McLean County Divorce

www.BloomingtonIllinoisDivorce.com

www.BloomingtonIllinoisDivorce.com

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Parenting Classes/Mediation/Guardian ad Litems

2009-07-28T17:06:00.001-07:00

Parenting Classes/Mediation/Guardian ad Litems

When there is a dispute regarding an issue relating to children, the parties must attend mediation and attend a parenting class. These requirements come from Supreme Court Rules 923 and 924, which state that “[t]he parents shall show proof of completion of an approved parenting education program as required by Rule 924, provide a fixed schedule for compliance, or show cause to excuse compliance,” and that “the court shall schedule the matter for mediation” at the initial case management conference.

Mediation can be waived or excused for good cause. Locally, mediation runs anywhere from $120 to $175 per hour. The cost is usually split between the parties. In my experience, the normal length of mediation is 2-3 sessions. With the time and money involved, it is a significant incentive for folks to come to some agreement rather than endure through the mediation process. It is important to note that the mediator usually only discusses child-related issues, excluding financial issues such as child support. Mediation, unless agreed otherwise by the parties, does not involve the property and financial issues of the divorce—it is solely focused on the children. Nothing said in mediation can be used against a party later on during the trial, so it is a great opportunity to openly discuss the issues without worrying about something being used against you later.

However, mediation should not be viewed as something to completely avoid. When there are a few points upon which the parties cannot see eye-to-eye on, it is usually a good idea to see a mediator on the parties’ own volition in order to quickly resolve such disputes. Such measures by the parties will usually save them from large legal fees and court time in the long run.

I am a certified Guardian ad Litem (GAL). If necessary, the court will appoint a GAL to protect the best interest of the children. In most cases, this includes an investigation and the filing of a report and recommendation with the court. A GAL’s investigation can be quite extensive, including the interviewing of extended family members, friends, teachers, and physicians. The cost of a GAL is significant. Currently, in McLean County, the parties are typically ordered to split the $200 per hour fee that GAL’s charge. With the time and investigation takes, and the attendance of the trial by the GAL, the costs for having a GAL are substantial.

The message that I hope I am conveying here is that it is well worth the time and effort to attempt some sort of a settlement when it comes to the child-related issues in a divorce. Not only does it save each party significant money and time, but it will spare the children from being made apart of their parents’ disputes more than they already are. If you or any one you know needs to schedule an appointment with a mediator, please have them contact my office. While I am not a mediator myself, I can certainly point people in the direction of a few mediators that I trust in the area.

Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 319-6206

JonDwainMcLaughlin@gmail.com

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Subpoena ISPs and more

2009-07-27T12:31:00.001-07:00

How many times do you wish that you could subpoena a telephone company, a cellular provider, an ISP providing email and Internet service? EBay and PayPal? The list goes on. Finding the right office or person to serve can be pretty frustrating, if not downright impossible.

The ISP List in the toolbox is, therefore, a very valuable tool. You'll find contact information for those who can accept service of subpoenas for cell phone and regular phone service, for Internet service providers, credit card companies, etc.

This site and ISP list was developed for use by law enforcement and contains a wide variety of ISPs and similar information services, specifically, contacts at the legal departments for service of subpoena, court orders, and law enforcement search warrants. It is updated regularly by law enforcement personnel. For more information about the reliability of the information and for access to the site.

HERE IS THE LINK: http://www.search.org/programs/hightech/isp/

Divorce in Illinois After 50

2009-04-24T06:26:00.000-07:00

By: H. Joseph Gitlin

Q: My husband has been the primary breadwinner in the family. Will I lose social security benefits on his account if there is a divorce?
A: A former spouse, age sixty-two or more, who has not remarried, can receive social security benefits on account of the other spouse if the marriage lasted more than ten years. When the worker spouse retires, dies or becomes disabled, the former spouse can often receive monthly benefits equal to fifty percent of what the worker spouse receives.

