One aspect of a dissolution of marriage is the division of marital assets. For many couples, the largest asset is their home. The court has two options when it comes to the marital home. If there are not enough assets to equal the equity in the home, or neither party can afford to pay the other party for their interest in the home, the Court will likely order the home sold and the proceeds split. However, if there are other assets or one party can buy the other out, the Court may order the party giving up the home to execute a quit claim deed. Here, we discuss quit claim deeds and how you could use them as a vehicle to facilitate asset division in a divorce.
When Quit Claim Deeds are an Asset Transfer Solution in a Divorce? A quit claim deed is an easy way to transfer interests in a home. A quit claim deed has less formality than a standard warranty deed and makes for a quick and efficient transfer among parties who are divorcing. If you and your spouse agree to execute a quit claim deed, then the question becomes whether to execute the deed before the divorce is finalized or after. If you are the spouse who is receiving the interests from a quit claim deed, it is beneficial to you to have your spouse execute the deed prior to the divorce being finalized. This way you ensure compliance with the agreement and won’t have to go back to court to enforce the marital settlement agreement after the divorce is finalized. Getting the quit claim deed from your spouse prior to the end of the divorce also makes it easier for you to start refinancing and come into compliance with the dissolution of marriage judgment. If you wait to receive the deed until after the divorce, it could take you longer to refinance which could cost extra money. Things to Consider when Processing a Quit Claim Deed Prior to signing a quitclaim, you will want to make sure that you and your spouse have a fully executed Marital Settlement Agreement (MSA) that has been signed by both parties. Once a quit claim deed is signed, then the party transferring their rights will have no claim to the home. You will want to make sure that there is an enforceable agreement in place because the this deed only takes you off the title, not the mortgage. The spouse receiving the transfer will be responsible for obtaining refinancing of the mortgage. Quit claim deeds are a useful and effective tool for individuals going through a divorce. They make it easy to transfer equity in marital real property and many times can be drafted by the same attorney you are using in the divorce. It is important that if you are going to sign a quit claim deed, you have your own attorney review the document and have a signed agreement in place. Once the quitclaim deed is signed, it is difficult to undo the transfer. If you are going through a divorce and want to explore if quit claim deed is right for your situation, be sure to seek experienced legal advice. Feel free to contact our office today to schedule a confidential consultation. Our team of experienced and top-rated family law and divorce attorneys will help you make the right choices. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/property-division/quit-claim-deeds-and-divorce/
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Do I Have to Pay Child Support When My Child is Away from their Primary Residence
Some families have arrangements where a minor child is not at their primary residence for extended periods of time. The reason why the child is not at their primary residence is something that would be considered when determining if child support would still need to be paid. Child Support Orders Remain In Place Until Modified First and foremost, if there is an order requiring child support to be paid, it must be paid. The child support order remains in place until it is modified, and it cannot be modified until a request is made. That means that if, for example, you lose your job in September but don’t file to modify your support until November of the same year, from September-November you are still required to pay the same amount of child support because the Court can only modify the child support retroactively back to the date that you ask them to. Time Away from the Child's Primary Residence Generally speaking, whether or not child support is modifiable when a child is away from their primary residence largely depends on the reasons why they are away. For example, if a child goes to live with the other parent for the entire summer, it might make sense to explore a modification of child support during that time period. It is likely, however, that this agreement would have to be part of the order where the schedule is set up (or the child support order that is entered in conjunction with the same.) It is more difficult to say that you want to modify your support over the summer when the child has been coming to your house for the entire summer for five years and you have paid during those five years, than trying to modify it from the very beginning, because it was foreseeable that the child would be at your home all summer when the child support order was entered. So, this is something to look out for. Temporary Absences from the Primary Residence Temporary absences, such as going to stay with grandma and grandma for several weeks, or going to overnight camp, etc. are likely not going to impact a child support order. Children will be away from home at times and that is contemplated. If they move into your house, though, on a semi-permanent basis, and it was unforeseen, that might be a scenario to explore a child support modification. Camp and temporary absences usually are not enough to impact a child support award. However, it can be argued when the camp expenses are allocated that one parent has a child support obligation which covers expenses for a child, AND they have to pay a portion of the camp, where some of the child support-related expenses are part of the camp costs (i.e. food). This argument could be made to try and lessen the amount that the obligor parent has to pay for camp, due to them paying child support, but it may or may not be successful. The residential parent still has to pay their bills to maintain the minor child’s primary residence, whether the child is at camp or not, to ensure the child has a home to come back to when camp ends. Generally speaking, if you believe there is a basis to modify your child support, explore it right away with an experienced child support attorney. This will allow you to see if your situation qualifies and ensure that you can retroactively modify your obligation to the farthest back possible date. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-support/pay-child-support-when-my-child-is-away-from-their-primary-residence/ After the filing of a Petition for Dissolution of Marriage or the filing of a motion related to parenting issues, most counties in Illinois require that the parties attend mediation. You can elect to choose the court’s mediation system or engage in private mediation. The court’s mediation system is provided free of charge but may have a long waiting period. Private mediation is faster but costs the parties money to attend.
