Drendel & Jansons Law Group

Relief for Tenants in The Coming Year

2026-04-21T16:19:56Z

Of the generation of new laws there is no end. A new law scheduled to take effect in January of 2025 will be of special interest to tenants and landlords. Landlords, in particular, should pay attention because failure to comply with this new law could be quite costly! The new law requires landlords to disclose flooding to new tenants. The law applies to every landlord who leases a lower-level unit. Residential or commercial. Every lower-level lease must include a disclosure by the landlord in writing prior to the signing of the lease whether the unit or any portion the property containing the unit has experienced flooding. This disclosure must be made part of every written lease and every written renewal of lease, and it must be signed by both parties. Even if the landlord is not aware of any flooding in the last 10 years, the landlord still must provide a statement to that effect. The disclosure must comply with the form of notice laid out in the statute. The language includes notice to the tenant that insurance policies may not cover damage or loss incurred in a flood. The notice should encourage the tenant to examine their policy to determine whether they are covered, and it should inform the tenant that insurance coverage may be available through FEMA. The notice should also include a link to the Illinois Department of Natural Resources website and FEMA. Failure to include this statutorily required notice exposes a landlord to substantial risk. If a landlord does not disclose that the property is in a special flood hazard area, the landlord will be liable to return all rent and fees paid in advance of the notice. If a landlord fails to disclose that flooding has occurred in the past, a tenant can terminate the lease, demand return of all rent and fees paid to date, and sue to recover damages for loss to personal property as a result of any flooding. If you are a landlord, you must include the mandatory disclosure with every lease and lease renewal after January 1, 2025. If you are a tenant, you should be aware of your right to receive the disclosure and know that you may have some recourse if you suffer loss due to flooding if your landlord fails to provide you the proper disclosure. As always, if you have any questions, you should contact a local attorney who handles real estate and landlord/tenant matters.

The Players in a Child Custody Dispute

2022-07-26T09:12:49Z

Divorce is a difficult experience. It can be made more difficult when minor children are involved. If the divorcing parents can not work out the details of child custody and visitation, child custody litigation is the only way to a resolution. It is important for everyone to understand the players in child custody litigation. Both parents, their attorneys and the court (the Judge) are involved, but there is more. The Illinois Marriage and Dissolution of Marriage Act (IMDMA) provides for additional input from three possible sources – a child custody evaluator, a guardian ad litem and an attorney representative for the children. Judges are not experts in child psychology, and judges in the American court system cannot and do not become actively involved in matters that are being litigated before them. These additional professionals become the eyes and the ears of the court and aid the Judge in making a custody determination. As a side note, when it comes to child custody and visitation, the best interest of the child (not the parent) is the standard. Parents are presumed to know the best interests of the children. When parents are pitted against each other in a child custody dispute it is difficult to determine what is best. In that case, a judge needs a more neutral, objective analysis than what either parent or their attorneys who are advocating for them can provide. A child custody evaluator is a person appointed by the court at either party’s request or on the court’s own initiative to provide a written, professional evaluation. Although the IMDMA does not require it, child custody evaluators are usually mental health professionals. The child custody evaluator is required to evaluate both parents, the children, the family dynamics and render an opinion based upon recognized standards in psychology. This aids the court in determining the custody and visitation terms that are in the best interest of the children. A guardian ad litem (GAL) is a person appointed by the court to represent the best interests of the children. The term, “guardian ad litem” means guardian for the case. A guardian ad litem is usually an attorney who has been specifically trained to be a GAL, but the GAL does not represent anyone in the custody dispute. The GAL typically interviews the parents and the children and provides additional input from a neutral and objective standpoint that will aid the court in making a custody determination that focuses on the best interests of the children. Finally, an attorney representative is an attorney for the child(ren) who advocates for the child(ren). The attorney representative allows the child to have a voice in the custody dispute. In the collar counties of Chicago, where the Drendel & Jansons Law Group practices, guardians ad litem are appointed in nearly every custody case. Child custody evaluators are also commonly appointed in child custody litigation. Attorney representatives for children, on the other hand, are rarely appointed. The voice of the children, though considered, is not a primary factor. Children do not necessarily know what is in their own best interests. The law presumes the maximum involvement of both parents is in a child’s best interest, even if a child might choose one parent over the other. In many families children might prefer the lenient, permissive parent over the stricter, less permissive parent. That is not necessarily in the child’s best interest. It is important to understand that the “players” in child custody litigation are entitled to be paid. Both parties must retain and pay their own attorneys. Both parties are expected to pay the court appointed custody evaluator and the GAL. Parents involved in custody litigation will often retain their own experts to provide an alternative or a confirming expert opinion to the custody evaluator. For these reasons, divorce proceedings that involve custody disputes can be extremely expensive. Before taking the plunge into a child custody dispute, it is important to consider what and who is involved. Lining up the players provides a clearer understanding of the process, who is involved in the process and what the aim of the process is – which is to allow the court to make a determination as best as can be made to protect the best interests of the parents. At the end, one parent will become the sole custodian, and one parent will have visitation on terms that are determined by the court.

