Wednesday, March 27, 2013

Mediation


Mediation is a cooperative, problem-solving process that gives couples the opportunity to control the decisions that will affect their future. Mediation allows couples to deal with their separation or divorce outside of a courtroom setting, and usually is less costly- both financially and emotionally-than litigation. A mediator helps you identify the points on which you already agree, then works with you and your spouse, former spouse, other parent or civil union partner to create practical, informed solutions to the others.

Your mediator, who is an impartial professional, should create a safe environment that won't allow either of you to get "ripped off". Mediation can build your knowledge and self-esteem. If you mediate your divorce, both parties can be empowered. The mediator will listen to both sides, and then he/she will help you create a fair plan that's in your family's best interest. Mediation is good training for dealing with your ex-spouse or ex-civil union partner when the divorce or dissolution of your union is completed.

Why Mediate

No mater how long you've been together, divorce is the death of a dream shared. Despite the anger and fear that accompanies divorce, many couples find that the conflict can be minimized by the use of a neutral third party (a mediator) who helps couples work out the terms of their own separation and divorce agreements. 

Parents are more knowledgeable than anyone else about their own children's needs. Therefore, you and the courts prefer that parents make the decisions on those issues effecting parent-child relationships. Mediation provides the parents a structured setting so both parents can work together to maintain these relationships.

Do I Need An Attorney

Mediation is for couples who want to retain control over important legal decisions that affect their lives and the lives of their children. A trained mediator helps the husband and wife work out alternatives and solutions geared to the specific needs of the family. Mediation is NOT a substitute for the services of an attorney. Instead it puts decisions-making in the hands of the couple and the legal implementation of those decisions in the hands of an attorney. However, whether or not you hire an attorney is entirely up to you.

Is Mediation Binding

Mediation is never binding by itself. Only a properly executed settlement agreement which is the outcome of the mediation is binding.

Advantages of Mediation Over Litigation
  • Studies show that families that mediate their differences have a substantially better after-divorce relationship than families that litigate their differences.
  • Mediators use a variety of negotiating techniques to help spouses, former spouses, parents or civil union partners reach a mutually agreeable solution to their differences. The couple controls how and when decisions get made rather than attorneys and judges.
  • Mediation is less expensive.
  • Mediation is faster. In a traditional court setting, trials can stretch for many months or even into years.
The traditional approach to solving legal disputes eats-up your time and money with abandon. A typical legal case goes through an initial stage of informing your lawyer of all the things you know about your case. Then, the case goes through a discovery stage, when your side finds out what the other side knows. This second stage can involve requests for documents from the other side, subpoenas for documents from financial institutions and depositions of witnesses. Finally, the lawyers prepare for and conduct trial. After trial, either party can ask the court to reconsider its decision and then, appeal to the appellate court, and then to the Illinois State Supreme Court. Even a typical divorce is likely to cost each party $5,000 to $10,000 and six to twelve months, if they settle quickly;$10,000 to $20,000 each and over a year with discovery; $20,000 to $100,000each and two to four years if you go to trial.

Is Mediation Confidential

One of the advantages of mediation is that it is confidential. The emotional and perhaps embarrassing issues that are raised in divorce and child custody difficulties will be kept private, as opposed to a trial where all of the proceedings are part of the public record.

What Happens After Successful Mediation

Mediation is successful in a majority of cases. If you have an attorney, the mediator will notify your lawyer of the terms of your agreement. Your lawyer will provide advice and counsel and present the final agreement to the court. If you do not have an attorney or if both parties direct the mediator to do so, the mediator will prepare a written settlement agreement for you. You can have a lawyer present the agreement to the court or you can do it yourself. The court will then enter an order, reflecting the joint decision reached by you and your spouse, former spouse, other parent or civil union partner.

What Happens If We Cannot Agree

If you don't reach an agreement, you can still go to court. You do not give up your right to litigate your dispute. What has occurred in mediation is confidential and is not admissible in court or through discovery, so you have the luxury of starting fresh as if the mediation had never taken place. In a court ordered mediation, the case will return to the court for a decision by the judge if the two parties cannot come to an agreement.