Q: If my spouse’s pension plan is not in pay status, that is, my spouse is not retired, how much of the pension plan will I receive and in what form will I receive it?
A: First, to the extent the pension plan was earned during the marriage, it is marital property, that is, it will be divided in the divorce. For example, if your spouse has been in the pension plan for thirty years and you have been married for twenty-five years, the pension plan is 25/30 (or 5/6) marital property.

You can take your interest in the pension plan out in one of several ways: (1) The pension plan is evaluated and you may take out your interest in cash and roll it over into your own individual retirement account, within sixty days. If you do not roll it over into your own retirement plan within sixty days, you will pay income tax on all of it in the year received, plus a 10% penalty. (2) The court can enter a QDRO (qualified domestic relations order) which carves out of your husband’s pension plan your interest. You will be entitled to exercise all of the options your spouse can in reference to the plan, including early retirement.

Q: Will the court divide my husband’s social security benefits as a property right, the same way as a pension plan is divided?
A: No. The law is that social security benefits are not regarded as an asset which will be divided in the divorce judgment, however, the income your spouse receives from social security will be considered in regards to maintenance and child support payments.

Q: Take a marriage in which the husband and wife are seventy years old, they have been married for forty-five years, they are both retired and both receiving social security. How will the court divide the assets and incomes?
A: There are insufficient appellate court cases with a fact scenario as above so I can make a prediction. My sense of fairness is, under the circumstances, the court ruling should be that the parties will have equal assets and equal incomes, so the party with a higher income, because of higher Social Security benefits and higher pension benefits, would be paying maintenance to the other.

Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600

Change of Child Custody

2009-04-21T15:58:00.000-07:00

By: H. Joseph Gitlin

Q: Isn't child custodoy always decided on the basis of what is in the best interest of the child?

A: No. the first question in a transfer of custody is not what is in the best interest of the children, but whether there has been a change of circumstances since the original custody order was entered.

Look at it this way. After child custody is determined by a court order in divorce or paternity proceedings on the basis if the best interest if the child, the judge, in effect, states, "That's it. I determined the custody of the child once and that was done on the basis of waht is in the best interest of of the child. (And this holds true whether the judge's determination was based on a trial, or the parties' agreement.) Now, if you want custody changed, you are going to have to show me (the judge) there has been a change of circumstances."

Q: Does the law have a bias in favor of the custodial parent and against the non-custodial parent?

A: Yes. It is a strong bias. The law has a bias in favor of the child's life being stable.

Q: What facts would be sufficient to show a change of circumstances sufficient to bring about a change of custody?

A: Examples are: a significant drop in the child's school performance; significant health problems due to the custodial parent's neglect; the development of significant social/psychological problems by the child; substantial neglect of the child by the custodial parent, such as leaving the child home alone, neglecting the child so the child becomes injured; exposing the child to what the judge may consider to be immoral conduct, like having a live-in significant other.

Q: What could other causes be for a transfer of custody?

A: Serious abuse of a child, whether physical or sexual, may be grounds for a transfer of custody. The instability of the custodian is frequently a significant (but not sole) factor in allowing a transfer of custody. Imprisonment of a custodian is an obvious change of circumstances. Smoking by the custodial parent is now being raised in change of custody proceedings. In the Illinois appellate court opinion which addressed the smoking issue the custodian's smoking did not result in a change of custody because it was not proved that the children's asthamatic conditions were caused by the smoking and the mother testified that she no longer smoked in the residence.

Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600

Simple Divorces

2009-03-31T07:23:00.000-07:00

By: H. Joseph Gitlin

Q. Is there an inexpensive and simple way to be divorced?
A. Yes. A do-it-yourself divorce kit is available for the short-term, no children, limited asset-income marriage. The Illinois Divorce Act has a “Joint Simplified Dissolution (of marriage) Procedure.” This is a do-it-yourself procedure with forms which are available at the office of the Clerk of the Circuit Court at the county courthouse.

Q. Who is eligible for the do-it-yourself divorce?
A. Parties to whom all of the following conditions apply:

  1. No maintenance (alimony) is being sought.

  2. Grounds for divorce are irreconcilable differences. This means the parties have been separated for six months or more. Separation for six months or more does not require the parties to be living under separate roofs, but requires that they live in separate bedrooms, do not have sexual relations and have no meaningful marital communications.

3. No children.

  4. The marriage is under eight years.

  5. Neither party owns real estate.

  6. The value of the property acquired during the marriage (other than by inheritance or gift) is less than $10,000 and the combined gross annual income of both parties is less than $35,000, and neither party has a gross income in excess of $20,000.

Q: Do I need a lawyer if my case does not fit into the “Joint Simplified Dissolution Procedure?”
A: Yes. If there are children, and if the assets or debts are significant, while you are legally able to obtain a divorce without a lawyer, the consequences could be disastrous. The parallel is that I am entitled to do brain surgery on myself.

Q: To save money, can a husband and wife have the same divorce lawyer?
A: No. A lawyer cannot represent both parties to a divorce even though you frequently hear that it is done. But, while the parties believe that a lawyer is representing both of them, a close look will show that the lawyer actually only represented one of the parties. It is Biblical and it is true: “A servant can only serve one master.”

Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600

Unlawful Visitation Interference

2009-03-19T13:59:00.000-07:00

Unlawful Visitation Interference

From IllinoisDivorce.com

Illinois law provides avenues in both criminal court and family court for divorced parents (and parents who were never married) to enforce their rights regarding visitation. The laws apply to both the non-custodial parent who may be denied visitation and the custodial parent who may have to deal with a former spouse who refuses to drop the children off timely.

Civil Enforcement vs. Criminal Prosecution: Where court-ordered visitation is withheld, Illinois law provides for both civil and criminal prosecution for visitation interference. In other words, a parent who detains or conceals a child in an effort to thwart court-ordered visitation may be punished by the family law court judge or prosecuted by the State's Attorney in a criminal trial. It is possible for a trouble-making parent to be punished by the family law court and also criminally prosecuted for visitation interference.¹ This is the only instance we know of in American law where a defendant can be subjected to double-jeopardy – seemingly in violation of the U.S. Constitution. If you decide to go back to (or are taken to) the family law court, work with an experienced and knowledgeable attorney. If, however, you decide to go to criminal court, as a complaining witness you'll work with the State's Attorney – as a defendant, you should hire your own defense attorney (call our office).

Civil remedies in family law court typically result in a modification of the parenting schedule (more time or "make-up time" with the kids for the injured parent and less time for the offending parent, the shifting of a holiday, etc.). Family law judges, however, have sent obstreperous visitation violators to jail – like the mother was sentenced to 180 days in jail merely for thwarting a weekend visit between the father and the children. ² Civil actions are brought as “contempt of court” charges. To prove contempt, you must show that the offending party acted willfully and “contumaciously.” Contumacious conduct is that which is “calculated to embarrass, hinder, or obstruct a court in its administration of justice or lessening the authority and dignity of the court.”³

Under the criminal law,⁴ visitation interference is a "petty offence" (like a traffic ticket) for the first two violations. After that, however, the stakes are raised and the charge becomes a Class A misdemeanor which means punishment may be in the form of imprisonment for up to one year or a fine of up to $2,500.

Visitation Interference vs. “Dance Card Booking:” In its simplest form, visitation interference is easy to recognize: the non-custodial parent goes to pick up the children but they’re not where they’re supposed to be at the prescribed time. Visitation interference can, however, come in disguises. The most common ploy is to “book the child’s dance card.” The custodial parent registers the child for every conceivable extracurricular activity, lesson, or social event that, not so coincidentally, falls during the time scheduled for the non-custodial parent’s visitation. Although “dance card booking” has not been found to violate the (criminal) visitation interference law, it has been used as the basis for contempt citations in (civil) family court. Cases come down both ways, though: sometimes the court will tell the non-custodial parent to take the child to scheduled extracurricular activities during visitation time, and other times the court will declare that “visitation time is visitation time and is not to be infringed upon by extracurricular activities.”

