Monthly Archives: December 2012

What is Collaborative Law?

When you hear the word “divorce,” you probably have an image of what the process will be like.  Perhaps you assume that each party will hire an attorney; take a polarized negotiation position; and repeatedly go to court to fight over issues of property division, custody, and spousal support.  Perhaps you fear that after years of failed negotiation attempts, a judge who does not know you, your children, or your family will decide issues that affect every aspect of your life.  Perhaps you believe that litigation is the only method through which you can get what you want or are entitled to in a divorce.  That belief is not true.  There is another process: collaborative law.

What is collaborative law? Collaborative law is a dispute resolution process through which spouses can obtain a divorce and settle all related issues cooperatively.

Do I still retain an attorney in the collaborative law practice? Yes.  Each spouse retains a collaborative law attorney to represent him or her.  However, in addition to the attorneys, the spouses also retain additional professionals who will act as an interdisciplinary team to assist them in facilitating the divorce process.

Who is on the “team”? The parties may hire a mental health professional to act as a “coach.”  The collaborative coach is not the parties’ therapist.  Rather, the coach uses his or her professional training to assist the parties in managing their emotional or psychological issues that might impede the divorce process.  The coach will facilitate communication and dialogue between the parties and other team members.  If the parties have children, they may hire a child specialist, a mental health professional with specific training in working with children and families with children.  The child specialist may assist the parties in creating a joint parenting agreement that works for all parties involved.  The parties may also hire a neutral financial specialist, who assists the parties in gathering, understanding and analyzing financial information.  The financial specialist may explain to the parties what their estate is worth and provide different options on how the estate can be divided.

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U.S. Supreme Court Will Address Gay Marriage

As a follow up to my last blog post, on Friday December 7, 2012, the United States Supreme Court announced that it would hear, not one, but two gay marriage cases.  The first is Windsor v. United States 699 F.3d 169 (2012), which comes out of an October 2012 ruling from the Second Circuit Court of Appeals, and was the subject of my prior post.  The second case, Perry v. Hollingsworth 704 F.Supp 2d 921 (N. D. Cal 2010) comes out of the 9th Circuit in California.

In the Windsor case, Edith Windsor challenged the Defense Of Marriage Act (DOMA), alleging that it violated the equal protection clause of the United States Constitution, when she was required to pay more than $363,000 in estate taxes on property she received from her same sex spouse.  (The couple was legally married in Toronto in 2007, but resided in New York).  While opposite sex spouses are allowed to transfer assets to their spouse upon death without paying estate taxes, under DOMA, same sex spouses do not receive the same estate tax exemption – thus the finding that DOMA prevented Ms. Windsor from receiving equal protection under the law, in violation of the U.S. Constitution.

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A Practical Guide to Navigating Visitation Disputes

All too often, litigants work tirelessly to finalize a comprehensive parenting order only to haveiStock_000021325411XSmall-02 disputes over parenting time after the order is entered.  The purpose of this article is to provide a few practical tips to deal with these common problems, including some new remedies for litigants provided by recent amendments to the Illinois Marriage and Dissolution of Marriage Act.

  1. At a minimum, document the situation. If you do not wish to involve police or courts, at a minimum you should document a violation in a letter or email from you or your attorney.  Courts typically do not sanction someone for a single, isolated violation.  By documenting repeat violations, you will be able to show a clear pattern of behavior to the court should you choose to use court action to enforce the order.  If you feel that a child should not attend a scheduled visitation for a justifiable reason (i.e., to prevent abuse), you should document your reasoning and contact your attorney to address how best to handle the issue in order to avoid being held in contempt of Court for violating an order.
  2. Contact the police in appropriate circumstances, but exercise discretion. Visitation interference is a crime in Illinois, and a parent who commits unlawful visitation interference is guilty of a petty offense.  Upon a third conviction of visitation interference, a party is guilty of a Class A misdemeanor.  So if a parent is refusing without justification to return a child, it may be advisable to contact the police.  Keep in mind that, as a practical matter, non-emergency visitation issues are often assigned a low priority by police given their heavy workloads, particularly in urban areas.  A local law enforcement agent advised that police typically give one or two warnings prior to issuing a citation for visitation interference.  So it is important to ask the officer to write a ticket for the other parent’s visitation interference.  If the officer writes a police report, request a copy of the report.   In non-emergency situations, it is important to exercise discretion when involving the police to minimize any impact on the children.  Police officers will usually meet the reporting party at a location near the site of the violation (usually the other party’s home) and will make efforts to address the situation without involving the children.
  3. Keep a certified copy of your order handy. You should always have a copy of your visitation order in a readily accessible area.  The visitation order is the first document a police officer will request when responding to a visitation issue.   Some officers will insist on seeing a certified copy of the order.  Any visitation order may be certified (or authenticated) by the Clerk of Court for a nominal fee.
  4. Enforce the order in court. Unlawful visitation interference is infrequently prosecuted as a criminal matter, but the Domestic Relations Court retains jurisdiction over child related matters and presents another avenue for enforcing visitation orders.  The Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) provides expedited procedures for addressing visitation abuse.  Governor Quinn recently signed into law the Steven Watkins Memorial Act, which strengthens the sanctions that the court may impose under section 607.1 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607.1).  Under the new rule, the court may suspend a violator’s driving privileges, place a party on probation, sentence a party to periodic imprisonment for a period under 6 months, find the party guilty of a petty offense, and fine them up to $500 for each finding of visitation abuse.
  5. Do not involve the children. Avoid discussing the visitation dispute with, or in front of, minor children.   Courts react favorably to the party that attempts to shield the children from conflict and puts the children’s interests first.

