Thursday, October 30, 2014

I am getting a divorce!  What’s next?

For adults, divorce remains one of life’s most stressful events.   Death of a loved one, dismissal from work, an illness, or marital problems certainly challenge the strongest of characters.   Unfortunately, divorce is a very real part of our life.   According to United States Bureau of Labor Statistics, 45.7 percent of all marriages end in divorce for people between the ages of 15 and 46 with an educational attainment of an associate’s degree.  This was a study that spanned the period of 1978-2010.   Latest reports suggest that this figure is on a rise, perhaps in part, due to an evolution of our social norms, shifting marital roles, and increasingly gender equal job market.   

As a licensed Family Law attorney in the State of Illinois and a court-certified divorce mediator, my best advice to clients is to never compound a bad marriage with a bad divorce. 

It is important to note that the State of Illinois is a no-fault state, which means that marital misconduct on the part of misbehaving spouse has no effect on the disposition of the wealth of the marital estate.  In other words, your cheating spouse may still be awarded a favorable share of the marital home or the accumulated bank account's balance.    The days of bringing your priest and your neighbors to court to testify as to who caused the breakdown of the marriage, while persuading a jury of your peers are long gone.    There is no need to testify regarding the origin of certain foreign undergarments located by an aggrieved wife.   These days, the court views divorce as a dissolution of a business partnership.   Assets must be divided, debts allocated, and if there are children, custody and child support need to be addressed.   

From my perspective as a divorce attorney, spouses typically do not contest the actual dissolution of marriage as the divorce is inevitable.  Divorcing spouses simply disagree as to the finances and custody matters.   This brings us to three categories of divorce: “hotly” contested, “mildly” contested, and uncontested (full agreement). 

First, spouse should begin to start thinking regarding which basket their divorce falls into before ever stepping into my law office.  

In the event a client suspects that there will be no agreement because of one spouse having a history of secreting income or assets, or if there are serious child endangerment or abuse issues, or there simply is a profound difference of factual opinion relating to the finances or custody, the best route is to file divorce papers in court, and proceed through the litigation stage.  At this stage, any issues of disagreement will be decided by a judge.  Attempting to negotiate or mediate (more on that later) would be futile.   This process, differs from each state, but here in Illinois, a common contested divorce consumes approximately 12-18 months.  Of course, every case is different.  Plenty of moving variables determine the length of the case, i.e. quality of  lawyers, unreasonableness of your spouse, type of judge, scheduling, and complexity of issues.

In the event a case is “mildly” contested, two major options are available.  First, a spouse retains a lawyer and proceeds with a less litigious zest.   Negotiation is done “behind the scenes” without ever having the need to conduct a hearing before a judge.  For an example, if the marital estate and finances can be quickly identified by attorneys, or the dispute involves a nominal amount in comparison to the potential attorney’s fees being expended in litigation (cost/benefit analysis), it is prudent to resolve all remaining issues in a more private setting than a courtroom.  Negotiation is usually channeled through attorneys.  Naturally, if the marital estate is rather sizeable or income of the party’s is substantial, a divorcing spouse should retain an attorney.
Another option is to proceed through mediation.  Unlike an attorney negotiating through the comforts of his office chair, mediation is a process where two spouses meet face-to-face in an effort to resolve points of disagreement via discussion through the assistance of a third-party neutral mediator, who neither acts as a judge nor as an attorney representing either party’s interest.  Mediator is essentially a facilitator and never advocates for either side.  Mediation is a wonderful instrument because of its numerous benefits and advantages.   It is far less expensive than litigation, and typically consumes less time.   Mediation also offers the parties an opportunity to control their fate.  Judges, above else, like everyone, make mistakes.   Mediation also offers the spouse to openly air their grievances, oftentimes serving as closure and peace of mind.

A good example of this “behind the scenes” hybrid of mediation and negotiation is Michael Jordan’s divorce from Juanita Jordan, his then-wife of 17 years, in 2006.  As a caveat, I did not participate in this case.  The Jordans’ divorce was finalized with little media frenzy because the case never saw the light of the day in the courtroom.  Ms. Jordan was able to walk away from the marriage with huge savings on attorney’s fees, her dignity intact, and a cool $168 million settlement, as widely reported.  More recently, similar scenario is unfolding with Bruce and Kris Jenner of the reality television show, “Keeping up with the Kardashians.”  Many readers surely will be shocked.  Yes, the Jenners are divorcing!  If those two kids can’t make it, who can?   As entertaining it might be, do not expect a legal battle, because a full and complete agreement purportedly has been finalized between the parties, most certainly through the assistance of counsel and financial advisors.

