Part 1: Military Divorce: THE FROZEN BENEFIT RULE The following is the first of a 4 part series on the changes you need to know to stay up to date on changes affecting Military Divorce, as presented by Janice Boback at the National Business Institute Continuing Legal Education for Professionals last month. The Frozen Benefit Rule Defined The Uniformed Services Former Spouses Protection Act (USFSPA) 10 U.S.C.§1408 was amended through section 641 of the NDAA (National Defense Authorization Act) to include a provision which re-defines the military retired pay that DFAS can divide. The Rule provides for a uniform method of pension division in that the military member retires on the day that the judgment for dissolution of marriage is entered. The new rule applies to active duty members of the military, National Guard or Reserves, who get divorced after December 23, 2016 when the amount divided will be “frozen.” The military pay that Defense Finance Accounting System (DFAS) can divide is: (i) the amount of basic pay payable to the member for the member’s pay grade and years of service at the time of the court order, as increased by (ii) each cost-of-living adjustment that occurs under section 1401a(b) between the time of the court order and the time of the member’s retirement using the adjustment provisions under that section applicable to the member upon retirement. 10 U.S.C. § 1408 (a)(4) - Disposable Retired Pay (A) The term "disposable retired pay" means the total monthly retired pay to which a member is entitled (as determined pursuant to subparagraph (B) less amounts which-- (i) are owed by that member to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay; (ii) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38; (iii) in the case of a member entitled to retired pay under chapter 61 of this title [10 USCS §§ 1201 et seq.], are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member's disability on the date when the member was retired (or the date on which the member's name was placed on the temporary disability retired list); or (iv) are deducted because of an election under chapter 73 of this title [10 USCS §§ 1431 et seq.] to provide an annuity to a spouse or former spouse to whom payment of a portion of such member's retired pay is being made pursuant to a court order under this section. (B) For purposes of subparagraph (A), the total monthly retired pay to which a member is entitled shall be-(i) the amount of basic pay payable to the member for the member's pay grade and years of service at the time of the court order, as increased by (ii) each cost-of-living adjustment that occurs under section 1401a(b) of this title [10 USCS § 1401a] between the time of the court order and the time of the member's retirement using the adjustment provisions under that section applicable to the member upon retirement. How the Frozen Benefit Rule Works The USFSPA used to allow for the states to determine how to divide military retired pay. Each state has their own laws that detail the method of dividing pensions, valuation dates, what is marital vs. non-marital property, etc. These laws included the military cases which required division of military retirement pay. This is no longer the case. The new law freezes the military member’s retirement benefit at the time of entry of a court order. The amount divided will be “frozen in time” as the retired pay the military member would get at their rank and years of service at the time that the order is entered. The Service Member provides the average of the highest 36 months of continuous compensation (High 3) at the time of divorce. This along with the years of creditable service (in an active-duty case) or the number of retirement points earned (in a Reserve or National Guard case). Fixing a percentage at the time of the judgment order is a way to retain value. If you are divorced at year 10 of 20 years of service, an equal division of the marital share gives the former spouse 25% of the total (50% of 50%). If the service members continue to serve 10 more years for a total of 30, then an equal division of the marital share gives the former spouse 16.5% (50% of 33.3%). However, it does provide you a larger share of a smaller piece of the pie. The Frozen Benefit Rule in a Divorce Case You and your client can choose to enter a different type of order but keep in mind that DFAS will only honor those drafted with the frozen benefit which is what DFAS will pay. If there is another arrangement, the service member could be responsible for payment directly to the former spouse of any additional amount. The Service Member has an interest in getting the court order entered as soon as possible. Once the order is entered then the non-military spouse’s hypothetical award will be frozen at that specified rank and years of service. If the order is delayed more time will pass and there is a potential of promotion and pay increases which will then provide a potential increase to the non-service member spouse. The FS can always ask the court for an unequal division of the property acquired during the marriage, in an attempt to even out the entire property division scheme due to the division of a truncated asset of the SM, not the final retired pay. Or the FS can ask for a greater share of the pension to make up for the smaller amount which will be divided. This is the first of a 4 part Military Divorce Series covering the latest changes to the law affecting Military Divorce. If you have questions about military divorce or the unique aspects of divorce when you or your spouse is a member of the armed forces, we can help. Contact us today and let our military divorce expertise put your mind at ease. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/military-divorce/military-divorce-series-the-frozen-benefit-rule/
