of settling certain issues in your case.  For instance, you can discuss agreeing on the parenting schedule regarding the children, the amount of child support to be paid, or how the marital property and debt should be divided.  You do not need to reach an agreement on all of the issues you may have in your matter.  However, if you can reach an agreement on at least some of the issues , you will be in a better position to have your matter fast-tracked to completion once the mandate is lifted.  Further, most judges will allow you to enter agreed orders on those issues that have been settled.  In circumstances where an agreement has been reached as to child support or maintenance, having an agreed order entered by the Court may be especially important as payments on support or maintenance can then start sooner rather than later.

Participate in Mediation

For those issues where an agreement cannot be reached, you can use this time to participate in mediation.  Although you may not be able to meet with a mediator in person, due to the Illinois Mandate, you and your spouse may have the option to meet with a mediator and mediate by phone or video conference.  Mediation may be able to help you use this time to settle issues that you may have previously thought could only be resolved by a judge.  You attorney should be able to provide you with a recommendation for a mediator.

Communicate with Attorney

You can take time to communicate with your attorney.  Many spouses do not usually reach out to their attorney regularly regarding their matter until a problem or question arises that may require court attention.  Given that neither party can bring most matters before the courts right now, you can take the time to communicate with your attorney and determine the information your attorney will need to settle the case or prepare it for trial.  Further, if you are able to settle many of your issues with your spouse, you can advise your attorney of the terms of settlement.  This will allow your attorney to prepare the settlement documents for submission when courts resume.

If you do not have an attorney and are unsure if you case requires one, now is a good time to discuss your case with an attorney.  Many attorneys are willing to discuss over the phone the basics of your case as well as the cost of representation.

These suggestions can help you more quickly move your divorce or family law matter to a resolution while saving you time and money.  You do not need to wait until courts resume their regular schedules in order make progress in your case.

If you have any questions regarding these or other family law issues, please feel free to contact me at 630.434.0551 or at clunardini@spydavlaw.com.

 

Gambling is going to become to become more prevalent in Illinois.  Illinois has passed a law that is going to make gambling more prevalent, casinos, gambling, and fantasy sports are going to have a much greater impact on divorce.  First, the new law will allow new casinos to be built throughout Illinois, including in Chicago (6 casinos currently planned).  The bill also legalizes betting on sports games in Illinois.  It used to be one would have to go to Las Vegas or a few other cities, in order to legally place a bet on a sporting event.  Now individuals will be able to do so at an Illinois casino or horse racing tracks.  The law will also permit individuals to legally participate in Fantasy Sport games.

What does all of this have to do with divorce?  Given that gambling and fantasy sports participation is becoming more accessible, more people are and will participate in these activities as a form of income or at least as a supplement to their regular income.  More people are considering themselves to be professional poker players, fantasy sports players, or professional gamblers.  As a result, if a husband or wife participates in these activities for the purpose of making money, even if only part-time, the money made from these activities can be considered part of the husband or wife’s income for calculating support, maintenance, and division of the marital assets.

Spouses need to be aware that whether you have a moral aversion or not to gambling, the income from gambling, especially if done regularly and with the purpose to increase income, can be considered by the courts as income.  As a result, when you are considering divorce, if your spouse is gambles or participates in fantasy sports in order to make money, they can be considered a professional in these areas.  You should make sure that your attorney knows this and gets the information related to the gambling and fantasy sports playing.  If your spouse does not keep records on the money spent and the money won, then the information can be obtained through the gambling sites or facilities.  With the legalization of professional gambling and gaming institutions, these institutions must be vigilant in keeping track of the money spent and won by its customers.  The money made by a spouse in gambling or gaming could be a significant increase to the marital income and the marital estate.

Gambling, casinos, and fantasy sports gaming is also important in divorce even if it is not income.  If your spouse does not participate in these activities with the intent or enough regularity to make it income, but is doing it during the divorce process, these activities can be considered dissipation of the marital estate.  Dissipation of the marital estate is when a spouse spends marital money or assets, like the spouses income, on non-marital expenses (i.e. romantic dates with a non-spouse or gambling).  The spouse spending the money improperly will either have to repay the marital estate before the money is divided up as part of the divorce or will have to give the other spouse more of the marital estate to make up for wasting the money.  This repayment of dissipated funds could be a significant increase to the marital estate to be divided.

The dissipation through gambling or gaming could also mean a significant reduction in the gambling or gaming spouse’s portion of the divided marital estate in the divorce.  In the end, gambling or gaming can have a significant impact on a divorce.  It should be disclosed by the participating spouse and should be thoroughly invested by the non-participating spouse.

If you have questions about this or other divorce issues, you may contact me at 630.434.0551 or clunardini@spydavlaw.com

Maintenance or spousal support has always been an emotional, conflict causing topic in divorces.  The paying spouse does not want to pay the other spouse additional money monthly after the marriage is ended.  The relationship is over is the philosophy.

