On June 26, 2015, the Supreme Court released Obergefell v. Hodges, a landmark decision requiring
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.
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.
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.
Facebook is perhaps the largest and, at least among adults, the most frequently used social 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.
The Sofia Vergara / Nick Loeb fight over the frozen embryos they created has cast a public eye on 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.
The issue of whether a certain type of business profit should be considered personal income for 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.
The past decade has seen tremendous progress in the battle for marriage equality. State bans on 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.
This past week, the Illinois Supreme Court delivered its long-awaited answer to a question which has been debated in the family law community for some time: does the doctrine of “equitable adoption” – first recognized by our Supreme Court in its 2013 decision in DeHart v. DeHart, 2013 IL 114137 – also apply in the context of child custody actions? In In re Parentage of Scarlett Z. – D., 2015 IL 117904, the Court firmly closed the door on a nonparent raising an equitable adoption argument in a custody case by limiting its application to “the context of inheritance.” Further, the Court similarly foreclosed arguments that a “functional parent-child relationship” provides a nonparent with standing to seek custody of a child.
It has been nearly two years since the Illinois Supreme Court broke new ground by recognizing the “equitable adoption” doctrine for the first time. This doctrine allows a person who was accepted and treated as a natural or adopted child, and as to whom adoption was promised or contemplated but never legally achieved, to share in the inheritance of the promisor.
Governor Rauner proposes to cut billions of dollars from the State of Illinois’ next fiscal year’s budget. The fiscal year in Illinois runs from July 1 to June 30th. Approximately half of the funds cut are proposed to be due to cuts to Illinois Pension Plans. The proposed budget cuts would have a significant impact on divorced or divorcing parties where a State Pension constitutes a significant asset in a prior divorce settlement or their current marital estate. The budget cuts could significantly impact the actuarial value of these pensions.
The Governor proposes to cut funds due to pension plans is by converting all of the state employees (except for state police and firefighters) to “Tier 2” employees as of July 1, 2015. Tier 2 previously applied only to employees hired after December 31, 2010. All persons hired before January 1, 2011 were in Tier 1.
The governor estimates his changes will cause the amount of the pension contribution needed for the next fiscal year to be $2.2 billion less.
Marital infidelity is common and much has been written on the subject. Recently, the Wall Street Journal published an article entitled “The Signs Before An Affair”, Wall Street Journal, January 27, 2015, page D1. While not necessarily scientific, the “signs” include:
- Certain ages being more prone to cheating;
- History of past infidelity;
- Dissatisfaction with the current relationship;
- Exposure to potential partners at work;
- Thrill seeking or narcissistic personal traits.
Moreover, statistics suggest that sometime during their marriages, 21% of men and 15% of women are involved at some time in an extramarital affair. See National Opinion Research Center’s General Social Survey. Other statistics are even higher.
On December 30, 2014, Gov. Quinn approved new rules regarding how private conversations can be recorded following the Illinois Supreme Court’s decisions this past March in People v. Clark, 2014 IL 115776 and in People v. Melongo, 2014 IL 114852, which struck down Illinois’ prior eavesdropping law for being overly-broad. Illinois’ previous eavesdropping law was among the strictest in the nation, making it illegal to record anyone, even in public, without their permission.
The new law now draws a distinction between a “private” conversation and other public communications, and provides that a person commits eavesdropping when he or she knowingly and intentionally: