Depositions are an important discovery tool used by divorce attorneys to prepare for trial. While depositions are important for your case, they can be very intimidating, especially when the client has a lot at stake and is not familiar with the deposition process. Depositions are authorized under Illinois Supreme Court Rules 202 and 206. There are two types of depositions, discovery and evidentiary and the type of deposition must be stated in the Notice of Deposition. In this article, we discuss how to prepare for a deposition, including preparing yourself and the client for successful outcomes. How to Prepare for a Discovery Deposition The majority of depositions will be discovery depositions. This means that the party taking the deposition can ask questions that are likely to lead to discoverable information. The goal of the party taking a deposition is usually to get the deponent speaking and sharing information. The goal of the deponent and their attorney should be to limit the answers in a deposition to only answer the questions asked and not to volunteer information. This can be tricky when you have a nervous client and an experienced attorney on the other side. Most attorneys will start a deposition off by giving an admonishment. It is typically around 10 short explanations and a few questions of what a deposition is and what is expected during the deposition. This admonishment serves two purposes:
That is one reason it is important to prepare the client for the deposition. Another reason is that while depositions are not submitted to the Court, they can be used to impeach or discredit the witness during a trial. A little change in testimony between the deposition and in court testimony can be enough to throw off a client who is already nervous and make the client look less credible to the Court. Client’s need to understand the importance of a deposition and be adequately prepared. As the attorney, before you can prepare your client, you need to prepare yourself. Hopefully by the time the deposition is set, you have been involved in the case for a while and are familiar with the issues. Before preparing your client, it is important to review the pleadings and know what issues are still outstanding. Many times, other discovery such as requests for production and interrogatories have been completed by the time the deposition arrives. The attorney should be familiar with the client’s documents and the answers to the interrogatories as they will likely be used in the deposition. The attorney’s job in preparing their client for a divorce deposition is to know the other party’s argument well enough that the attorney can anticipate the line of questioning. The attorney also needs know what issues may lead to a need to object and be prepared with the objections. Once the attorney is prepared, it is time to prepare the client. While knowing the case and the opposing party is important, it is also important to know your client. By this time in the case, the attorney and client should have met at least a few times and the attorney should know how the client answers questions or reacts to tough or uncomfortable situations. Some clients are more savvy than others. Some clients may have had their depositions taken before and may not need much prepping from the attorney. Other clients are new to the deposition and may not understand all the legal issues in this case. Each client should be prepared based on their individual personality and ability to understand the situation and answer questions. Do a Mock Deposition Whether the client is legally savvy or completely clueless, it is important to meet with the client so they understand what is going on and what pitfalls to avoid. The most helpful thing I think is to have a “mock deposition.” Meaning go through the questions you think the opposing counsel will ask your client in a deposition and have the client answer as if they were in the deposition. It is especially important to go over tricky issues with you client, and likely you will need to go over these issues more than once. One area that deponents have issues is that they want to tell their story. The attorney taking the deposition will love this, because they are getting information that could possibly be useful to their case. The client needs to realize that a deposition is not the time to explain or tell their story, they will get a chance to tell their story during a trial or hearing when their own attorney is questioning them. The deponent simply needs to answer the question, and should practice answering questions without giving extra information. It is important when practicing for a deposition to pay attention to the way answers are worded and to work with the client on the best way to answer a question. Other Helpful Tips in Preparing for a Deposition Here are a few other practical preparation tips:
If you are facing divorce litigation in Illinois or have questions about how to prepare for a deposition be sure to talk to your Anderson & Boback Attorney. Contact Anderson & Boback to schedule confidential consultation related to any aspect of a your divorce process. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/prepare-for-a-deposition/
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Today more and more dads taking on the role of stay-at-home dad with more and more moms becoming the breadwinner in the household. So what happens when parents split up and the stay-at-home dad seeks primary custody of the children?
Most people still believe that mothers will always prevail, but that is not true. The law isn’t as concerned about moms being the only parent who can bond with the children anymore. Dads can clearly bond with their children and if they are involved; the bond between dad and the children is just as important as a bond between the mother and the children. Custody, Parenting Time and Illinois Allocation Judgments With the change in the current law, we no longer refer to “child custody” cases as “custody”. Illinois now has Allocation Judgments, which allow for more flexibility with your children. So if you are better at making the medical appointments and stay on track with your child’s physician, then under the new law, you would likely be designated as the person who handles those decisions. Perhaps the other parent wants to be in charge of school decisions. The Allocation Judgment allows each of you to be involved and to do different “jobs” on behalf of your child. But people still want to argue for having “custody” or to have the most parenting time with the child. The parent who is staying home with the child is much more likely to obtain the right to have the majority of the parenting time if the couple breaks up. The Burden to Prove the “Best Interest of the Child” While the law is not intended to favor mothers over fathers, I do believe that fathers, whether stay-at-home dads or not, have a greater burden in demonstrating that they will act in their child’s best interest. I don’t remember having to “prove” that for my clients who were mothers. But for the fathers, it seems that the court requires more of them to prove that they can act in their child’s best interest. What does that mean? And how do you, as a stay at home father, meet the necessary criteria? Fathers Seeking “Custody” or Majority of Parenting Time Fathers or stay-at-home dads seeking the majority of the parenting time have an easier time of accomplishing their goal under the new law. Before, someone was called the “sole parent” or the “joint parent.” Moms fought dads seeking sole custody since our society stigmatizes her for losing that title. What is wrong with her that her ex-husband got sole custody? Is she a drug abuser? A drinker? I wonder what she did wrong? No one ever said that about the father when the mother was the sole custodian. It was expected of the mom to be the parental custodian and when she wasn’t, there had to be a sinister reason why she wasn’t. Because of that stigma, mothers fought like mad to be the sole custodian. Now, no one is the sole parent or the joint parent. But the parent having more of the parenting time gets the child support, and so the war of who gets the kids more rages on. How to Be the Parent with the Majority of Parenting Time As a father, what can you do to ensure that you are the parent with the most parenting time? First, you should be involved in your child’s life. That sounds simplistic since you are the stay at home parent, but are you the parent taking your child to the doctor? Do you attend the teacher-parent conferences at school? Do you interact with your child’s teacher regarding your child’s progress in school? The list can go on and on as to what it means to be involved in your child’s life, but the main criteria will be just how much you actually know about your child. Ability to Facilitate a Relationship Between Your Child and the Other Parent One overlooked factor, however, is how the level of dad’s involvement shuts out or minimizes the other parent’s involvement. When you have the majority of the parenting time, you are responsible for keeping the other parent informed, and if it is demonstrated that you have an inability to do that, you will quickly be labeled as a parent who cannot facilitate a relationship between the child and the other parent. What exactly does it mean to “facilitate a relationship”? Facilitating a relationship means that you can include the other parent in your child’s life. You aren’t threatened or feel diminished as a parent by sharing your child’s gymnastics schedule with the other parent. Or by reminding the other parent about an event at your child’s school. It means being the bigger person for the betterment of your child.
