What is a prenuptial agreement?

A prenuptial agreement (or premarital agreement) is a contract between prospective spouses made in contemplation of marriage.  The agreement is solely intended to be effective upon the parties' marriage.   It appears that prenuptial agreements are more common than ever before.  Sometimes, my clients refer to them as insurance policies when the marriage does not work out.  With divorce rates still hovering around 45%, it may be a prudent investment.

It is governed by Illinois Uniform Premarital Agreement Act.  In summary, the parties to a prenuptial agreement may contract on the following matters:

1.  the rights and obligations of each of the parties relating to any acquired or property to be acquired in the future;
2.  right to buy, sell, use, or transfer property;
3.  distribution of property upon separation, divorce, or death;
4.  modification of alimony (also known as maintenance)
5.  making of a will or trust;
6.  ownership rights in and disposition of death benefits from a life insurance policy;
7.  choice of law governing the interpretation of agreement; and
8.  any other matter that do not contradict public policy.

It is important to note that a prenuptial agreement cannot address any issues concerning allocation of parental responsibilities of minor children of the parties, or issues of child support.
Any such clauses would be deemed to be invalid in family court, as this contradictory to public policy.  In short, the parties cannot determine what is in minor child's best interest in advance of the birth.

Typically, parties enter into premarital agreement to protect their respective rights concerning property, either previously acquired or to be acquired during the marriage.  There are several examples where entering into a prenuptial agreement is sensible and in fact, encouraged.

For one, a spouse with substantial assets acquired prior to the marriage, may wish to enter into a prenuptial agreement so that they may preserve their wealth in the event of a divorce. The parties may want to reach an agreement on exactly how any jointly acquired assets, like bank accounts, real estate, retirement plans may be divided during a divorce.  This eliminates a lot of bickering as to who contributed more during the marriage.

Please keep in mind, that in Illinois is not a community property state (like in California, for an example).  In Illinois, there is "equitable distribution," means that property is divided in just proportions, not necessarily 50/50.

Accordingly, a well prepared agreement can eliminate years of litigation in court, and clearly set forth how any acquired assets shall be split, ultimately, saving the parties thousands of dollars in attorney's fees.

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 (www.ganlawgrup.com).  For the preceding four years, 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 gregory@ganlawgroup.com. 

What is an Order of Protection?

An order of protection is a legal remedy for victims of domestic violence.  Effectively, it is a civil restraining order issued by a judge that prevents the "abuser" from committing acts of violence against a person, minor child, elderly, or a disabled person.    Additionally, the abuser may be prevented from gaining entry in person's home, or coming to the victim's place of work

Domestic abuse is commonly defined as any of the following:

1.  Physical abuse - physical force, sexual abuse, behavior that creates immediate risk of physical harm ; OR 

2.  Harassment - multiple acts of causing disturbance, repeated unwanted contact, threats of abuse, or keeping another person under surveillance, and improperly concealing the minor child from the other parent : OR

3.  Willful deprivation - denying  minor child, elderly or a disabled person medicine or food - effectively putting that person in harm's way.

Who, and in what situations can a person obtain an Order for Protection?

A Petition for Order of Protection may be filed only a person who has been abused by a family or household member, OR by ANY person on behalf of a minor child,  adult who has been abused by family, or by disabled person.  

Key here is that ANY person can file so long as it is on behalf of a abused child or adult.  For an example, a neighbor can bring forward a petition for order of protection on behalf of the neighboring child if that child has been abused by his or her parents.  More commonly, we see spouses filing petitions for order of protection.  

Order of Protection can be obtained on an emergency basis, and without notice to the "abuser."   After appearing before a Judge and presenting evidence (testimony, pictures, telephone records, witness reports), Judge may issue an Order of Protection for MAXIMUM 21 days.  Within 21 days, the Judge will then conduct a full hearing involving both the alleged victim and alleged abuser.  Both parties will then have time to present their version of the story. 

After this hearing, Judge has authority enter an Order of Protection for maximum 2 years. 

Order of Protection proceedings incident to divorce cases are commonly civil proceedings, and are not criminal in nature.  However, if there is a violation to an existing Order of Protection - there can be a criminal charge. 

Does the immigration status affect an order of protection?

Generally speaking, person's immigration status is not relevant as the court is predominantly concerned with protecting victims of domestic violence.  Immigration matters, as a general rule are governed by federal court, and domestic violence court is a state judiciary.  There are situations where immigration status may be important.  For an example, if there allegations that the "abuser" is seeking to remove the minor child from the United States, the immigration status may questioned by the judge.  