The maintenance receiving spouse believes that he or she is entitled to compensation for supporting and helping to maintain the marriage.  This conflict in positions creates a significant dispute between the parties, making maintenance one of the more difficult issues to settle.  One of the elements of maintenance payment that helped spouses agree on maintenance was that the amount one spouse would pay in maintenance would be deducted from his or her income and would be added to the receiving spouse’s income for tax purposes.  This was often one of the selling points in settling maintenance disputes.  With the new tax laws, this situation has changed.

As of January 1, 2019, maintenance paid pursuant to court orders entered in 2019 is no longer deducted from the paying spouse’s income and added to the receiving spouses income for tax purposes.  Instead the maintenance paying spouse will have to calculate his or her taxes without a reduction to income for maintenance payments.

Further, Illinois law has changed how maintenance is calculated.  Prior to 2019, maintenance used to be calculated by using the gross income of each spouse.  Moving forward, maintenance is calculated by using the net income of each party.  This alleviates some of the lost benefit under the old tax law.  However, in most cases, tax benefits and the amount of maintenance paid would have been larger under the pre-2019 tax laws.

What does this mean for the average person?  This means that it will likely be more difficult to settle maintenance disputes.  Spouses will be less inclined to agree to pay maintenance as there is a smaller benefit to paying maintenance.  Further, both parties are likely to pay more taxes as a divorced couple versus then they would have paid as a married couple.  This means that there will be less after taxes money available between the two parties to be used to support the two spouses and the children.

As a result, the parties and their attorneys are going to have to be more creative in handling maintenance.  The parties should be ready to use other tools to settle maintenance, for instance using a lump sum settlement to compensate the receiving spouse instead of monthly maintenance payments.  There is also the possibility of awarding the maintenance receiving party a greater portion of the marital property and estate instead of maintenance.

Although maintenance may now be more difficult to settle, the spouses should find a way to settle maintenance without going to trial.  Going to trial, in most cases, will be very costly, and, may not be worth the money you may receive in maintenance from the court.  Do a cost/benefit analysis with your attorney.  Have a frank discussion and determine if going to trial over maintenance will be worth the maintenance possibly awarded ordered versus the cost in attorney fees.  If going to trial will not be worth the cost, then settlement may be the best option.  Parties to a divorce should strongly consider using mediation to help you settle maintenance.  A mediator may be able to assist in considering out-of-box ideas for handling maintenance.  Any way you look at it, maintenance may be more difficult to settle.  However, this does not mean that the only option is to incur significant attorney’s fees by going to trial on the issue.  Consider all of the options before trial.

Divorce can be difficult enough.  However, when you are dealing with laws of another country, it can become more complicated.  You will have to pay attention to additional details, rules, and laws when your divorce involves laws from another country.

Let’s say you live in Illinois and you want to get divorced.  You have been legally separated for 10 years and at the time that you received a court order for the separation, the Court started to divide your marital property.  To handle bring the divorce case, you would file for divorce and request that the terms of the separation apply.

However, let’s say instead that you were married in Illinois but for the past 10 years you lived in France.  You were legally separated from your spouse in France, but still technically married.  You have moved back to Illinois and now want to get divorced.

What happens when part of your legal proceedings took place in another country?  How is your case handled then?  Here are some tips to keep in mind when you have a family law case (i.e. divorce, separation, child support, parenting, or maintenance) that is filled in a state court but was previously handled in another country.

First, in cases that have been handled in other countries, you want to strongly consider hiring an attorney.  An attorney will have the resources and the knowledge to determine which laws from other countries would apply to your case.  Tell the attorney when you first consult with him or her that your case was handled in another country.  The attorney may not be comfortable handling such a case, and you will want to know at the outset if the attorney feels that he or she can handle such a case.

Second, ask the attorneys you consult if they have experience in handling cases that may involve laws and rulings from another country.  You want to feel comfortable with your attorney’s experience level and be confident that your attorney can adequately represent you in such a case.

Third, tell your lawyer if there were rulings or orders entered in the foreign country on your case, even if the previous results were not in your favor.  Your lawyer needs to know the types of rulings that were made so that he can properly apply or dispute the foreign rulings made.  Do not hide any non-favorable rulings in hopes that the rulings will not be brought to the Court’s attention in the United States.  This will not help your case when the non-favorable rulings are eventually shown to the Court.  Your attorney will need to know the types of rulings that were entered in the foreign country so that he or she can determine if your case should be handled locally or in the foreign country where the rulings were made.

Fourth, get copies of all of the orders and transcripts of proceedings entered in the foreign country and bring them to your attorney early in the process.  This will allow your attorney to consider these orders at the outset, develop a plan of attack, and determine if there were improper rulings made in the foreign orders.  Your attorney can then give you a advice on the strength of your case, the impact that these foreign orders may have on your case, and your options for continuing with your case.