If you are going to have the most parenting time with your child, you have to be able to act in that child’s best interest. And, typically, that includes involving the other parent in your child’s life. Advice to the Stay-At-Home Dad Seeking Primary Responsibility of the Children Moms will oftentimes tell me that their children aren’t really loved by their father or that their children are better off without him. For sure, there are instances when that is true. But when I see fathers in court fighting to see their children, I assume that they really do want to see their kids and that they aren’t in court fighting just to give the mother grief. They likely really want to see their kids. When you are the father seeking primary responsibility for your child, don’t be the parent that tries to banish the other parent. Whether you believe it or not, your child will see your ex’s shortcomings and there is no need to point them out. Kids get it that mom has to work and might not be at their game, so your comment of “She cares more about her job then coming to see you play,” is out of line. And hurtful. Be the parent that isn’t trying to alienate the kids from their mother and do all you can to include the mom in the child’s life. Find Ways to Support Your Child’s Relationship with the Other Parent Since you are the stay-at-home dad, try to figure out ways to make it easier for the other parent to see the child. If the working parent has a schedule that fluctuates, can you allow a change in the schedule to allow for extra parenting time? Can you buy tickets to a show that your child wants to attend and give those tickets to the other parent? Think about what you can do to be nice. Most people think it is counter-intuitive to try and help the other parent or to do something nice for the other parent, but I think they are wrong. GESTURES OF KINDNESS GO A LONG WAY Your gesture of kindness does a few important things.
It is a win/win for both of you and by taking the high road. You will feel better and “get points” with any custody evaluator and/or judge since you are able to demonstrate that you can act in your child’s best interest and facilitate a relationship, which is critical in child custody cases. If you handle the situation right, your ex might even repay you with an act of kindness in the future. Preparing Your Case for a Custody Evaluator or Judge If despite all your efforts to end your case amicably fail, then you have to prepare to take your case to the custody evaluator or the judge. Think of witnesses who can support your position that you are the primary caretaker of the child. Highlight things you’ve taught your child and record milestones. Remember, this case is about you and what you bring to your child’s life. You don’t need to spend any time capitalizing on the things the other parent does wrong. I’m a firm believer that you will obtain the majority of parenting time with your child by being positive, by building up the other parent and spending most of your court time demonstrating just what a great dad you are. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/stay-at-home-dad-child-custody What Happens If My Spouse Does Not Respond to My Divorce Petition
Divorcing someone in the military involves special rules especially when a military spouse fails to respond to a divorce petition. In any dissolution of marriage proceeding, the party that files the initial petition has the obligation to serve a copy of the divorce petition on the opposing party with instructions to file an answer within 28 days. Many times the party initiating the dissolution of marriage will have the required documents served on the opposing party only to have the opposing party fail to respond or file an appearance in the dissolution of marriage action. In most cases, this is a relief. As long as the Court has jurisdiction and the other party was properly served, the Court can issue a default judgment against the opposing party. A default judgment is essentially the Court granting the relief requested by the petitioning party because the responding party failed to appear or respond. Protection from Default Judgment for Members of the Military However, if you are filing for divorce from someone in the military and your spouse fails to respond, you may not be able to get a default judgment entered against them. Pursuant to the Service members Civil Relief Act (the “Act”), specifically section 3931 (50 U.S.C. §3931), service members are protected from having a default judgment entered against them in any civil action unless certain requirements are met. Requirements for Protection from Default Judgment The first requirement is that the Petitioner must file an Affidavit which states whether the Respondent is in the military service and showing necessary facts to support that conclusion. The second requirement is that the Court must appoint an attorney to represent the defendant. This attorney must make efforts to locate the service member. If the appointed attorney cannot locate the service member, the attorney’s actions cannot be held against the service member. The third step the Court must take if the service member is not found is for the Court to issue a stay of the action. A stay is essentially a hold of the action. This means nothing can take place in the action until the stay is lifted. Pursuant to the Service members Civil Relief Act, the stay must last a minimum of ninety (90) days. If the service member does receive notice of the pending action, they can request a stay as well under section 3932. Court Authority to Vacate the Default Judgment If these rules are not followed and a default judgment is entered against a defendant who is in the military, the Court has the authority to vacate or set aside the judgment. Which means that the petitioner would be back at the beginning without any relief. Plan Ahead When Divorcing Someone in the Military Therefore, if you are married to someone who is serving in the military, it is best to locate them and discuss the matter with them before filing a dissolution of marriage. Knowing where the service member is located and whether they are willing to submit to the jurisdiction of the Court will help the process go smoother and help eliminate any potential surprises down the road. As leading military divorce lawyers, we help our clients address and navigate the complexities of divorcing someone in the military. Please contact Anderson & Boback if you are facing a military divorce or have questions about divorcing a soldier especially if you think your spouse may fail to respond to the divorce petition. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/military-divorce/default-judgments-divorcing-someone-in-military/ All parents going through a divorce will say one thing about their children–They want to act in their child’s best interest. Unfortunately, each parent has a different viewpoint about what that best interest actually entails. Some parents feel like the best thing for their child is that no divorce occur, but in some situations, a divorce can be the best thing for the family. I’m not here to tell you to divorce or not to divorce. Every family has to make their own decision as to what is best for them, but I’m sure we can all agree that certain things will allow your children cope with a difficult divorce and to pass through this process with the least amount of stress. We should all strive for that.