What Exactly is Mediation? Mediation is a settlement process that takes place with the assistance of a neutral third-party. A mediator can be an attorney who oversees the mediation process between two parties and uses his or her expertise in the area of family law to come up with a fair and equitable agreement. A mediator does not represent you or the other side. Both of you will likely contribute to the cost of the mediator, which can be financially beneficial instead of both sides paying their attorneys to negotiate a settlement. Mediation is a good tool since it allows the parties to discuss the problems together and reach a solution. Statistics show that settlement agreements achieved by the parties have a better chance of working long term. When you go into court and have the judge decide, you never know what will happen. Mediation allows both parties to have a say in their case. It does not get any better than that. Who Should You Use for Private Mediation? When it comes to Illinois family law and divorce cases, there is no rule as to who the mediator can be. If there is a trusted third party that you both know, that is allowable. Using a mediator that does not know family law though can create problems. Without knowledge of family law, a mediator could steer you into a settlement that might not be allowed by the court. For that reason, it is suggested that you pick a mediator that is aware of the family law statutes. Your lawyer does a lot of mediation in their regular practice. Insist upon it instead of filing a petition with the court. Go into the litigation with the thought that you do not need to decimate the other side. Go into the litigation with a sense of fair play and you will be surprised what you can accomplish without going to court. How Often is Mediation Successful? I would estimate that over 95% of cases are mediated at some point during the case and are resolved. That is very powerful, considering that only 5% of our firm’s case actually goes to trial. The question is not if mediation will be successful, but when will it be? Do you want to mediate in the beginning of the case and resolve it? Or mediate at the end after paying a lot of money in attorney’s fees? It stands to reason that the beginning of the case is the best time, but for various reasons, it might take some time before a person is ready for mediation. EMOTIONALLY, BOTH PARTIES HAVE TO BE AT THE SAME PLACE When one party has been thinking of a relationship breakup for the past two years and the other party never sees it coming, it is a shock. The shock of the divorce or break up itself can take people some time to adjust to the reality of their new future. There are various stages of grief, from denial to anger, to acceptance. The person seeking divorce or breakup has had time to come to terms with the situation where the other person has not. In these types of cases, mediation may not occur until both parties are somewhat on the same emotional level. Considering Private Mediation for Your Case? For people going into mediation, I often ask my clients to make a list of what they want to discuss. Write everything down and work off your list. Some things will be very important, some will just irritate you and others not so important, but it might be important to the other side. It is important to know what is really important to you, and writing it down can help develop your needs. I often start the mediation with the softballs. Work on things that are fairly easy first and both sides feel like progress is being made. If the entire case is about one parent wanting supervised parenting time for the other, that is a tall order. That issue is complicated and will take time. Start with something easier, like what holidays will be assigned to each person. Should I Seek Private Mediation or Use the Family Court's Mediator? There are benefits on both sides. The court’s mediator is not going to cost you anything and that in itself is valuable. But the court’s mediation program does not discuss the financial issues, just the child-related issues. Additionally, the court’s mediation can take some time before you get started. In private mediation, the private mediator is going to cost you money, but at least you will most likely share that with the other party. If you use a private mediator, make sure that the person concentrates on family law, and not something like labor law. The benefit of utilizing a mediator that concentrates on family law matters is that that the mediator can better answer questions and control the parties’ expectations as to what a judge would ultimately order. In addition, a private mediator has more resources and can better accommodate the parties, both in time and accessibility. For example, the mediator can accelerate the process of mediation by avoiding long waiting times and can accommodate long-distance parties by using Zoom or other technological advantages. Are There Any Other Benefits to Using a Private Mediator? Yes. Some