One of the pervasive urban myths that I have heard during my many years of family law practice is 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.
Over the last several months, the Illinois Appellate Court has had numerous opportunities to opine on what constitutes income for purposes of calculating child support under the Illinois guidelines. Under certain circumstances, retirement benefits, social security benefits, stock options sales proceeds, and loan proceeds have all been declared to be includable in the calculation for child support. In the case of In re the Marriage of Marsh, 2013 IL App (2d) 130423, the Court again revisited the issue, this time in the context of money a father received from the sale of stock. The Court ultimately concluded that the monies received from the sale of the stock were not income for purposes of calculating child support because the proceeds were received in exchange for an asset owned prior to the divorce.
Under these particular set of facts, pursuant to the judgment for dissolution of marriage, the father was ordered to pay the mother child support of $731 per month as well as 20% of all additional income. After the father received $275,000 of sales proceeds from the sale of stock and he failed to pay the mother 20% of the proceeds, the mother sought to hold him in contempt of court.
On January 28th, in his fifth State of the Union Address, President Obama announced the MyRA (rhymes with IRA). In his own words, “It’s a new savings bond that encourages folks to build a nest egg. MyRA guarantees a decent return with no risk of losing what you put in.”
While some additional details are still to be released, the MyRA is essentially a tax deferred retirement savings vehicle, styled after a Roth IRA. That means that the contributions are paid with after-tax dollars, but the earnings can later be withdrawn tax-free during your retirement.
The MyRA will be a government sponsored savings account, established by the Treasury Department. The investments will be very similar to savings bonds, which are backed by the full faith and credit of the United States Government (hence the “no risk”). It is aimed at individuals who don’t have an employer sponsored 401(k) plan to save for retirement. The MyRA will be available to individuals with annual earnings up to $129,000, and to couples earning up to $191,000, and can be set up with a contribution as low as $25. You can then have payroll deductions as low as $5 automatically contributed to your account. The Obama Administration previously established a program that would allow payroll deductions to purchase Treasury Securities, so this seems to be an extension on that program.
“Client A” met with her attorneys for the first time less than one year before she passed away. She had a chronic illness and her doctors gave her just months to live. Stress exacerbated her condition. She claimed her husband was abusive. She sought help getting a divorce so that she could minimize her stress at the end stages of her life and so that she could distribute her estate as she saw fit. Her husband refused her request for a divorce. Knowing that the typical contested divorce is not resolved in the amount of time her doctors expected her to live, her attorneys petitioned the Court on an emergency basis and obtained a bifurcated judgment for dissolution of marriage.
Typically, a divorce is resolved under a single judgment for dissolution of marriage. Conversely, a bifurcated judgment dissolves the parties’ marriage but reserves other issues, such as property division, child support, maintenance, or custody (“bifurcated judgment”).
This article addresses the standard for obtaining a bifurcated judgment, recent cases that expand when bifurcation has been deemed appropriate, the date of asset valuation used in bifurcation cases, and considerations for practitioners faced with bifurcation issues.
Changing your name is a simple and easy process, and it can be the final step in moving on to your new life. You can shed the baggage of your former spouse by ridding yourself of your former identity.
However, if you do not want to change your name immediately you do not have to, and you can always decide to do it at a later date. Whether you were married for five years or twenty years, you were known as “Mrs. Robinson,” and that can be difficult to let go of, especially after going through an extremely emotional time in your life. Having a different last name than your children might create more instability for them as well. So depending on the circumstances, it might be better for you to initially maintain your married name and change it when your children are older.
Within the past month, the eyes of the nation have focused on developments in Utah regarding the validity of same-sex marriage in that state, which are likely to have a major impact across the country. Shortly before Christmas, a federal judge struck down the State’s ban on same-sex marriage, finding that it violated the due process and equal protection guarantees of the U.S. Constitution. Immediately thereafter, Utah began issuing marriage licenses to same-sex couples, and more than 1,000 same-sex marriages were performed during a nearly three-week period until the United States Supreme Court ordered that the lower court’s ruling be stayed pending resolution of the matter by the United States Court of Appeals for the Tenth Circuit. The High Court’s ruling, however, raised the question of whether these marriages would be recognized as valid.
The latest chapter in this saga occurred at the end of last week, when the Obama administration announced that the federal government will recognize the marriages performed in Utah during that interim period. In responding to Utah’s ordering of its state offices to refrain from any actions acknowledging the same-sex marriages that were performed, United States Attorney General Eric Holder confirmed that “for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages,” noting that “[t]hese families should not be asked to endure uncertainty regarding their status as the litigation unfolds.”