Kids of all ages will process their stress about their parent’s divorce in different way. How they react depends on their age, personality, and the circumstances of the separation and divorce process. Don’t believe for a second that your child isn’t affected, because children are affected by divorce. But with a little work and common sense, you and your spouse can get the children through this without too much damage. 11 Basic Tips to help Reduce the Stress on the Children in a Divorce 1. The most important thing that both parents can do to help kids through this difficult time is to keep the topic of the divorce away from kids. Even when it is true, try to avoid comments like, “I’d love to take you on vacation, if only your dad paid the child support on time.” Or “If only your mother didn’t sleep with Coach Brad, we’d all be living together right now.” Just like you didn’t share information with your kids about the first time you drank beer behind the bleachers at the school football game or tried a marijuana cigarette, it stands to reason that you don’t share everything about your divorce with your kids. There is no reason to share the details of your divorce with your children. They are not your friends. They are not your pals. They are your children. Protect them. 2. Minimize the disruptions to kids’ daily routines. We see a lot of fighting about this. Moms typically will schedule the children for activities and take them to those activities if this is a household where mom has stayed home to raise the kids and dad has gone to work. But a divorce has occurred now, and things will change. If the children have historically played baseball, then don’t you want your children to continue doing what they love? It may be difficult, but take your child to her practices and games, even if it is your parenting time. Your child didn’t sign up for this divorce, so both parents should do their best to keep their children in the same activities so that there is some continuity in their lives. I represent a fair amount of fathers in divorce cases, so I’m aware of both sides of this argument. Now that a divorce has occurred, dad needs to stop working as much and step up and help the other parent. He often finds this difficult because mom is not only signing the kids up for activities like she always did, but now she’s gone ahead and signed them up for more activities, to the point where they are involved in something every day. The children are so involved in activities that there is no time to spend with dad. Moms need to realize that dads need time with their kids too, and not just to run them from place to place. There has to be a middle ground in this area so that one or the other parent isn’t marginalized. I often tell dads that they need to step up and take their kids to practices and games, even if it is on their parenting time. And to moms, think about how much you are signing the kids up, and if you can avoid scheduling on top of dad’s time. Going forward, there should be an agreement as to the activities so that each parent has the opportunity to not only be involved in the pickup and drop off, but also in the choice of the activities. A mutual agreement to the activity and parental responsibility helps alleviate the feeling of helplessness that one of the parents has when it comes to this area of the case. If both of the parents can work out this important detail for their kids, then the kids can enjoy their activities like they always have. 3. Talk to your spouse about keeping the same routine. This can be difficult since the parents like to do things differently. But hopefully you can both agree that the child needs a nightly bath and needs to go to bed at a certain time. Some things like this will give your child some continuity. How many hours of TV watching will be allowed? Do we want them to do their homework? Try and talk about these types of subjects without laying blame. “Of course Bobby could get an A on his math homework if he wasn’t watching 5 hours of TV every night at your place.” It is difficult to come to the same point on everything, but the more you can agree to, the better the transition will be for your child. 4. Do your best to rein in negative comments about your spouse. If you can see that you cannot control it, invest in a therapist and address those issues there. It isn’t necessary to highlight the other parents’ deficiencies. Don’t you think your kids will figure out some of this on their own given time? You don’t have to tell your kids that their dad is worthless because he continually misses their basketball game. Trust me, they’ll figure it out for themselves. So try and avoid the negative talk about the other parent. It just makes your child feel badly and why would you want to do that? 5. If you really want to do what is in your child’s best interest, then you’ll do what you can to keep the other parent involved in the child’s life. This is probably the hardest thing to do, especially if you really hate the other person right now. When your son has a piano recital, you know he wants his parents there watching him. Kids cannot get enough of “watch me!” You could “forget” to tell the other parent about the recital and then sit smugly by and say, “Well if you really cared, you would have called the teacher and asked about the recital.” You feel great now since you were able to stick it to the other parent, but how is your son feeling? You know he is hurt and if you can avoid that, why wouldn’t you? This divorce is difficult enough without your son feeling like his one parent doesn’t care enough to come to his recital. No one is perfect, so just drop and email and relay the information. It is good for your child! 6. Let your child know that it is ok to still love and talk about the other parent. Are you able to allow your child to put up a picture of his father in his room? The sight of him might make that impossible at first, but try putting your child first. If you were to put up a picture of your spouse in your child’s room and encourage your child to talk about him, it really helps your child. It teaches a lot of things, like forgiveness. Encourage your child to call the other parent at night or in the morning. I cannot get over how often I have to litigate this divorce issue in court. Either the child is never there when the other parent calls or they are too busy to talk. How hard is it really? While you are making dinner, call the other one up on Face-Time and let them look at each other. Let your child take your phone to his/her room for some privacy. And for the parent calling, ask questions about your child, but avoid things like, “So is your mom in the other room with Hank? Did he spend the night?” This call isn’t about you finding out something about your spouse. It is about you connecting with your child. 7. I’m asked a lot about how the children should be told about the divorce. You might want to address it in therapy, and you might want to do it alone with the other parent. This is a hard area for someone else to weigh in on, since you know the other parent the best. If your spouse is likely to be screaming, crying and throwing of chairs, then don’t do this together. Your children should never see that. But if you two can sit down and calmly tell them, then that is likely best since you can both answers any questions that come up. Both parents should be reassuring their child that this isn’t their fault. This is a problem between the two parents and has nothing to do with them. You’ll likely be able to field questions if you are both sitting there. Try and control yourself when you speak to the children. Try and find a time when you can tell them without breaking down. While it is ok for your child to see you cry, it will make the news of the divorce much more painful if they see their dad crying his eyes out uncontrollably. Try and find a time when both parents are in control of their emotions-it is likely better for the children. 8. Children love to keep things the same. If you’ve ever tried to throw away that bald Barbie doll with the melted face because it is just too ugly to keep, you know what I mean. Or the train that your son loved which now is missing two of its wheels. Kids will keep anything for as long as they can, even when it is broken and unusable. They hate change! Knowing that, try and keep as many of the things the same. Keep their same school if you can. Keep their same set of friends. If you have to forgo some of your parenting time so that your child can keep doing something that they’ve always done, then try and dig deep within yourself to allow that. 9. Answer your children’s questions, but do so for subjects that concern them. You can strive for some honesty, but you don’t have to disclose “whose fault it is.” Just keep them on topic as to what is really their business, like “will we have to move?” or “will we be changing schools?” These are fair questions and if you don’t know the answers just yet, just tell them that. The more you can work out with your spouse ahead of time, the less afraid the children will be about the change that is entering their lives. 10. Talk to your spouse about exchanging information so that it doesn’t occur in front of your children. Never use your children to communicate with your spouse. Never work out the details of parenting time through your kids. You were old enough to have these children, so you are old enough to communicate with the other parent. Although the occasional argument between parents is expected in any family, living in a battleground of continual hostility and unresolved conflict can place a heavy burden on a child. Screaming, fighting, arguing, or violence can make kids feel worried and afraid. Not only does a fight scare the children, but it sets a bad example for them too. When your children are frustrated and angry, do you want them to throw things and say bad words? Or do you want them to be able to articulate their problems and concerns? Your children learn from you about how to handle their stress, so try your best to be a good example. 