Nothing creates more tension in a family law case in our office, than a case with children and a spanking adult. Or in some cultures, a “whooping.” Our judges hate it and typically at least one of the parents hate it. Then there is the parent who thinks a firm smack on the back side is appropriate. What is the right way to handle family disciplining their children?
I rarely see people who are ambivalent about the subject; you are either a proponent of spanking or dead against it. I, for one, am in the camp of you shouldn’t do it. There is a lot of research on the subject of spanking, but I know my kids mirror my behavior. Good and bad. The first time you hear your five year old swear or say something bad that you recognize came out of your own mouth at some point, you know what I mean. So what exactly is spanking or swatting the child teaching them? In my opinion, it is telling the child that I have failed in my ability to “use my words” any longer and now I must resort to hitting you. What kind of example is that? Imagine going through life hitting everyone when you don’t get your way. Guy takes your seat on the train, hit him upside the head. Clerk at the court is ignoring you, give her a little smack. It may feel good, but it just isn’t allowed. Why teach your kids to do something that you will have to “unteach” as they get older? It isn’t an effective communication tool as you get older, so why teach them that this is an acceptable way to communicate when they are young? I love the parents who say, “Well my dad hit me and I turned out ok.” Or “kids nowadays aren’t being hit enough and look at how they act.” I never said I advocated for letting the kids run wild or that they shouldn’t be disciplined. But when your words have failed you and you resort to hitting, you are headed down a slippery slope. When does it end? And when you child is hitting other children because they cannot figure out effective communication, doesn’t that make you proud? Harmful Effects of Corporal Punishment in the Home The Wall Street Journal just published an article on spanking that was very interesting. The article stated that it isn’t good to spank, and they cite to the American Academy of Pediatrics as their authority. The American Academy of Pediatrics just issued a strongly worded policy statement warning against the harmful effects of corporal punishment in the home. The group, which represents about 67,000 doctors, also recommended that pediatricians advise parents against the use of spanking, which it defined as “non-injurious, open-handed hitting with the intention of modifying child behavior,” and said to avoid using nonphysical punishment that is humiliating, scary or threatening. The article cites numerous studies that show that children do not benefit from spanking. It obviously gets your child’s attention, but so does taking away the toy that they want to play with. Both ways are going to be effective and your kid is certainly going to pitch a fit when you take their toy away. Let them. Take the toy away and let them have their fit. The next time you tell them to do something, so long as you follow through with your punishment, they will shape up. Because no one wants their toy taken away. Studies are showing that all corporal punishment is doing is making the kids aggressive. It makes them angry and makes them defiant. And in some cases, parents don’t stop in time when they are administering corporal punishment and it can lead to abuse. The Negative Impact of Spanking on the Brain The article went on to discuss the ramifications to the brain as well: A 2009 study of 23 young adults who had repeated exposure to harsh corporal punishment found reduced gray matter volume in an area of the prefrontal cortex that is believed to play a crucial role in social cognition. Those exposed to harsh punishment also had a lower performance I.Q. than that of a control group. But I don’t think that most people are using a “harsh corporal punishment” approach. Most people when discussing corporal punishment are talking about a swat on the behind. It isn’t a hard hit, but designed to get the child’s attention. But I think it is still saying to the child, “I cannot figure out any other way to get my point across, so I’m going to hit you. Hitting is ok.” Except when it isn’t. Kids Need Proper Communication Tools Kids need to learn proper communication tools and hitting shouldn’t be one of them. I think taking something from them, especially when they are in their greedy “that’s mine!” stage, sends a bigger message. It will certainly get their attention. As children age, you’ll have to adjust what their punishment is, but continuity is the key. If you say you are going to do something, then you have to do it. Otherwise they don’t trust what you say. Don’t threaten to do something and then fail to follow through. It only takes one time and then they’ll know that they don’t have to comply. This isn’t about being harsh or mean or unloving. It about discipline. Everyone you know will love you for it, from the school teacher to your baby sitter. You may be able to stand your child’s temper tantrums, but others will hate it and hate to be around your kid. When you hear people say that they don’t like kids, it isn’t really a true statement. People like kids-well behaved ones. The article discussed effective discipline, and that involves practicing empathy and “understanding how to treat your child in different stages in development to teach them how to cool down when things do get explosive,” said Dr. Vincent J. Palusci, a child abuse pediatrician at Hassenfeld Children’s Hospital at N.Y.U. Langone. Determine Punishment Before You Need It The academy’s parenting website, HealthyChildren.org, offers tips for disciplining younger and older children. Rewarding positive