Thursday, May 26, 2011

Countdown to Civil Unions in Illinois: 6 Days To Go

As of June 1, 2011, any two adults, that are not married or in a civil union type relationship already, and are not closely related, will be able to enter into a civil union in Illinois. This will be a huge day for many homosexual couples, but also for many, many others that simply want to have someone they trust have hospital visitation rights, inheritance rights, property rights, etc. It is this "etc." I wish to devote this Countdown to Civil Unions in Illinois series.

Some Civil Union Benefits, continued:

4. Folks that want to share Illinois based employer (not federal) health care coverage just like spouses, will now have that option even if they cannot or do not want to be married.

5. Civil union partner cannot be compelled to testify against one another, just like spouses.

6. Creditors of one civil union partner will be unable to reach their jointly held home, as it can be held as one, indivisible whole, each partner owning an half, just like spouses.

More to come!

To learn more, contact my firm through our website or e-mail me.

PLEASE NOTE: the above is NOT legal advice. It is only a general statement about the state of the law. It is not a recommendation and should not be used to make decisions regarding you specific situation. For such a recommendation, consult an attorney regarding your specific factual circumstance.

Wednesday, May 25, 2011

Countdown to Civil Unions in Illinois: 7 Days To Go

As of June 1, 2011, any two adults, that are not married or in a civil union type relationship already, and are not closely related, will be able to enter into a civil union in Illinois. This will be a huge day for many homosexual couples, but also for many, many others that simply want to have someone they trust have hospital visitation rights, inheritance rights, property rights, etc. It is this "etc." I wish to devote this Countdown to Civil Unions in Illinois series.


Some Civil Union Benefits:


1. Without marriage or a civil union, a person who is left or predeceased by her partner has no claim to child or property of other partner.


2. Folks that wanted to visit or be visited by their companion while in a hospital, will now have that right even if they cannot or do not want to be married.


3. You can benefit from joint Illinois income tax filing by entering into a civil union.


More to come!


To learn more, contact my firm through our website or e-mail me.


PLEASE NOTE: the above is NOT legal advice. It is only a general statement about the state of the law. It is not a recommendation and should not be used to make decisions regarding you specific situation. For such a recommendation, consult an attorney regarding your specific factual circumstance.

Thursday, February 24, 2011

Maintenance (Alimony) In Illinois

What used to be called "alimony" is now called maintenance in Illinois. Maintenance is money paid by one former spouse to his or her former spouse for the latter's support, pursuant to a Judgment or Order. Arguably, based on the newly created civil unions in Illinois, maintenance may be ordered in the future from one former civil union partner to his or her former civil union partner.


Maintenance paid pursuant to an order during the divorce is called "temporary maintenance". It is temporary because it only lasts until the case is over. The case is over by entry of a divorce decree (Judgment for Dissolution of Marriage or Judgment for Dissolution of Civil Union). If the final judgment contains maintenance obligation, then maintenance will be paid in accordance with the terms contained in the judgment (as opposed to whatever was stated in the order requiring temporary maintenance).


A judgment may order maintenance of various durations and various types. Maintenance may be for a specified period of time, say four years, or it may be permanent. Maintenance set for a specific period of time may terminate, without the possibility of extension. Conversely, maintenance may be reviewed at the end of that time, which is discussed more fully below.


Maintenance can be reviewable, modifiable or non-modifiable. Maitenance that is reviewable, often has a set duration at which time it is to be reviewed. For instance: husband shall pay wife $1,000 per month for four years at which time it will be reviewed. At the review the Judge will look at the issue basically anew, addressing all the same factors it would when maintenance was first awarded plus what has occurred since it was awarded.


Modifiable maintenance can be modified upon filing a petition to modify and showing a substantial change in circumstances. Unlike at a review, if the party wanting to modify the maintenance cannot demonstrate a relevant, substantial change in circumstances, the Judge cannot modify maintenance. In addition, the substantial change in circumstances cannot be caused on purpose by the person seeking the modification, for instance, by quitting her job.