Obtaining copies of the foreign legal documents is important as you may want to bring these foreign orders before your Judge in the Illinois Court so that, in the above example,  your Judge divides your marital property consistent with the rulings of the French Court .  In order to properly bring these French orders before the Illinois Court, a copy of these orders must be obtained.  The orders may need to be translated, and the orders may need to be verified  through the proper embassy.  For this to be done correctly, your attorney will need copies of the documents or, at least, know of their existence so that he can properly obtain copies of the documents.  A divorce litigant cannot walk into court with a foreign order and expect that the order will automatically be considered by the court.

Finally, avoid noncompliance with any orders from the foreign court in your divorce matter.  Some people believe that once they are no longer in the country where the order was entered, the person no longer needs to comply with the foreign country order.  This issue arises especially when the person believes that the foreign ruling was improper or violated the laws of the United States.  However, if you violate a foreign court order, there is likely to be repercussions in your locally filed case.  Before you consider noncompliance, consult your attorney to determine if you need to follow the foreign order, the repercussions if you do not, and the options for disputing the order in the local court.

These are some tips to consider when dealing with a divorce or other family law issues that were handled at least partially in a foreign country.  If you should have any questions on this or other Family Law issues, please feel free to contact me at clunardini@spydavlaw.com or at 630.434.0551.

Illinois Supreme Court Rule 294 has been enacted and prohibits an attorney from representing a client in a divorce case when the attorney has participated in the collaborative process on behalf of either party.

What is the collaborative process in divorce and why is this important?  The collaborative law process is a philosophy and process where the attorneys and the parties to a divorce work together to reach an agreement without relying on adversarial negotiations and court imposed decisions.  This process is meant to eliminate the adversarial nature of the court process.

Rather, the collaborative process encourages the parties to maintain direct contact with each other to discuss their issues.  The attorneys are involved in the process primarily to help the exchange information, not to bring motions or to take adversarial positions.  The attorneys and parties participate in group settlement conferences where all involved discuss the issues and suggestions for settling the issues.

This process is not for everyone and does not necessarily work in all situations.  However, the process permits the parties in a divorce to speak more freely, discuss their private concerns, and have more input and control over the terms of a divorce agreement.  Further, if either party elects to abandon the collaborative process and move forward by involving the court, the attorneys representing the parties in the collaborative process should have an agreement with the parties that the collaborative law attorneys will not represent the parties in divorce litigation.

This is important because participation in the collaborative process requires the attorneys and clients to speak openly with the other spouse and the attorneys, discussing thoughts that they may not otherwise discuss if engaged in divorce litigation.  A spouse will be less likely to fully participate in the collaborative process if he or she knows that the items he or she discusses in the process will be used against the spouse if the case should proceed to court to be handled.

Regardless of any agreements between the attorneys and the spouses using a collaborative process, Illinois Supreme Court Rule 294 prohibits an attorney who participated in the collaborative process from representing a client if the case moves into litigation.  This will protect the sanctity of the process and further help the collaborative process to be successful.

For approximately 40 years, Illinois divorce law has required that both parents in a divorce contribute to the tuition of their children.  However, the law does not require input from the parents in choosing the college.  In short, in Illinois, parents can be forced by the Court to pay for their child to go to a college that the parents may not wish their child to attend or may not be able to afford.

This law has recently been tested in DuPage County, Illinois, where a father has challenged his obligation to pay for his daughter’s college tuition.  On May 4, 2018 Judge Else of DuPage County ruled that the Illinois law requiring the father to pay his daughter’s college tuition without input from the father regarding where she could attend college was unconstitutional.  The father was willing to pay his daughter’s college tuition but would only pay if she went to a school that offered the daughter’s intended course of study, marine biology.  The school that the daughter wished to attend did not offer a degree in marine biology.  Further, the father was concerned with the daughter’s choice of school because the school was known as a “party school”.  One can assume from this that the father did not want his tuition money to be wasted.

The Father was not challenging his responsibility to contribute to his daughter’s college tuition.  Rather, he challenged that he did not have any say, under Illinois law, in how his tuition money would be spent and where his daughter attended school in the event that the Court ordered him to pay tuition.  The argument presented by the father was that a married couple are not required by law to blindly pay for their child’s college tuition, why should a divorced couple be required to do so.

Judge Else’s ruling that Illinois divorce law on this subject is unconstitutional will likely spark an appeal and potential changes to the handling of college tuitions by Illinois Family Courts.  Other Judges could follow suit, possibly leading to a change in Illinois law.  This would be very beneficial as it will give divorced parents more input and control over where their tuition dollars are invested for their child.  With college costs rising, it is necessary that divorced parents be given the power to exercise a more critical eye and control over where their child attends college so that the child can receive the best and most practical benefit given the funds available to the parents.

Thanks for joining me!

Good company in a journey makes the way seem shorter. — Izaak Walton