Family Law: A Perspective on Divorce

2022-07-26T09:19:33Z

Kevin G. Drendel

Most people realize that “Family Law” is a misnomer. Most people associate “Family Law” with divorce, and rightly so. Attorneys who practice family law usually have a high volume of divorce cases and follow up “post judgment” litigation involving maintenance (formerly known as alimony), child support, change of child custody and so on. Still, we like euphemisms, so “Family Law” it is.

In Illinois, the Marriage and Dissolution of Marriage Act (IMDMA) establishes the “rules” that define the commitment when two people marry. One reason that few people know or consider the IMDMA when they get married is that they believe in the personal commitment – that they will remain together “until death do us part.” Who goes into marriage planning or thinking about its failure? We would rather not think about the potential negatives just like we would rather use the phrase “family law” than divorce.

The IMDMA rearely, if ever, comes into play as long as the personal commitment remains strong. Spouses develop their own “rules” of the relationship as time goes on. As long as the personal commitment remains strong, the spouses define the relationship, and they do not think about marriage in terms of laws imposed by the State.

Years ago, I was asked to meet with a community college sociology class that was covering divorce along with other topics. They wanted an attorney to give them a different perspective. I had never really stopped and thought philosophically about it. Taking a step back at times and gaining a higher perspective is usually worth the effort, so I accepted the offer.

Thousands of people get married every day. Getting married is relatively easy. Obtaining a marriage certificate is inexpensive, and any justice of the peace or ordained person can perform a perfunctory ceremony. Many people spend months or years planning a wedding, but the act of getting married is really very simple and can be done in a matter of days or even hours.

From the beginning, however, marriage is an institution created and recognized by the State. The marriage certificate is issued by the State. The IMDMA defines the marriage commitment, a kind of social contract if you will. Once the personal commitment wanes, and either party files for divorce or legal separation, the IMDMA determines how marriage is unwound.

We all have our sense of right and wrong, what is fair and unfair, but personal morality is trumped by the IMDMA when either party files for divorce; the social contract (IMDMA) becomes the arbiter of the relationship between the spouses and the unwinding of that relationship.

As easy as it is to get married, which can be accomplished in an afternoon in front of a justice of the peace, divorce is not so easy. The longer the marriage, the more intertwined the relationship. Especially when children are involved the unwinding (divorce) can be complicated. A whole host of rules will be applied (IMDMA) that are likely to be unfamiliar and unsettling. Principals by which two spouses agreed to live in their marriage may not apply in divorce. The structure of the relationship created by the spouses in marriage may not be the criteria used to define the respective rights and obligations of the parties in divorce. Assumptions made in marriage are replaced by the rules established in the IMDMA.

Couples who are able to overcome the emotions that always accompany a divorce and be “reasonable” and objective about their situation fair better in the process of divorce than couples who cannot get past the personal hurt, anger, disappointment and even desire for revenge or “justice”. Revenge or justice is never cheap.

I often have told people, when asked how long it will take or how much it will cost, it depends on the four people involved: the two spouses and the two attorneys. If any one of them is unresaonable, contentious or difficult, the process will take longer and cost more. Sometimes the emotions involved must take time to cool down before either or both spouses are able to gain some perspective and reach an agreement. Sometimes the only resolution to be had must come from the judge after a trial.

When children are involved, the “marital commitment” that was made lingers on past the divorce. Child custody, child support and obligations to contribute to college extend beyond the age of majority (18), and family arrangements, vacations, weddings, funerals, college graduations, grandchildren and a host of over events and circumstances will extend the ramifications of the marital commitment to the end of each spouse's life. To that extent, family law is a more apt description than “divorce”. The commitment that flows from marriage does not completely end at divorce, and the marriage commitment that includes children may never end until one spouse is in the grave (or later!).

Sometimes the complications that flow from divorce, particularly when children are involved, are hard to anticipate and prove very problematic indeed. Life is complicated and becomes doubly complicated when there is a divorce with children. Melding two parents together in one household changes to juggling two parents in two separate households that may include new step-parents, and step-children and step-grandchildren and so on. The adage that two people can live more cheaply together proves itself when one household becomes two households trying to make the same dollars stretch.

If you are reading this today and contemplating divorce, it makes sense to take a step back and to gain a larger perspective. I like to say that the “grass is not always greener” on the other side. Consider the personal commitment. Consider the commitment to God and church, if applicable. Consider the societal commitment that lurks in the IMDMA and how that will play out in the immediate and distant future. Consider the complications and ramifications of two parents in two separate households.