people form a long-term bond with their mediator. Being able to work with someone who can assist the parties on any future disputes without having to go through a new mediator who is unfamiliar with the case is a real benefit. If both parties are committed to mediation, you can bypass the court altogether. It is a win/win since you save a lot of money going to mediation, you resolve your issues more quickly than going into court, and you have a say in the outcome of your case. If you feel your case could benefit from private mediation or you need advice as to what dispute resolution strategy to pursue given the facts in your case, be sure to talk to an experienced family law attorney to discuss the options in your case. You will mediate somewhere along the line in your case and the sooner you can do it, the better off you will be. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/mediation/pros-and-cons-of-private-mediation/ Joint Custody versus Sole Custody - What's the Difference? One of the largest misconceptions parents have prior to splitting up or going through a divorce is related to the difference between sole, joint custody, and residential custody. Prior to beginning divorce or child custody proceedings, many litigants mix up the terms "sole custody" and "joint custody" and "residential custody". It is very important to clearly understand what these different terms mean prior to initiating litigation so that you can obtain the best result for your family. Legal Custody in Ilinois Under current Illinois law, joint custody and sole custody each refer to what we call legal custody. In plain English, joint custody and sole custody each refer to the parents’ decision-making ability. Sole Custody In a sole custody case, one parent usually has the final decision-making authority for major decisions for the minor children, such as educational, religious and medical decisions. However, in a sole custody situation, often times the parents will still have to make a good faith effort to try and consult with the other parent before the sole custodian makes a decision. After all, the non-custodial parent is still a parent of the child. Joint Custody In a joint custody situation, the parents try to make all major decisions together, including but not limited to major educational, religious and medical decisions. If the parties are not able to agree, they are oftentimes required to use a mediator to try and resolve the issue before being able to file a motion. Joint custody is far more common than sole custody, the reason being that even if two litigants do not care for each other anymore, they both still care about the best interests of their children and typically can agree on what is best for them, even if they need to utilize mediation to come to a decision. Residential Custody Residential custody is completely different from joint or sole custody and it refers to which party the minor children primarily reside with. Sometimes, parties choose not to designate a residential parent, or to only designate a residential parent for the purposes of choosing a school for the children to attend. They alternate weeks with the children or split weeks with the children. The parties usually need to live very close to one another in order for this to work with minimal disruption to the minor children. Best Interest of the Child Custody is determined under current Illinois law based upon what is in the best interests of the children. The courts will look at many different factors when determining joint versus sole custody, including, but not limited to: the physical and mental health of all parties involved, the wishes of the parents, the wishes of the children (sometimes, but not always), and, who the primary caretaker has been for the children. Whether you believe it is in the best interests of your children to have sole custody or joint custody, the child custody attorneys at Anderson & Boback are experienced in both contested and uncontested custody issues. We are able to consult with our clients to try and determine what would be an optimal and cost-effective custody situation for them and their children. If you are having a custody issue and are seeking counsel, please feel free to set up a consultation with one of our attorneys. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/joint-custody-vs-sole-custody/ When a parent has supervised parenting time in Illinois, it means that someone is charged with chaperoning the parent during their parenting time. Sometimes it is a paid person and sometimes it can be a trusted friend or relative. It can also be a social worker and the visit can take place at the parent’s home or at a designated facility. When you have supervised parenting time, it means that you cannot be with your children for any length of time unless the supervisor is there with you. If the court hears that you were with your children without the supervisor, it could mean a suspension of your parenting time altogether.