behavior, using timeouts and establishing a clear relationship between behavior and consequences can all be effective strategies. The important thing is to figure out what the punishment will be before you need it. It keeps you from doing something rash like grounding them until they are 30 years old. They know that won’t happen, and then it is ineffective. My spouse used to tell her daughter that she was going to sell her to the gypsies if she didn’t behave. The kid would scream and cry and I’d roll my eyes. Did the kid really believe that her mother would sell her to the gypsies? According to the article, the number of parents who spank their children has been on the decline. A 2013 Harris Poll of 2,286 adults surveyed online found 67 percent of parents said they had spanked their children and 33 percent had not. In 1995, however, 80 percent of parents said they had spanked their children while 19 percent said they had not. Spanking has become less popular. I remember as a kid how the same kids used to get the paddle in school. At the time, I wondered why they didn’t get it. Why did they keep doing the same wrong thing that resulted in being paddled in front of the class on a daily basis? As I grew up, my thoughts on it changed, and I realized that to those kids, getting paddled was no big deal. They were used to being paddled. That was a part of their life. They were disciplined at home with hitting, they were disciplined at school by hitting, and these kids weren’t the timid ones in your class. They were the mean kids. Remember how you used to avoid them? How you never made those kids mad? Hitting them changed nothing. It just made them meaner. Children who were spanked were more likely to show disruptive, aggressive behaviors later on. Those behaviors, in turn, made it more likely that those children would be spanked more in the future. In 2000, the academy recommended that corporal punishment in schools be abolished in all states. And in 2016, the Centers for Disease Control and Prevention published a tool kit for preventing child abuse and neglect that highlighted a need for legislation to end corporal punishment. But attempts to do so at the federal level have failed. Many parents continue to spank, even when they don’t think it does much good. It seems like it is more about making the parent feel better, to just deliver a sound smack on the child’s bottom because they cannot think of anything else to do. Children who are spanked respond more aggressively, and become even more challenging, reinforcing parents’ sense that only harsh discipline will work, so parents find themselves escalating the discipline, which in turn evokes more intense behavior. There are many professionals out there to help with different types of discipline. Positive parenting strategies can be utilized as well, although I don’t think I personally have the patience for it. But I do believe it can be effective. You need to learn which behavior is developmentally realistic for young children. They cannot help doing it a certain way because they are too young. Once you realize that, it helps with your patience level. The same holds true with teenagers. How many times do you just shake your head and wonder how they can do such foolish things? Their brains aren’t fully developed yet so treating them like adults can be a mistake. Every child is different and every child develops at a different level, but it is often a mistake to think that your teenager can process problems and think like you can. Educate yourself by talking to your pediatrician about the effective ways to get your point across to your child. It shouldn’t involve hitting them. It just sends the wrong message. If you are wondering about corporal punishment, child visitation, or any other family law matter, it is important to get sound legal advice. Contact Anderson & Boback to speak with an experienced Chicago child custody lawyer about your situation including whether spanking and corporal punishment. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/spanking-ineffective-harmful-to-children
0 Comments
Bankruptcy and divorce: two areas of law most people hope to avoid in their lifetime
As a lawyer who has practiced in both areas of law, I want to unpack the stigma and help people who find themselves in the situation of dealing with bankruptcy and divorce at the same time. Divorce and bankruptcy can come up at the same time for many reasons. Financial hardship is one of the leading contributors to divorce. Conversely, many times a divorce can lead someone to file bankruptcy. How Do Bankruptcy and Divorce Intersect? To fully understand how bankruptcy and divorce intersect, you must first understand both. Most people understand the concept of divorce. When a couple wants to end their marriage, they seek a divorce. Financial Issues and Divorce But many financial issues come up when a couple ends a marriage. Not only are there spousal maintenance and child support issues, but a couple must also divide their marital assets and debts. Larger items, such as real estate, can be difficult to divide. If neither party can afford to buy the other out, then the couple may be forced to sell the home, sometimes quickly. Aside from losing half your partner’s income and half of your assets, you are also paying court fees and attorneys, mediators and sometimes appraisers, or experts to finalize your divorce. If you are already in financial trouble, going through divorce may push you over the edge. Bankruptcy for Individuals While most people are familiar with divorce and the issues involved, most people are not familiar with bankruptcy and even are scared to discuss it. There are many different types of bankruptcy; however, most individuals file either a Chapter 7 bankruptcy or a Chapter 13 bankruptcy .
