Monthly Archives: March 2011

Confidentiality of Custody Evaluations

Cases involving the custody of children are undoubtedly the most difficult cases for family law judges.  Instead of dealing with objective numbers—calculating the value of a marital or non-marital estate by reviewing bank and brokerage account records, tax returns, applications for loans, and other objective documents, or determining the correct child support figure by ascertaining a parent’s net income and then calculating the correct percentage, or even assessing the cost of the parties’ standard of living for purposes of fashioning a maintenance award—the judge dealing with child custody must instead evaluate the parents and children as people with complicated interpersonal relationships.

To aid the court in these difficult decisions, judges often appoint a custody evaluator who interviews parents, children, and other people important in the children’s lives, does psychological testing of the parents and children, and then writes a report giving an opinion as to which parent is better able to serve the best interests of the children.  Often, these evaluators are licensed psychologists or psychiatrists who learn very personal details about the parents and children.  While everyone involved in the case knows that the report is going to be presented to the judge and that the evaluator will have to testify about the basis for the recommendations in the report, no one expects the report to be disseminated beyond the case for which it was prepared.  What happens, though, when a subsequent husband files a custody modification case involving the same mother but a child of the later marriage and wants to use the evaluator’s report prepared for the first case as evidence in the second?

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Retaining Your Non Marital Property After Divorce

Most people contemplating or going through a divorce are looking to retain as much of their property as possible.  That property is divided into two classifications: marital and non-marital property.  Marital property in Illinois generally consists of property acquired during a marriage.  Illinois divorce law requires the equitable sharing of all marital property.  That means the court will examine a series of factors such as financial and domestic contributions, length of the marriage, and earning capacity, in determining how much marital property each party will retain.

However, Illinois law requires upon divorce that a party retain 100% of their non marital assets.  Non marital assets are defined as property acquired via gift, inheritance, before the marriage, or protected under the terms of a valid agreement between the parties such as a premarital agreement.  Establishing the non marital character of an asset in the midst of a divorce case is not a simple process and requires time, planning, and thoroughness.

One of the difficulties in establishing the non-marital character of an asset is the presumption under Illinois law which generally favors classifying assets as marital property.  Thus, the party seeking to establish an asset as non marital has the burden of proving to a court that the property is non marital through the use of evidence, which typically will consist of testimony and documents, along with other demonstrative materials.

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What You Need to Know About Civil Unions in Illinois

On January 31, 2011, Governor Pat Quinn signed into law the Illinois Religious Freedom Protection and Civil Union Act, thereby making Illinois the 18th U.S. jurisdiction to pass legislation establishing a legal basis for some form of same-sex family relationships.  While Illinois is the sixth state to formally recognize civil unions, twelve other states have granted legal status to same-sex marriages or domestic partnerships.  The law is scheduled to go into effect on June 1, 2011.

The new act has two purposes: (1) To provide procedures for the certification and registration of a civil union, and (2) to grant to parties in a civil union the same benefits and responsibilities enjoyed by spouses under the laws of Illinois.  These Illinois state rights include the state benefits available to partners of military veterans, pension benefits upon the partner’s death, the right to own real estate as tenants by the entirety, to inherit real and personal property through intestate succession, to visit and make medical decisions for the hospitalized partner, to share a nursing home room, to sue for wrongful death of the partner, and to be eligible for workers’ compensation benefits in the event of the partner’s disability or death.

The new law does not grant  to partners in a civil union all the rights available to traditional married couples, however, because federal law does not recognize such relationships.  For example, partners in a civil union may not file federal joint income tax returns nor may they inherit property from the deceased partner without paying federal estate tax.  Just recently, an 80-year-old woman had to pay over $300,000 in estate tax after inheriting her partner’s property.  Same-sex partners may not receive social security survivor benefits or federal benefits as partners of military veterans, nor may they receive benefits under certain specific ERISA health plans.

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