How Does a Parent Find Themselves with Supervised Parenting Time? Under the law, a person’s parenting time is not supervised unless the judge finds that a parent is a serious endangerment to the child. In the state of Illinois, in order to get a supervisory visitation order between a parent and a child, the party requesting the supervision has the high burden of proving that “visitation would seriously endanger the child’s physical, mental, moral or emotional health.” This is a very high burden to prove and is only granted by the court sparingly, and only in extreme circumstances. These decisions will be made by a judge after the evidence is heard. The judge will make a determination as to the parent’s actions and making a determination if the parent can safely parent the child. The controlled setting is meant to help the parent and child maintain a relationship while keeping the child safe. Agreeing to Supervision Sometimes a parent agrees to supervised parenting time and it almost always causes the parent more grief than they can fathom. First, the other parent never had to prove you were a serious endangerment, which would normally be a necessity, and second, once you have supervised parenting time, it takes a long time to get a regular parenting order. There are situations where it is inevitable. The other side can back you into a corner with the promise that it will only be “for a short time.” Do not believe it. It will take months and even years to get rid of and even though the other side never proved a thing against you, the judge is always thinking that supervised parenting time was in place because of something you did wrong. There are very few situations where I would advise that you agree to supervised parenting time. How Long Does Supervision Last? A judge will decide how long supervised parenting should last. Sometimes it is supposed to be short in nature while a guardian ad litem (GAL) conducts an investigation, but even these “short” supervisory orders are hard to get rid of, so only in extreme situations should you ever agree to have this imposed upon you. I just completed a case where the mom agreed to “temporarily have supervision” of her parenting time while the GAL investigated the father’s claims against her. That “temporary” order lasted a year. By then, the father attempted to change custody altogether since he was in possession of the children for so long. If you are compliant with the court order, you will slowly work your way into regular parenting time. It will take a while, but eventually, most people end up with unsupervised parenting time. Who Can Be a Supervisor? It depends. Some parents are lucky and have extended family in the area who can act as a supervisor, otherwise, you are required to pay for the service. Supervisors are not a party to the case, however, so you want to make sure that if the supervisor is related to the parent, they will look out for the child’s best interest and not the parent they are supervising. A supervisor pledges to guard the child and if it is found that the supervisor is not actually supervising and is allowing the parent to do whatever he wants, you need to get to court to seek to have a new supervisor appointed. What Act Result in a Court Ordering Supervised Parenting Time? Most of the time, I see people ordered into supervised parenting time when there are either drug issues in the parent’s background or some sort of violence. Situations requiring supervised parenting time:
First, you have to be compliant with the current parenting time court order. Make sure you are not late for your parenting time and that it ends timely. Avoid doing the act that landed you with supervision. While that sounds elementary, many parents have problems keeping themselves away from alcohol, drugs, or whatever the problem that resulted in a supervision order. If you have to pay for the supervision, be as courteous as you can to the supervisor. This person will likely write a report to the court about how you interact with your child and how you handle parenting time. You must remember it is not the supervisor’s fault that they are there, so do your best to befriend the supervisor. Questions About Supervised Parenting? Speak to an Experienced Family Law Attorney Having supervised parenting time is a big burden on you, your child, and your family. Do not enter into a supervisory order unless you simply have no choice. A supervision order is always devasting to the parent because it takes a very long time to get rid of it. Believe me, anyone who tells you it will be for a "short time" is not being truthful with you. If you do end up with a supervisory parenting order, then attempt to have your parents be the supervisor. This will allow you to have more than one hour a week with your child and the cost of paying for a visitation supervisor does not bankrupt you. Keep in mind that the court will not give you supervision unless you are a serious endangerment to your child, so be sure to seek trusted legal advice from a family law attorney. At Anderson & Boback, our team of skilled and experienced Chicago attorneys has spent decades helping parents deal with complex child custody issues including supervised parenting time cases. Contact us today for a confidential consultation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody-visitation/what-is-supervised-parenting-time/ Many people are concerned about divorce and pension plans and what will happen to those plans and any other retirement accounts upon finalization of a divorce. People seem to think that if the pension plan is solely in their name (which it typically is), then their pension is theirs alone and they do not have to share it with their spouse when they divorce.