11. To the best of your ability, enforce your spouse’s rules. If your spouse has grounded your child for swearing for instance, don’t take your child to the movies that night. And make the punishment you do give out have nothing to do with the other parent. For instance, the punishment shouldn’t be that he cannot go on vacation with your spouse. Or that your child is prohibited to talk to their father that night. I would of course speak to your spouse ahead of time to tell him/her what has happened at your house and to inform the other about the punishment, and that can be addressed during the nightly call. But to the best of your ability, enforce the other’s punishment, since you’d surely like that done when the table is turned. Does Family Therapy Help Children Cope with a Difficult Divorce? I am a big proponent for therapy for the children, and even family therapy. Therapists are trained to get people to talk and your kids will need to do that. They might not be able to do that while you are in the room. Sometimes kids will come up with “I hate him for moving out.” Although it is easy to kind of look the other way and let your child have those emotions (secretly enjoying with satisfaction that your child does realize what a jerk the other parent is), in the long run, I’d encourage you to explore those feelings with your child and let some repair work be done. It isn’t in your child’s best interest to hate the other parent. Not only will you have a lifetime of problems with this child because of that view point, but your child will suffer by not having the other parent involved. Some dads will eventually walk away if it becomes too hard to manage their child’s feelings, which is a shame. This child needs both parents, so when you see a hatred developing, get your child into therapy to resolve this. It is important to legitimize your child’s feelings, so it is ok to be sad and/or mad. But it shouldn’t go on for an extended period of time. If it starts becoming too much, too much anger toward the other parent, too sad to go to school, too ______, then have your child see a therapist to resolve some of these feelings. It will be in your child’s best interest. Take care of Yourself One of the best things you can do for your child when going through a divorce is to take care of yourself. Don’t let your child see you gain 50 pounds or lose 50 pounds. Or start drinking heavily every night. Or hear you crying yourself to sleep. Your children need you to take care of them, not the other way around. This is understandably a bad time in your life, but do what you can to take care of yourself so that your child can see that things are going to be ok. Watching you fall apart makes the child feel like things are falling apart. Finding ways to manage your own stress is essential for you and your entire family. Keeping yourself as physically and emotionally healthy as possible can help combat the effects of stress, and by making sure you’re taking care of your own needs, you can ensure that you’ll be in the best possible shape to take care of your kids. The divorce will be hard on everyone, even in a “uncontested divorce situation.” Know that and plan for it if you can. The better you both handle yourselves, the better your child will cope with a difficult divorce and adjust to this big change in their life. If you are facing divorce or have questions about how to help the children cope with this difficult life changing event, we can help. Contact Anderson & Bobackto schedule confidential consultation related to any aspect of a difficult divorce in Illinois. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/children-cope-with-a-difficult-divorce/ How to Find the Best Divorce Attorney in Chicago Searching for a divorce attorney in Chicago can be stressful with emotions running high and uncertainty about your future and the fate of your children. It is very important to take the time to find the right divorce lawyer early in the process so that you fully understand your options, your rights and the Illinois divorce laws that will affect you. Working with the right divorce attorney will be one of the biggest decisions you make and will affect your current well-being along with your future financial stability. With so many things to think about, it is difficult to know where to begin. You may be wondering how to file in the first place, or if your spouse has filed you will have many questions about how to protect yourself and your family. You might wonder how Illinois divorce law treats the separation of assets and debt, which can be a very complicated process in high asset divorces. Retaining a Chicago divorce lawyer with experience in division of marital property such as the family home, vacation or rental property, retirement and pension accounts is extremely important for your financial future. Understanding how all marital debt will be divided is equally important which also has a significant impact on your future and your credit. The most important thing on your mind right now maybe custody of the children and how this will affect your parenting time. With so many things to think about during such an emotional time, it is important to have the right lawyer by your side. So how do you find the best divorce attorney in Chicago to represent your interests? Follow These 5 Tips to Hire the Best Chicago Divorce Attorney Following a list of some helpful tips to find the best divorce attorney in Chicago will put your mind at ease with the confidence of someone on your side to look out for your interests. 1) Make sure your lawyer specializes only in Illinois Family Law. The laws relating to marriage, divorce, child custody and support are always evolving and have experienced change in recent years. Be sure that your attorney is focused only on family law as they should have much more experience with the laws that affect you. Ask for the areas of law they specialize in, how long they have been practicing family law in your area. 2) Ask about experience in cases which are like yours. If time with your children is your main concern, be sure to ask about their experience with child custody cases. If you have no children but own many assets or properties, be sure that your attorney is experienced in high asset divorces. Other special circumstances may be a military divorce or same sex divorce. Whatever your situation demands, be sure that your divorce lawyer is experienced in similar cases and don’t be afraid to ask their track record for winning cases whether in negotiation or litigation. 3) Ask the outcome of their divorce cases and how many have gone to trial. While some divorce cases are best settled with skillful negotiation, others may require fierce litigation. Make sure that your lawyer can handle divorce litigation in a courtroom if negotiations break down and a settlement agreement cannot be reached amicably. 4) Make sure that you know how you will communicate with your attorney, and that you feel comfortable and have a good rapport with your divorce lawyer. Communicating private and personal information is never a comfortable feeling, your divorce attorney should give you assurances and put your mind at ease. Be sure that you feel comfortable with your lawyer, that you know how you will communicate and how those communications will be billed. 5) Ask about their billing practices. Don’t be afraid to ask questions about their billing practices so you are not caught with surprises halfway through your divorce. Are you required to pay a retainer and what does that include? You should have a clear understanding you’re their billing practices and know what is included to prevent any disputes in the future. This is only a short list of some helpful tips to finding the best Chicago divorce lawyer. For more information and help with finding the best lawyer for you, contact Anderson and Boback, experienced divorce attorneys who are dedicated to protecting your interests and your assets. Anderson & Boback is an experienced family law firm in Chicago offering easy communication, skillful negotiation and fierce litigation. We help to provide some certainty and comfort during what is typically an uncertain and chaotic time. Contact us today learn more about how we can help you to resolve your case quickly and fairly. DePaul Law through the Office of Alumni Relations hosted a DePaul College of Law Alumni Reception on the evening of Wednesday, October 3, 2018, at River Roast in Chicago’s Loop. The purpose of the event was to bring alumni together, older and recent, celebrate DePaul’s legal community and many accomplishments. The Reception featured remarks from the College of Law’s Dean Jennifer Rosato Perea, who is beginning her fourth year as Dean, as well as from Christopher Hession, a graduate of the class of 1997, who is serving as the DePaul Law Young Alumni Engagement Board President. DePaul Law Young Alumni Engagement Board The Young Alumni Engagement Board’s mission is to foster connections between the College of Law and its alumni. The board achieves its mission by supporting career development opportunities for current students and recent alumni through volunteering, mentoring, networking and executing special events. The newly found board serves as key ambassadors and advocates for DePaul Law amongst classmates, colleagues, friends, and others in the legal community. The board has a strong voice in strategic decisions for the College of Law, helps advise the facility and staff in making major decisions, and assists the school in staying focused on its main mission which is to serve the students. The board has made real efforts to engage alumni of all classes by planning the event and strongly encouraging attendance to those events. The board embodies the essence of DePaul pride. DePaul Law in the Community DePaul is making an effort more now than ever to build community and passion amongst alumni. Dean Jen plays a major factor in the positive changes occurring within DePaul Law over the past several years. Dean Jen started off her remarks at the October 3rd Alumni Reception by speaking of the camaraderie and accomplishments of DePaul’s alumni. Dean Jen stressed the importance of building on and maintaining DePaul’s mission of service within Chicago’s community. She challenged each attendee at the reception to be a role model and encourage others to use their skills and talents to better others. DePaul Law – Commitment to Service DePaul is named after St. Vincent DePaul who was a French Catholic priest that dedicated himself to serving the poor. DePaul continually strives to uphold St. Vincent DePaul’s work by encouraging students to serve their communities. DePaul’s “1L” Service Day DePaul hosts an annual “1L Service Day” on the first day of school where first-year law students divide up and participate in activities to better Chicago’s community. Many members of the faculty and staff eagerly join the students in this tradition each year. Whether it be physically cleaning up an area of Chicago or assisting underprivileged litigants, DePaul Law makes an exceptional impact on the community on this day each year. This is the first year DePaul is proud to announce they have made the day a mandatory event for all incoming students. DePaul Law’s Pro Bono and Community Service Initiative DePaul prides itself in preparing students to serve in diverse fields, including criminal law, immigration, domestic violence, housing, and civil rights. Through the Pro Bono and Community Service Initiative, DePaul maintains its dedication in training students to become lawyers who consider community service an integral part of their professional commitment, regardless where their career path takes them. DePaul takes great pride in the Public Interest Law & Public Service specialization it offers students. The program has been going strong for a number of years and is geared towards students who plan to use their law degree to help the unrepresented and underrepresented. DePaul’s motto is “Here we do”. DePaul Law Focus on DIVERSITY AND INCLUSION At the reception, Dean Jen also stressed the College’s focus on diversity and inclusion. DePaul prides itself in the diversity of its student body and faculty. It offers a variety of clubs for many minority groups and welcomes students to start their own organization in a field they are passionate about. This provides for many leadership opportunities for students, as well as ways to serve the community. THE HEART OF DEPAUL One of Dean Jen’s biggest assets is how she maintains her focus on the students’ needs. She has listened and ensured many positive changes were made to better the students’ experience. She described the student as the north stars or in other words the main focus of DePaul. She made a point to say that without them, DePaul would not exist. Keeping this mission in mind will make for a stronger alumni network and greater impact on Chicago’s community. DePaul Alumni Weekend 2018 DePaul is also hosting Alumni Weekend 2018 for another opportunity for alums to reconnect with friends and classmates, share memories and revisit their alma mater on October 12-14, 2018. Each year DePaul honors those classes celebrating a milestone anniversary. This year the Classes of 1993 and 1968 will be honored as they are celebrating their 25th and 50th anniversaries since graduating from DePaul University College of Law. DePaul Law Alumna and Anderson & Boback Attorney Genevieve Niemann Genevieve Niemann, an associate at Anderson & Boback, LLC, is a proud 2015 graduate of DePaul Law and continually strives to serve her community by assisting clients with all stages of domestic relation proceedings. Genevieve originally became a lawyer because she wanted to use her skills and talents to help others. She realizes the legal system, especially in the Domestic Relations Division of Cook County, can be difficult to navigate through and strives to advocate for clients to obtain the best resolution possible for their case. If you have questions or concerns about family law or divorce-related issues contact Anderson & Boback to schedule your confidential consultation. Our dedicated team of experienced Chicago family law attorneys is here to help THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/a-b-news/depaul-college-of-law-2018-alumni-reception/ Thinking about dating after divorce with kids? It is safe to say that most people do not want strangers around their children. So, what about when you start dating after a divorce. How do you keep the peace for your children’s sake after a divorce or a break-up? Shouldn’t everyone be somewhat comfortable with this prior to introducing anyone new to the children? We’ve heard it all before. A relationship ends and the next thing you one person is dating someone new. Some people move on fast from a marriage or relationship while others remain single for years — a lot of times by choice. When there are children involved remembering what you say or do, no matter how insignificant it may seem, can really impact your children and your ability to co-parent with your ex. When you think about dating again and you have children with your ex, try not to rush into it without at least thinking about the impact this new relationship will have on your children and your relationship with them and the other parent. Yes, it is healthy to move on but there is a lot to consider when you have children. Communication is Key in Post-Divorce Dating Something that can be very helpful when dealing with dating post-divorce is COMMUNICATION. Now not everyone is able to communicate effectively and maybe that is a reason the relationship failed but when you have children you have to keep trying. It is healthy to discuss some dating boundaries with your ex, solely for purposes of the children. Maybe you both could agree not to introduce new significant others to the children until a certain amount of time has passed. For example, some parties agree not to bring a new significant other around their children until they have been dating the person for six months or a year. It is not a bad idea to wait to introduce your children to a new partner. You want to make sure you really know the person you are dating but honestly, you should make sure your ex is somewhat comfortable with this new person being around your children, as well. Planning Ahead: Agreements Regarding Dating After Divorce As Chicago divorce lawyers, we see many divorcing c ouples make agreements that their children will not be introduced to new “significant others” until a certain amount of time has passed since the divorce. They have a common goal that they do not want to confuse the children with new people coming in and out of their lives. Of course, not all exes are able to agree to something like that and for those people, they often have a lot of negativity between themselves for years to come. It is all about RESPECT. If you want respect, you have to give it as well. Sounds easy but it can be very difficult, especially after the breakdown of a marriage or the break up of a long-term relationship when kids are involved. It is up to you but having some sort of AGREEMENT with the other parent could potentially alleviate a lot of unnecessary drama. New Relationship? Consider All Possible Outcomes Parents are typically deemed fit. They are able to make decisions about who comes around their children. However, it is not a bad practice to make sure you really know your new significant other before introducing him or her to your children. You want your children to be protected. That really goes without saying but what about other problems that come from introducing a significant other too soon? Your children may not be ready to see you start dating. In the alternative, maybe your children would be happy to see you with a new significant other. Lucky you, if your children like your new partner. That is great but what if it doesn’t work out. You break up with the new partner and now the children are upset that the new person they liked is gone. It’s important when you start dating after divorce, to think about all possible outcomes. Are Your Kids Ready for You to Start Dating After Your Divorce? Sometimes children just need TIME to get used to the new arrangements of life after their parents split up or having a parent start dating after divorce. Introducing them to a new significant other before they are emotionally ready is only going to cause issues in your relationship with them. In divorce and custody cases, we’ve seen THERAPY be very helpful for children as they process this difficult change in their lives. Remember that no matter how mature your children are, they are still children. They need your support and seeking professional help is a great tool to help them cope with the change. Divorce and Breakups Are Hard on Children When parents divorce or breakup it can be very hard on children. You know what makes it even worse? When their parents don’t have a healthy co-parenting relationship because they cannot put their differences aside. If you have children and your relationship ends with the other parent, you have to do your best to put any negative feelings for the other parent aside. As divorce attorneys, we know that is often easier said than done. Just keep in mind, the ability to focus on what is best for your children and not the failed marriage or relationship will help in the long run. If you and your ex can get to a healthy place where you’re able to effectively co-parent, then that is one less stressor your child will have to deal with. When the times comes to introduce your children to your new partner, you will be able to focus on that alone. Your children will be more comfortable with this if they know you and your ex are okay in your new roles as co-parents. Divorce and breakups can be hard on kids, especially when parents move on to dating and new romantic relationships. As divorce lawyers, we help our clients address and navigate all the changes ahead. Contact Anderson & Boback if you have questions about divorce or custody related matters including how to address dating after divorce with kids. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/dating-after-divorce-with-kids-divorce-lawyer-advice/ Most people are very concerned about the amount of a spousal maintenance award or about how long the support obligation will last. However, the first question that must be asked is whether an award for maintenance is even appropriate.