When in doubt, obey court orders in letter and spirit. One mother thought extracurricular activities should take priority over visitation. In the case that ultimately found her unilateral decisions to have been willful and contumacious, the court said “In the event that the children’s extracurricular activities unduly interfered with [the custodial parent]’s ability to comply with the court-ordered visitation schedule, then the appropriate action [she] should have taken was to seek modification of the... visitation order rather than to ignore its provision.”

If you have concerns about dance card booking, call our attorneys to learn how your case stacks up – they have the experience to help guide you to a favorable resolution.

When Children Refuse to Visit: Occasionally a parent will claim that the kids “just don’t want to spend time with the other parent.” Illinois courts look upon such claims with GREAT suspicion. If you are a custodial parent whose child objects to visitation, call our office immediately to seek a court-approved modification, or termination, of the visitation schedule. DON’T TAKE THE LAW INTO YOUR OWN HANDS BY DENYING VISITATION! Call our office – no charge, no obligation.

Illinois courts have held that a custodial parent may not disregard visitation requirements merely because the children do not desire to visit the non-custodial parent. One court said: “the custodial parent cannot escape his or her duty to comply with the visitation provisions by attempting to shift this burden to the discretion of [his or] her children.” Another court said “[a] parent must comply with court-ordered visitation even where the child has expressed hostility toward the other parent.” That court went on to explain that the experience of visitation affords the children and the non-custodial parent the opportunity to communicate and, thus, diminish hostilities and foster an atmosphere in which a renewal of affection may take place.

Technically, the court has jurisdiction over the children. Where children petulantly demand that they be excused from visitation, and the custodial parent fails to either motivate them or seek to modify or terminate the visitation schedule, the court may order the children to go on visitation and may even cite them for contempt. In one notorious case, a Will County judge sent two sisters to jail for refusing to visit with their father.

Joint Custody Negates Criminal Interference: Illinois’ criminal visitation interference law doesn’t apply to divorced parents who enjoy joint custody. The law itself doesn’t say so. In fact, the plain language of the law says that it applies to “every person” and, logically, to every court order – regardless of whether the custody award is “sole” or “joint.” Nevertheless, an Illinois Supreme Court ruling in a criminal prosecution case has been interpreted by many police departments to mean that the law cannot be applied to parents who have joint custody. Indeed, in light of the ruling, many police departments don’t even bother writing up a citation if the parents have an award of joint custody.

If you’ve been cited for “visitation interference,” call our office for a solid defense. If you have joint custody, and are having visitation problems, you can try calling the police... then call our office to protect, and enforce, your rights.

The Criminal Law:

720 ILCS 5/10-5.5
§§ 10-5.5 Unlawful visitation interference

(a) As used in this Section, the terms "child", "detain", and "lawful custodian" shall have the meanings ascribed to them in Section 10-5 of this Code.

(b) Every person who, in violation of the visitation provisions of a court order relating to child custody, detains or conceals a child with the intent to deprive another person of his or her rights to visitation shall be guilty of unlawful visitation interference.

(c) A person committing unlawful visitation interference is guilty of a petty offense. However, any person violating this Section after 2 prior convictions of unlawful visitation interference is guilty of a Class A misdemeanor.

(d) Any law enforcement officer who has probable cause to believe that a person has committed or is committing an act in violation of this Section shall issue to that person a notice to appear.

(e) The notice shall:

be in writing;
state the name of the person and his address, if known;
set forth the nature of the offense;
be signed by the officer issuing the notice; and
request to the person to appear before a court at a certain time and place.

(f) Upon failure of the person to appear, a summons or warrant of arrest may be issued.

(g) It is an affirmative defense that:

a person or lawful custodian committed the act to protect the child from imminent physical harm, provided that the defendant's belief that there was physical harm imminent was reasonable and that the defendant's conduct in withholding visitation rights was a reasonable response to the harm believed imminent;
the act was committed with the mutual consent of all parties having a right to custody and visitation of the child; or
the act was otherwise authorized by law.

