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.
Thursday, January 23, 2014
Tuesday, January 14, 2014
What is the effect of dating while going through a divorce?
Finances
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.
Custody/visitation
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.
Finances
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.
Custody/visitation
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.
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.
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