Dealing with the Hardship of Bankruptcy and Divorce Bankruptcy and divorce can intersect in several ways. Two common scenarios are:
The first scenario is the easiest to deal with. When a bankruptcy has just been completed, and then you file for a divorce, you and your spouse have already discharged your debts and are not likely to have many assets to divide in the divorce. Divorce When Your Spouse is in Bankruptcy The second scenario is more difficult. Starting with the question of “can you file a divorce while your spouse is in bankruptcy?” If your spouse is going through the bankruptcy process it may be worth it to wait until the bankruptcy is finalized before you file a divorce. This is because the bankruptcy takes precedence over the divorce. When a bankruptcy is filed, an “automatic stay” is entered meaning that no lower court proceedings can continue until the bankruptcy is finished or they get relief from the bankruptcy court. This is especially true if the divorce will include division of marital assets. It is likely that you would not be able to obtain a divorce judgment until the bankruptcy is over. So, what if you are in need of both a bankruptcy and a divorce, what should you do first:
Experienced Divorce Attorneys That Know Bankruptcy Make all the Difference If you should find yourself in this situation, you should consult an attorney who is knowledgeable in both of these areas. Each case is different and there are many personal factors to consider. Divorce and bankruptcy are two of the most stressful things a person can go through; however, having a knowledgeable and experienced attorney can make all the difference. We invite you to contact Anderson & Boback to schedule a consultation to discuss your family law or divorce matter including any questions you may have about dealing with divorce and bankruptcy at the same time. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce-litigation/expert-witness-testify-family-law-case/ Phi Alpha Delta Law Fraternity was founded on November 8, 1902, and is the largest co-ed professional law fraternity in the United States. Its members include undergraduate students, law school students, lawyers, judges, legal educators, government officials and many more. There are many active alumni and student chapters across the nation and even overseas. Today the organization is proud to announce it has over 300,000 active members!
Love of Humanity and Justice for All Phi Alpha Delta’s (abbreviated ΦΑΔ or “PAD”) means Philos Adelphos Dikaios or “Love of Humanity and Justice for All”. The fraternity constantly strives to carry out its mission of promoting professional, competency and achievement within the legal profession. Today, PAD is the world’s largest law fraternity with 206 law school chapters, 99 alumni chapters and 316 Pre-Law chapters in the United States (including Puerto Rico), Canada and Mexico. Its colors are purple and gold, and biannually the organization hosts a national convention in a different state every other year in an effort to bring members together. Approximately one out of six attorneys in the United States is a member of PAD. Five of the sitting Justices of the United States Supreme Court are members of PAD, one in five of all Federal judges and three in ten of all State judges are PAD members. Six U.S. Presidents have been members of PAD. PAD was proudly the first law fraternity to admit members of all races, religions and national origins. It also became the first law fraternity to admit women in September of 1970. Genevieve Niemann – Vice Justice of Phi Alpha Delta’s Chicago Alumni Chapter Chicago Family Law attorney Genevieve Niemann, an Anderson & Boback Associate, has been a member of DePaul’s student chapter since her first year of law school. Genevieve was on the junior board during her first year of law school, which molds students into becoming officers on the executive board, and held several positions on the executive board during her last two years of law school. Genevieve served as Marshall and Clerk. Genevieve is currently proudly serving as the Vice Justice of Chicago’s alumni chapter where she leads Chicago’s chapter in hosting events for members. Phi Alpha Delta Student Chapters in Chicagoland Area PAD’s student chapters are extremely strong throughout the Chicagoland area. DePaul, John Marshall, Loyola, and Kent all have very active chapters that compete with each other throughout the school year. PAD also sponsors an annual International Pre-Law Conference and Mock Trial Competition. PAD is the only law fraternity to admit undergraduate students interested in the law. It serves as a way for students to gain leadership skills and connect students with many legal resources, such as accomplished alumni in any state they wish to practice in. The International Convention of Phi Alpha Delta The International Executive Board is a group of volunteer members who are elected to serve as the Fraternity’s “board of directors.” The legislative and executive power of the Fraternity is vested in this board. The board members are elected by majority vote of the seated delegates present and voted in at each biannual International Convention. International officers hold office for two years or until successor officer is elected and installed in office. The board is composed of five named board members; International Justice, International Vice-Justice, International Clerk, International Treasurer, International Marshal, and four International Board Members-at-Large. The Chicagoland area is proud to announce Berton (B.J.) Maley of Webster Chapter, West Suburban Alumni Chapter currently serves as the chapter’s International Secretary.BJ is a huge supporter of the Chicago chapters, student and alumni, and one of the biggest PAD advocates around. Through the years, various Conventions have seen many changes to the chapters such as the titles of duties or amount of international officers, but the main purpose has remained the same which is to lead and expand the Fraternity. The Fraternity has elected many respected and well-known leaders nationwide over the Fraternity’s history. Chicago’s Alumni Chapter Serving the Community Genevieve and her chapter have been awarded many honors at the biannual national convention, such as award for officers, single events, and overall chapter success. DePaul’s chapter is one of the strongest student chapters and Chicago is one of the strong alumni chapters. Genevieve is extremely proud to contribute to their successes over the past five years and plans to continue to carry out the chapter’s mission for years to come. Annually the chapter tries to surpass donations from the prior year in raising funds for the March of Dimes. The next event is the Daniel P. Ward Scholarship Dinner coming up on Thursday November 15, 2018 at Greek Islands in Chicago to aid leader students with their law school expenses. The chapter hosts many different functions throughout the year such as events to celebrate holidays, to commemorate historical events, to give out scholarships to well deserving law students, and other events to promote fraternalism and service within the community. For more information about Phi Alpha Delta or other community outreach efforts for legal professionals in the Chicago area please contact Genevieve Niemann at Anderson & Boback. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/a-b-news/phi-alpha-delta-law-fraternity/ Getting people to execute a prenuptial agreement is difficult. Then when a prenuptial agreement is executed, if the wording of the agreement isn’t clear, the person trying to avoid paying can still be stuck paying the ex-spouse. That is unfortunate and avoidable. One such example of a spouse having to pay when he shouldn’t have had to was a recent case that was decided in the Woodrum case by the Appellate Court in McDonough County, Illinois. In re Marriage of Woodrum — Prenuptial Fail Greg and Jennifer planned to marry and executed a prenuptial agreement. The parties agreed that neither would have to pay the other maintenance should they divorce. Eight years later, Greg filed for divorce and the trial court granted Jennifer’s request for temporary maintenance. When parties agree that no maintenance would be paid, and the Court rules that they now have to pay, one cannot help wondering what went wrong.