(h) A person convicted of unlawful visitation interference shall not be subject to a civil contempt citation for the same conduct for violating visitation provisions of a court order issued under the Illinois Marriage and Dissolution of Marriage Act.

Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600

DEBTS IN AN ILLINOIS DIVORCE

2009-03-12T12:14:00.000-07:00

By: H. Joseph Gitlin

Q: The court ordered my spouse in the temporary or final order to pay certain debts. Why is the creditor suing me?
A: Temporary orders and the final judgment in a divorce can only affect the obligations of the parties to each other. The creditor was not a party to your divorce and could not be made a party to your divorce. Therefore the orders of the divorce court will not affect the creditor’s ability to collect the debt owed. If it was a joint debt, the creditor can seek payment from either spouse, despite any orders of the divorce court. The divorce judgment or the marital settlement agreement should provide that the party required to pay the debt will indemnify the other party. If the other party then is required to pay the debt, they would be able to seek reimbursement from the party required to pay the debt in the divorce judgment.

Q: Can I be liable for joint debts?
A: Yes. When a debt is jointly owed, the creditor may seek part or all of the payment for either or both debtors. This is referred to as joint and several liability. Under joint and several liability, liability is not apportioned proportionately among the joint debtors.

Q: Can the divorce judgment or marital settlement agreement require my spouse to pay debts?
A: Yes. The marital settlement agreement or the divorce judgment can allocate responsibility for marital debts regardless of who incurred the debt. The divorce judgment, however, does not affect the creditor’s right to collect from the party or parties incurring the debt.

Q: Could I end up paying for debts that are in my spouse’s name?
A: Yes. The divorce judgment can allocate responsibility for debts without regard to who is the named debtor. Even if your spouse is the debtor and the divorce judgment requires them to pay the debt, you could still be liable under the Rights of Married Persons Act. The Act allows a creditor to bring a claim against the property of either party without regard for who incurred the debt if the other spouse agreed to be liable for the debt in writing or the expense is for goods or merchandise purchased by or in the possession of that spouse or former spouse or for services ordered by the other spouse or former spouse.

Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600

Grounds for Divorce in Illinois

2009-03-03T05:41:00.000-08:00

By H. Joseph Gitlin

Q: Don’t the grounds for divorce in the divorce petition tell the reason for the divorce?
A: No, not by a long shot. Illinois has ten fault finding grounds for divorce and one no fault basis (irreconcilable differences). Grounds are the legal hook on which the divorce hat is hung, but the grounds stated in the petition for divorce seldom have anything to do with the real reason for the dissolution of the marriage. You can’t have a divorce by stating nice things about your spouse. You can only have a divorce by stating grounds for divorce and these grounds, except for irreconcilable differences, are fault finding.

Q: Do the legal grounds for divorce really matter?
A: Not usually. As a matter of law if the person bringing the divorce cannot establish the grounds for divorce the judge cannot grant a divorce, however, the alternative is in living apart for two years and then no fault (irreconcilable differences) kicks in and the divorce is virtually automatic. In fact the “living separate and apart” does not require separate residences, but may be accomplished by staying in separate bedrooms and no sexual relations.

Q: Why would a person resist a divorce when the other side is intent on it?
A: Either for leverage, in order to obtain a better settlement, or because of a desire to reconcile. When my clients want to reconcile the marriage I tell them lawyers (and judges) can do virtually nothing about reconciling a marriage, except be supportive of the spouse wanting to reconcile the marriage and not to stand in the way of a reconciliation. One concrete thing a lawyer can do is to buy time. Simply not agreeing to the divorce should buy seven or eight months, and a case not coming to conclusion for about two years is not unheard of.