It is important to note that persons who have pending petitions for a green card or U.S. Citizenship, U.S. Department of Homeland Security may inquire if the applicant ever had a domestic incident and whether the applicant was found to be an abuser in an order of protection case.   Accordingly, a "conviction' in order of protection hearing may have a negative effect on the application for permanent residence, visa, or citizenship.

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 (www.ganlawgrup.com).  IFor the preceding four years, 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 gregory@ganlawgroup.com. 

                  CHILD SUPPORT CHANGES IN ILLINOIS LAW ARE COMING!!


For many years, Illinois has followed "percentage of payor's net income" model in calculating child support.  This model primarily focused on the non-custodial parent's income, and oftentimes, did not take into consideration the custodial parent's income in determining the proper amount of child support.  As an example, Illinois courts used a statutory guideline of calculating 20% of the payor's net take-home pay, as and for child support for one child of the parties.  

This will no longer be the case.

After several months of rumors and gossip floating within the family law community of Illinois, an "income share" model for calculation of child support will be made into law effective July 1, 2017, assuming Governor Rauner signs the passed measure into law.  Most pundits expect this to happen with little resistance from the Governor's office.

This new law will follow 39 other states in utilizing the income share model, which shall take into into account both parents' respective income, expenses, earning capacity, and parenting time.
Although this new law will be effective July 1, 2017, it does not mean that this is an invitation for past litigants to modify their existing orders. A standard of "substantial change of circumstances" will remain the guiding principle for whether an existing child support order can be modified.

Changes in Illinois Law concerning property purchased before the marriage


Effective January 1, 2016, Illinois Marriage and Dissolution of Marriage Act has undergone many significant changes.  While statutes concerning parenting issues have received much attention in the press, laws on property distribution have also been revamped.

Most notably, the theory of "property acquired in contemplation of marriage" has been wholly eliminated from Section 503 of the Illinois Marriage and Dissolution of Marriage Act.
Previously, there have been many cases on this issue, all of which now have been nullified by the amendment.

In fact, Section 503(a) now explicitly states as follows, "Property acquired prior to a marriage that would otherwise be non-marital shall not be deemed to be marital property solely because the property was acquired in contemplation of marriage. "

Effectively, the general rule is that if you and your spouse purchased a home after your engagement, but prior to the marriage (and the title to this home was and remains in your spouse's name alone), this property will not be deemed marital.

Pet "custody" and visitation

In a recent case of In re Marriage of Enders, an Illinois Appellate Court for the first time addressed "custody" of a pet.  On appeal, the husband argued that divorce court committed an error in denying him visitation with the parties' two dogs.

The Appellate Court relied on a New York case and statutory definition of a dog owner under the Illinois Animal Control Act.   Because the dogs were left in the care of the wife, under the statutory definition, the wife was the legal owner of the two dogs.  Thus, she was properly granted custody of the two dogs.

Many pet owners will certainly be disappointed with this decision because the court did not award visitation to husband under a somewhat flawed logic.  The Appellate court reasoned that awarding pet visitation would "serve as an invitation for endless post-decree litigation."

Interestingly enough, the court followed New York and declined to use the "best interest" standard, as dogs do not rise to the same importance as children.

As it stands, if the issue of dog custody is not resolved prior to trial, the court will award only "custody" to one party.

Importance of financial discovery

In every contested divorce case, there is a discovery process.  It's a stage where the spouses exchange or obtain from third parties all documents relevant to their respective claim(s) concerning division of the marital estate, establishing custody and visitation, and setting support (ie. child support or maintenance).   The process can be grueling and exhausting at times.  Based upon my experience, it's one of pivotal reasons, why a divorce case can linger for months, and in complicated matters, even for a couple of years. Therefore, it's important to navigate through these waters efficiently and correctly.

In Cook County, Illinois (and many other satellite counties) before a discovery process can be inititated, a party requesting certain discovery must first produce a completed Disclosure Statement, along with preliminary supporting documents to verify their income.

The importance of a well prepared 13.3.1(b) Disclosure Statement can be essential to your case.  This is a financial balance sheet listing your income, monthly expenses, and assets; and it is signed under penalties of perjury.  It is somewhat similar to a financial statement one submits to a bank for a mortgage approval.

Irrespective of whether a spouse earns $300,000.00 or $30,000.00 per year, the court always considers this document with heavy emphasis when addressing temporary and final financial matters. If the disclosure statement is poorly prepared, it can then lead to impeachment of a party's credibility, and other problems.  If done well, it can pave a smoother road in establishing an accurate portrayal of one spouse's financial status.

If undergoing a divorce, take the time to correctly fill out this financial statement with your counsel.

It will be a positive step in completing your case more efficiently if you have contested divorce.

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 (www.ganlawgrup.com).  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 gregory@ganlawgroup.com. 

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 (www.ganlawgrup.com).  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 gregory@ganlawgroup.com.