The Court did find that the prenuptial agreement was valid, but two words left Greg in a bad position and one that he hadn’t anticipated. His prenuptial agreement said the parties had only waived maintenance “upon dissolution” — not upon the filing of a petition for dissolution of marriage. In the judge’s opinion, Greg wouldn’t pay maintenance to Jennifer once they were divorced, but he would pay maintenance to her while the divorce case was ongoing. Greg had to pay Jennifer $1,137.00 per month in temporary maintenance until the divorce was granted. I’m guessing that Jennifer was in no hurry to finalize the divorce. Two words, improperly drafted, now have caused Grey money and a lot of aggravation. Wife Attempts to Invalidate the Prenuptial Agreement Jennifer attempted to invalidate the prenuptial agreement when she argued that there was an undue hardship to her if she didn’t receive maintenance. Greg argued that the parties’ premarital agreement could not be circumvented because Jennifer could not prove that she was entitled to maintenance due to an undue hardship that was not reasonably foreseeable at the time of the execution of the premarital agreement, as required to negate the terms of the premarital agreement under section 7(b) of the Illinois Uniform Premarital Agreement Act (Illinois Premarital Agreement Act). See 750 ILCS 10/7(b) (West 2016) (providing that if a premarital agreement modifies or eliminates spousal support that would cause a party “undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the agreement, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid such hardship”). Wife Argues for Temporary Spousal Maintenance Jennifer argued that she should be awarded temporary maintenance pursuant to section 7(b) of the Illinois Premarital Agreement Act because eliminating temporary maintenance would cause her undue hardship in light of the unforeseen circumstance of Greg instructing her to leave his home as a result of her attending religious services as a Jehovah’s Witness. Jennifer claimed that an undue hardship would result because her client relationships and book of business related to selling insurance had lapsed with Greg’s knowledge and for his benefit of being able to help raise his children and take care of domestic duties. In response to Jennifer’s petition, Greg indicated that he earned a substantially higher income than Jennifer because Jennifer was “unemployed by choice.” He denied Jennifer’s business relationships and book of business had lapsed “for his benefit” and denied that Jennifer had no way to support herself. Jennifer testified that she was selling insurance when she moved in with Greg in 2001. Jennifer was still selling insurance at the time of the parties’ marriage in 2007, but Jennifer had been decreasing her workload over time. Jennifer never specifically told Greg that she was going to quit selling insurance. Jennifer moved out of Greg’s home in 2015, and in early 2016 she had begun working part-time at a grocery store but quit after a few months and had not looked for another job. Prenuptial Agreement Clause Regarding Maintenance The parties’ prenuptial agreement stated: “MAINTENANCE. In consideration of the promises and marriage of the Husband and Wife in this Agreement, the Husband and Wife hereby declare that each is currently self-supporting. Each party states to the other that their educational background and work experience have allowed them to acquire valuable and readily marketable employment skills and their separate assets, and that by virtue of those skills and assets both are able to support themselves through appropriate employment or business and are possessed of sufficient income, each to provide for their own support. Husband and Wife, therefore, hereby waive from the other all right to maintenance for themselves from the other under the laws of the State of Illinois or any other state in which either party may hereafter reside upon divorce or dissolution of the marriage contemplated by this Agreement. This waiver of maintenance shall be binding on each.” The Premarital Agreement Act omits the prior common law requirement that an enforceable agreement must also be fair and reasonable and must not result in an unforeseen condition of penury for the party challenging the agreement. In re Marriage of Heinrich, 2014 IL App (2d) 121333. Thus, under the Illinois Premarital Agreement Act, a court cannot invalidate a premarital agreement merely because the enforcement of the agreement would result in a disproportionate allocation of assets to one of the parties. Enforceability of the Premarital Agreement Section 7 of the Illinois Premarital Agreement Act governs the enforceability of premarital agreements, providing: “(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that: (1) that party did not execute the agreement voluntarily; or (2) the agreement was unconscionable when it was executed and, before execution of the agreement, that party: (i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.”1750 ILCS 10/7(a) (West 2016). In this case, Jennifer acknowledged that she voluntarily signed the premarital agreement. There was no issue as to whether Jennifer made a knowing waiver of her marital rights. Consequently, the parties’ premarital agreement was enforceable unless Jennifer was able to prove, pursuant to section 7(a) of the Illinois Premarital Agreement Act, that the agreement was unconscionable when it was executed and that, before execution, she was not provided a fair and reasonable disclosure of Greg’s property and financial obligations. Disclosure of Property, Assets and Financial Obligations There was no waiver by Jennifer, in writing, to her right to disclosure of the property or financial obligations of Greg beyond the disclosure provided, even where she signed the agreement without reading it. Under the Illinois Premarital Agreement Act, the only way that Greg could have been relieved of his statutory obligation of providing a fair and reasonable disclosure was by Jennifer “voluntarily and expressly waiving, in writing, any right to disclosure of Greg’s property or financial obligations. Jennifer did not execute such a waiver. One way that Jennifer sought to prove that she didn’t know the full extent of Greg’s assets, was to argue that Greg failed to provide a “fair and reasonable” disclosure where he failed to disclose his 20% interest in Wayne Woodrum, Inc.; his 20% interest in Woodrum Automotive; assets regarding Maedco, Northwestern Mutual Life, and Illinois Dealers Life Insurance that had generated in excess of $10,000 of income in 2007 (as indicated on the parties’ 2007 joint tax return); the value of his residence; the value of his investments with Edward Jones; and the value and the acreage regarding his interest in the farmland. Reasonable, Fair and Complete Disclosure Required Greg argued that he did, in fact, provide a fair and reasonable disclosure where both parties had acknowledged in the prenuptial agreement that they had made a “full and complete disclosure” to each other. Greg additionally argues that the only asset that was not disclosed was his ownership interest in the family automotive dealership, which “generated no actual income or cash value other than his regular salary for managing.” He notes that although his 2014 tax return showed reported income from a sale of land, he did not receive any proceeds of that sale. He also contends that his failure to provide a value for his interest in the farmland was reasonable because his interest in the Tallula farmland was a remainder interest that he had not yet received, the value of a remainder interest was not easily able to be valued, and he did not know the value of the farmland in Tallula or Macomb. The Court did not agree with Greg. Putting in the agreement that the parties had made a “full and complete disclosure” did not make it so. The question was whether Greg did, in fact, make a full and complete disclosure, regardless of what the prenuptial agreement said. The Court said that Greg had a statutory obligation to provide at least a fair and reasonable disclosure (unless Jennifer waived her right to such a disclosure, in writing, or she had adequate knowledge of his property and financial obligations). See 750 ILCS 10/7(a)(2) (West 2016). The Court determined that it must look to the disclosure actually made, and not the language of the agreement, to determine whether the disclosure was fair and reasonable. The question now is, what is “fair and reasonable,” which can mean different things to different people. “Fair and Reasonable” Disclosure Requirement Under the law, Illinois does not require a “full” disclosure standard. See 750 ILCS 10/7(a) (West 2016). The law requires a “fair and reasonable” disclosure, which is less than a complete disclosure, and the failure to disclose any particular piece of property or financial obligation is not, in and of itself, fatal to the enforcement of the prenuptial agreement. Rather, the purpose of a disclosure is to ensure that each party has sufficient knowledge regarding the other party’s financial circumstances in order to understand the nature of the legal rights being waived, with the burden to inform being on the disclosing party. In other words, can the intelligently choose whether to release his or her rights and interests to that party’s property based on the disclosure? Although a fair and reasonable disclosure need not be precise or exact, the requirement of a fair and reasonable disclosure requires each party to provide a “general approximation” of his or her income, assets, and liabilities. Friezo, 914 A.2d at 550. Whether a disclosure is “fair and reasonable” depends on the facts and circumstances of each case, including the information that was actually disclosed (in writing or otherwise), the information that was not disclosed, and the relative size of the non-disclosed information in relation to the parties’ financial circumstances. There is also no requirement under the Illinois Premarital Agreement Act that a party’s disclosure be in writing or that it be attached to the premarital agreement. See 750 ILCS 10/1 et seq. (West 2016). Although not required, it makes good business sense in my opinion to attach a written schedule of assets from each party to the agreement. Each party’s attachment should have as much information on it as possible, including the income and property interests of the parties at the time the agreement was executed. Since the two parties are employing separate attorneys, and there is typically good money being paid for the agreement, it just seems silly not to ensure its validity by attaching as much information as possible. Burden of Proof Falls on Party Seeking to Avoid Enforcement of the Premarital Agreement Under the Illinois Premarital Agreement Act, Greg and Jennifer were required to disclose to each other their property and financial obligations, including their interests in real or personal property and their income and earnings. See 750 ILCS 10/2, 7(a) (West 2016). Furthermore, while Greg correctly argues that Jennifer cannot complain that she did not understand the premarital agreement or that she was misled by the terms of the premarital agreement where Jennifer never actually read the agreement (see In re Marriage of Kloster, 127 Ill. App. 3d 583 (1984)), his argument is irrelevant in determining whether his disclosure was fair and reasonable. Again, each party to a premarital agreement has a statutory obligation to disclose their property and financial obligations, which cannot be