If you are set on moving forward, or your spouse will not be deterred, consider the fact that your marital commitment and the ramifications of that commitment will extend well beyond the divorce and act accordingly. Do not burn the bridges that will need to be crossed many times in the future by your children. Resolve to remain objective. Put away the feelings of hurt, anger and disappointment. Let vengeance go, as it is an exacting master. Make your future simpler and easier by not spiting and cutting off the past. It is what it is. You tried, and it did not work out. Make the best of it and move on. You are not contemplating a divorce so much as a new definition of what your family will be, and your ex-spouse will likely remain part of that equation to one extent or another for many years to come.

The Initial Attorney/Client Meeting

2022-07-26T09:19:46Z

In keeping with the previous blog about marriage, commitment, divorce and life after a divorce, taking a step back prior to proceeding with a divorce is often a wise course. Often times I, and other attorneys here, have often consulted with clients who want to get an idea of what a divorce would be like before they journey down that road. Sometimes clients want to proceed down the divorce path immediately. Other times a client is not really ready to leap into a divorce and just needs someone to provide some guidance for a potential situation in the future. During these initial meetings, we often discuss the likely outcomes of a divorce such as what will happen to the home, the children, how much support they may receive or pay, and even who will get the family dog. We also discuss the divorce process and what may be involved, such as the process to file the divorce, service on the other party, what will be the living and support arrangements while the divorce is pending, how will the divorce proceed through the court process, and how long the entire process may take from start to finish. Many of these questions cannot be definitively answered, but I can give the client at least some frame of reference based on potential scenarios and past experience. One additional angle to consider is what the divorced life will look like will be like, not just the legal issues, but the personal and emotional issues our clients (and even the other parties) may experience. Depending on the circumstances, the emotions can include sadness, joy, anger, apathy and even serenity. Relatedly, I discuss how to deal with a soon to be ex-spouse, before, during and after the proceedings, and how the divorce may impact others, especially the children, whether the children are tiny infants or even mature adults. I also take time to set the client’s expectations about the divorce, not only about what the potential outcomes may be, but how we get to resolution. There are times when a client and spouse acknowledge the marriage is over, and they just want to move on to the next phase of their lives. Other times, one party wants to attempt to save the marriage while the other has already checked out of the marriage. Sometimes clients want to release the full force of hell on the other side for whatever hurts and wrongdoings may exist. In the initial meetings, I will take time to remind those clients that the reason(s) for the divorce will frequently have little to no impact on the ultimate resolution of the divorce and to focus the energy of the client on the end results instead of refighting ancient battles. As with most things in life, there are exceptions to the general rule, but, generally speaking, the cause of the breakdown of the marriage does not impact how much property will be received, who gets custody of the children, whether and how much maintenance is paid. Illinois is a “no fault” divorce state, which means that fault does not impact those things. During these initial meetings and discussion, we want to know what is important to our clients, to determine the best course of action for them, and what type of attorney we need to be for them. Do we need to be a protector and stand up for them when they cannot speak for themselves? Do we simply need to be a facilitator and help guide them along the road of the divorce? Do we need to be something in between? Will our role change during the divorce proceedings? I have found this self-evaluation beneficial too as the client gets to know what type of attorney they are hiring and what they can expect. There are a wide range of family law attorneys in our area, even in our own office. If the client and attorney are not on the same page as to the representation desired, the chances of the client being satisfied with the ultimate representation will greatly diminish. Once this ground work is established, we lay out an initial strategy to achieve the client’s goals and objectives. Different strategies can be employed in different situations. Is this a case that we should prepare a settlement agreement to be served with the Petition for Dissolution? Do we need to prepare one or more motions for temporary relief and brace for a long drawn out fight? More importantly, how does the client want to proceed? Despite our initial plans, it happens that we plan for peace and get a war, or we plan for war and soon arrive at peace. The importance of the initial meeting(s) cannot be underscored as they will set the tone for the divorce proceedings. Like the seasons and weather in the Midwest, that tone can change in a second, but if the initial foundation is established and strong, we can weather any storm our clients face. Our ability to be effective advocates and to achieve a good result depends on establishing a good attorney/client relationship. Roman J. Seckel Drendel & Jansons Law Group 111 Flinn Street Batavia, IL 60510 [nap_phone id="LOCAL-REGULAR-NUMBER-1"] rjs@batavialaw.com This article is not intended to create or imply an attorney-client relationship and is not intended as specific, legal advice. This article contains only general statements and opinions of the law and should not be relied upon for advice or application to a particular circumstance or set of facts. No attorney/client relationship is formed by the publishing of this article or responses to it. No information contained herein is a substitute for a personal consultation with an attorney. Email or call [nap_phone id="LOCAL-REGULAR-NUMBER-1"] for more information.