Q: What is the down side to holding up a case on account of grounds for divorce?
A: There is hostility in virtually every divorce case. The question is only of the level of hostility. By resisting the grounds for divorce you will raise the level of hostility and make the case much more difficult to settle fairly.

Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600

Joint Custody in Illinois

2009-02-26T10:13:00.000-08:00

A good number of clients walk through my door asking me if Joint Custody is right for them. I have found that there are generally a number of misunderstandings about what Joint Custody really is and when it can be granted. Hopefully, the following sheds some light on the subject.

The Illinois Marriage and Dissolution of Marriage Act allows a court to enter an order granting custody to both parents, i.e., Joint Custody, even when both of the parents are seeking sole custody. Before a court can award Joint Custody, it is required to find that a Joint Custody order is in the best interests of the child in light of a set of specific factors. Further, before entry of the order, the court must see that a Joint Parenting Agreement is produced by the parties, consistent with certain criteria listed by statute. There is no presumption in favor of or against Joint Custody. The only presumption is that maximum involvement and cooperation of the parents is in the best interests of the child.

Prior to the enactment of the new statute, Illinois courts had generally held that Joint Custody orders should rarely be entered due to the fact that such orders are usually unworkable because, unless parents have an unusual capacity to cooperate, substantial disagreement usually arises, ultimately resulting in harm to the child. With the new statute, this presumption against Joint Custody has disappeared. Still, the ability of the parents to cooperate must be examined when Joint Custody is being considered. Specifically, in deciding whether to grant an award of Joint Custody, courts will consider the following: the best interests of the child, agreement of the parents and their mutual ability to cooperate, geographic distance between the parents, desires of the child if of a suitable age, and the relationships previously established between the child and his parents. Since Joint Custody requires extensive contact and intensive communication, it cannot work between belligerent parents.

One of the most asked questions I receive is—“What is Joint Custody?” Before 1986, the statute referred to "joint physical" and "joint legal" custody. The new statute does not use those terms. Instead, a Joint Parenting Agreement, which is an agreement that determines how major decisions affecting the children are to be made, must be devised to define what the parties and court mean by "Joint Custody." A Joint Parenting Agreement is negotiated between the parties and approved by the court. Put simply, Joint Custody means whatever you want it to mean, with a few exceptions. The Joint Parenting Agreement must specify how the child's personal care is to be accomplished by each parent and how the major decisions regarding the child are to be made. The statute does not state that Joint Custody has anything to do with the amount of visitation or parenting time that will be spent with either parent and, more importantly, does not require that major decisions be made jointly. Therefore, it is often possible to avoid a custody battle by agreeing to joint custody but not requiring a party to jointly come to major decisions affecting the children. Instead, what is usually provided is that a party must consult with the other parent regarding these decisions. Illinois case law does define what is meant by "consult" as opposed to "inform," so it is important that your Joint Parenting Agreement specifies which one you are intent on. The Joint Parenting Agreement must also contain a "mediation" or "dispute resolution" clause, and it must provide for some type of periodic review. It should be noted that the release of school and medical information to each parent without regard to custody is automatic under a Joint Custody order, absent an order of protection to the contrary.

Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600

Grandparent Visitation and Custody

2008-12-11T13:48:00.000-08:00

I often receive calls from grandparents wanting to know how they can acquire visitation rights with a grandchild, or even custody. It is not an uncommon situation for these grandparents to be providing the majority of the daily care for their grandchildren.

The statute provides that, under certain circumstances, any grandparent, great-grandparent, or sibling may file a petition for visitation rights to a minor child if there is an unreasonable denial of visitation by a parent. The petitioning party must show that the denial of visitation is harmful to the child's mental, physical, or emotional health.

It is becoming increasingly hard for parties like grandparents and step-siblings to convince a court to order visitation and/or custody. This is evidenced by the recent court opinion in Flynn v. Henkel, where the court ruled that the absence of the grandparent-grandchild relationship, by itself, is not harmful to the child's mental, physical, or emotional health. Personally, I disagree, but my opinion does not matter. However, courts have granted grandparent visitation in instances in which the children have developed a strong bond with a grandparent, such as where the children have lived with a grandparent for a significant period of time.