waived without an express waiver, in writing. See 750 ILCS 10/7(a)(2)(ii) (West 2016). Even though each party had a statutory obligation to provide a fair and reasonable disclosure, it is Jennifer who, as the party seeking to avoid enforcement of the premarital agreement, had the burden of proving that Greg’s disclosure was not fair and reasonable. The Court found that she failed in her burden. The evidence showed that Jennifer had been married twice before, and twice before, she had executed prenuptial agreements. Jennifer’s last argument in an attempt to invalidate the prenuptial agreement was based on the theory of unconscionability. Under the Illinois Premarital Agreement Act, a premarital agreement is not enforceable if the agreement was “unconscionable” when it was executed. The timing is important because the unconscionability applies to when the document was executed, not at the time that the agreement will be enforced. Wife Argued Agreement Procedurally Unconscionable One interesting argument that Jennifer made about unconscionability was that the agreement was “procedurally” unconscionable because she did not know that she was represented by Weston, the attorney on record as having represented her during the prenuptial agreement. Jennifer testified that Greg selected Weston to be her attorney, the Woodrum family business paid Weston’s bill, and Weston did not have Greg’s written disclosure when he met with Jennifer. Procedural unconscionability is some impropriety during the process of forming the contract depriving a party of a meaningful choice. “Procedural unconscionability refers to a situation where a term is so difficult to find, read, or understand that the plaintiff cannot fairly be said to have been aware he was agreeing to it,” taking into consideration the disparity of bargaining power between the drafter of the contract and the party claiming unconscionability. Razor, 222 Ill. 2d at 100 (citing with approval Frank’s Maintenance, 86 Ill. App. 3d at 989). Circumstances Surrounding the Execution of the Premarital Agreement Here, all of the circumstances surrounding the execution of the premarital agreement show that the parties had both previously been divorced twice and had children from their prior relationships. In discussing getting married, Greg clearly indicated to Jennifer that he would not get married again unless there was a premarital agreement in place. Jennifer had been licensed to sell insurance in 1987 and was able to explain and sell insurance policies that could be complicated, so that she was not incapable of understanding the terms of the contract. The premarital agreement was drafted by Greg’s attorney, who advised that Jennifer be represented by her own attorney. Greg testified that Weston had been hired to represent Jennifer because he was a client of Woodrum Automotive and had a good reputation as an attorney. Jennifer met with Weston twice and had months to review the premarital agreement before finally executing it before a notary on June 13, 2007. In the premarital agreement, Jennifer and Greg acknowledged that they were each represented by counsel, with Weston representing Jennifer and Tucker representing Greg; they were each able to support themselves; and they were each waiving their marital rights to the other’s property and to any maintenance. The Court agreed with Grey that Jennifer could claim a lack of understanding of the agreement or that the agreement misled her where she did not read the agreement. The agreement clearly indicates that Jennifer was being represented by Weston, and therefore, she cannot claim a lack of understanding in relation to Weston’s representation. She also cannot claim that she did not understand that she would be receiving no property or maintenance from Greg. Before the agreement was executed, Jennifer had already decreased her work efforts in regard to her insurance sales but, nonetheless, executed the premarital agreement indicating that she was able to be self-supporting in the event of a dissolution of the parties’ marriage and that she was waiving her marital property rights and any right to receive maintenance. Is the Agreement “Substantively Unconscionable”? Jennifer also argued that the agreement was substantively unconscionable. Jennifer testified that the agreement made no provisions for her by way of property or support, even though she was already substantially financially dependent on Greg at the time she executed the premarital agreement. In support of her argument, Jennifer indicates that at the time the agreement was executed she was 53 years old; she only earned $7634 that year (in 2007) and that she was financially dependent upon Greg. She testified that Greg paid the bills, and that she had been out of the workforce for several years. Substantive unconscionability refers to terms that are “inordinately one-sided in one party’s favor.” Razor, 222 Ill. 2d at 100. Substantive unconscionability is based on the actual terms of the contract in regard to the relative fairness of the obligations assumed and is concern with whether the terms are harsh, oppressive, or so inordinately one-sided as to oppress or unfairly surprise an innocent party and whether there is an overall imbalance in the obligations and rights imposed by the bargain. Kinkel, 223 Ill. 2d at 28. In this case, the terms of the premarital agreement were not so harsh, oppressive, or inordinately one-sided to be substantively unconscionable where both parties acknowledged they had the ability to be self-supporting and both released any claims to each other’s premarital and after-acquired property and to any maintenance. The Illinois Premarital Agreement Act authorizes parties to contract in regard to, among other things, the disposition of their property upon