Pension Plans are a Marital Property Subject to Division in Divorce Family courts consider pension plans an asset of the marriage, however, and you will need to divide your pension right after the divorce of your spouse. If you and your spouse both have a pension plan, and they are of equal value, then it is likely that each of you will retain your own pensions. In Illinois divorce law has established that all retirement accounts and pension plans whether vested or matured, contributory or noncontributory, shall be treated as marital property. The classification and reimbursement principles in 750 ILCS 5/503(a) and 5/503(c) apply to retirement plans and pensions and divorce in Illinois. A pension that is established before the marriage, as well as its increases in value, remains nonmarital property; however, the marital estate may be entitled to reimbursement for marital contributions or for the significant personal efforts of a spouse that result in substantial appreciation. When evaluating divorce and pension plans, the courts have noted that an interest in a pension plan is marital property if a portion accrues during the marriage. Separating Pension Plans and 401(k)s in an Illinois Divorce To understand pensions and divorce in Illinois, however, you should know that Illinois does not divide pensions equally. Pensions are treated just like any other asset of the marriage. Trial courts who divide a pension equally, without considering the factors in our statute, can be overturned by the Appellate Court. In re: Marriage of Smith, the appellate court found that the trial court failed to consider the factors in the Illinois Marriage and Dissolution of Marriage Act. Instead, the trial court’s finding that any income in the wife’s 401(k) earned during the marriage should be divided, half to each side as a matter of course and without considering the statutory factors, was an abuse of discretion. The appellate court remanded the case, instructing the trial court to consider the statutory factors in order to divide the wife’s 401(k) in just proportions. Equitable division of retirement assets, as with all other assets of the parties, requires consideration of the factors in §503(d) of the Act regarding pensions and divorce in Illinois. Divorce and Pensions Plans, Retirement Accounts and Deferred Compensation Deferred Compensation plans are also subject to division in a divorce. A deferred compensation benefit is earned by an employee for his or her service to an employer. As such, they are treated as earnings, and to the extent that a spouse earned those benefits during the marriage, they are considered marital property and are subject to division upon dissolution, like any other marital property. Contact Anderson and Boback for answers to these and all questions related to retirement accounts, 401(k) plans and pension rights after divorce. We are experienced in all family law matters and highly respected divorce attorneys with an understanding of Illinois divorce and pension plans. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/property-division/what-happens-with-divorce-and-pension-plans/ If you find yourself about to begin a custody battle or fight for parenting time, there are some things you want to keep in mind and some things you want to avoid making the process smoother and better for everyone. Keep in mind that a fight over custody is difficult for everyone involved, including the children. The fight will be emotionally, physically, and financially draining so it is important to keep the following in mind to mitigate any damage that can be done. Children are very aware of their surroundings and when things change. When things become rocky, they sense it and you can think of it like being on an airline flight across the country.