In Illinois, decisions about spousal maintenance are controlled by Section 504 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/504), “the court shall first determine whether a maintenance award is appropriate.” This law provides specific factors that must be considered when making a determination if spousal maintenance is appropriate in any divorce case. The Illinois Spousal Maintenance Factors The following are the fourteen (14) factors an Illinois judge will consider when assessing the appropriateness of a spousal maintenance award in any divorce case: 1. INCOME AND PROPERTY OF EACH PARTY This factor looks at income and property from all angles. In general, what marital and non-marital property is awarded to each party? What financial obligations are associated with property awarded to the parties? It is possible that an award of property could eliminate or reduce an otherwise award for maintenance. 2. THE NEEDS OF EACH PARTY There are three (3) key issues to look at under this factor. What are the recipient spouse’s needs? What is the recipient spouse’s ability to meet those needs? Does the payor spouse have the capacity to supplement the difference between the recipient spouse’s needs and ability to meet those needs? Remember that needs must be legitimate and not mere luxuries. In Re Marriage of Homann, 276 Ill. App. 3d 236. 3. REALISTIC PRESENT AND FUTURE EARNING CAPACITY OF EACH PARTY The Court is looking at the parties’ incomes at the time of the divorce, but they are also looking at what their potential income could be in the future. A substantial disparity in the parties earning capacity could be a big factor in the Court’s reasoning for awarding maintenance. Remember, however, that the spouse requesting maintenance has an obligation to seek and accept appropriate employment. In re Marriage of Schuster, 224 Ill. App. 3d 958. 4. IMPAIRMENT OF SEEKING PARTY’S PRESENT/FUTURE EARNING CAPACITY The earning capacity factor comes into play when the party requesting maintenance devoted time to domestic duties during the marriage. Perhaps that spouse did not obtain an education or training and they put off potential career opportunities due to the marriage and the various responsibilities associated with same. This factor often comes into play when one spouse stayed at home to care of the children during the marriage. That party may not have any professional experience that is recent or any at all depending on the length of the marriage. Remember that we are talking about the realistic earning capacity here and in the next factor below. 5. IMPAIRMENT OF OTHER PARTY’S PRESENT AND FUTURE EARNING CAPACITY A party may think that they have a “slam-dunk” case for spousal maintenance because of “X, Y, and Z”, but what if the possible payor spouse has an impairment to their earning capacity? Maybe that spouse also lost opportunities to earn income due to the marriage. 6. CAN THE PARTY SEEKING MAINTENANCE BECOME SELF-SUPPORTING? Here the Court is looking at two issues:
If there are minor children involved, then the Court will also be looking at any parental responsibility arrangements and its effect on the party seeking employment. 7. STANDARD OF LIVING ESTABLISHED DURING THE MARRIAGE The standard of living experienced during the marriage can be a big factor in determining if maintenance is appropriate. This especially comes into play if it is unrealistic for the spouse seeking maintenance to earn enough alone to maintain the standard of living they were used to. Long marriages also see this factor come into play. Although the court will look at the standard of living during the marriage, that does not mean that the parties will be able to maintain that same standard of living after the divorce is finalized . 8. DURATION OF THE MARRIAGE The duration of a marriage tends to be a very big factor in spousal maintenance cases. The longer the marriage, the longer the maintenance? Yes, usually that is the case. However, it is not unheard of for spousal maintenance to last longer when a party seeking maintenance is in failing health regardless of the length of the marriage. 9. CIRCUMSTANCES OF THE PARTIES Here the Court is looking at parties’ ages, health, station, occupations, amounts, and sources of income, vocational skills, employability, marital property or estate, liabilities, and their needs. As you can see, some of the factors overlap and there are so many factors to look in every case. 10. ALL SOURCES OF PUBLIC AND PRIVATE INCOME Not only is the Court looking at income through employment, they are also looking at income from disability and retirement. This money can be private or public income. 11. TAX CONSEQUENCES Here the Court is looking at the tax consequences of the property division upon the respective economic circumstances of the parties. A party may have to sell assets awarded to them in order to get cash and there could then be tax consequences for selling that particular asset. Likewise, a party could be awarded an asset that is taxed or incurs a financial penalty if touched (Example: 401K). In general, the tax consequences factor is not discussed much in case law. However, this could change after the 2019 spousal maintenance law update goes into effect after December 31, 2018. Starting January 1, 2019, spousal maintenance is no longer deductible from the payor spouse’s income for Federal income tax purposes. 12. SUPPORTING YOUR SPOUSE AND THEIR CAREER The Court will look at a spouse’s contributions towards the payor spouse’s education, training, career, career potential, professional license, etc. Think of support and financial effort to help the payor spouse to get to where they are now. Maybe the party seeking maintenance worked full-time prior to raising the children while the other party concentrated on advancing in their career. 13. AGREEMENT OF THE PARTIES Maybe the parties have a valid agreement. This could be a prenuptial or post-nuptial agreement between the parties. Otherwise, the parties could decide maintenance duration and length in a marital settlement agreement. The Court will only accept the terms of the agreement if the agreement is considered “conscionable” or fair. 14. ANY OTHER RELEVANT FACTOR If there is another factor that the Court believes is just and equitable to consider then they will weigh the additional factor, as well. One example would be a recipient spouse already cohabitating with a significant other. Spousal Maintenance Factors — Key Takeaway The Court must look at all relevant factors when determining if maintenance is appropriate. The Court is aiming to make a fair decision after weighing all relevant factors. However, the factors do not need to be given equal weight. The Court is not required to equalize the parties’ incomes after the divorce, but the Court is not barred from doing this either. If you are wondering whether or not spousal maintenance is appropriate if you divorce, or if you think it may be time to have spousal maintenance modified due to changes in circumstances do not delay. Contact Anderson & Boback to speak to our experienced family law attorneys about the spousal maintenance factors involved in your situation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/uncategorized/14-factors-spousal-maintenance-alimony/ I guess I must have lived quite the sheltered life because I never knew there was such a thing as a “dancing bear.” During the Middle Ages, dancing bears were a common and popular form of street entertainment throughout Europe and Asia. As the years have passed, it has become less common. There were still dancing bears in Britain until the practice was outlawed in 1911. India says that it only obtained the last dancing bear in its country just a couple of years ago. The traveling shows and individuals who needed to make a living would take the bears from place to place to “dance.” Just like the elephants in the zoos, people did not realize how horrible the practice was and the horror that these bears endure for our entertainment. The Dancing Bears of India Dancing bears were captured from the wild as cubs. The baby Sloth Bear hangs on to its mother until it can be independent, so in order to capture the baby, their mothers were killed. The young animals then have their claws trimmed or removed and a number of their teeth removed. A hot poker is run through the bear’s nose so that a ring can be inserted and a muzzle placed on the snout. A rope is tied to the ring and when you pull upward on that ring, a fair amount of pain forces the cub to its feet. The training is painful and the bear is taught that it must get on its feet and “dance” to music to alleviate that pain. Other bears would be taught to dance by placing them on platforms of metal above large piles of burning logs. As the metal became hot the bears would be forced onto their hind legs by the use of the pole and nose ring and would then begin lifting each paw, in turn, to relieve them from the heat. As the process continued a drum or other music was played which, over a number of weeks and months, the bear came to associate with the pain in its feet. Subsequently, whenever the bear heard the drum or music it would begin to “dance”. IT IS BARBARIC. Wildlife