If you want to be on social media these days, there are many platforms available - Facebook, Instagram, Twitter, Snapchat, Tik Tok, LinkedIn, YouTube – the list goes on. Social media helps people share content, communicate, and just catch up on news or an occurrence in someone’s life. However, social media can also be used against you in a legal setting if you are not careful about what and who you are sharing with. Social media content can absolutely be used as evidence in court, especially in your divorce or parentage case.
While social media posts might not be a direct cause of the divorce, they can certainly make issues worse between spouses who are going through the divorce process and can result in more litigation. If your accounts are all able to be viewed by the general public and not protected in any way, it makes it very easy for your spouse, his or her attorney, or some other third party to search the account posts and pictures. Using Social Media Posts As Evidence Social media posts, videos, messages, and pictures can be used in a variety of ways in your divorce or parentage case. For example, certain posts could be used to show that a parent is neglectful of their duties as a parent if they post about leaving the children at home without a babysitter so that parent can go to a party or go out to a bar at the last minute. Other posts or pictures showing a new car purchase, or the purchase of an expensive new purse could provide the other party with information about your financial situation that you otherwise would not have revealed, which could lead to misrepresentations about your income for purposes of calculating child support or spousal support. Posts of new boyfriends or love interests could lead the other spouse to believe you may be having help from this person paying your expenses, or even that you might be spending marital assets on this person like buying dinner for them, vacations, or gifts. This could result in a claim of dissipation being filed against you in a divorce case. There are just a few examples, but there are many ways social media can be used against you in your case. If a spouse or parent finds a post, message, or picture they believe will be useful in their case with the other parent or spouse’s social media, the next step for them is to bring that post or picture to their attorney to help determine if what they found is relevant. Relevancy is determined by the Illinois Rules of evidence. Evidence that is relevant is evidence that makes any “...fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” A court might not allow certain social media evidence to be used in a case if it is not being introduced to prove a specific issue allowed by statute. Your attorney can review what you have found and determine whether or not it is relevant to any facts or part of your case. In some situations, even though you think what you found might be relevant, it might not be relevant in the eyes of the court. If your attorney can confirm that the evidence you found on social media is relevant to your case, the next step is to authentic the photo, message, or social media post. This means you need to prove the evidence you found is indeed what you are alleging that it is. The best way to accomplish this is to provide testimony to the Court from the person who created the post. The testimony would include that person admitting they made the post or sent the message, and detail the date, time, circumstances of where a photo was taken, and who is in the photo. There is a chance that the person who created the post, will deny that they did so. In this case, your attorney will have to ask additional questions of the person who created the post to try to prove that the post or message in question is consistent with their other social media posts or messages. Just because you think you found something on social media that proves a point, does not mean it can and will be used in your case. Be sure to talk to your attorney about any social media evidence you find first. Disable Social Media Accounts Also, remember that social media is not private unless you take certain actions to restrict your account to strangers or adjust your privacy settings. While you are involved in an ongoing divorce or family law case, the safest option is usually to disable your social media accounts during the court proceedings, or not to post anything at all until your family law case has been resolved. Always think before you post! THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/social-media-and-family-court/
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Divorce can be ugly, there is no doubt about it. Furthermore, not everyone plays “fairly” throughout the process. With couples no longer getting along, strained finances, and worries about who gets what, there are definitely some “dirty tricks” that repeatedly show up in divorce cases.
