Much like the “curse of the Lotto,” we hear time and time again about former professional athletes who earned millions during their playing years only to squander it all and find themselves penniless. Exhibit A: Former all pro defensive tackle Warren Sapp filed for bankruptcy this year.
Many view bankruptcy as an unpleasant process to erase their debts and get a fresh start in their financial lives; however, Sapp’s bankruptcy filing may not be the liberating tool he is searching for to ease himself from his enormous debts. That’s because Sapp is divorced and reported to owe a hefty $728,100 in back spousal and child support. Unfortunately for Sapp, who was able to elude topnotch offensive linemen for years, this is a debt he cannot elude – even in bankruptcy.
This situation is certainly not unique to Sapp. Many other high profile, former professional athletes (Evander Holyfield, Antoine Walker, Lenny Dykstra, Mike Tyson, Darryl Strawberry, Lawrence Taylor, to name a few) have found themselves faced with substantial outstanding family support obligations in the wake of a bankruptcy filing. With a divorce rate for professional athletes of almost 80 percent, it’s imperative that family law practitioners working with these high-profile clients understand how a bankruptcy filing an affect a celebrity’s significant obligations arising from family court.
A divorce can be one of the most difficult ordeals individuals experience in their lives. A family is being torn in two. Parents are separated from their children. Financial stability is undermined. Unfettered access to money and family is replaced by state involvement and court orders mandating when individuals can see their children and what they must pay an ex-spouse each month for support. Marital Settlement Agreements included in divorce judgments are contracts according to which parents must live their lives for their foreseeable futures. Negotiating or litigating a workable, advantageous agreement is essential to future financial security and emotional harmony.
There are a variety of key factors for successfully navigating a divorce. Having a complete understanding of the financial estate, each party’s income and expenses, and the dynamics of family decision-making and child care history are all important. Having effective counsel to accumulate information and execute a plan is essential. But those factors are logistical in nature, and an effective attorney will guide a litigant through that process and direct attention where it is most required.
Myth: Refusing to pay attorney’s fees to or on behalf of my spouse is a good strategy because it will freeze him or her out and give me a leg up.
In Illinois, the response is no. Illinois has a statute that allows for temporary fees to be awarded from the spouse who is financially advantaged in favor of the spouse who doesn’t have the financial resources. The principle is called leveling of the playing field, and a court does not hesitate to award temporary attorney’s fees once, twice, or a half a dozen times during the pendency of the case. Most judges will not allow the inability of one spouse to access money to pay for his or her attorney’s fees to be outcome determinative. The amount of fees that are advanced are considered a credit towards that spouse’s share of marital property. -
Myth: My spouse’s marital misconduct or bad behavior will help me in my marital case.
If a husband has a girlfriend, or a wife spends money without any budget or regard for their finances, are those factors things that a court would consider in the division of property? Generally not. Our statute very specifically says marital misconduct is not to be considered in either the division property, the setting of support, the setting of child support, or, indeed, in most custody determinations. The exception to that general rule is dissipation. Dissipation is defined as the expenditure of funds for a purpose not related to the marriage at a time when the marriage is undergoing an irretrievable breakdown. A simple example is gambling. If one spouse gambles, and loses money, the court can consider the loss a dissipation and add the amount dissipated to that party’s balance sheet as though it still existed.
On May 31, 2012, a federal appeals court in Boston (U.S. Court of Appeals for the 1st Circuit) unanimously ruled that the Defense of Marriage Act (“DOMA”) was unconstitutional, thereby paving the way for this controversial issue to be decided by the United States Supreme Court. Less than one week later, on June 6, 2012, the U.S. District Court for the Southern District of New York (a lower court, and thus not as significant a ruling as the 1st Circuit Appellate Court decision), also ruled DOMA unconstitutional.
DOMA was passed in 1996 and signed into law by President Clinton. In pertinent part, it defines marriage for federal purposes as a “legal union between one man and one woman as husband and wife” and specifically states that “spouse” can refer only to a person of the opposite sex of a husband or wife. It also provides that no state is required to recognize a same-sex marriage authorized by another state.
However, last year the Obama administration stated that it would no longer defend the law. (President Obama has since stated that he supports gay marriage). That task has since been taken up by Speaker John Boehner and the United States House of Representatives, enlisting the help of private attorney Paul D. Clement.
Myth: Illinois is a 50/50 property division state.
Probably one of the most commonly asked questions I receive from clients is, “Is Illinois a 50/50 property division state?” It can be, but not necessarily. 50/50 states are known as community property states; California, Louisiana and Wisconsin are examples. Illinois is what is called an equitable distribution state. What that means is that the court will allocate assets and liabilities equitably, not necessarily 50/50, although in many cases it turns out to be 50/50. What’s important to keep in mind is not just the percentage division, but the dollar value that is allocated to the asset or the liability. A 50/50 division with overvalued assets really isn’t a 50/50 division. Certainly attention should be given to the dollar value of the assets and liabilities.
Myth: The party who files first has the advantage.
Generally, the law grants no advantage to the party who files first. The first person to file is called the petitioner. The person against whom the case is filed is called the respondent. There is no legal advantage to being the petitioner, nor is there an advantage to being the respondent. In Illinois, both parties have equal rights and responsibilities. The judge does not view the petitioner as the good guy, and the respondent as the bad guy.
The only advantage that might be gaining by filing first occurs if both parties file petitions to end their marriage and the filings are in different states or counties. Often, but not always, the case is heard in the jurisdiction where the first petition was filed. .