Child Support – This is Real Life

2022-07-26T09:19:58Z

Understandably, many (most) people hate dealing with the court system. In dealing with the issues of child support and maintenance, going to court can be a good thing. Especially regarding child support, the courts take on a very important role of protecting the children to ensure they are receiving the proper amount of support. Take for example the following scenarios based on real life situations. As with any good drama, the names have been changed to protect the innocent. Bob and Joan were divorced in the mid 1990’s. At the time of the divorce, Joan was named the residential custodian over their three minor children, Jack, Jill and Peter. Statutory support was set in the Judgment for Dissolution of Marriage requiring Bob to pay Joan $1,000 per month, which represented 32% of his net income for the support of the three children. When the oldest son, Jack, became emancipated, Bob recalculated his support obligation to pay Joan, $875 per month, which was what Bob calculated to be 28% of his net income for the remaining two minor children, Jill and Peter. Joan did not contest the amount. However Bob never went back to Court to adjust his support to the new amount with a new support order. The last court order (i.e. the Judgment for Dissolution of Marriage) still stated Bob was to pay $1,000 per month for child support. The same situation occurred when the next child, Jill, became emancipated. Bob recalculated his support obligation to $625, which was what Bob calculated to be 20% of his net income. Bob was correct about the applicable percentages, but Bob never went to Court to modify the last order (the Judgment for Dissolution). Peter turned 18 three months before he graduated high school. Bob felt he should not have to pay support for Peter after he turned 18, much to Joan’s frustration. Joan requested that Bob pay the $1875 for support for Peter for the next three months while Peter finished high school When Bob refused, Joan took Bob back to court. Unfortunately for Bob, the Court found not only was Bob required to pay support until Peter completed high school, but he also had an arrearage dating back to when he unilaterally modified support when their first child was emancipated. The last court order required him to pay $1,000 per month. For every month he paid $875 or $625 in support he accumulated an arrearage with interest, which resulted a total arrearage of over $10,000.00. If Bob had simply gone back to court and had an order entered for his new amount of support each time a child cecame emancipated, he could have alleviated this matter completely and would only have had to pay the additional $1875 requested by Joan. Since courts are charged with the responsibility to protect the children in a divorce and to ensure their adequate support, child support cannot be changed without a court order, even if the all of the criteria for reduction in support exist. Mike and Toni who were divorced in 2005. As part of their divorce decree, Mike was to pay Toni child support in the amount of $125 per week based on Mike’s then earnings. Mike worked hard and received a promotion, nearly doubling his income. He still continued to pay $125 per week since that is what the court order stated. Toni fumed that she was only receiving $125 per week in support when Mike was moving into a new larger home with his new wife and new baby. Four more years passed, and Toni still fumed because she was only getting $125 per week. Finally, Toni decided to take Mike to court to increase his child support. As she expected, the court increased the support amount to $400 per week, as that was 20% of Mike’s new income; however the court only made the reward retroactive to the month prior when Toni filed her petition to increase support. The court refused to make the order retriactive to the date when Mike received his first initial big promotion and raise. If Toni had come to court earlier to request an increase, she could have obtained the increase in support four years earlier. She missed out on over $13,000 in child support that she would have been entitled to receive. Paul and Marcy divorced in 2008. While the Judgment granted Marcy residential custody of the two children and required Paul to pay support to Marcy, the parties’ eldest son lived with Paul for a time. Paul stopped paying support when his son came to live with him. When his son returned to live with Marcy, Paul did not increase the support again to the original amount. This was a significant period of time. A few years later, after the eldest son became emancipated, Marcy went to court to require Paul to start paying back support. Paul argued the substantial arrearage should be decreased for the time the eldest son lived with him. Paul claimed the eldest son lived with him for two years, but Marcy claimed their son only lived with Paul for one year. The Court found Paul to have a significant arrearage. The court thankfully gave Paul credit for the year Marcy acknowledged the son lived with him, but would not give credit for the additional year because of the conflicting testimony and insufficient proof the son lived with him longer. If Paul had come to court immediately after the son came to live with him, he could have saved significant time and costs later on. An order would have been entered documenting precisely when the son lived with Paul. Court is never “fun,” but it is a necessary element of a divorce with children. The court is the protector of the children, to make sure they are not harmed in the process of the divorve. Even when parents agree on changes in custody and support, the agreement should be recorded with the court in the form of an order. Modifications of support, and even visitation or custody, do not need to be expensive, time consuming or litigious matters. When the parents are in agreement, changes can be accomplished quickly and efficiently with agreed orders. The lessons learned in the real life scenarios outlined above include the possibility that agreements today can turn into disagreements tomorrow. If your circumstances have changed, and even if you and your ex-spouse are in full agreement on making changes to support (visitation or custody), get it in writing. Consult with an attorney and have the agreement formalized through the court system with an appropriate order. Roman J. Seckel