Grandparents seeking custody of a grandchild often face an equally daunting task. To a non-parent seeking custody, the issue of standing is critical. Standing means the power to bring a particular type of action. A non-parent seeking standing under the statute has the burden of showing that the child is in his or her physical custody, which requires that the child's parents voluntarily relinquished custody of the child to the non-parent. See Franklin v. DeVriendt. The voluntary relinquishment by the parents to a non-parent must be clear and definite. See In re Kirchner; In re Marriage of Dile (father did not relinquish custody by agreeing to allow grandparents to retain possession of the child temporarily). If the non-parent cannot establish standing, then he or she must plead and prove that the parents are unfit to have custody of the child. As you can imagine the he-said/she-said that occurs in custody disputes, standing is often hotly contested. If the grandparents are successful at defending their standing, the court then considers the best interests of the child in question.

Personally, I think that grandparents should be able to take more of a role in the lives of their grandchildren. But until things change in the current statutes and case law, grandparents face an uphill battle.

Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600

Five Don'ts During a Divorce

2008-11-13T12:41:00.000-08:00

Posted on November 12, 2008 by J. Benjamin Stevens

A divorce is a complicated procedure, legally, financially and emotionally. It’s up to you to make the process as smooth as possible in order to prevent unnecessary stress and expenses. If you’re going through a divorce or contemplating one, here’s what you mustn’t do:

Don’t change lawyers midstream: It’s your personal prerogative, but changing lawyers anytime during the divorce proceedings adds to the already enormous expense through extra procedures and more time. Make it a point to investigate your attorney carefully before you hire him or her and get someone whom you trust right from the word go, someone who’s both experienced in family law and who comes highly recommended.
Don’t get too emotionally attached to your attorney: If your attorney’s the caring kind, you may end up literally crying on his or her shoulder unable to take the mental stress any longer. It’s not advisable to get too close emotionally to your attorney because it complicates the process even more. Also, there are laws that prohibit a client and attorney from getting involved romantically or sexually for the duration of the case.
Don’t take financial issues for granted: Don’t take your future finances for granted once you’ve decided on a divorce. Talk to your spouse about who gets the house, how taxes are going to be paid, how credit card debts are going to be resolved, how joint accounts are going to be handled, how much child support is enough, and about other financial aspects that are likely to affect both of you. If you go through this process as amicably as you can, you’re both going to save a ton of money.
Don’t make your kids suffer: Just because you no longer get along with your spouse, there’s no reason to take it out on your kids. They’re already going through a rough patch knowing that their parents are about to get divorced and that their life is going to be a sort of tennis match where they’re the figurative balls being batted from one parent to another. Don’t take out your frustrations on them or abuse your spouse when they’re around. Make them understand that even though you both are splitting up, you still love them a lot.
Don’t indulge in physical relations with your spouse: If your decision to divorce is final and there’s no room for a permanent reconciliation, it’s best to refrain from having sex with your spouse. You may still be living under one roof and sexually compatible, and if the divorce is amicable you may feel that there’s no harm in sleeping with each other as long as no one else knows. But there are emotional complications that will mess up your divorce and leave you with more issues to contend. If you’ve agreed to separate, keep it that way in the bedroom too.

Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600

Family Case in the Supreme Court

2008-11-07T04:56:00.000-08:00

A case before the US Supreme Court may make divorce (even a no-fault divorce) a little more complicated. Under current law, parties to a divorce can release their right to the other spouse’s pension by signing a property settlement agreement which says so. They can also lose any interest in the other spouse’s pension when a Final Decree is entered which does not award them the pension (or otherwise reserve their rights).