When things are smooth, everyone is comfortable and at ease. However, when that plane starts rocking and you feel turbulence, you get a bit nervous that things are no longer OK. What do you do? You look at the flight attending and see how they are reacting. If the flight attendant is calm, cool, and collected and going about their duties – you feel better, you take their lead and you feel better too. If the flight attendant looks scared and is running here and there and not acting normal – your fear is increased. Think of your family life as a flight across the country. When things are smooth everyone is comfortable and calm However, when the children feel the plane start rocking, they are going to look to you – their parent (akin to the flight attendant) and see how you are reacting. If you are calm and going about your routines as normal – they will feel at ease. However, if you are upset, excited, and acting abnormal, your children will pick up on this and be very fearful of the turbulence they feel in the family. 9 Tips to Follow in a Child Custody Battle When you're involved in a child custody or parenting time case, keep the following tips in mind for the benefit of everyone, especially your children: 1. Do not say unkind things about the other parent to your child. Children love their parents and when you say something bad about their parent, they feel hurt themselves and you may not realize it but this is very hurtful to the child. You will need to vent and talk about things that may include unflattering details about the other parent, but it is important that you talk to someone outside the presence of the children. 2. Provide a safe and loving environment for your child. Continue to be a great parent by creating a safe and loving environment for your child when they are with you. You also want to make sure your child feels comfortable talking to you about the other parent. If your child feels you would resent hearing about the other parent, they will not talk to you. Make sure your child knows that you support, encourage, and will facilitate their relationship with the other parent even if you are going through a custody battle. 3. Keep the lines of communication open with the other parent when it comes to your children. Keep open and frequent communication with the other parent about the children – specifically anything significant that you as a parent would want to know. If you travel with the children, behavioral issues, medical or medication issues, things related to school or activities that directly impact the child – you can’t provide too much information as both parents have a significant interest in all aspects of what is going on with their child. 4. Avoid sharing your personal issues on social media. You should avoid putting your issues on social media – putting things out there for all to see can backfire on you. Social media posts can be used as evidence in legal battles so it is best to keep these types of personal things off social media platforms. 5. Hire a Child Custody attorney you trust and feel comfortable working with. Hire a child custody attorney that you trust and feel comfortable working with. If you are involved in a custody issue you should not represent yourself. How your case ends up will affect you for a very long time and family law courts can be difficult to navigate without the assistance of an attorney. 6. Comply with all temporary court orders that are entered during the pendency of your child custody case. While a child custody case is underway, the court will be making temporary orders. It is very important to comply with all temporary court orders that are entered during the pendency of your case. It is very important that a court’s order is adhered to which shows your commitment to the procedure and respect to the court. 7. Maintain good records of all matters related to your children. Maintain good records of all matters related to the children such as parenting time with you and time with the other parent, vacations, grades, activities that you and the other parent participate in, who goes to the doctor or dentist with the children, who attends the parent-teacher conferences and their games and activities. 8. Do not make your children choose who they want to live or spend time with. Do not talk to the children about making choices of who they want to live with or be with. It is important that your children believe that their parents have a united front – that they are on the same page with the same goal of making sure they are taken care of. If the children, ask you questions or complain about the other parent it is best to tell your children that they are lucky to be loved by two parents who are working very hard together to make sure they are taken care of and that you are working things out and love them very much. 9. Be the best role model possible for your child. Continue to be the best role model you can be for your children when you're involved in a custody battle - and after. Do everything you can during this time so that when you look back at your behavior you have nothing to feel bad about. Your goal is to raise children that become well-rounded, self-supporting, happy, productive members of society. To do this you must maintain your dignity in the eyes of your children. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/beware-ways-to-avoid-mistakes-in-a-custody-battle/ Should you be hiding money before divorce? Or, what about spending or transferring money before divorce?
I seem to get a lot of questions like this lately. When people are considering a divorce and seeking out a divorce attorney, they always want to know what they can do with their money. Can they take all of their money out of the bank? Can they take half of it and secrete it from their spouse? Can they spend it? Dissipation and Spending Money Before Getting a Divorce Under the law, when a party in a divorce case takes money and spends it, it can be considered dissipation. For such spending to qualify as dissipation, the money must have been taken during a time when the marriage was undergoing an "irretrievable breakdown" and must have been spent on something not of a marital purpose. Most marriages start breaking down long before the first divorce petition is filed, so spending the money a month before you file for divorce will still be considered dissipation. There is no bright line to figure out what is dissipation and what is not.