Your Children in Divorce

2022-07-26T09:20:21Z

Going through a divorce is one of the most difficult things you will ever face in your life. You well-being and your children’s well-being will depend, in large measure, on your ability to gain some larger perspective, to take a long term view of things and to see the big picture. As intense as the divorce process can be, it will come to an end and life will go on. How you cope through the process, and how you help your children cope through the process, will have long-lasting effects. In the local counties in which we practice, many of them require parents to go through a class designed to help you help your children as you go through the process. You could view the class as simply a hurdle to be jumped in the divorce process; or you could see it as an opportunity to protect your children from potential negative affects that often come with a divorce. You will learn in the class that you should keep your children out of the conflict with your spouse. Do not use them as pawns or intermediaries. Do not share your negative feelings and say negative things about your spouse to the children. To the greatest extent possible try to find some common ground and some agreement with your spouse as far as it comes to the children. Doing things will protect them. These things may be difficult to do, especially if your spouse is guilty of involving the children in the divorce in inappropriate ways. You may need to involve a counselor to help you sort through the difficult emotions and to help your children cope with the divorce, but it will be money and time well spent. Your children will thank when you they get older. Stability and routine are keys to keeping your children grounded. Maintaining some stability and consistency is a goal to be set to ensure a healthy transition for your children. That stability and consistency includes involving the other parent in their lives. Statistics clearly show that children with two parents involved in their lives thrive better and are healthier and more likely to succeed than children with only one parent in their lives. There are always exceptions, but the odds are not in favor of the rule. Although the divorce will be final at some point, you will continue to be parents together for the rest of your lives. Keeping that perspective will help you make good decisions for the benefit of your children today. Take a moment, in the heat of the emotion and turmoil that a divorce can bring, and consider your children. If they are like most children in most cases, they do not want you to get the divorce; they may not understand; they may be angry – at both of you; they may be sad and even feel guilty that somehow it is their fault. Do not make them choose between you and your spouse. You are the one getting the divorce. It is not your children’s divorce. ************************************************************************************************************************** If you want to read more, here are some materials

If you would like help to protect your children in divorce, contact us at the Drendel & Jansons Law Group. You can email us at cdj@batavialaw.com or all call [nap_phone id="LOCAL-REGULAR-NUMBER-1"]. We can help you help your children in a divorce.