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Who Has Allocation of Parental Responsibilities or “Custody” When Parents are Not Married?8/14/2018 One of the most common questions that arises when parents are not married is who has custody of the child. If those parents are in Illinois and told custody is now called “allocation of parental responsibility” it can become more confusing.
Are Parental Responsibilities the same as Custody? In Illinois, we have completely abolished the word “Custody”. The term “custody” referred to two different things: (1) physical possession of a child, or where a child primarily resides, and (2) legal decision making for the child. We now have abolished physical custody in Illinois and replaced the legal term with “Parenting Time”. Parenting Time refers to the schedule of where the children live and spend time on very specific days. It is simply a schedule. This has replaced physical custody or residential custody in Illinois. Allocation of Parental Responsibilities have replaced “legal custody” in Illinois, or decision making for the child. The person who has Allocation of Parental Responsibilities makes decisions for the child. There are four main areas where decisions must be made, which the court can allocate to one or both parents: (a) education (b) health care © religion and (d) extra-curricular activities. The parents being allocation “decision making” for these specific items have replaced the term “custody”. That being said, things can become very confusing when parents are not married, as to who has parenting time and who has been allocated parental responsibilities. Who has Allocation of Parental Responsibilities When There is No Marriage and No Court Order? When there is no marriage between the parties and no court order ordering someone to have parental responsibilities, and no one has signed a voluntary acknowledgement of paternity (a “VAP”) the mother typically is presumed to have Allocation of Parental Responsibilities. The mother can bring an action against an alleged father, or a father can petition against the mother for a finding of parentage. If the mother is married, then the child born to the mother is presumed to be a child of the marriage, which can be rebutted by someone who may believe they are in fact the father of the child. Voluntary Acknowledgment of Paternity WHAT IF THE FATHER SIGNS A VOLUNTARY ACKNOWLEDGMENT OF PATERNITY? The Voluntary Acknowledgment of Paternity, or a “VAP”, is a document that the father can sign at the hospital to put his name on the child’s birth certificate, when the child is born to an unwed mother. This is a presumption of paternity under law. However, signing the VAP does not guarantee parenting time or an allocation of parental responsibilities. For an allocation of those rights, the father signing the VAP would have to petition the Court and request an Order of Parentage, as well as a parenting time schedule and an allocation of parental responsibilities. Signing the VAP can also make the father responsible for child support, which you can learn more on our website and blog. It is generally best for all parties to file a court case when the parents of a minor child are not married. The court case can enter a straightforward order indicating a parenting time schedule, decision making for the minor child (an allocation of parental responsibilities) a holiday schedule, and more. It also would include a formal finding of parentage. This ensures that the parties know exactly what their schedule would look like in the event that they are no longer together, an exactly who makes what decisions for the minor child. It is in the best interests of all parties involved to have some certainty when it comes to their child. Agreed Allocation of Parental Responsibilities and Parenting Time JudgmentAllocation of parental responsibility and custody when parents are not married do not always have to be contested, litigious cases. Parties can enter into an Agreed Allocation of Parental Responsibilities and Parenting Time Judgment, which they can work out together. Our office often drafts these documents for parties, and they can be entered as an uncontested matter before the Court at one court appearance. At Anderson & Boback, we’re passionate about solving family law issues for our clients and their families throughout Chicago and the greater Chicagoland area. Contact us today — we’re here to help when you concerns about allocation of parental responsibilities or custody when parents are not married. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/custody-when-parents-not-married/ When a noncustodial parent receives personal injury settlement do not assume the settlement funds are not income for purposes of child support. In a recent Illinois appellate decision the court found the net proceeds from a noncustodial parent’s personal injury settlement as income for child support purposes. Personal Injury Settlement: Damages for Pain and Suffering and Disability Relevant to Child Support? Larry and Cara received a judgment of dissolution in Texas. As part of that judgment, Cara was awarded the majority of parenting time with the parties’ minor child, and Larry was ordered to pay child support. After the divorce, Cara and the minor child moved to Illinois and Larry moved to Nebraska. A year later, Cara went back to school and she reached an agreement with Larry to take custody of their child. They agreed that she wouldn’t pay child support because she was a student. In March 2015, Larry filed a petition to set child support, as Cara was no longer a student. During the course of discovery, Larry received information that Cara had recently received a personal injury settlement. Net Proceeds from a Personal Injury Settlement Attributable to Damages for Pain and Suffering and Disability is Income for Child Support Purposes In June 2016, the trial court held a hearing on Larry’s petition to set child support. In part, Cara testified she received a personal injury settlement after a car accident that resulted in her sustaining four broken ribs, a broken left wrist, and injuries to her leg. After deducting attorney fees and other expenses, Cara received a net amount of $158, 972.77. That money, Cara testified, was for her pain and suffering and not loss of income. When asked for her basis for concluding the money related to only pain and suffering, Cara testified: “Because I — it took a long time for my wrist to heal. I’m a massage therapist. I couldn’t work. I couldn’t do anything. I couldn’t drive a whole lot, you know. I was on pain medication.” Cara testified she used the money from the settlement to purchase a house, purchase a vehicle for herself, purchase a vehicle for an ex-boyfriend, and pay debt and various legal expenses, including fees for mediation and the services of a guardian ad litem. Cara testified she also used the money to purchase clothing and other items for their child when he visited. At the time of the hearing, the money from the personal injury settlement was gone. Larry requested the trial court consider the entirety of the net proceeds from Cara’s personal injury settlement as income for the purpose of setting child support. Larry argued that the supreme court’s subsequent decision in In re Marriage of Rogers, 213 Ill. 2d 129, 136, 820 N.E.2d 386, 390 (2004), set forth an expansive definition of income, which would include the entirety of the net proceeds from a personal injury settlement as those proceeds amount to a gain to the recipient. Larry further asserted the evidence demonstrated Cara used the money from her settlement as if it was income. Cara requested the trial court not consider any part of her personal injury settlement as income for the purpose of setting child support. Cara suggested the court should find that monies she received for pain and suffering should not be considered as income because it is intended to compensate the injured party. Her argument was essentially that the monies weren’t to pay her back because she couldn’t work (lost wages), but it was to compensate her for the pain and suffering she received in the accident. Trial Court Decision After considering the evidence and arguments presented, the trial court declined to consider any portion of Cara’s personal injury settlement as income for the purpose of setting child support. The court rejected Larry’s argument suggesting the entirety of the net proceeds of a personal injury settlement was income for child support purposes. The court stated that only those damages attributable to lost earnings is income for child support purposes. The court also rejected Larry’s alternative argument that it should consider the portion of Cara’s personal injury settlement attributable to lost earnings as income, finding, based on the evidence presented, it was unable to determine how much of the settlement was in fact attributed to lost earnings. In rejecting Larry’s alternative argument, the court further declined Larry’s request to allow him to conduct further discovery on the breakdown of Cara’s personal injury settlement. The court set temporary child support and continued the matter to set permanent child support. Based on the evidence of Cara’s recent employment, the court set permanent child support and an arrearage. As to the motion to reconsider, the court denied Larry’s request for it to consider the entirety of the net proceeds from a personal injury settlement as income for child support purposes. However, it granted Larry’s request to reopen discovery and allow another hearing on the issue of whether any amount of Cara’s settlement was attributable to lost earnings and should be considered income for child support purposes. In August 2017, the trial court held a hearing to determine what portion, if any, of Cara’s personal injury settlement was attributable to lost earnings. Based on the evidence presented, the court concluded $2,430.00 of the settlement was attributable to lost earnings and, therefore, was income for child support purposes. Net Proceeds from Personal Injury Settlement as a Gain to the Noncustodial Parent On appeal, Larry argued that the trial court’s order setting child support should be overturned, and that the Court should consider the entirety of the net proceeds from Cara’s personal injury settlement as income for child support purposes. Larry stated that because the net proceeds from a personal injury settlement amounts to a benefit or gain received by a noncustodial parent that enhances his or her wealth. Illinois Defines “Income” Broadly for Purposes of Child Support Section 505(a)(3) of the Dissolution Act (750 ILCS 5/505(a)(3) broadly defines “[n]et income” as the “total of all income from all sources,” minus various deductions. For child support purposes, our supreme court has broadly defined “income” to include “gains and benefits that enhance a noncustodial parent’s wealth and facilitate that parent’s ability to support a child or children.” Mayfield, 2013 IL 114655, (citing Rogers, 213 Ill. 2d at 136–37). It has also noted “[s]uch gains and benefits are normally linked to employment or self-employment, investments, royalties, and gifts.” Mayfield, 2013 IL 114655. Courts have found the definition of income to be broad enough to include lump-sum workers’ compensation awards, individual retirement account distributions, military allowances, pensions, investment income and earnings from bonds and securities, severance pay, deferred compensation payments, distributions from a trust, and gifts from parents. See Fortner, 2016 IL App (5th) 150246. In this case, after deducting attorney fees and other previously incurred expenses, Cara received a net amount of $158,972.77. It is undisputed $2,430.00 of this amount was for damages for lost wages, which the trial court properly considered as income for child support purposes. The remaining $156,542.77 related to damages for future medical expenses and care, pain and suffering, and disability. Larry conceded at oral argument any damages for future medical expenses and care do not constitute income for child support purposes. Larry maintains, however, any damages awarded for pain and suffering and disability is income for child support purposes. Personal Injury Awards Increase One’s Ability to Support a Child Larry argued, and the court agreed, that in order to decide if the money received should have child support paid, the court needed to look at the effect those payments or awards had on the person who received it. The reviewing court found that the money she received had a positive impact on her ability to support her child. The Appellate Court overturned the trial court and found that the net proceeds from a personal injury settlement attributable to damages for pain and suffering and disability is income for child support purposes. The Court looked at the position the child would have been had the child lived with the noncustodial parent. But, I wonder if the purchase of the car for the boyfriend in someway did not endear Cara to the Appellate Court. At Anderson & Boback, we’re passionate about solving complex family law issues for our clients and their families throughout Chicago and the greater Chicagoland area. Contact us today for a confidential consultation when you have questions or concerns about family law matters including the impact of a personal injury settlement on child support. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-support/personal-injury-settlement-income/ You just got served with Illinois divorce papers or a child custody action. So now what? Whether or not you suspected this might happen, once you’ve been served there is no time to waste. First of all, do not ignore the fact that you have been served. Be forewarned. If you have been served with a Petition for Dissolution of Marriage or a Petition for Allocation of Parental Responsibilities you only have so much time to alert the court that you intend to be involved in the legal proceedings. The way you do this by filing your “appearance” in the matter which means filing and Answering the Petition for Dissolution (or Petition for Allocation of Parental Responsibilities It’s important to understand that once you have notice of the action, the filing party can usually move forward without your involvement even if you fail to file your appearance in the matter. How Do Family Law Court Proceedings Begin? When cases are initially filed, the filing party must provide the other party with notice. This is called the Service of Process. This is done by serving the other party with a Summons and a copy of the document that was filed. A Summons is an official notice that a legal proceeding was filed and that you are a named party. Who Serves an Illinois Summons and Petition in a Family Law Matter? Under most circumstances, the appropriate Illinois County Sheriff’s Department or a private process server will serve the Summons, along with the document that was filed. When serving a family law or divorce papers it’s common for service attempts to be made at a party’s residence or at their place of employment. What Information can be found in the Summons? The Summons states what type of proceeding has been filed. The Summons explains that you must file a written Appearance and an Answer in the Circuit Clerk’s Office within a certain number of days, often within thirty (30) days. What if I Do Not Want to Accept the Summons? We’ve all seen it. On television shows and in movies, the drama unfolds with the person about to be served with a Summons cleverly hiding (or attempting) to avoid the process server. While it is not unusual for someone to not want to accept the summons, it is important to understand it will not make the Petition go away. In Illinois, “Service of Process” is considered completed when the process server hands the Summons and the filed legal document to the other party. As stated above, service is usually attempted at a party’s place of employment or last known address. And if you’re not home, that may not be a problem for the process server. if someone you live with IS home. If you live with someone over the age of thirteen (13), you need to be aware that Service of Process can also be completed when the sheriff or process server hands the Summons and filed legal document to anyone who lives in your home as long as the recipient is over the age of 13. Alternate Methods for Service of Process In addition to personal service by the Sheriff or a private process server, the court is able to make it possible for litigants to serve the other party by granting permission to use alternative means for service. This typically happens when someone is attempting to avoid service. In those situations, there are occasions when service is completed by sending the Summons and filed documents through the mail and by publishing a notice in the newspaper. What is a Default Order? After you’ve been served, it’s crucial you respond by filing your written “Appearance and Answer” by the deadline. Filing your Answer lets the Court know you are participating in the legal proceedings. Do not ignore the fact that you have been served. The clock is now ticking. If you do not file your Appearance and Answer by the established deadline, the filing party can seek relief by from the Court by making a motion requesting that the Court enter a Default Judgment. This means that the filing party could be granted the relief requested in the Petition without you even participating in the case. Unless you have no opinion about the relief requested, it is not a good idea to ignore the case as the Court will enter orders whether you agree or not. Can a Default Order be Vacated in Illinois Divorce of Family Law Case? Yes. In Illinois, Section 1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2) provides a possible way to vacate a default order. However, before the Court enters a default order, one must show that they have a meritorious reason for not participating in the litigation. In the end, the decision to vacate a default order is really up to the Judge. And understand, they are rarely impressed when they hear that a court proceeding was ignored. Be Proactive and Participate in Your Case If you have the opportunity to be involved in a case and that case has the potential to impact your present life and future, then be proactive, protect yourself and be involved in the case. Vacating default orders can sometimes be an uphill battle depending on the circumstances. The best way to avoid this all is to simply file your written Appearance and Answer in a timely manner. If you’ve been served with divorce papers or any other type of family law-related documents, do not hesitate to get trusted input from an experienced divorce and family law attorney. The clock is ticking and your future could be negatively impacted if you wait too long to respond appropriately. Contact Anderson & Boback when you’re facing a family law related matter or have questions or concerns about being served with divorce papers. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/illinois-divorce/served-divorce-papers-now-what/ On July 18, 2018, members and guests gathered for the Illinois State Bar Association’s (ISBA) Annual Awards Ceremony and Reception at the Roanoke Restaurant in Chicago. This was an exciting evening for our firm as our colleague and friend, Jessica Marshall, received the her award as the ISBA Young Lawyer of the Year for Cook County for 2017-2018.
During the award presentation, the ISBA recognized Jessica for her important role “mentoring other associates and staff focusing on the importance of civility in the practice of law” and participation in the ISBA Standing Committee on Women in the Law. With this prestigious award, the ISBA honors the extraordinary commitment and dedication of a young lawyer who has provided outstanding service to the Illinois population. Each year only two outstanding lawyers are chosen to receive this honor – one from Cook County and the other from any of the other Illinois counties. We’re thrilled for Jessica and know this award is well-deserved. On behalf of the entire Anderson & Boback team, we offer our heartfelt congratulations to Jessica! Jessica is a Senior Associate at Anderson & Boback where she focuses her practice on divorce and family law. From contested divorce and child custody matters to military divorce, Jessica is a passionate advocate with an unwavering commitment to her clients. If you need a compassionate and personable attorney dedicated to solving family law problems, contact Jessica Marshall. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/a-b-news/jessica-marshall-receives-isba-award/ Illinois orders of protection are serious business. Orders of protection require you to cease all contact with the person holding the order. People charged with an order of protection don’t always realize what they can and cannot do in order to keep the order of protection from turning into a criminal conviction. It’s critical for your future to understand the power and implications of an order of protection. Civil and Criminal Orders of Protection Types There are “civil” and “criminal” orders of protection. Typically, if you are charged criminally (arrested and charged with a battery for example), the State will also secure a criminal order of protection for the victim. But civil orders of protection can result in criminal charges if they are violated. With a civil order of protection, you have to be careful that you not only stop communicating with the other party who secured the order, but you cannot contact their family, friends, or in any way harass that person. Your failure to know exactly what is permitted can be devastating. For example, if you violate the order of protection, the police will arrest you and your civil order has just turned criminal. That is what happened to Donald Gauger, Jr. Even Facebook Messages Can Lead to a Criminal Conviction Following a bench trial, defendant, Donald R. Gauger Jr., was convicted of violating an order of protection (720 ILCS 5/12–3.4(a) (West 2012)), stalking (id. § 12–7.3(a)(2)), and aggravated stalking (id. § 12–7.4(a)(3)). Gauger was sentenced to five years’ imprisonment for aggravated stalking. The aggravated-stalking charge alleged that he engaged in a course of conduct directed at Crystal Carswell that he knew would cause a reasonable person emotional distress while Carswell had an order of protection against him. At trial, Carswell testified that she had been married to Gauger and that they had two children together. She had an active order of protection against him. On September 9, 2012, she got a Facebook message from someone she knew in high school, asking if she had recently sent him a new “friend” request. After looking at the profile the friend told her about, she realized that an old Facebook account of hers had been reactivated. At about the same time, she received two Facebook messages that she knew immediately that her ex-husband had sent. The first message asked about meeting for a date and the second wished her a happy birthday. The messages were from a Facebook account using the name “Ed Kloog.” She knew Ed Kloog, an older man who did not live in Illinois at the time. She contacted him about the messages. Kloog responded that he had only one Facebook account and that he was upset that someone was apparently using his name. Carswell then contacted the De Kalb police and filed a complaint against her ex-husband for sending the messages. Fictitious Facebook Activity Results in Emotional Distress The fictitious Facebook activity frightened Carswell. She felt worried every time she left her building. She would constantly look over her shoulder while driving into town, worried that her ex-husband or someone he knew was “going to pop up.” She was upset that defendant was “trying to be friends with [her] friends that [she] went to high school with just to find out some things about [her].” A subpoena was issued to Facebook to obtain the Internet Protocol (IP) address for the fictitious Ed Kloog account. Facebook provided two different IP addresses, and after the police investigated, they were able to determine that one of the addresses belonged to Gauger’s computer. Using this information, the police obtained a search warrant for Gauger’s residence. His computer was seized during the search, and a forensic analysis revealed an image identical to the image used as the profile picture on the fictitious Ed Kloog Facebook account. A compact disc near that computer contained a Facebook post by Carswell and a picture of one of Carswell’s children. Police also found a three-ring binder with a page labeled “Facebook” containing four or five fictitious Facebook pages, passwords, and emails. The computer had a number of photos and emails pertaining to Carswell and her family. The forensic analysis also turned up references to Ed Kloog and a copy of one of the photos associated with the fictitious account. The computer also contained a copy of a photo of Carswell in a Kohl’s dressing room. Carswell said that she posted the picture on her Facebook page in November 2012. The computer also contained a copy of a Carswell family photo taken at J.C. Penney’s that Carswell posted on Facebook. The court found Gauger guilty on all three charges. The court found that defendant “knowingly engaged in a course of conduct directed at Crystal Carswell and knew or should have known that this course of conduct would cause a reasonable person to suffer other emotional distress.” The court specifically found that the evidence “overwhelmingly establishes that the defendant directly or indirectly through third parties monitored and communicated to or about Ms. Carswell through his Internet activities.” The court merged the order-of-protection and stalking counts into the aggravated-stalking count and sentenced defendant to five years’ imprisonment. A “Course of Conduct” May Include Electronic Communication The trial court looked at what defines “course of conduct,” as it related to the order of protection. The court found that “2 or more acts, including but not limited to acts in which a defendant directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, engages in other non-consensual contact, or interferes with or damages a person’s property or pet. A course of conduct may include contact via electronic communications.” Stalking becomes aggravated stalking if the defendant, inter alia, violates an order of protection. Defendant contends that his Facebook messages to Carswell constituted “communicat[ing] to or about” her. The trial court here specifically found that defendant monitored Carswell. The stalking statute does not define “monitoring,” but the dictionary defines “monitor” as “to watch, keep track of, or check usu. for a special purpose.” Merriam-Webster’s Collegiate Dictionary 750 (10th ed. 2001). Even without the Facebook messages, the evidence showed that defendant created at least one fictitious Facebook account in the name of Carswell’s friend, downloaded pictures of her and her family, and apparently even obtained mail addressed to her. This course of conduct satisfies that definition, and the court reasonably found that defendant “knew or should have known that this course of conduct would cause a reasonable person to suffer other emotional distress.” When in Doubt Do Not Contact! When in doubt about what types of communications would be allowed, err on the side of caution and don’t contact. If the court determines that your communication is a violation, it results in criminal punishment. It isn’t worth it. When an order of protection has been filed against you, take all precautions to avoid the person with the order, including any friends or family. Contacting them can lead to your criminal prosecution. At Anderson & Boback, we’re passionate about solving complex family law issues for our clients and their families throughout Chicago and the greater Chicagoland area. Contact us today for a confidential consultation when you have questions or concerns about family law matters including orders of protection. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/orders-of-protection/violate-illinois-orders-protection/ In family law cases, violating court orders is common and it is important to understand that there are different types of violations of family law court orders with different consequences. From child custody to child support orders and discovery demands and financial issues, different types of violations are dealt in a different manner. Thus, the way in which the court will address the violation is dependent upon the type of violation. So, the first question to answer is “What type of violation of court order is it?” Indirect Civil Contempt Violations When the violation is something remedied by encouraging the person violating the court order to act, and their violation takes place outside of the courthouse, that is often Indirect Civil Contempt. For example, a failure to pay child support could be considered an Indirect Civil Contempt violation. The question of whether or not the violation qualifies as contempt turns on whether the violation is “willful” or not. When someone who has money sitting in a bank account which would have covered their child support obligation, yet they failed to pay it, such a violation shows willfulness and acting in a contemptuous manner. Additionally, when ordered to pay child support using the money for certain other things instead of child support could be considered contempt. The person violating the order can be coerced into complying with the order by saying, if you don’t pay your child support, you will go to jail until you do. Then, once they pay the support, they have “bailed” themselves out. This type of scenario is prime for consideration as indirect civil contempt. In these scenarios, a Contempt Petition may be a proper request to produce the desired outcome. Discovery Violations in Divorce and Family Law Cases The Discovery process is laid out in the Illinois Supreme Court Rules (“ISCR”). These Rules provide a detailed outline of sanctions (penalties) that can be applied when someone violates the discovery process. Typically, the goal is to obtain the discovery or documents that a person is missing, not punish the person for failing to produce the discovery. (though that is also something that is allowed under the rules). For this type of violation of a court order, a Motion to Compel Compliance with Discovery is more appropriate than a contempt petition. The sanctions allowed under the ISCR’s can be requested, as well as compliance with the discovery requests or orders. Other Violations of Court Orders in Family Law Cases There are still other violations of a Court Order which can arise in family law cases. Parenting time interference is one issue. For example, someone who is supposed to have parenting time but misses it due to the other parent’s actions may want to try and enforce their parenting time order. One occurrence might be considered indirect civil contempt, with the purge being allowing makeup time. But, repeated violations of this nature may constitute indirect criminal contempt, punishable by a set amount of jail time. One cannot “get out of jail” by completing an action, they are serving a jail sentence to punish them for noncompliance. This is different than indirect civil contempt, where the contempt is intended to coerce someone to do something. Some violations cannot be considered any type of contempt; they are a one-time occurrence, and the violation is relative to something that they can no longer be “coerced” into complying with, and it may not be discovery related or criminal. In these scenarios, it may be best to file a Motion to Compel a certain behavior or action, rather than calling it a contempt petition. Financial Consequences of Indirect Civil Contempt and other Non-compliance It seems that it would be common sense to most litigants that violating a court order will have negative consequences. That being said, for whatever reason, there are still many, many litigants that purposefully or inadvertently violate court orders in their respective family law cases. What the litigants may not realize is that there may be a high financial cost associated with that. Attorney’s Fees Associated with Violating a Court Order There is a specific statute under Illinois law that governs the award of attorney’s fees when a court has a proceeding “for the enforcement of an order or judgment when the court finds that the (litigant’s) failure to comply with the order or judgment was without compelling cause or justification.” This statute is Section 750 ILCS 5/508(b) of the Illinois Marriage and Dissolution of Marriage Act, and it further provides that in such situations “the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney’s fees of the prevailing party.” There are two keywords to pay close attention to: “shall” and “promptly”. Get Ready to Pay Attorney’s Fees: Understanding “Shall” and “Promptly” First, the Illinois Marriage and Dissolution of Marriage Act says the Court “shall“ order which means the law does not allow the Judge discretion in the matter. Thus, if the Judge finds an order or judgment has been violated “without compelling cause or justification”, the person violating that court order can be rest assured he or she will be forced to pay some of the other litigant’s attorney’s fees. These fees potentially are in addition to fees they may already be paying, such as their own attorney’s fees, a Guardian Ad Litem or Child Representative Fees, or even a 604(b) Custody Evaluator’s fees. That can be very, very expensive. The second keyword is “promptly”. The statute provides that the fees are to be paid promptly. If the litigant that violated the order does not pay the fees within the time mandated by the Judge in the order, there is the possibility of an additional contempt petition being brought against them. It should also be noted that the statute does not make any reference to the order-violating litigant’s ability to pay the fees. So regardless of the violator’s financial situation, he or she will need to find a way to come up with the funds. For more than two decades, Anderson & Boback family law attorneys have been solving complex family law needs of clients throughout Chicago and the greater Chicagoland area. If you’re faced with divorce or family law related issues, contact us to schedule a confidential consultation and learn more about dealing with violating court orders. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce-litigation/violating-court-orders-family-law/ |
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August 2022
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