The facts of each case are different, and no hard-line rule applies. Financial Records and Money Used for “Marital Purpose” When you are undergoing a divorce, all of your financial records will be scrutinized. It's important that you are able to document and account for all expenditures. If you take cash out of your account and have no records demonstrating what it was spent on, your spouse may allege that you have dissipated those monies. If you can demonstrate that the money was used for a legitimate marital purpose, then it is not dissipation. Poor record-keeping can lead to a claim of dissipation. Making Decisions About Money Before Divorce To make your case run smoother, I would recommend that you do not remove funds from your bank accounts. It only scares your spouse and makes them believe that you are going to spend it. That leads to unwarranted court attention and a waste of everyone's time. Instead, speak to your spouse about dividing the money and placing it in separate accounts. That way, both of you feel comfortable that the money won't be spent by the other, and each of you has a heads up about the withdrawal. Communication about the money can save a lot of unnecessary hours in court. If you are wondering about large money decisions when involved in or contemplating divorce, it is recommended that you speak with an experienced attorney as soon as possible. Contact us today so our divorce attorneys can provide the legal guidance you need about divorce and divorce-related financial issues like spending or hiding money before divorce. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/spending-hiding-money-before-divorce/ In family law cases, clients often wonder what is mediation and if they should do it. Mediation is not binding on you, and typically a neutral mediator will sit down with both parties in an attempt to reach an agreement. When you "mediate" you are bringing out issues you would like to resolve. Both parties typically have issues that need to be worked out, things like, how old should our daughter be before we allow her a cell phone? Or who is going to keep the house? Should we sell it or will one of you refinance it? Mediation is always a good idea, especially in family law cases. Studies show that mediated agreements are ones that both parties will generally follow since they have agreed to the terms. Unlike a trial or hearing before the court, you have a lot of control over the outcome of your case when you mediate it. When Is Mediation Not a Good Idea? Most clients benefit from some mediation, even if they do not reach a full agreement. There are situations however when I will not allow mediation to occur. If one party is a victim of domestic violence, then putting them in the same room together is not a good idea. Also, if the client is intimidated by the other party or the other party is very aggressive, then it is not a good idea. I once represented a man who came back after only two hours with a mediated agreement. I reviewed the agreement and was wondering what went wrong and how my client could agree to take only 20% of the marital estate? I called the mediator and was told that he agreed to it, so they wrapped up the session and wrote up the agreement. I told the mediator that there would be no agreement, and we would see the other side in court. If a client will simply agree to everything the other side says, then that is not mediation. 7 Things You Need to Know About Mediation If you are facing or involved in a family law or divorce case there are some important things to keep in mind. 1. Mediation Will Save You Money Both parties will split the cost of the mediator. Instead of each side paying their lawyer to negotiate an agreement at the rate of a couple of hundred dollars apiece, the parties can share in the cost of someone to do mediation. It can also be much quicker than going to the judge. It is astounding how much time it takes to be heard in court. Sometimes months go by before you can get a hearing before the court. In mediation, you can sit down a couple of times a week to resolve your matters much quicker which can save you money. 2. Be Ready and Willing to Compromise To use mediation effectively, both sides have to be ready to compromise. Even if you go to trial with the judge, you are not getting everything you want. Know what you want, but be open to compromise. If your partner has a good argument for their position, listen to it and see if it makes sense. I always tell my clients that if they can live with it, then agree to it. There is no reason to make every issue a war. There is a middle ground, but you have to be willing to compromise. 3. Both Parties Need to Be Emotionally Ready You also need to be somewhat in the same spot emotionally. If you have been planning to divorce for two years and your spouse had no idea it was coming, it will take a while before they are ready to discuss certain aspects of the case. Some people might still be in the grieving part of the process and although you have moved on, they might not be in the same place emotionally. Sometimes mediation can get started and then a break needs to be taken so the one party can be emotionally ready for the next step. 4. Mediation is a Good Option During the Pandemic With the COVID-19 pandemic still underway, never has mediation been easier. Mediators are still hard at work through Zoom, which makes the scheduling so much easier. Mediators are able to schedule more events during the week because many people have more availability. 