Keep in mind that each case is fact-specific, and if you have doubts about how to address a situation, contact your attorney.

Supreme Court Still Quiet on Gay Marriage

There are presently 10 pending appeals potentially before the Supreme Court addressing the issue of same sex marriage.  8 of the 10 appeals directly challenge the controversial Defense of Marriage Act (DOMA) on equal protection grounds.  DOMA has already been declared unconstitutional by the 1st and 2nd Circuit Courts of Appeal, as well as by other courts.

It is almost certain that the Supreme Court will address the constitutionality of DOMA on equal protection grounds.  However, the Court can decide which case it will hear to determine the issue, and many legal scholars are eagerly awaiting a decision by the Court as to which case it will hear.  The Justices addressed this issue on Friday, November 30, 2012, but reached no conclusion.  They are expected to address it again when they meet tomorrow, but it is not certain that a decision will be reached before the long holiday recess.

Another appeal potentially pending before the Court has been filed by Massachusetts Attorney General Martha Coakley and raises a separate challenge to DOMA.   Coakley argues that marriage is a matter of state law, and DOMA, a federal law, violates the state’s rights under the 10th Amendment (quick refresher – “The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”).

The final appeal deals with California’s “Proposition 8”, which was ruled unconstitutional by the Ninth Circuit Court of Appeals.  Proposition 8 amended the California State Constitution to include the phrase that “only marriage between a man and a woman is valid or recognized by the state of California.”

Even if the Court decides the DOMA issue, it is uncertain whether it will address the Massachusetts appeal or California’s Proposition 8.

Be sure to check back for an update!

Instant Replay Creates All Kinds of Issues

Article originally appeared in the November 27, 2012 issue of the Chicago Daily Law Bulletin written by Thomas F. Villanti and Evan D. Whitfield

Major League Baseball (MLB) is deciding this off-season whether to extend instant replay to other areas of the game.  Meanwhile, former LA. Dodgers owner Frank McCourt is facing his own instant replay issue this off-season.

After 30 years of marriage, a reported $20 million in attorney fees and a divorce settlement that awarded Jamie McCourt $131 million, McCourt finds himself back in court.  McCourt’s ex-wife is requesting that the court set aside their June 2011 divorce decree based on her ex-husband’s misrepresentations as to the value of the Dodgers.  During the divorce litigation, McCourt stated in court documents that the value of the Dodgers was about $300 million.  However, the one time MLB franchise owner recently sold the Dodgers for a record setting $2.15 billion to Guggenheim Baseball Management (leaving McCourt with a reported 93 percent or roughly $1.7 billion of the marital assets).  The alleged massive misrepresentation of the Dodgers’ value caused the former Mrs. McCourt to demand a review of McCourt’s home run agreement, crying it was foul.

In California, under Section 2122 of the California Family Code, there are five grounds to set aside a judgment including actual fraud, perjury, duress, mental incapacity or mistake (CA FAM Sec. 2122).  Considering that the recent sale realized a value of $2.15 billion, Jamie McCourt’s attorneys stated in the Los Angeles Times that even if McCourt’s figures were the result of mistake rather than fraud, the settlement should be set aside based on the errors.

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