American citizens often spend time overseas for job assignments, military deployments or sabbaticals. On occasion, these extended stays will result in the birth of a child out of wedlock. Where a child is born abroad and out of wedlock to a father who is a United States citizen, that child is a citizen of the United States from birth. However, in order to register that child’s citizenship, certain requirements must be met:
1. A blood relationship between the applicant and the father is established by clear and convincing evidence;
2. The father had the nationality of the United States at the time of the applicant’s birth;
3. The father (unless deceased) had agreed in writing to provide financial support for the person until the applicant reaches the age of 18 years; and
4. While the person is under the age of 18 years:
- Applicant is legitimated under the law of their residence or domicile;
- Father acknowledges paternity of the person in writing under oath; or
- The paternity of the applicant is established by adjudication court.
Effective January 1, 2014, the Illinois Marriage and Dissolution of Marriage Act was amended by adding Section 602.3 titled “Care of minor children; right of first refusal.” The statute now provides guidelines and parameters for provisions in Custody Judgments dealing with a parent’s right to opt to have parenting time with children when the other parent is unavailable for a “significant” period of time during his or her normal parenting time.
Rights of first refusal provisions have historically frustrated attorneys and parties and fueled myriads of fights and arguments between litigants dealing with custody and parenting issues. While many respect the idea that time with parents takes precedence over time with others, even other family members, it can be extremely difficult to adequately craft right of first refusal parameters that work for the parents and children. Work and social schedules, parents’ or child’s activities, distance between parents’ residences, and a number of other factors affect the feasibility of allowing the parent without possession of the children the right to spend time with the children when the other parent cannot. In many situations, parents might be better off leaving a right of first refusal provision out of a parenting agreement altogether.
On January 6th, we reported on the pending application for a stay filed with the United States Supreme Court by the State of Utah, requesting that the High Court halt the enforcement of a December 20th ruling issued by U.S. District Judge Robert Shelby which invalidated Utah’s ban on same-sex marriage on the grounds it violates guarantees of due process and equal protection under the United States Constitution. After similar requests for a stay were denied by Judge Shelby and also by the United States Court of Appeals for the Tenth Circuit, Utah was afforded speedy relief by the Supreme Court, which granted its application within a week after it was filed with Justice Sonia Sotomayor, who referred it to the full court for consideration.
The Supreme Court, in a one paragraph Order consisting of two sentences, ruled that gay marriages cannot continue while Utah’s appeal of the ruling is pending in the Tenth Circuit. The Court’s unanimous ruling contained no commentary which could offer a glimpse into the reasoning leading the Court to grant the stay.
Up until the entry of the High Court’s order, nearly 1,000 same-sex marriages were performed in Utah subsequent to Judge Shelby’s ruling. Immediately after the Court’s issuance of the stay, more questions arose, particularly whether those marriages performed within that two-week period will be recognized as valid. Utah Attorney General Sean Reyes – who took office only last week – commented that no decision had yet been made about whether to take legal action against the marriages that have occurred, and stated that “[t]his is the uncertainty that we were trying to avoid by asking the district court for a stay immediately after its decision. It is very unfortunate that so many Utah citizens have been put into this legal limbo.”
The recently-concluded holiday season found parties on both sides of the marriage equality debate embroiled in what may prove to be the next matter decided by the United States Supreme Court on this issue. A decade ago, in 2004, two-thirds of Utah’s voters approved a ban on same-sex marriages, defining “marriage” as occurring only between a man and a woman. However, on December 20th, U.S. District Judge Robert Shelby invalidated this law when he ruled that Utah’s prohibition of these unions violates the right to due process and equal protection for gay and lesbian couples guaranteed under the United States Constitution. Judge Shelby’s ruling is the first decision to strike down a state marriage ban after the United States Supreme Court issued its opinion on same-sex marriage this past summer in United States v. Windsor.
Subsequent to Judge Shelby delivering his decision invalidating the ban, nearly 1,000 same-sex marriages have been performed in Utah, a conservative state where the majority of the population is Mormon. The State – claiming that the decision has created a “rush to marry” before its validity is tested on appeal – had previously asked both Judge Shelby and the U.S. Circuit Court of Appeals for the 10th Circuit to impose an emergency stay of the ruling while it is being challenged on review. The State’s request was denied once by Shelby and three times by the 10th Circuit, although that court set an expedited hearing schedule to review the appeal, requiring all filings due by the end of February.