In Kennedy v. Plan Adm’r for DuPont Sav. & Inv. Plan, 497 F.3d 426, 427-28 (5^th Cir. 2007), the Supremes will decide if a spouse may waive his or her interest in the other spouse’s pension without a Qualified Domestic Relations Order (”QDRO”). QDROs are not exactly do-it-yourself documents so requiring one every time a spouse releases his or her right to any interest in the other spouse’s pension will likely mean more attorney fees and fewer do-it-yourself divorces.

In Kennedy, the parties were divorced in Texas in 1994. They entered into a marital settlement agreement in which the wife waived her interest in the husband’s DuPont Savings & Investment Plan (”SIP”) benefits. The parties did not prepare or sign a QDRO to that effect. The husband never removed the wife’s name as the plan’s beneficiary.

When the husband died in 2001, the Estate requested the benefits. DuPont refused and sent the benefits to the ex-wife. The Estate sued DuPont in the U.S. District Court for the Eastern District of Texas for recovery of the SIP benefits under ERISA, 29 U.S.C. § 1132(a)(1)(B). ERISA federal law preempts state laws pertaining to employee benefit plans. See 29 U.S.C. § 1144(a). Therefore, the text of ERISA is generally applied to determine such cases. If ERISA is silent on an issue, however, federal common law is applied instead. The district court applied federal common law, under which the wife’s waiver was valid because it was “explicit, voluntary, and made in good faith.” 497 F.3d at 428. The district court consequently granted summary judgment to the Estate and awarded it the benefits.

The United States Court of Appeals for the Fifth Circuit reversed and held that federal common law does not apply, because ERISA’s “antialienation” provision prohibits the wife’s divorce decree waiver. The antialienation provision prevents beneficiaries from transferring their pension plan benefits, including transfers through Domestic Relations Orders (”DRO”), such as divorce decrees. On the other hand, QDROs, which satisfy ERISA criteria, provide an exception to the antialienation provision and can be used by beneficiaries to transfer plan benefits. However, the divorce decree waiver at issue was not a QDRO. The Fifth Circuit consequently held that the wife’s waiver violated ERISA’s antialienation provision because the waiver constituted an “indirect” transfer from the wife to the Estate: When the wife relinquished her right to the benefits, the Estate, as the next beneficiary in line under the SIP, automatically received the right to them. According to the Fifth Circuit, however, the wife would have to have submitted a QDRO to transfer her interest in the pension benefits, because QDROs are the “sole exception” to the antialienation provision in cases of divorce.

The Court’s decision on this issue could have a significant impact on those who failed to prepare a QDRO to waive their pension benefits. Should the Court decide that the only valid means of waiving a pension is through a QDRO, the impact on attorneys will also be significant, as former clients will need QDROs to effect their settlement agreements.

Stay tuned….

Source: The Nat’l Legal Research Group’s “Lawletter.”

Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600

5 Common Financial Mistakes in Divorce

2008-09-22T14:47:00.000-07:00

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 neither party 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.

Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600

A Note To Stay-At-Home Moms (or other primary caregivers)

2008-09-03T06:58:00.000-07:00

A Note To Stay-At-Home Moms (or other primary caregivers)

The law is sometimes counter-intuitive. I spoke with a nice lady today who was very unhappy in her marriage. When she could stand it no more, she told her husband that and then she left him. She did not take the children with her, however, because she did not want to disrupt their lives. Now this former stay-at-home mom is being kept away from her children by her now very angry husband.

By thinking of her children and trying to maintain normalcy for them, the nice lady feels like she is being punished. Her husband says he is filing for divorce and that he will seek sole custody. She feels caught flat-footed and she is concerned that he may have a leg up in court. He certainly has an emotional leg up over her right now as she is miserable. He assured her that he wouldn’t keep her from the children…. yet that is exactly what he has done!

If you are a primary caregiver and you are thinking about ending your marriage, part of your exit plan should include a meeting with a family law attorney (or two, as varied input can be a good thing). In some cases, leaving your children with the other parent may make your case for custody an uphill battle. Or maybe it is the right thing to do. Your individual facts will matter so get some advice in person BEFORE you make a move. It is much easier to plan than to scurry and react.

Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600