Where has all the litigation gone?

As I sit in a mediation seminar and consider the wide variety of Alternative Dispute Resolution

Midsection of male judge writing on paper at desk against black background

options, I wonder where has all the litigation gone. Don’t get me wrong, Alternative Dispute Resolution is great for many cases. Not only does it save significant legal fees and costs, it typically is a shorter, less destructive process that allows for creative solutions that both parties can feel they had input into. However, sometimes compromising or splitting the difference is not the right solution.

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The Financial Cost of Infidelity in Divorce

Earlier this month, the Ashley Madison customer list hack story unfolded like a compelling summer

A wedding ring sits on a laptop keyboard

beach novel.  The imagined made-for-TV aftermath is equally fascinating to people sitting on the sidelines–wronged wives calling their divorce lawyers and demanding compensation and punitive property settlements for the suffering and humiliation caused by their cheating husbands!

Reality, however, is not as dramatic, at least in not in Illinois.  Here, financial outcomes in divorce cases are not determined by moral imperatives.  Simply put, bad conduct like infidelity by one spouse does not legally entitle the wronged spouse to a larger property settlement or additional financial support.

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The Heart Wants What the Heart Wants….Or Does It?

Illinois recently passed a law that eliminates lawsuits called “Heart Balm Actions” which are lawsuits

Broken heart hanging on rope

people file to try to be made whole for the events that break hearts such as alienation of affections, breaches of promises to marry, and criminal conversation (lawyer speak for a claim for money based on adultery).  Beginning January 1, 2016, Illinois will no longer have these actions.  Even before this law was passed, recovery in these kinds of actions was rare in Illinois.  However, the change in Illinois law act does make one think about what people can do to prevent the loss of money, if not the loss of love, that these kinds of turns of events cause in people’s lives.

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10 Steps to Having a Healthy Blended Family

Regardless of what you call it, a blended family has a unique set of challenges that you may notiStock_000022798476Small have experienced with your first family.  The good news is that with patience, understanding and time, you can create a positive, loving family relationship.  Here’s how to begin.

Step #1:  Start with a positive attitude and realistic expectations.  Accept the fact that this won’t be easy.  You’ll have frustrations and challenges.  Surveys of remarried couples with children show that children are the number one reason for conflict between remarried couples. If you take the right steps and if you are willing to work, the result can be a loving, caring, supportive family of blended and biological children.  Blending your families can be your second chance at success.

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Supreme Court Finds Fundamental Right to Same-Sex Marriage

On June 26, 2015, the Supreme Court released Obergefell v. Hodges, a landmark decision requiring

Wedding Rings with Gay Symbols  Isolated on White.

all states to allow same-sex couples to marry. The decision was released on the second anniversary of United States v. Windsor, which struck down provisions of the federal Defense of Marriage Act that defined “marriage” as an exclusively heterosexual union. Justice Anthony Kennedy authored the majority opinion, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. There were no concurring opinions.

The Court’s ruling allows same-sex couples to obtain a marriage license in any state they choose, a right recognized through the due process clause of the Fourteenth Amendment. The final lines of the opinion echoed themes from Loving v. Virginia, the seminal case that struck down interracial marriage bans and emphasized the dynamic nature of the marriage institution.

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Couches, Lamps and Ashtrays – Resolving Personal Property Division

Most attorneys put off the resolution of personal property division to the end of the case. Unfortunately, waiting until the end of the case sometimes allows for the parties’ residual anger and resentment to be focused on what otherwise should be a fairly straight forward problem to resolve.Furniture

The law requires assets and liabilities to be valued at or near the entry of a Judgment for Dissolution of Marriage. For most assets, that is a straight forward proposition since statements exist for bank balances, stock accounts and 401(k) accounts. Real estate can be valued close to finalization of the divorce or, if there is an agreement to do so, sold with proceeds divided either by agreement or in the percentages ordered by the court. However, it’s not that simple when there is a household full of furniture, furnishings and collectibles, especially since each of these items bring along with them a lifetime of individual memories and emotions which makes them difficult to value, especially during the final moments of a case.

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WARNING: Facebook is Not Private, Especially in Divorce Litigation

Facebook is perhaps the largest and, at least among adults, the most frequently used socialiStock_000020318351XSmall02 networking site.  Users willingly and regularly post information regarding friends, hobbies, locations, relationship status, likes/dislikes, interests, favorites, photos, and the like.  In many ways, a Facebook profile becomes a personal vault of information.  As a result of all the information on Facebook, the profiles can be a treasure trove in the divorce setting. Some common examples of this might include:

  • Pictures posted of a parent with an alcoholic beverage when alcohol abuse is at issue;
  • Posting pictures of your child on Facebook and/or a dating social media site while you are going through a divorce with custody issues;
  • Pictures of you in a compromising circumstance;
  • Pictures of illegal drug use/paraphernalia or comments supporting illegal drug use, especially when drug use is at issue; or
  • Statements about hidden assets.

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Damn The Contract, I Want To Use The Embryos

The Sofia Vergara / Nick Loeb fight over the frozen embryos they created has cast a public eye onCryopreservation very personal issues.  While their case is only beginning, I represent someone in Illinois who has been involved in the exact same fight for nearly five years, and who has already made the arguments Sofia will be making.  I argued this case in the appellate court last December, and a decision could be issued any day.  The issue in both cases is the same:  When two people sign a contract that states they both must consent to any use of the embryos, can the contract be cast aside when one person wants to use the embryos but the other does not?

The Illinois case is Szafranski v Dunston.  I represent Jacob Szafranski, who presently does not consent to his former girlfriend, Karla Dunston, using embryos they created after Karla was diagnosed with cancer.  They signed a contract that stated “no use of the embryos can be made without the consent of both partners.”  The embryos were created twelve days later.  Karla had planned to freeze unfertilized eggs and fertilized embryos, but because fewer eggs were retrieved than expected, all eggs were fertilized.  Jacob’s position is the contract must be honored and his consent therefore is needed to use the embryos.  Karla is taking the position that the embryos are her last and only chance to have biological children, and because Jacob knew this when the embryos were created, she should be allowed to use them.

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Imputing Retained Earnings of a Sub-S Corporation for Purposes of Support

The issue of whether a certain type of business profit should be considered personal income forBag with support support purposes has always been a difficult one.  A recent Illinois Appellate Court decision may have clarified the issue.

By way of background, a sub-S corporation is a pass-through entity often utilized in small businesses for federal tax purposes. The business does not pay income taxes at the corporate level. Instead, the income is directly passed through to its shareholders based on their ownership interest and the shareholders pay taxes on their allocated portion of the earnings.  The tricky part, however, is that the shareholders pay taxes irrespective of whether the income is actually distributed to them. Making things more complicated, it is not uncommon for sub-S corporations to make distributions in an amount necessary only to cover the tax liability since taxes are owed irrespective of whether a distribution is made.

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On Property Rights for Same Sex Spouses

The past decade has seen tremendous progress in the battle for marriage equality.  State bans onDivision of property at divorce same sex marriage are falling one after another, granting these families the legal recognition they were denied for too long.

On June 1, 2011, the Civil Union Act became effective and Illinois not only began granting civil unions, but also giving immediate recognition to “substantially similar legal relationship[s] . . . legally entered into in another jurisdiction.”  750 ILCS 75/60.  Three years later, on June 1, 2014 same sex marriages were fully recognized in Illinois under the Religious Freedom and Marriage Fairness Act which incorporated the same reciprocity language for marriages previously entered in other states.

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