The High Cost of a DIY Divorce Agreement

Family law attorneys help people with their divorces and also with issues that arise after a divorce.Chalkboard writing - DIY Resolution of post-divorce issues is governed by the Marital Settlement Agreement (divorce agreement), which contains both parties’ rights and responsibilities regarding financial and child-related issues.

Sometimes post-divorce issues are unavoidable. For example, changing economic circumstances require a new support order, or parties disagree about visitation issues or child- related decisions.

Other times, easily preventable problems arise because parties enter into a marital settlement agreement and obtain a divorce without attorneys.  Parties to do-it-yourself (DIY) divorce agreements are often divorcing on good terms and have uncomplicated finances.  These factors do not insulate parties from problems, however.  The problems that arise with DIY divorce agreements are many and happen even in simple agreements.  Certain issues can be a basis for a court to vacate all or part of an agreement; several of these are:

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On Father’s Day and Divorced Dads

Perhaps the most traumatic repercussion of a divorce is the inability to see one’s children everyiStock_000002487096XSmall02 day. I have met many a client who has refused to pursue a divorce merely because he could not contemplate separation from his children. Even (and perhaps especially) in a failing marriage, parents are comforted by routines that involve our little ones in so many aspects of daily life. Waking up, eating breakfast, coming home at the end of the day, dinnertime, evening entertainment, bath time, bed time. Whether we participate in every activity or not, we are simply happy that they are occurring. We take for granted the fact that the kids are sitting at the breakfast table as we make our coffee and sleeping upstairs as we watch Game of Thrones. Even when we are not directly interacting with them, there is comfort in proximity.

That is what makes divorce so traumatic on the father/child relationship – the loss of that regular proximity and contact. So on this Father’s Day, here are some suggestions for all the divorced dads out there to help maintain that contact, and with it the strong bond that every father and child want and need.

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When is Income, Income? A Rhetorical Question. Not in Illinois.

The Illinois Supreme Court proclaimed that family courts are not bound by the Internal RevenueiStock_000005303068Small Service definition of income in establishing or setting a child support order. In 2004, in the case of In Re Marriage of Rogers, the Supreme Court reversed two Appellate Court decisions that had previously ruled that the Internal Revenue Service Code, and the definitions therein, control or have a significant bearing on the definition of the word “income” as would be used in child support statutes relating to the setting of child support.

In Rogers, the father was receiving regular monthly gifts from his mother and the question was whether or not those gifts should be considered by the Trial Court in establishing the father’s net income for the purpose of setting child support. The Supreme Court held that it should, and, in doing so, stated that when a child support obligor receives funds that represent a benefit which enhanced the obligor’s wealth, it should be considered income for the purposes of establishing child support. The Court went on to say that the lack of a guarantee of recurrence of such funds is not controlling in setting the child support pursuant to the statutory guidelines.

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Special Considerations for Special Needs Children During Divorce

Each year, approximately 6,000 children born in the U.S. have Down Syndrome,[1] as many as 5Boy with Developmental Disability out of every 100 children in school may have Attention-Deficit / Hyperactivity Disorder (AD/HD) [2] and autism now affects 1 in 68 children.[3]  The emotional and financial toll of caring for a disabled child can be overwhelming, even for the strongest of families.  As such, the added stress of a divorce can leave parents unwilling or unable to focus on the child’s unique circumstances in order to ensure the uninterrupted continuation of care, emotional and financial, for a disabled child.

Outside of typical child support for the payment of food, clothing, entertainment and other living expenses, divorcing parents of disabled children should consider additional financial support and arrangements for the child:

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The Unexpected Consequences of Filing a Petition to Modify Custody

In most legal matters, the Court can only award relief which is requested by one of the parties.iStock_000010810650Small However, in matters regarding modification of child custody, the Courts are not restricted by the parties’ requests. Instead, once the issue of custody is placed before the Court, the Court possesses broad discretion to alter custody or visitation rights to the extent required by a child’s best interests.

In determining the best interest of a child, the Court is charged with considering all relevant factors regarding the child and his or her surroundings, including the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. It is this factor that is the undoing of many custody judgments, but not always in a way that is expected. While a parent may bring a petition before the Court seeking custody of his or her child, the parent may wind up in a worse position after all the evidence is presented.

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Gwyneth Paltrow and Chris Martin Separate in “Conscious Uncoupling”

Gwyneth Paltrow and Chris Martin announced this week that they are ending their 11 yearArrow signs on asphalt marriage. They termed their decision to separate as “conscious uncoupling.” While most people would just call it “divorce,” the fact that they were aware (i.e. conscious) of their need to separate for themselves and for their children is commendable. The ability to take ownership of the decision to end a marriage gives way to moving forward for each person. Many couples have not yet achieved that level of acceptance as a result of fear, reluctance, denial, anger or resistance. Despite the fact that the divorce process affects everyone differently, there are certain behaviors which can aid in the “uncoupling” process:

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The Executive Divorce – 10 Strategies for Keeping It Private

Executives, such as self-employed presidents of closely held companies, the C Suite (CEO, CFO,Protected Files etc.), executive employees, officers, and directors, are charged with managing and directing other people in a company. These executives are trusted with significant responsibility including day-to-day operations and future direction of a company. As a result of this responsibility, their personal lives, if made public, may have an impact on the company they work for – particularly with respect to the issue of divorce.

When an executive is faced with divorce, the impact of the proceeding on the executive’s position within a company and the company itself may not receive the priority and privacy it deserves because divorce proceedings are a matter of public record in most states, including Illinois. Take for example the divorces of media tycoon Rupert Murdoch, CEO, Hubert Joly, and oil mogul, Harold Hamm. Each of these had a public presence that quickly attracted media attention. This brought the public to the personal issue of divorce, as well as less than desirable attention to each of the companies the individuals worked for.

The public nature of divorce demonstrates the importance of safeguarding the privacy of an executive’s divorce. Moreover, there are a number of key considerations that warrant maintaining privacy for the executive, spouse, and company. For instance:

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Eavesdropping in Illinois No Longer a Crime? That is Correct, For the Time Being.

The Illinois Supreme Court just unanimously ruled the Illinois eavesdropping law unconstitutional. The law made it illegal to record any person, whether in public or private, unless they consented. Typically, the law was applied against citizens recording governmental officials; however, the issue of eavesdropping rears its head in divorce cases where frequently spouses investigate and record each other.

Annabel Melongo, incarcerated for almost 2 years, had recorded several phone calls with a court reporter about how to correct a hearing transcript. The Cook County States Attorney charged her with six counts of eavesdropping. What kept her in jail until trial was the $500,000 bond she could not afford. There was a hung jury after the trial and the States Attorney was going to try her again; Melongo filed her own motion to dismiss and the trial judge dismissed criminal charges against her. The States Attorney appealed directly to the Illinois Supreme Court which found the law unconstitutional.

Until the Illinois legislature approves a new eavesdropping statute there is no prohibition on eavesdropping in Illinois except as limited by federal law which only requires one party to a recording to authorize it. The now unconstitutional Illinois law required that both parties to the recording to so authorize.

The Benefits of a Prenuptial Agreement

Many people still think of a prenuptial agreement as something that wealthy families use as a formcake-topper wedding couple and a pre-nuptial agreement of “marriage insurance” to protect their riches. In fact, a growing number of people, from a broad range of income levels, are seeking out prenuptial agreements to help answer questions about their assets before they get married. In the process, they become better prepared to handle financial issues in their marriage, and safeguard themselves against one of the leading causes of divorce.

A prenuptial agreement can be tailored to an individual couple’s needs, and it is especially helpful when couples bring the following into a marriage:

A family business. Because family businesses typically are made up of multiple family members from different generations, any divorce dispute involving a family business can end up impacting a great number of people. A prenuptial agreement that specifies a spouse’s role in the company upon divorce or death can prevent costly litigation that could potentially drain the family business’ assets.

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A Child Does Not have the Right to Ultimately Choose His or Her Custodian

One of the pervasive urban myths that I have heard during my many years of family law practice isiStock_000015456524Small that children at the age of 13 have the right to choose which parent they live with.  I have heard this from clients, prospective clients and even an occasional practitioner. This statement is unequivocally false.  The preferences of a child are a factor that Courts are allowed to explore; however, great caution must be exercised in situations where the preference become the focus of a dispute.

In Illinois, custody or visitation/parenting time is to be determined in accordance with the “child’s best interests”.  In determining a child’s best interests, the Court is required to consider all relevant factors. One of the many specific factor listed for the Court’s consideration if “…the wishes of a child as to his custodian.”1  Many courts have emphasized that any preference is but one of many factors and is not dispositive or binding upon the Court.  As would be expected, in a disputed custody case the parents do not always agree on what the child’s wishes are and unfortunately, occasionally put the child in the middle to choose.

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