Non-modifiable maintenance simply cannot be modified. If non-modifiable maintenance is granted at $1,000 per month for 48 months, the duration, 48 months, and the amount $1,000 per month, cannot be changed. However, if equity necessitates it, allowances can be made. If it would be patently unfair to force someone to make payments, a court can, for example, abate the maintenance. Say the person paying maintenance lost his job because the company went bankrupt. If the Court abates maintenance until the person is able to make payments again, the maintenance continues to accrue at $1,000 per month, and will need to be repaid later.


The above concepts can, and often are used in conjunction. For instance, maintenance can be set at $1,000 per month for 48 months, terminating at the end of the 48th month unless one of the parties files to review maintenance during that 48th month. This means that if neither party files for review of maintenance in time, the maintenance is terminated forever.


In addition, when a provision is silent as to whether maintenance is modifiable, as in the above instance, maintenance is modifiable by default. If maintenance is to be non-modifiable, the provision must state so. In the above example therefore, if a substantial change in circumstances occurred before the 48th month, a party could seek a maintenance modification.


Something to really guard against are unclear provisions. There should be no questions left unanswered after reading a maintenance provision. For example, in the above example, if a petition for review is filed during the 48th month, are maintenance payments due after the 48th month and until the court decides the petition for review? Being unable to answer this question has caused many individuals a lot of time, stress and money for attorneys to argue over the right interpretation.


You can read the relevant statue here for yourself.


To learn more, contact my firm through our website or e-mail me.


PLEASE NOTE: the above is NOT legal advice. It is only a general statement about the state of the law. It is not a recommendation and should not be used to make decisions regarding you specific situation. For such a recommendation, consult an attorney regarding your specific factual circumstance.

Thursday, February 17, 2011

Child Custody in Illinois

In a divorce, custody of a minor child is perhaps the most difficult and important decision that a Judge has to make. Custody can be resolved by agreement, but in Illinois, the court must accept that agreement and incorporate it into a court Order or Judgment. As a starting point, it is important to know what custody is and what it is not. While probably all family law/divorce attorneys in Illinois know the answer, too often their clients seem to be misinformed.


The concept of custody can be separated into two (2) categories: legal custody and residential custody. Legal custody is the the authority to make major decisions about the minor child. Major decisions are those having a significant impact on the child and relating to the child's health, education or religion. Changing schools, having elective surgery or changing churches are examples of such major decisions.


Legal custody can be granted as sole or joint custody. If a parent has sole custody, that parent makes all major decisions on her or his own. If the parents have joint custody, they have to agree on the major decisions about their minor child. If they cannot agree, Illinois law requires them to mediate. If mediation fails, the court will decide based on what is in the child's best interest.


A variant on the typical joint versus sole custody arrangement is where one parent has sole custody, but agrees to not alter something without the other parents permission. For instance, the sole custodian might agree to raise the child in a particular religion, and not change the church without the other parents written consent. Alternatively, the parents may have joint custody, but one of the parents is given much more decision making authority.


Residential custody is sometimes called physical custody. This refers to where the child resides primarily. The parent with whom the child resides primarily is often called the residential parent or the custodial parent. The other parent has parenting time or visitation, and is often called the non-custodial parent. The visitation schedule can be anything the parties agree to (and the court approves), and failing agreement, whatever the court orders based on the best interest of the child.


Parents can share custody. In a shared custodial arrangement, the parents are often live close to each other, even in the same school district, and the child lives about half the time with each parent. The child might live with each parent for two (2) weeks at a time. If the parents live far apart, the child might spend longer in each residence, perhaps as long as six (6) months at a time with each parent. Shared custody is not typical, but has become more common in recent years.


There are variants of the above possible. Everything depends on the particular individuals involved. What is very important to remember in all cases is that having sole custody has nothing to do with the other parent's access to the child or day-to-day decisions affecting the child. You can have authority over all the major decisions retarding your child, but the other parent may have extensive parenting time, bordering on shared residential custody even. Likewise, regardless of legal custody, each parent makes day-to-day parenting decisions while the child is with that parent.


You can read the relevant statute here for yourself.


To learn more, contact my firm through our website or e-mail me.

PLEASE NOTE: the above is NOT legal advice. It is only a general statement about the state of the law. It is not a recommendation and should not be used to make decisions regarding you specific situation. For such a recommendation, consult an attorney regarding your specific factual circumstance.

