Monthly Archives: September 2010

Breaking Law in Illinois: Social Security Income Not Exempt from Payment of College Expenses

The Second District Appellate Court recently found that social security disability income can be used to satisfy an obligor’s duty to fund college expenses. In re Marriage of Truhlar, 2010 WL 3667117 (2nd Dist. Sept. 17, 2010), the parties had agreed, at the time of their divorce in 1994, to contribute to the cost of their children’s college educations based on their respective abilities to pay at the time that each child graduated from high school. In 2008, the Mother filed a Petition seeking contribution to their daughter Ashley’s higher education expenses. Ashley had been admitted to National Louis University, had obtained grants and scholarships, was working part time, and was living at home as a cost saving measure. The Father’s only source of income at the time of the Petition was social security disability benefits. The Father argued, and the trial court agreed, that his social security benefits were beyond the reach of creditors under applicable federal law, and therefore could not be attached for the purposes of contributing to his daughter’s college expenses. Accordingly, the trial court found that it was without authority to order the father to contribute to Ashley’s college expenses and the Mother appealed.

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Tips For Tying the Knot: Best Wedding Gift May Be a Candid Discussion

As a couple anticipates marriage, they spend considerable time planning for the wedding day and dreaming of their future. But many fail to realize that they also need a candid discussion of how to merge their economic as well as their emotional lives.

Among the best gifts the bride and groom can receive is a thorough and objective assessment of their financial and personal goals. This may or may not include a prenuptial agreement, or “prenup” for short. The words alone can evoke powerful emotions: It seems inconsistent to say, “I love you; I want to spend the rest of my life with you, and, oh, by the way, would you mind signing this prenuptial agreement?” In fact, the process can be an opportunity to stimulate a healthy conversation about lifestyle, roles, and financial obligations.

A delicate balance exists between preserving a good relationship and protecting yourself legally in the event of a divorce. That’s why it is important to work with a family lawyer who has extensive experience in defining the financial results desired while preserving a loving relationship.

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Collaborative Law Opens Doors To Families with Special Needs Children

A recent study by researcher Brian Freedman has debunked the myth showing parents with autistic children have a divorce rate of 80%. In fact, the study demonstrated:

There really weren’t any significant differences in terms of family structure when you consider children with autism and those without,” says study researcher Brian Freedman, PhD, clinical director of the Center for Autism and Related Disorders at the Kennedy Krieger Institute in Baltimore.

This is a positive finding for parents with an autistic child. However the reality is that divorce affects about one out of every two families. How can these families with special needs children divorce in a manner that meets their child’s emotional, physical and spiritual needs?

As a Chicago family law attorney who has worked with families in this situation, and father of an autistic son, I recommend parents look to the collaborative divorce process, an approach that puts the needs of children first.

Parents of a special needs child can appreciate the chaos and adversity their child already faces in their day to day lives. A pending separation or divorce can just add to that. By definition the collaborative process is going to be better able to cater to the unique issues when you have a child with disability.

Collaborative law or collaborative divorce offers families an alternative to resolve disputes with privacy, respect and minimal court involvement, while taking into account the highest priorities of their entire family.  A team of specially trained interdisciplinary professionals guide and support parties in a problem solving process, not as adversaries.

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The Need For Mental Health Professionals in Divorce

Divorce CounselingEarly on in my relationship with new clients who are starting the divorce process, I often  inquire whether or not they are seeing a therapist.  If the answer is no, I regularly encourage my clients  to consider meeting with a therapist.   Generally speaking, I look at this as something positive  I can do for someone who is just starting out through the often stressful and usually emotional process of divorcing.  While this is sometimes a difficult conversation for a lawyer to have with a new client, many  are very appreciative. Usually sooner than later, they do seek out a therapist, who ends up being someone they can  lean on for emotional support as they wade through this process.  Most important, however, is that the clients know that they have someone that they can feel absolutely safe telling anything and everything to, as the therapist/patient relationship is entirely confidential.

It is a very different situation, however, when the issue of seeing a therapist comes up during the process of a divorce, usually during a custody dispute. In those cases, a therapeutic professional is appointed by the court to evaluate a family and make recommendations concerning their future custodial arrangements.  This therapist,  who is usually selected by the children’s lawyer, is viewed as the court’s witness and is someone very different from a personal therapist.

When I have clients who are ordered to see a court appointed therapist, I explain before the meeting with this professional that nothing they say is “confidential”.  I tell them that although this person will likely have a tremendous impact on their future custodial arrangements, they must carefully think about their conversations with this therapist, as anything they say will likely be disclosed to everyone involved in the case, including the court.

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How to Create a Premarital Agreement that Paves the Path for a Happy Marriage

I recently read an article in the Huffington Post that cited 12 Happy Marriage Tips From the 2010 Smart Marriage Conference.  I would like to add a 13th tip- Take time to talk about your future and consider creating a premarital agreement.

From my experience as a divorce attorney for the past 32 years and the time I spent doing pre-marital counseling for couples who wanted to be married in the Catholic church, it became clear to me that couples planning to marry (both young and old) had talked little, if at all, about the very matters that often lead to conflict and divorce.  They had not discussed their views of money, sex, the number of children they would have or not have, whether one or both would work, whether they would have one checking account or two separate accounts, how important religious or other cultural differences might be, and so forth.  In short, expectations for their relationship were presumed rather than explored, expressed and resolved.

More often than not, couples are extremely uncomfortable having these conversations, saying they are unromantic or privately fearing that having such discussions might end their relationship.  Yet with a divorce rate of 50% or more, these unspoken and differing expectations of what life together would look like are often the very source of conflict and divorce.  Here are some suggestions that may be helpful to you in raising the subject of a premarital agreement with your fiancé in a positive way:

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Protect Your Future: Retirement Benefits After a Long Term Marriage

A divorce after a long term marriage such as that of Al and Tipper Gore presents certain issues regarding future long term economic security.

I have no doubt that both the Gores will walk away from their divorce with enough property to be just fine.  But what about a more ordinary couple that decides to divorce after many years?  What do they have to look out for?

One of the most important issues to consider after a long term marriage is the division of retirement benefits.  Retirement benefits are property that can be divided in a divorce.  The retirement benefits and other assets acquired by the parties during the marriage were intended to support them in their retirement years.  If the divorce happens shortly before or even after the parties have retired, their future economic security can be affected by the division of retirement benefits.

Studies have shown that women do not have the same level of retirement assets as a man.  A divorce after a long term marriage often puts the woman in worse financial shape after the divorce than the man, especially if she did not work outside of the home during the marriage.  The husband may be at his top earning power when the divorce occurs; while the wife may have none.  She may have few or no retirement benefits in her name, while he continues to accrue retirement benefits at his highest career rate.

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