Last by not least, a scenario with a full agreement reached at the kitchen table is obviously the most preferred and ideal method.  It is most common when the parties have a modest marital estate, marriage is rather short, and there are no children.  In the event of a full agreement, a lawyer may simply act as a scrivener memorializing the terms of the agreement. 

Every option is entirely dependent on the needs of the client.   Persons contemplating a divorce should consult with their trusted counsel to see which option is the right one for them.  

Gregory Gancarczyk is an Illinois licensed attorney concentrating in all aspects of Family Law.
Mr. Gancarczyk, is a principal in his firm, Gan Law Group (  In 2013 and 2014, he was named by Super Lawyers Magazine as a Rising Star in the area of Family Law, a designation reserved for the top 2.5% of all Illinois attorneys under 40.
Mr. Gancarczyk can be reached at

Monday, October 6, 2014

Tips for Divorced Parents

In addition to setting child support pursuant to Section 505 of the Illinois Marriage and Dissolution of Marriage Act, a court in Illinois has the discretion to order either or both of the parties to pay for the following expenses attributable to the parties' minor children:
a.) health expenses not covered by insurance;
b.) child care;
c.) educational expenses; and
d.) extracurricular activities.

If your Judgement for Dissolution of Marriage or Marital Settlement Agreement specifies payment of certain child related expenses, it is imperative that both custodial and non-custodial parents are well organized.  Simply because your divorce is now final, it does not mean that organization of your finances can now take a "back seat."

Divorce court is flooded with many pending divorce cases, yet judges also deal with a substantial amount of cases relating to post-divorce matters. Oftentimes, these disagreements relate to payment of child support and miscellaneous child related expenses.  Challenges come from both parents.

Therefore, it is very helpful to assume a role of an "accountant de facto" following your divorce.

Tips for custodial parents.

For an example, your Marital Settlement Agreement specifies that your former spouse now pays you $500.00 per month, as and for child support, plus your former spouse now must reimburse you for children's school costs, child care, and extracurricular activities.    Following your divorce, if you are receiving payment of child support through the Illinois State Disbursement Unit, this agency will keep an accounting of your child support payments via online access.  It's a wonderful feature.   If you are receiving child support by way of a personal check, keep a log of all payments received.

With respect to the miscellaneous child related expenses, organize all of your bills and keep copies of cancelled checks or proofs of payment.   Of course, closely follow the terms of your divorce decree. If your settlement agreement requires you to transmit a daycare bill within 14 days of incurring this expense, you must comply; otherwise, you may risk not getting reimbursed because of this violation.

In my experience, most of my clients disagree whether the activity cost was paid or whether the paying spouse received an actual bill or proof of payment.  Best way to minimize this disagreement is to set up separate folders in your email so that you adequately keep track of all expenses sent to your former spouse.    In the unfortunate event of non-payment, the custodial parent then can easily review all transmittal emails along with bills and proof of payments in a manner of minutes, and not hours or days.  Such organization will expedite your case in court or in mediation.

Tips for non-custodial parents.

Let's take a similar example from above. As the custodial parent above, all non-custodial parents should also keep a track of all payments made.  In the event, child support  is not paid through the State Disbursement Unit, the non-custodial parent should set up a separate bank account for payment of support.  Automated bank transfers ensure timely delivery and a clear record.  Of course, never make a support payment via cash as proving cash payments in court is very difficult to do.

With respect to child-related expenses, upon receipt of bill or spouse's proof of payment (reimbursement), keep all of your records.  Non-custodial parents should keep third-party bills (i.e. medical provider, daycare facility, along with copies of cancelled checks.   When making payments directly to your former spouse, in the memo line of the check, write down the expense that is being paid.

Tracking all of your cancelled checks via your "child support" bank account will save hours if there is a disagreement.

If you have any other questions, I invite you to contact my office at (312) 981-5060, or reach me by way of email at

Monday, February 3, 2014

"I am not happy.  Can I change my Divorce Decree?"