Marital Property vs. Non-Marital Property

2022-07-26T09:18:14Z

Marriage is the joining of two people together into one family unit, and that includes their property. Many married people consider their property in the following terms: what is yours is ours, what is mine is ours and what is ours is ours. No distinction between “marital property” and “non-marital property” is made: they view it all as theirs, jointly. There are exceptions, particularly when one or both of the spouses have been married previously, but most people go into marriage hopeful and do not spend much time thinking about the distinctions between hers, mine and ours. Things change when the D word is complicated. One or both disgruntled spouses may claim what is what is mine is mine, what is yours is mine, and what is ours is mine as well. The tension is obvious. The baby must be split, and the difference between “marital” and “non-marital” property takes center stage. After a divorce proceeding starts, it is usually too late to make any changes that might protect property that have legitimately been considered non-marital property if only the divorce was anticipated earlier. The Illinois Marriage & Dissolution of Marriage Act (IMDMA) sets the parameters for determining whether property is marital or non-marital. All “marital property” gets divided between the spouses, but “non-marital property” does not get divided. Therefore, the distinction between marital and non-marital property can have a very significant impact on both parties in a divorce. Understanding the difference will help a person contemplating or facing a divorce anticipate the issues to be addressed in the divorce and, ultimately, how single life after the divorced may look. Many people believe that property titled in their own names is their own property, but that is not necessarily true! Any property acquired during marriage by the efforts of either spouse is considered to be marital property, regardless of the name in which that property is titled. In other circumstances, how property is acquired and titled can make all the difference in the world. Many people believe that property acquired prior to marriage and inherited property remains non-marital property if there is a divorce. That is generally true, but non-marital property only remains non-marital under certain circumstances. Understanding how to protect the character of property as non-marital may be an important Property acquired during the marriage is generally, but not always, considered marital property. Property acquired during marriage can be non-marital property, depending on the source of the property. Exceptions include true gifts from one spouse individually to another, passive income from non-marital assets and inheritances. These assets are considered non-marital even if they are acquired during the marriage. Property transferred from one spouse to the other spouse or into both names is presumed to be a gift to the other spouse or to the marriage. Depending on the facts, such transfers of non-marital property may change it to marital property, subject to division between both spouses in a divorce; or it could make the non-marital property of one spouse the non-marital property of the other spouse (if it is transferred to the other spouse alone)! For final example, when a party receives an inheritance during the marriage, the inherited assets are considered that spouse’s separate, non-martial property. If the assets remain titled in the inheriting spouse’s name, alone, it remains non-marital assets. If the inheriting spouse places non-marital funds money into a joint bank account, it may become marital property; and if the spouse transfers non-marital funds into the spouse’s non-marital bank account, the funds might become the non-marital property of the other spouse. If non-marital and marital property is mixed so that it is impossible to distinguish between the two, the property will be considered marital. An example might occur when one spouse deposits paychecks into and pays marital bills out of one spouse’s non-marital bank account. If that occurs over a period of time so that the marital funds placed into the account (the paychecks) can no longer be distinguished from the non-marital funds originally in the account, the account may be deemed marital, even though it remains in the name of the original spouse who established it with non-marital funds. Finally, issues arise when marital property is contributed to non-martial property. For example using wife’s marital income to pay the mortgage on the Husband’s non-marital home is considered a contribution of the marital estate (income) to the non-marital estate (non-marital home). In such case, a determination must be made of the amount of reimbursement that is due to the marital estate for contributions to Husband’s non-marital assets (the home). There are many good reasons to transfer assets between spouses. They might include estate tax planning, or even simple estate planning, refinancing, to obtain a homestead exemption, asset protection and liability avoidance (if one spouse has credit issues or is exposed to potential liabilities), convenience and other reasons. Commingling or combining marital and non-marital property may have unintended consequences down the road if the marriage breaks down, however. If divorce is a distinct possibility in the future, there are things that can be done to protect non-marital property. The main principle is to keep it separate, in your name alone. Do not put your paycheck earned during the marriage into your non-marital bank account. If you own real estate, do not put your spouse on the title. If you want the classic car you purchased with your grandfather’s inheritance to remain yours, do not pay for restoration work out of a joint account or put your spouse on title. In short, keep it separated and keep good records. If you are taking actions that might change the character of marital and non-marital property, document your intention to overcome the presumption that any transfer or property is a gift. For example, if you take part of your inheritance fund to help your spouse’s business, do a simple promissory note to demonstrate your intent that is a loan, and not a gift. If you are not yet married, you may want spend some time talking with your spouse to be about your intentions and his or her intentions in regard to non-marital and marital property and reach some mutual understanding. You may want to consider a well written pre-nuptial agreement to eliminate any future arguments over property. This is especially advised in second marriage situations, when there are substantial assets acquired prior to marriage and/or when there are children from a previous relationship going into marriage. While a pre-nuptial agreement is not entirely fool-proof, it will put you in a better position protect your non-marital property. Most people going into marriage do not consider the difference between marital and non-marital property. It is not usually an issue if the marriage lasts “until death do you part”. Approximately half of all marriages end in divorce, however, making the distinctions important for roughly half the population. The handling and characterization of property for estate planning and estate administration purposes can sometimes be at odds with the distinctions of property in marriage and divorce. These are complex issues and guidance from a knowledgeable and experienced attorney is strongly advised when doing estate planning for spouses, but that is another topic. Click HERE for more information on Family Law issues or HERE to inquire about Estate Planning.