SOS – Ending the Practice of “Dancing Bears” A great group of people at Wildlife SOS in India have taken it upon themselves to put an end to this practice. (https://wildlifesos.org/indian-sloth-bears/). Banning the practice of having a dancing bear was one thing, but it didn’t solve the problem for why the practice began in the first place. People needed the bears to make money. When they traveled with their bears and made them dance, people would cheer and clap and give money. If the bear owners gave up their bear, and that was the only way they knew to make money, then how would they support their family? Finding Solutions That Make a Real Difference The Wildlife SOS organization took on that challenge and came up with solutions that are making a real difference. First, the bear handler had to sign a contract not to get another bear and if he did, he would be imprisoned. Then they trained him and his family in some type of career and helped them open up a business. The women were given sewing machines and taught to make clothes. Some people opened up spice shops or other types of businesses. This allowed the bear handler to get off the road and actually spend time with his family too. Traveling around the country wasn’t the best life for the bear handler either, since he is essentially a nomad and on the road all the time. Their work didn’t stop there. The children are given school books and an education. The organization opened up medical clinics to provide free healthcare. Everything Wildlife SOS does is designed to help the family become self-sufficient so that they would eliminate the need to use the bears. Our Volunteer Experience at Wildlife SOS The films I watched when I first got to the bear camp will be burned into my memory forever. I cannot erase the horrors I saw on those films and even today they can make me cry when I think about them. It is just horrible what the human race does to animals all in the name of entertainment. No more will I think it is cute to see a monkey on some man’s arm as he’s trained it to do tricks for people instead of letting the monkey live free. No elephant or camel rides for me either. We have to learn to be amused in some other fashion since the lives these poor animals face is just too cruel. The Sloth Bears’ Habitat – Free to Roam Once we’d received some information about the bears, we broke up into groups to work. Some of us cleaned the bear pools. Others cleaned cages. Their cages were made out of concrete and there were doors to the outside, but they are mostly left open. The only time the doors are down is when someone is outside to repair something or there is some reason to keep them inside. But mostly, the bears are free to stay inside and lay down if it is too hot, or they are free to roam outside or go swimming in their pools. Some of us chopped up fruits for lunch and poured big vats of porridge into bowls for their meal. Bear Platforms, Watermelon and Lots of Honey Some of us worked on constructing bear platforms. That was hard work. We had to dig the holes for the main poles and then tied poles across to make the platform. While we worked, the bears were in their cages and they stuck their noses out to watch us the whole time. Once we were done, we placed watermelons on top of the platform and put honey in a ball (about as big as a basketball) that had a hole in it, and strung it up. The honey would come out of the small hole on the bottom. We got out of the bear yard and stood close by to see what would happen next. The SOS worker yelled that he was going to open the gates and wanted to know if we were ready. We were! The gates opened to the bears’ cages and they ran toward the platform. I couldn’t believe how fast they ran. They ran up on to the platform and grabbed the watermelons and the noise they made as they ate them! They batted that ball around and licked at the honey and we all laughed at how the honey was all over their heads. That was probably the highlight of our day. We sat around watching them for a long time and it made us feel so good. We felt like we’d accomplished something great, even though it was only building a bear platform. Wildlife SOS – A Great Organization Doing Amazing Work The people of Wildlife SOS are the most incredible people I’ve met. They work so hard to make this bear sanctuary a safe haven for these bears and to give them a normal life after what they’ve been through. They are still in need of help and I’d encourage anyone who is traveling to the city of Agra in India, where the Taj Mahal is, to stop and see the work this great organization is doing. THEY NEED OUR HELP! They can use some financial help too, so I’d encourage you to spend a little money on this worthy group. It is money well spent and it isn’t until you’ve been there and see what they do, that you can truly appreciate what the people there are doing for the sloth bears. The organization isn’t resting now that they’ve rescued the last dancing bear. They still need to keep the bears from the poachers and provide and care for the bears that they already have. Reach deep into your pockets and help out this great organization. You won’t be sorry! Please learn more about Wildlife SOS and their work by visiting their website today. https://wildlifesos.com/ THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/a-b-news/saving-sloth-bears-dancing-bears-india/ ![]() Military Disability in Divorce is the third installment of a 4 part series on the changes you need to know to stay up to date on the laws affecting military divorce, including military disability programs and related compensation. This information was presented by Janice Boback at the National Business Institute Continuing Legal Education for Professionals in July 2018. Military Disability Programs for Military RetireesCombat-Related Special Compensation (CRSC) and Concurrent Retirement Disability Pay (CRDP) are programs created by Congress to allow eligible military retirees to receive monthly entitlements in addition to retired pay. If the Department of Defense (DoD) pays $500 a month to a veteran and then the Veteran’s Administration (VA) begins paying $500 a month to the veteran, then the DoD would stop payments, and the veteran would only receive the $500 a month from the VA and nothing from the DoD. If the DoD pays $500 a month to a veteran and then the VA begins paying $300 a month to the veteran, then the DoD would reduce their payments by $300 and the veteran would still only receive the total of $500 a month, but $300 would come from the VA and $200 from the DoD. The benefit is that any money received from the VA is not taxable, while most DoD money is taxable or replacing taxable income with non-taxable income. Recent Laws Affecting Monetary Disability Benefits Technically, military retirees can only receive monetary disability benefits from either the DoD or the VA, not both. There have, however, been two laws passed recently that allow for exceptions to this rule. The first exception is the Combat Related Special Compensation (CRSC) program, and the second is the Concurrent Retirement and Disability Pay program. Retirees cannot receive both CRSC and CRDP and must elect one each year through an annual “program election”. So, which is better? A. Concurrent Retirement and Disability Pay (CRDP)
In a nutshell, the CRDP is the military disability program providing special pay and not from VA. CRDP allows the waived amount to gradually be restored if 20 yrs. service and at least 50% disability rating but only since 2004 Concurrent Retirement and Disability Pay (CRDP) allows those retired from military service to receive both military retired pay and Veterans Affairs (VA) compensation. This was changed effective January 1, 2004. Prior to 2004 receiving retirement pay and disability pay was prohibited. You do not need to apply for CRDP. If qualified, you will be enrolled automatically but you must be eligible for retired pay to qualify for CRDP. This means that if you were placed on disability retirement but would not be eligible for military retired pay in the absence of the disability, you would not be entitled to receive CRDP. If you were placed on a disability retirement and were also eligible to receive retirement pay in the absence of the disability, you would be entitled to receive CRDP. To be eligible for CRDP:
The retired pay for retirees with 50%-90% VA-rated disability is restored by the Concurrent Retirement and Disability Payments on a graduated schedule. Veterans with a 100% disabled rating by VA can claim full CRDP without necessarily having to be phased in. B. Combat Related Special Compensation (CRSC) CRSC was passed by Congress in December 2002. CRSC is the military disability program that provides special compensation for combat-related disabilities. It is a tax-free entitlement received each month along with any retired pay. This means that qualified military retirees with 20 or more years of service that have “combat related” VA-rated disability will no longer have their military retirement pay reduced by the amount of their VA disability compensation. Instead, they will receive both their full military retirement pay and their VA disability compensation.