Typically, it's very difficult to modify your final Marital Settlement Agreement as part of your Judgment for Dissolution of Marriage.   Absent a showing of coercion, duress, or your spouse's misrepresentation, fraud, or other serious tomfoolery relating to finances, you are more than likely stuck with your financial agreement.

The good news is that provisions concerning child support, custody, and visitation are always modifiable.

In scenarios where one party seeks an increase in child support, the requesting party must show a substantial change in circumstances.  For an example, one must show that the non-custodial parent's income has increased and the minor children's living expenses have also increased.  Conversely, the non-custodial parent who seeks to decrease his or her child support obligation must demonstrate that there has been substantial change in circumstances in his or her income.  Perhaps, the non-custodial parent has lost his or her job, or is no longer earning the same income as of the date of entry of the Marital Settlement Agreement.  The burden in both situations rests on the moving party.

Visitation likewise, is modifiable at any time.  Although it is not essential to show a substantial change in circumstances, the party must show that the modification of the parenting schedule is in the best interests of the child, and not in the best interests of the parents.  It is a fairly broad standard subject to multiple interpretations, and I encourage you to consult with me for further details.

Custody modification is more strict, undestandably so.  To change custody (relating to decision-making and the question of primary residence of the minor child) within a two-year period after entry of the Custody Judgment, the moving party must demonstrate that there exists a serious endangerment to the children's emotional, moral, mental or physical health.  This requirement was presumably enacted to promote residential stability of children.    After the passage of the two-year window, the standard of best interest of the minor children governs.  Although not as rigorous as the "serious endangerment" standard, modification of custody under the best interest of the children is still "no picnic."

Remember, just because certain provisions relating to children are modifiable, this does not mean that you may successfully file motions at will.  

One final tidbit.   There is no such thing as "father's rights" or "mother's rights" in the Illinois Marriage and Dissolution of Marriage Act.

I encourage you to contact my office to see if a modification of a Marital Settlement Agreement is possible.

Thursday, January 23, 2014

So you have made that difficult decision to obtain a divorce, what's next?

When I meet with prospective clients, I always ask whether he or she believes that the marriage is irretrievably broken down.  If a need arises, I offer prospective clients a list of potential marriage counselors and therapists to see if the marriage can be repaired in some fashion.  Contrary to certain myths, divorce lawyers do not cause divorces.   We are there to protect your rights and interests in a dissolution of marriage proceeding.

Divorce is never easy.  Without question, it is one of life's most difficult decisions, sometimes requiring courage and hopefully, significant thought.

If you have finally reached the decision to divorce your spouse, first, focus on your well-being.  Irrespective of the reasons for the breakdown of the marriage or whose fault it was, it is a highly emotional time.  After the initial separation, new routines will be scheduled.   Friendships and family relationships effected.  There will be a potential loss of secondary income to help defray monthly expenses.   These are just some of the new things that will need to be adjusted.  It takes time.

Ensure your mental health is operating at its optimum.  Take some time to cool off and reflect.  Focus on yourself.

As a caveat, I am not a licensed therapist, psychiatrist, nor a psychologist.  In fact, I have no medical training whatsoever, however; I am a divorce attorney who has been listening to clients for the past seven years.

Second, think about the finances.  Remember, the State of Illinois is a no-fault state.  In other words, the court distributes marital property without any regard for marital misconduct.  The divorce laws of State of Illinois generally treat disposition of marital property, as if the court were dissolving a business partnership. There are several factors the court examines in such distribution.   Remember, each case is different.  What your friend might have received in the divorce, certainly does not mean that you may be entitled to the same.

If you have not done so already, begin organizing bank account statements, pay-stubs, tax returns,  real estate documents, credit card statements, list of debts, and the like.  Some of these items may be critical in my analysis of your financial rights.  When you first meet with me, it will be more efficient to review your initial financial disclosure statement, itemizing your monthly income, expenses, debts, and assets.

Trust me, an organized client saves time and money.

Tuesday, January 14, 2014

What is the effect of dating while going through a divorce?