What Are Grounds for a Divorce

2022-07-26T09:20:48Z

Q&A forums on legal issues, and especially divorce and family law questions, are popular on the Internet. One question seems to be asked more than most: what are grounds for a divorce. The issue of grounds is fundamental, but many people have the wrong idea of the significance of grounds in the divorce process. Many people believe that the cause of the breakdown of the marriage may somehow benefit them in a divorce. The law requires a reason for a divorce. We call that “grounds”. Illinois law provides eleven grounds for divorce with various requirements, including impotence, adultery, mental cruelty, irreconcible differences and felony conviction. Although grounds must be established to justify a divorce, the reason for the divorce usually has very little impact, if any, in the ultimate outcome of the divorce. Illinois is a “no-fault divorce” state. For that reason, the fault for the divorce (if fault applies to only one spouse) will most not affect the distribution of property, spousal maintenance, and child custody and support determinations. As with most things, there can be exceptions, such as dissipation related to an adulterous affair, but most of the time grounds have no effect on outsome of the divorce. While I have not seen any statistics to back this statement up, my experience suggests that the vast majority of divorces in Illinois are granted on the basis of “irreconcilable differences”, no matter what were the actual causes of the divorce. Irreconcilable differences is the no-fault catch all grounds. For all prectical purposes, a divorce can be granted if only one spouse alleges irreconcilable differences. It ultimately does not matter if the other spouse disagrees. In talking with clients and reading some forums, I find three are basic reasons divorce clients want to focus on grounds. Some people want to punish the other spouse for the breakdown of the marriage by making allegations against them in a public record (adultery is commonly the grounds for these situations). On the other end of the spectrum some people do not want to allege anything but irreconcible differences in the divorce. They may feel bad about the divorce and not want to drag the other spouse through the mud. Maybe they are embarrassed to “air the dirty laundry”; or maybe they are concerned about bad publicity for their children and families. A third reason people want to focus on grounds is to find the quickest way to a divorce. The grounds of irreconcilable differences require a two-year separation period. Ostensibly, the purpose of this statutory requirement is to provide some assurance that the parties have really tried to reconcile and “make it work” before filing for divorce. Both parties can waive the two-year period if they sign an affidavit stating under oath that they have lived separate and apart from each other for a continuous period in excess of six (6) months before the date of the affidavit. Still, some people do not want to wait the six months. The grounds of mental cruelty is often included by many attorneys in a petition for dissolution of marriage as a matter of routine to avoid the two year wait required to establish irreconcilable differences (six month wait with an affidavit). With mental cruelty (as for other grounds), no waiting period is required. Mental cruelty is also somewhat a nebullous concept that is open to subjective interpretation and application. Grounds are recited simply as a matter of form and are often not contested by the other spouse, either because both spouses want the divorce or the “writing is on the wall”. It takes two people to keep a marriage in tack. If either spouse wants a divorce, the end result cannot be stopped. At best it can be delayed. For that reason, judges usually not deny a divorce on the basis of grounds if either spouse is insistant on getting a divorce. The grounds for a divorce, while necessary to establish, usually has little impact on the divorce process. Grounds for a divorce do not give either spouse an advantage. Fault is not a deciding factor for any issue in most divorce cases. Grounds do not affect who gets custody, whether spousal support is to be granted or how much much property (or debt) each spouse will take away from the divorce. In a no-fault divorce state, the grounds of adultery, abuse, alcoholism and other factors that lead a person to file for divorce only establish the “right” to get divorced but do not influence the other decisions at all. With the grounds of irreconcilable differences, literally any one can get a divorce for any reason or no reason at all (in all practicality) as long as the waiting periods are met. (As a side note, there is a push in Illinois to do away with grounds altogether. So far that push has not gained a enough to momentum to pass through the Legislature, but it may only be a matter of time. For more information, see the September article on the subject in the Illinois Law Journal.) Roman J. Seckel rjs@batavialaw.com [nap_phone id="LOCAL-REGULAR-NUMBER-1"] Drendel & Jansons Law Group 111 Flinn St. Batavia, IL 60510 This article is not intended to provide legal advice or create or imply an attorney-client relationship. This article contains only general statements and opinions based on Illinois law and should not be relied upon for advice or application to a particular circumstance or set of facts. No attorney/client relationship is formed by the publishing of this article or responses to it. No information contained herein is a substitute for a personal consultation with an attorney. Visit www.batavialaw.com or call [nap_phone id="LOCAL-REGULAR-NUMBER-1"] for more information.

New Law: Right of First Refusal for Child Care

2022-07-26T09:21:00Z

Every new year brings new laws and amendments to old laws. One law that has gone through many changes over the years is the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Beginning January 1, 2014, the State Legislature has forged a new tool that is now available to protect the best interests of children and to encourage (or compel) maximum time with both parents. The amendment provides a right-of-first-refusal for childcare. The IMDMA has a primary focus on protecting the best interests of children. Children often take second fiddle when the emotion swirling around the failed marital relationship is playing its swan song. Sometimes the swan song ends and life begins anew after divorce, equilibrium is found, and both parents are able to work together again for their children’s best interests. Sometimes, however, the swan song dies hard, and children continue to be caught up in the emotional turmoil of two parents struggling with each other as ex-spouses. It is not much different in paternity cases, and maybe even more exaggerated, as there is often less bond or commitment between the parents in paternity cases. It should go without saying that two parents should work together to protect the best interests of their children, but that often does not happen. If parents do not work together for the child’s best interest, the court will intervene. The court is obligated to protect the children's best interest, and that includes providing for time spent with both parents. The amendment that took effect on January 1, 2014, is an extension of the presumption that generous time with both parents is in a child’s best interests by creating a “right of first refusal” when childcare is needed for the custodial parent. This new tool found in Section 602.3 of the IMDMA applies when one parent has custody of the child(ren) but intends to leave the child(ren) with a child-care provider for a “significant period of time”. The situation can arise in any number of ways: when the parent is regularly scheduled to work; when the parent is called away to work for a significant period of time; when the parent needs to leave on a business trip, to attend to family or other matters. Any time a parent knows in advance he/she will be absent for a significant period and makes plans for child-care, the custodial parent may be obligated to extend the opportunity to the other parent to provide that childcare. This right of first refusal can be granted in an initial parenting order or divorce decree in conjunction with the award of joint custody and/or visitation. It can be incorporated into a joint parenting agreement by agreement of the parties. When ordered or approved by the court, this right of first refusal becomes enforceable. The right of first refusal provides an opportunity for the non-custodial parent to care for the child(ren) in lieu of a third party child-care provider (or a friend or other family member) if child care is needed during the custodial parent’s time with the child(ren). The law is certain to require some tweaking and some interpretation in the implementation. The law creates a right that can be implemented by the court, but the right is not presumed; a court must order the right of first refusal in its discretion; and the right can be granted either to one or both of the parties. When ordering a right of first refusal the court must consider:

The length and kind of child-care requirements that trigger the right;
How notification should be given to the non-custodial parent and how the non-custodial parent should respond;
Transportation requirements; and
Any other action necessary to protect and promote the best interests of the child.

