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. 

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 gregory@ganlawgroup.com.

"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.