In Illinois, there is a theory of dissipation.  Dissipation is one of the factors the court examines when distributing the marital estate.   According to countless case law precedents, dissipation is defined as an expenditure of marital funds for a purpose unrelated to the parties' marriage after the marriage has suffered an irretrievable breakdown.  A classic law school example of dissipation is a situation where one spouse withdraws $2,000.00 from the parties' joint bank account and purchases a gift for his/her new boyfriend/girlfriend, after one of the parties has filed for a divorce.  This three-part test is arguably satisfied.   If there is a finding of dissipation, the court then funnels the amount of $2,000.00 back to the marital estate for reallocation.  Effectively, the "victimized" spouse will share in the withdrawn funds.   Typically, there is a 50/50 split of the funds.

While a claim of dissipation is important, dating another individual may have an equally profound financial effect; however, not on the distribution of the marital estate, but rather on the issue of maintenance.   Let us consider a scenario where a spouse who might otherwise be entitled to maintenance (also known as alimony) based on the factors set forth in section 504 of the Illinois Marriage and Dissolution of Marriage Act, and the candidate spouse decides to move in with his/her new significant other before entry of the final divorce decree.  If the presiding judge determines that this maintenance candidate resides with their new significant other on a resident, continuing, and conjugal basis, the court will not award any maintenance even before the divorce is final.   Typically, the event of the spouse's resident, continuing, and conjugal relationship triggers a termination of maintenance after the divorce; however, it may be applicable before any maintenance may be awarded.


In situations where custody or parenting time is in controversy, the role of the boyfriend/girlfriend may be prominent.  In custody and visitation matters, the court has broad discretion in determining what is in the minor child's best interest.  Oftentimes, several "collateral" witnesses such as family members, friends, teachers, therapists, and the like, may be called to testify or be interviewed by court appointed personnel regarding certain aspects of one party's relationship with the minor child.   A new boyfriend or a girlfriend is certainly no exception. In a situation, where a new boyfriend may spend a significant amount of time with the minor child in question, it is entirely plausible to call this person as a witness in a custody proceeding to better ascertain the best interests of the child.

While there is no law in Illinois that prohibits divorcing spouses to date while divorcing, a spouse should be mindful of  its effects during a pending divorce or custody proceeding.

Monday, January 6, 2014

Finding a Competent Divorce Lawyer

Divorce happens to a lot of people.  Oftentimes, it's tragic, highly acrimonious, and it may be emotionally and financially taxing.  As with any difficult event in a person's life, one needs a guide to navigate you through the process.  That is when a good and competent divorce lawyer enters the picture.   Aside from initial first impressions and perhaps, a referral from a friend or a colleague, you should review the following points:

1.  Concentration

Look for a divorce lawyer that concentrates in the area of family law.  You wouldn't hire a pediatrician to perform your root canal, would you?   An attorney who concentrates in family law will more than likely, be familiar with certain judges, opposing attorneys, and have experience in addressing somewhat uncommon issues that may arise in your divorce case.   A competent family law attorney will also have a firm grasp on the applicable legal authority.

2.  Fees

At your initial meeting, inquire about the attorney's fees.  Inquire how the attorney bills. What is the initial retainer, his/her hourly rate, the time increments your attorney bills in.  Does he charge for postage or for ministerial tasks such as mailing a letter or making a phone call.  How much does he charge for travel to court, if any? It's a good idea to also ask about the frequency of the invoice being issued.    Your lawyer should be very upfront with his fees so as to eliminate any surprises in billing.

3. Organization

The divorce process is time consuming, labor intensive, and above all, it is heavy on paper work.  As a divorce attorney, I spend a lot of time organizing bank records, real estate documents, spread sheets, pleadings, and orders.   Most settlement conferences and court hearings involve producing countless pages of documents to evidence income, value of marital estate, monthly expenses, and the like.   Hiring a disorganized divorce attorney can be detrimental to your case, but a well organized attorney will save you time, money, and heart ache.

4. Attention to detail

After years of litigation or perhaps mere weeks of negotiation, you have finally reached an agreement on all financial issues and custody matters, and now the agreement needs to be reduced to writing by your lawyer.  The financial Marital Settlement Agreement is the end product.  Therefore, it should accurately reflect the agreement of you and your spouse, and be rid of mistakes.   I cannot begin to tell you how often I review settlement agreements that are either poorly drafted or contain major grammatical mistakes, creating ambiguity and consequently, more litigation.

5. Personal rapport

This is not a requirement, however, you should have a generally friendly rapport with your lawyer. This does not mean that you and your selected attorney must be friends, but a general good relationship helps.   A divorce lawyer wears many hats, and sometimes, that of a trusted confidant.