As with most laws, this amendment exhibits a certain amount of common sense. The common sense arises from a presumption that children should have maximum time with both parents within the confines of a set custodial arrangement and without creating instability. Not all parents, especially divorced or never married parents, may agree with that presumption, but that is the presumption of the law nevertheless. For better or worse, parents will always have their children in common, regardless of the status of their relationship, and children should not suffer for the failure (or complete lack) of their parents' relationship.

Many parents are able to put differences aside for the betterment of their children and encourage good relationships and time with the other parent. Attorneys, however, often see the results of parents who cannot put differences aside and have to deal with them. Sometimes parents see their time with the children possessively as “their time”; and sometimes parents are not so willing to share, even when the parent requires childcare. Parents sometimes would rather leave their children with a babysitter, a relative, a neighbor, or anyone else other than the other spouse. This tendency, unfortunately, is all too commonly seen by family law attorneys.

The right of first refusal is likely to help aggrieved parents have more time with their children and help children have more time with both parents. The law cannot change the hearts of people, but laws can be tools to compel people to “do the right thing”. This new law will not necessarily compel parents to have good will toward each other, or to patch up broken relationships, but this new amendment to the IMDMA is intended to compel more sharing of parental time by the custodial parent with the non-custodial parent when the custodial parent needs childcare.

Carolyn D. Jansons Drendel & Jansons Law Group 111 Flinn Street Batavia, IL 60510 [nap_phone id="LOCAL-REGULAR-NUMBER-1"] www.batavialaw.com www.ilfamilylaw.com

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Allocation of College Expenses & Retroactivity

2022-07-26T09:21:20Z

The amount and/or percentage of a parent’s obligation for contribution to their children’s college expenses is a matter often left undetermined in a divorce settlement or judgment for dissolution of marriage. Unless the parties have agreed in advance to the allocation of the expenses, one of three situations is present: 1) the settlement agreement or judgment “reserves” the issue of college expenses; 2) the settlement agreement or judgment simply states the parties “shall contribute” but leaves the amount of the contribution undetermined; or 3) there is no mention whatsoever of the need to contribute to college expenses in the settlement agreement or judgment. Depending on the language used in the settlement agreement or judgment regarding college expenses, and when a party files a petition seeking contribution, the retroactivity (or how far back the judge can require contribution) differs. This had been a confusing topic to the courts and family law attorneys until the Illinois Supreme Court and Appellate Courts issued a serious of opinions on the issue over the last several years. For a full discussion of the cases, please see my full article in the January 2014 edition of the Illinois Bar Journal http://www.isba.org/ibj/authors/seckelromanj. For purposes of this Article, a long explanation is unnecessary. In short summary, the following rules apply. If the court has “reserved “ the issue or if there is no mention in the settlement agreement or judgment for dissolution of marriage regarding the obligation to contribute to college expenses, the court can only make an award retroactive to the date of the filing of the petition. This is because the court will review the request for contribution as a modification of a support obligation. Under the statute, an award of support or modification of support may only be made retroactive to the date the petition was filed. When the issue is reserved, there was no obligation to contribute to college expenses at the time of the Judgment for Dissolution of Marriage. Therefore the new request for contribution is a modification. In short, the petitioning party is attempting to change the status quo. Conversely, if the language in the divorce decree says the parties “shall contribute” or similar language imposing an obligation to pay college expenses, a petition seeking contribution to college expenses could be made retroactive to the date the college expenses were incurred, even if the petition seeking contribution is filed after the expenses were incurred. Unlike a case in which the issue is reserved, the court will view language (“shall contribute”) as an established obligation of the party to pay something, and the petition seeking contribution is deemed an attempt to enforce, not modify, the previous court order. The court will take this stance even though the amount of the contribution has not yet been determined. Regardless of the language in the divorce decree, the best time to file a petition seeking contribution to college expenses is before the expenses are incurred, generally the fall or spring before the child starts college. Doing this provides ample time to negotiate and settle or litigate or otherwise resolve the matter at hand before the expenses are incurred and avoids any issues over the retroactivity of the obligation. If you are like many, and have procrastinated in seeking a determination of the allocation of college expenses, the language of your divorce decree will determine whether relief can be obtained retroactively.

Roman J. Seckel

Drendel & Jansons Law Group

111 Flinn Street Batavia, IL 60510

[nap_phone id="LOCAL-REGULAR-NUMBER-1"]

rjs@batavialaw.com

www.ilfamilylaw.com

www.batavialaw.com

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