5. Don't Sign Anything Until Your Lawyer Has Reviewed and Approved It In your litigation case, you should never sign anything without your family law attorney reviewing it first. You can agree, and the mediator can write up the agreement, but never sign anything until your lawyer has reviewed it. 6. Children May Be Involved in Mediation Sometimes, yes. If a child is old enough, there are times when it makes sense to bring a child into the mediation. As children become teenagers, any parent will tell you that the child does not want to spend a full weekend with either parent. Knowing that and understanding that will make it easier on everyone. Sometimes a child can make their feelings known about certain subjects like their schedule and it can move the mediation along by involving children that are mature enough to handle the process. 7. Make Sure You Pick a Family Law Mediator Mediators can work in many different fields and areas of law. They are trained to listen and to get people talking, and then they use various techniques to make sure each side gets “a little something” to get to an agreement. But in the field of family law, some mediated agreements will not be accepted by the court. A long time ago I received a mediated agreement where the father agreed not to visit the children and the mother agreed not to take any child support. Aside from being against public policy ensuring that the judge would never sign it, this was a horrible result for the children. A family law mediator would know that an agreement of this type would not be accepted by the court even if both parties were satisfied with it. Is Mediation Right for Your Family Law Case? Mediation in family law cases can be a time and money saver. Consider mediation over going into court to fight about everything. You will be surprised at how much faster the process is and how happy you will be to know that you were able to work out an agreement with the other parent. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/mediation/mediation-in-family-law-cases/ “Grey Divorce” is the term that has been coined for individuals who are older and obtaining a divorce. A lot of times these folks are at or near retirement, and as such, there is a unique set of issues that need to be resolved in their divorce proceedings. Unique Issues in a Grey Divorce In the event that the parties are retired, Courts will typically look to award a 50/50 allocation of retirement assets, as well as other assets. The reason for this is because neither party usually plans to earn additional income upon retirement, and they has probably saved all they will save and will be depleting their estates moving forward to sustain their livelihood during retirement. So, it is important to consider whether or not one would still be able to be “retired” on 50% of their retirement assets versus 100% of their retirement assets when considering a “Grey Divorce”. A divorce, oftentimes, could mean a delayed or later retirement than what was initially planned. Social Security Spousal support is also typically not something awarded in a "Grey Divorce” when the parties are retired. This is generally because there isn’t any income to award support from. Social security is awarded to the individuals based upon Federal Law and whatever they qualify for and the Illinois State Courts, which have jurisdiction over divorces, cannot make any changes to the social security benefits. So, these are typically “it is what it is” situations with Social Security unless a reason exists for someone to provide “maintenance” from their social security check to the other party, but rarely does this occur. Medicare Medicare is also a consideration for a “Grey Divorce”. This is an expense that has to be considered when looking at social security awards, and property division. Long Term Care Finally, something which sometimes gets overlooked in a “Grey Divorce” is the ability for a party to provide for their own long-term care if it is needed, based upon what they will be receiving from the marital estate. Long term care facilities are difficult to get into, and some people don’t have enough assets to get into one, some people have too many assets to get into one. So, thinking about your long term care plans and even enlisting the help of an Elder Law attorney can be an important and integral part of the decision to obtain a “Grey Divorce”. If the divorce has already been obtained, an Elder Law attorney would be able to assist in moving forward and planning for any sort of long term care situation, as needed, so speaking to one is always a good idea, even if the divorce is already over. Seek Trusted Legal Advice If You are Facing a "Grey Divorce" A “Grey Divorce” can be a combination of divorce as well as retirement and long term care planning, depending on the situation, and it is always good to enlist the help of legal and financial experts in these areas when making the decision as to whether or not to proceed. At Anderson & Boback, our Chicago divorce attorneys have extensive experience dealing with the unique issues present in a grey divorce. Contact us today to schedule a confidential consultation to speak with our divorce attorneys. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/what-is-a-grey-divorce/ |
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