Thursday, February 10, 2011

Child Support in Illinois

Child support in Illinois is typically paid by the non-custodial parent (the parent not residing with the child or children) to the custodial parent (the parent residing with the children). The payor (parent paying) pays a percentage of his or her income based on the number of children:


1 child = 20%
2 children = 28%
3 children = 32%
4 children = 40%
5 children = 45%
6 or more children = 50%


Net income is income from all sources minus federal and state taxes paid, health insurance premiums and mandatory retirement contributions. There are other factors, especially for those that are self-employed or own their own businesses, but this is generally the rule for most payors.


Unless the parties agreed or the court ordered otherwise (which is unusual), child support includes all contributions of the payor for the support of the child with the exception of: child's health insurance premiums; uninsured medical expenses for the child; daycare expenses for the child necessitated by the custodial parent's employment. Extracurricular activities, school supplies, etc., are generally included in child support.


What is important from the standpoint of the custodial parent? Mainly to know all income received by the payor from all sources. You might need to dig deep, especially when dealing with someone running their own business. For instance, if the business claims the payor's home mortgage as an expense, that amount should be included in payor's income.


What is important from the standpoint of the non-custodial parent? Mainly to be sure to get all your deductions before arriving at your net income for child support. For instance, if you are paying for a loan that was incurred so that you could do your current job, that should be deducted. In addition, if you are paying child support, you should get at least half of the exemptions (split the children, or alternate years for claiming the one child).


More and more parents share residential custody, each parent having the children about half the time. In such cases, the only fair thing to do is to offset child support. For instance, in the case of one minor child, the parties should calculate 20% of each of their net incomes to arrive at their respective child support amounts. Then, the person earning more should pay the difference between the child support amounts to the person earning less.


You can read the most relevant statute yourself, here.



To learn more, contact my firm through our website or e-mail me.

PLEASE NOTE: the above is NOT legal advice. It is only a general statement about the state of the law. It is not a recommendation and should not be used to make decisions regarding you specific situation. For such a recommendation, consult an attorney regarding your specific factual circumstance.

Wednesday, February 9, 2011

Civil Unions in Illinois

Civil Unions in Illinois give rights provided by marriage to same-sex couples, but also to unrelated folks that want same benefits without necessarily being homosexual or even same-sex. Protections to marital property and receipt of maintenance (support for the other spouse, or what used to be called alimony), etc. should apply to parties to a civil union. I say "should" as this law was only passed this month and its interpretation will be up to the courts.


Nevertheless, based upon the statutory language, it appears that civil unions can benefit (or suffer, depending on your viewpoint) from prenuptial agreements, postnuptial agreements, and all dissolution of marriage (divorce) procedures applicable until now to Illinois recognized marriages. For instance, marital property may be protected by a prenuptial agreement. It may be distributed by a Judge upon dissolution of a civil union. Maintenance (what used to be termed, alimony) may be awarded from one partner to the other. The list goes on.

In addition, folks in many different situations may benefit from this law. For instance, heterosexual friends (same sex or opposite) that are residing in a retirement home, with no intention of marrying each other can share hospital visitation or decision making rights. Previously, such individuals would be excluded from entering the other person's hospital room if the patient is less than able to fully communicate, even if their relationship was decades long.

Now, such individuals can enter into a civil union and upon one of them falling ill, can visit each other in the hospital or make healthcare decisions in the event the other is unable to do so. Very importantly, unlike in marriage, this can all be accomplished without affecting each person's pension or social security.

Civil Unions go into effect in Illinois on June 1, 2011. This is a "new day" for Illinois indeed. It will be years before we understand the repercussions. Overall, the law seems very beneficial as it offers more avenues of protecting intimate relations between adults.


Feel free to read the law's full text yourself, here.


To learn more, contact my firm through our website or e-mail me.


PLEASE NOTE: the above is NOT legal advice. It is only a general statement about the state of the law. It is not a recommendation and should not be used to make decisions regarding you specific situation. For such a recommendation, consult an attorney regarding your specific factual circumstance.