Monthly Archives: June 2012

In Divorce, as in Sports, The Preference is For A Level Playing Field

Article originally appeared in the June 12, 2012 issue of the Chicago Daily Law Bulletin written by Thomas F. Villanti and Evan D. Whitfield

This past Sunday saw the final day of the 2012 Barclay’s Premier League (BPL) season, which, for soccer fans, was a truly amazing spectacle. European soccer is often decried for its lack of competitive balance, which to many American sports fans (NFL & NBA in particular) seems terribly lopsided and unfair. This past weekend’s match-ups offer the perfect example: Manchester City (City) and Manchester United (United), first and second in the standings respectively and two of the BPL’s financial heavyweights, faced financially inferior sides and perpetual league bottom-of-the-barrel feeders Queens Park Rangers (17th) and Sunderland (13th) to determine the 2012 League Champion. As to be expected, both United and City won, with City taking the overall title based on goal differential. The lack of a mechanism to level the financial playing field in European football has resulted in the richest teams (United, City, Arsenal and Chelsea) winning every BPL title since 1995. To any casual observer, the competition just isn’t fair. By contrast, in the United States, the National Football League (NFL), with its salary caps, weighted draft system, and revenue sharing is the most “fair” of all U.S. sports and, accordingly, has produced a much more competitively balanced product that has led to 12 different teams winning the Super Bowl over the same period of time.

Domestic relations litigation in Illinois, as in most jurisdictions, and like the NFL, prefers that a certain level of parity be reached between the competing parties. Unlike traditional litigation where each party is solely responsible for his or her own attorneys’ fees, in the Domestic Relations division, while both parties are initially responsible for the fees they individually incur (In re Marriage of Mantei, 222 Ill. App. 3d 933), the less moneyed party may be awarded interim fees and a contribution award if he or she can successfully demonstrate an inability to pay their own fees and also show that the other party has the ability to pay (750 ILCS 5/501(c-1), 503(j)). Illinois is not unique in its attempts to create a level playing field. In fact, Texas shares similar concepts regarding shifting of attorneys’ fees.

Continue reading

Making the Case for Facebook’s Zuckerberg to “Like” a Prenuptial Agreement

Just one day after the opening bell rang for the Nasdaq stock exchange, thereby announcing the hotly anticipated Facebook IPO, wedding bells were ringing for Facebook founder & CEO Mark Zuckerberg and his bride, Dr. Priscilla Chan.  While some may wonder what to get a multi-billionaire and his bride as a wedding gift, others were wondering what the couple may or may not have gotten before the wedding – a Pre-Nuptial Agreement, or pre-nup.  While we may never know, as such revelations often come out only at the time of divorce, divorce lawyers are surely pondering the question.

Many divorce attorneys have already weighed in on the matter, virtually all of them insisting that if Mr. Zuckerberg had been their client they would have advised him to sign one (yours truly included), he might well have declined to do so.  After all, clothed in his trademark hoodie and maintaining his seemingly casual attitude, Mr. Zuckerberg has clearly followed his own path as to what a CEO is or should be (he even bucked tradition when he chose to ring the opening bell from Facebook company headquarters, rather than from the floor of the Nasdaq Exchange), and he has done so with great success.

However, with the timing of the Facebook IPO occurring before the wedding, Mr. Zuckerberg may not need a pre-nup to protect a large portion of his wealth.  The reason is that Mr. Zuckerberg’s earnings up to the marriage, including the 60 million shares he exercised at the IPO, will be considered his pre-marital property.  Also helpful is the easy valuation of those stocks at the time of the marriage, thanks to the publicly listed Nasdaq trading price.  And while California is considered a “community property” state (Illinois is an “equitable division” state), the laws regarding pre-marital property are similar.  As long as Mr. Zuckerberg takes certain steps to keep that money separate from other property that could be considered marital property, he can insure that that money stays his non-marital property.

Continue reading