This military disability compensation is non-taxable, and retirees must apply to their Branch of Service to receive it. Combat-Related Special Compensation is paid by the Department of Defense under Title 10, U.S. Code. To be eligible for CRSC:
For a condition to qualify under CRSC, it does not have to be a DoD Disability, but it does have to qualify as a VA Disability. Even though the DoD is the one that gives CRSC, remember that the DoD amount was decreased by the conditions rated by the VA. As long as the VA rates the condition, the DoD shouldn’t decrease their amount because of that condition. In addition to monthly CRSC payments, the Defense Finance and Accounting Services (DFAS) will audit the veteran’s account (research pay information from both DFAS and VA) and determine if they are eligible for a retroactive payment. If any money is due from DFAS, it will be received within 30–60 days of receipt of the first CRSC monthly payment. If a retroactive payment from the VA is also due, the audit will be forwarded to the VA who would be responsible for paying any money due from them. Retroactive payments may go back as far as June 1, 2003, and military disability retirees with less than 20 years of service will be automatically limited to a retroactive date of January 1, 2008. C. Veterans Affairs (VA) Disability Compensation According to the Congressional Budget Office, about 55 percent of the 2 million military retirees are subject to the VA offset. If there was no VA offset and a veteran was allowed to receive both retirement and military disability (speaking for those under 50% disability) there would not be an issue; Retired pay is provided for a career of military service; VA disability compensation is given for a service-connected disability.” Prior to Jan 2004, you could not get retirement and disability. This concurrent receipt of both has been a hot topic for years now that disability reduces retirement. What you hear are divorce clients who say “My ex-husband got VA disability, and now my share of the pension just dropped by several hundred dollars”. They want help in resolving this and finding out what options are available to restore their share of the military retired pay. When a veteran elects VA disability compensation and has a VA rating of less than 50% or else has Combat-Related Special Compensation, this election decreases the share of the military pension which is available for division, known as “disposable retired pay.” When there is a military pension division order which is paid out through the military pay center, then that means a reduction in the money that the former spouse can get through the pay center. It is now not a possibility to get the judge to require the ex-husband to indemnify his former spouse by paying back or reimbursing the money the former spouse lost due to the veterans disability election. However, if there is a prior requirement for indemnification, either in a written agreement or in a prior court order it is possible. In 2017, the U.S. Supreme Court ruled on this very issue Howell v. Howell finding when there is no prior agreement or order requiring indemnification, you cannot get the court to order a reimbursement. If there WAS an agreement or order on this, then there MAY be a chance of obtaining indemnification. The judgment dissolving the marriage should expressly state that the veteran must compensate his former spouse for any reduction due to the election of VA payments. As an example: Sam’s total retired pay is $1,600 and the court awards Diane, his former wife, 50%, or $800. Then Sam obtains a VA disability rating (less than 50%) and elects to receive VA disability compensation of $600. This means that Sam will waive $600 of the retired pay and get a $600 payment from the VA. Thereafter the payment to Diane from the pay center is only $500 a month instead of $800 (that is, 50% of $1,000 instead of $1,600). Her share of the benefit is reduced by $300 due to Sam’s decision to receive VA payments. Sam’s income is now $500 from the pension which will be taxed and $600 from VA (for a total of $1,100) of which $600 is tax-free while Diane will only be getting $500 of which she will have to pay taxes. Should Sam have to reimburse Diane the missing $300 each month? D. Howell v. Howell and the Disposition of Military Retirement Pay in Divorce Holding: A state court may not order a veteran to indemnify a divorced spouse for the loss in the divorced spouse’s portion of the veteran’s retirement pay caused by the veteran’s waiver of retirement pay to receive service-related disability benefits. This case was decided by the U.S. Supreme Court on May 15, 2017, when the unanimous court handed a victory to Air Force veteran John Howell who had been divorced from his former spouse, Sandra, for more than 25 years. The Divorce decree had required John to pay 50% of his retirement pay to Sandra. Subsequent to the divorce, John waived part of his retirement pay for disability benefits. This, of course, reduced Sandra’s share. The U.S. Supreme Court was loud and clear, “John cannot be required to reimburse Sandra for the money she lost each month as a result of his waiver”. The Howells were divorced in 1991 and John was to retire the next year so the divorce judgment provided that Sandra was to receive 50% of John’s military retirement pay. John was receiving 50% ($750) and Sandra was receiving 50% ($750). In 2005, John waived $250 of his $1,500 retirement pay so that he could receive $250 as disability benefits. As a result, he began receiving $625 in retirement pay, Sandra began receiving $625 in retirement pay, and John received an additional non-taxable check each month for $250.
Sandra went back to court to obtain an order that John had to compensate her for the loss of the $125 each month and the State Court agreed with her. John appealed and the U.S. Supreme Court unanimously reversed the State Court in May 2017. The Court relied on Uniformed Services Former Spouses’ Protection Act (USFSPA), a 1982 federal law governing the disposition of military retirement pay in divorces, and the 1989 Supreme Court case [Mansell v Mansell, 490 US 581 (1989)] which interpreted the USFSPA. In the Mansell case, Major Mansell and his wife, Gaye, were married for 23 years and were divorced in 1979 with each party receiving 50% of the military retirement pay. Major Mansell received both Air Force retirement pay and disability benefits. Major Mansell asked the California Court to modify his divorce judgment so that he did not have to share his disability benefits and the California Court denied his request. The U.S. Supreme Court reversed that judgment and held that the USFSPA exempted that portion of the retirement pay that a service member waived in order to receive disability benefits from the amount that is divisible in a divorce. The USFSPA makes it clear that the state courts can divide up “disposable retired pay,” which is defined as the service member’s retired pay, minus any portion of that pay waived in favor of disability benefits. Therefore, USFSPA does not permit state courts to treat retirement pay that has been waived to receive veterans’ disability benefits as something that can be divided. Through concurrent retirement and disability pay, retirees with a 50% or higher disability rating receive both 100% military retirement pay and VA disability pay. Ex-spouses in those cases will still be compensated at the same rate, while those with veteran ex-spouses with less could see up to half of their award taken away under the Supreme Court ruling. Justice Stephen Bryer mentioned that the federal statute may make life difficult for former military spouses like Sandra. However, the Supreme Court does not have the jurisdiction to determine what is owed to a former spouse, that power lies with the state. He added that the lower courts could try to account for the possibility that a veteran may later waive a part of his or her retirement pay for disability benefits or recalculate spousal support based on later changes in circumstances. Military divorce can be complicated especially when military disability pay is involved. If you have questions about military divorce or the unique aspects of military disability in a divorce, Anderson & Boback can help. Contact us today and let our military divorce expertise guide you through this complicated time. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/military-divorce/military-disability-in-divorce/ |
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