Here is a list of the “dirty tricks” to look out for when you are starting the divorce process. Dirty Trick #1 – Using an Order of Protection Inappropriately This is one of the most common things we see, time and time again in Chicago divorces. One person wants the other person out of the house and they won’t leave, so they orchestrate an Order of Protection and obtain it on an emergency basis, ex-parte. Emergency Orders of Protection are often brought without any notice to the other side, and so there is no evidence to refute what the person says at the order of protection hearing, resulting in a temporary emergency Order of Protection being put in place, which effectively could remove someone from their residence. This also sometimes is used to gain a leg up on parenting time (formerly known as residential custody) but it is a completely inappropriate way to use an order of protection and constitutes an abuse thereof. Illinois has held that an order of protection is to be used as a shield, and not a sword. If an order of protection is obtained against a person and they are removed from their home or denied parenting time, they can demand an expedited rehearing to try and have the order taken care of before the actual return date. Dirty Trick #2 – Parental Alienation and Abuse Allegations There are many insecure parents who are afraid of losing parenting time with their children, so they conjure up abuse allegations that really are not true, or are far-fetched, to say the least. We have also seen someone allege physical or mental abuse of their children, and when they don’t get the results they are looking for they will sometimes escalate it even further by calling DCFS or doing other things to try and undermine the legal process. There are many ways to circumvent this, but each situation is unique so there is no cookie-cutter solution. Working with an experienced child custody attorney is invaluable in these situations. Dirty Trick #3 – Transferring Assets to a Third Party This is a divorce tale as old as time. Someone thinks they are super duper sneaky by transferring all of their money, or their house, or their cars to another person because they think they or their spouse will file for divorce. Well, the trick is on them! If these cases, we can still go after it as dissipation and ask that the party pay half the value (or more) back to the other spouse. And, we issue discovery that on average goes back 3-5 years, so we usually can see the transfers happening. Judges are also on to this behavior. Dirty Trick #4 – Refusing to Comply with Discovery This dirty trick is always a fun one. Someone may want to stall a case because they don’t want to get divorced, or they want to get even with their spouse, so they don’t comply with discovery. We have many options to deal with this including issuing Subpoenas and requesting discovery sanctions, which are sometimes monetary. Dirty Trick #5 – Suddenly No More Overtime, Bonuses, Commissions, Etc. This is another very common issue in Chicago divorce cases. It is amazing, really, that when someone files for divorce or two parties separate, the party who once worked a ton of overtime no longer has that option. Or, bonuses are no longer given. Or, commissions are lower. While there are situations where this may be legitimate, if you worked a lot of overtime and then suddenly claim it is no longer offered to you, you need to be prepared to prove it, because Judges are always suspect when this happens, as they wonder if it was done intentionally to try and lower a child support obligation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/dirty-tricks-to-look-out-for-in-a-divorce-or-family-law-case/ In a recent Illinois child support modification case, the Illinois Appellate Court reviewed a trial court decision where a father's income increase from $138,000 a year to $2.2 million a year was found to be "no substantial change in circumstance". After review, the Appellate Court reversed the trial court decision.
In this case, the parties’ judgment provided that the father, Eric, would pay child support of $2,226 per month for child support, which was 28% of his base pay. Because Eric also earned bonuses, the court required him to pay 28% of any bonus or commission he receives as well. Father Starts His Own Company Which Increased His Income Years after the judgment was in place, Eric opened his own company. While he made $138,000 at the time of judgment, he earned $2.2 million a year at the new company he started. As such, Eric sought to modify his child support, claiming that 28% of his income would be too much child support. Support is to be used for the children’s housing, food and clothing, and Eric argued that 28% of $2.2 million far exceeded what the children needed. The trial court denied his petition. In the court’s opinion, the court found that the parties had contemplated that his income would fluctuate, which is why the judgment provided that he pay 28% of any bonus monies on top of the monthly support amount. Since the parties contemplated that his income would fluctuate, and this was exactly what it did, the court found that there was no substantial change in circumstance. Without a substantial change in circumstance, Eric was not entitled to a modification of his child support. Child Support Statute Changed Years After the Judgment Was Entered In 2017, the child support statute changed. Before the non-custodial parent paid a percentage of their net income, based on how many children there were, and no mention was made of the custodial parent’s income. That changed in 2017 to include both parties’ incomes. Part of the new statute specifically stated that an obligor was not entitled to a modification simply because of the change to the statute. In other words, there had to be a substantial change in circumstance other than the fact that the statute changed. Trial Court Denied Father's Petition to Modify His Child Support Obligation On September 26, 2019, the trial court entered an order denying Eric’s petition to decrease his child support obligation. The court found that the parties’ agreement clearly stated that Eric’s income was likely to fluctuate. Although the trial court found that Eric’s income had increased substantially, the clause in their agreement regarding the fluctuation was contemplated and it was no surprise that Eric’s income would increase or decrease. The parties did provide a “cap” on contribution to certain expenses like extracurricular and schooling, but there was no cap listed in the agreement regarding his child support obligation. To complicate things further, Eric’s ex-wife, Melinda, remarried and the children were not happy living with her and her new husband. The children, now teenagers, went to live with Eric. The Appeal Reviews "No Change in Circumstances" On appeal, the reviewing court looked at the agreed judgment, just as the trial court had and disagreed with the trial court’s finding. While there was an agreement that Eric’s income would fluctuate, no one contemplated that the income would increase that much. The Appellate court looked at the final amount Eric made when he filed his motion to modify his support obligation and found that he was making sixteen times more than he previously had. Neither party contemplated such a large increase. The trial court found that this large of an increase was contemplated, and the Appellate court disagreed. "Change in Circumstances" vs. "Substantial Change in Circumstances" That court discussed the differences between a “change in circumstance” and a “substantial change in circumstance.” The court stated, “It is important to note that not all changes in circumstances constitute a “substantial” change in circumstances for purposes of modifying a child support award. Connelly, 2020 IL App (3d) 180193, ¶ 18.” “A substantial change in circumstances typically means that the child’s needs, the obligor parent’s ability to pay, or both have changed since the entry of the most recent support order.” In re Marriage of Verhines, 2018 IL App (2d) 171034, ¶ 79.” It is not a substantial change in circumstances where the increase in income is relatively small, and how large an increase is needed for a “substantial change” is not stated anywhere in the statute. A person’s agreement, if a circumstance is contemplated, can sabotage a person’s ability to modify their support obligation, which is what happened to Eric in this case. A Substantial Change Not Contemplated While an increase in Eric’s pay was contemplated, no one contemplated that large of an increase. The parties’ agreement stated: “From this day forward and until further Order of Court, [petitioner] shall pay [respondent] $2,226.00 (two thousand two hundred twenty-six dollars) per month for child support, representing 28% of his net base pay, by automatic deduction from [petitioner’s] pay and by forwarding through the State Disbursement Unit (SDU) ***. Additionally, [petitioner] shall pay [respondent] directly or to the SDU for forwarding to her, 28% of the net income from any bonuses or commissions he receives, within 14 days of receiving a bonus or commission payment. [Petitioner] shall provide [respondent] with documentation on or before January 30th of each year, showing his income from all sources for the previous calendar year.” The clear language of this provision indicates that the parties contemplated that Eric would receive some income above and beyond his base pay, in the form of bonus or commission payments, and agreed that he would pay 28% of such income in child support. Generally, “true-up” language has been held to support a finding that there was no substantial change in circumstances due to an increase in the supporting party’s income because the presence of such language indicates that the parties contemplated some change in income. The Appellate court also found it relevant that Eric had worked only as a salesman earning approximately $130,000 when he divorced and now, he was the owner of his own company. What Can a Parent Paying Child Support Do To Protect Themselves If Their Income Increases? It is unclear if a court would accept a cap on the child support a person would pay, but it is certainly worth the attempt. Also, make sure that your marital settlement agreement contains enough background about your income and what would constitute a substantial change in circumstance in the future. In Eric’s case, if a provision had been added which allowed a finding of a “substantial change” should Eric make five times the amount he currently made for example, he would not have had the protracted litigation. Perhaps even double the amount he made would qualify, but it is the definition of a substantial change in the agreement that would have saved a lot of money and litigation in this case. To read more about this Illinois case, see the Yabush decision at 2021 IL App (1st) 201136 THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/modifying-child-support-when-substantial-change-in-income/ |
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