dissolution and in regard to the elimination of maintenance and looks to whether the agreement was unconscionable at the time of execution, not at the time of the dissolution. The agreement and the evidence indicated that Jennifer was able to support herself at the time she voluntarily executed the agreement, although she chose not to do so during the marriage, even in light of the terms of the agreement indicating that she would receive no property or maintenance from Greg in the event of dissolution of the marriage. The fact that after Jennifer voluntarily executed the premarital agreement, she chose to continue to rely on Greg for financial support throughout the marriage does not support a finding that the terms of the agreement were substantively unconscionable at the time the agreement was executed. If you have questions about premarital agreements and protecting future assets in the event of divorce, it is important to get sound legal advice. Contact Anderson & Boback to speak with one of our experienced family law attorneys and learn what you need to know about prenuptial agreements. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/prenuptial-agreements/prenuptial-agreement-wording-is-critical/ As a Chicago Family Law attorney, it is not unusual to have divorce and child custody clients ask me if they can use an expert witness in their case. The answer to this question is not a simple “yes” or “no” since an expert witness must meet a number of requirements. Requirements for an Expert Witness in Your Case In order to serve as an expert witness in any capacity (whether a family law case or not) the individual that you are considering calling as an expert must be able to demonstrate significant experience in a field of study recognized as legitimate. For example, the field of child development may be an area that would fit into the category of a legitimate field of study if you wanted to call a child development “expert” witness in your divorce case involving the best interest of your child. Demonstrating Competence and Expertise in the Subject Matter Area The attorney offering the expert must demonstrate to the presiding judge at trial that the witness is competent in the area of offered testimony and the area of offered testimony is such that an ordinary person would need assistance in understanding the subject matter. The offered expert witness may be deemed qualified to testify in your case through:
Notification and Qualifying Your Expert Witness Once you have decided that you would like to call an expert witness in child development to testify in court in your case, you have to provide notification of this in writing with the details of this testimony. You will put your expert witness on the stand and ask them questions to “qualify” them as an expert. Keep in mind that opposing counsel will also have the opportunity to ask questions if they wish to challenge whether or not your witness should be deemed an expert. Questions to Qualify Your Witness as an Expert You will ask questions that will bring out your expert’s specialty and specializations within their field. The witness’ expertise can be demonstrated through his or her answers to questions focusing on the following:
Family Law Judge Will Determine the Scope of the Expert Testimony After you put your expert on the stand and ask the pertinent questions to qualify them as an expert, the trial judge will make a determine that
If you are facing a family law or divorce case and have questions about the trial process be sure to speak with a trusted and experienced family law attorney. We invite you to contact Anderson & Boback to schedule a consultation to discuss your family law or divorce matter including any questions you may have about using an expert witness in your case. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce-litigation/expert-witness-testify-family-law-case/ The Women’s Bar Association of Illinois (“WBAI”) is exceptionally strong in Chicago’s legal community and diverse. It is full of influential female leaders whose mission is to better the legal profession and their communities. It is a commonly misconstrued perception that you must be a licensed attorney to join the Women’s Bar Association. In fact, its members consist of not only attorneys, judges, but law students, and professionals from other legal fields. The Association’s adheres strongly its mission and ideals:
Chicago Events with the Women’s Bar Association WBAI has many successful events all year long. Many events are focused on networking opportunities or gaining knowledge in a specific area of law. I am chairing the next WBAI event which is at Mojo Spa in Wicker Park located at 1468 N. Milwaukee Avenue. All are welcome to enjoy a relaxing fun fall evening at the spa. Members are $25 per person and non-members are $35 per person. You can register online at www.wbai.org under their calendar page. Wine, Appetizers and Networking at the Mojo Spa Mojo Spa makes all natural homemade body care products. Some of Mojo’s most popular products are body scrubs, perfume oils, and yummy cupcake bath bombs. This networking event will be complete with wine & appetizers. Attendees can receive a mini manicure, sample Mojo’s products, and will leave with a special spa gift. This is the second annual event due to last year’s successful. This year we are adding to the event and making it extra festive since it is around Halloween time with a psychic / fortune teller who will be conducting palm readings for attendees. Membership with the Women’s Bar Association The WBAI offers many different types of memberships for those intersted in joining. Membership is available for:
General membership dues are $175.00 per year but law students and recent law school graduates are free. Membership allows you access to many free and substantially discounted events. There are several largely attended annual events that members look forward to every year, such as the annual Golf Outing, Judicial Reception, and Annual Dinner where new officers are sworn into their new respective positions. Numerous other events are held throughout the year around Chicago’s Loop, River North, and Chicago’s suburb areas. You can find details and register for the events on the WBAI’s online calendar. Continuing Legal Education Opportunities with WBAI If you are an attorney and in need of continuing legal education, you will also find many wonderful opportunities in different fields. If you decide to join, sign up to receive the WBAI’s newsletter quarterly and to participate on committees. It is the best way to begin making good use of your membership. Leadership Development and Career Growth Members gain so much within the WBAI. One of my favorite aspects is leadership. The more members put in, the more they get out of the organization. There is much room for career growth and endless opportunities for networking. Serving on a committee is the best way to begin your involvement. Attending meetings, leads to joining committees, which leads to getting to know the chairs of those committees or the top dogs as I like to say. Joining the board and/or becoming an officer allows for you to become a strong role model in Chicago’s legal community. Your continued commitment to serving the organization pays off in friendship and career opportunities. Many strong women have developed great skills within the organization and went on to become partners in their law firm or Judges. Mentorship and Bridging the Gap The WBAI continually strive to foster positive relationships between all of its members between students, attorneys, judges, etc. It focuses on bridging the gap and bringing people of different groups together. One of its main goals is providing resources for members such as informal or formal mentorship, helping attorneys practice law in new states, growing as a recent graduate of law school, and obtaining new employment opportunities. The Women’s Bar Association - An Esteemed History The Women’s Bar Association of Illinois is one of the oldest and largest bar associations in the state of Illinois. Established in 1914 by nine Chicago female attorney, the organization set itself as a model for other minority groups. Mentorship, friendship, and improving the legal profession were, and still are, main focuses of this 104-year-old organization. The WBAI was founded with the intent to promote the interests and welfare of female attorneys and to pass legislation of great value to better its community. These main focuses are still carried out today. The WBAI even has it’s very own designated day! Mayor Daley officially announced that Friday March 5, 2004 would be “WBAI Day” in Chicago. This gathered approximately 400 members at the Chicago Historical Society to celebrate this great honor. This event commemorated past prestigious members, highlights its history, and aided in raising approximately $12,000.00. The Women’s Bar Association of Illinois’ original charter was applied for by the following women: Alice C. Edgerton, Martha Elvert, Mary M. Epperson, Elizabeth L. Hoffman (Buchhalter), Eunice D. Martin, Ella Zoelzer, Mae L. Minock, Nettie Rothblum and Charlotte D. White. Its purpose was “to promulgate, promote, advance and protect the interests of women lawyers in the State of Illinois.” The plans for the organization were formulated at a meeting in Lincoln Park, and in the early days, its most active work was connected with an auxiliary organization called the Public Defenders League for Girls. The organization continually strives to honor these strong and admired women. WBAI - Giving Back and Serving the Chicago Community The WBAI is all about giving back its community. The organization is pride to offer many different service opportunities year round and strongly encourages its member to participate and give back. Get Involved with the Women’s Bar Association For more information be sure to check out the Women’s Bar Association website at http://wbaillinois.org/ Chicago Office located at Women's Bar Association of Illinois, 321 S. Plymouth Court Chicago, IL 60604 or call at 312.341.8530. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/a-b-news/illinois-womens-bar-association-chicago/ When a couple goes through a divorce, there are many issues that could arise. Two of the largest issues in a divorce are spousal support or maintenance (formerly alimony) and the division of marital assets.
Spousal Support, Maintenance and Alimony in Illinois Maintenance or alimony as it is commonly called is the payment of a sum of money on a regular basis. Maintenance can be permanent or temporary in nature. Maintenance is governed by Section 504 of the IMDMA. Pursuant to the statutes, the court looks at 14 factors to determine whether a spousal maintenance award is appropriate. Some of these factors include, but are not limited to:
Amount and Duration of Spousal Maintenance Once the Court determines that a spousal maintenance award is appropriate, the Court will look at the amount and duration. The statute contains the calculation to determine how much maintenance and for what period of time. Typically, length of the maintenance award shall not exceed the length of the marriage. If a couple was married for five years, the maintenance award will not exceed five years unless there are other extreme factors justifying a longer length of maintenance. Dividing Property and Marital Assets in Illinois Illinois law also governs the division of marital assets. The Court attempts for an “equitable distribution” of marital assets. Equitable does not always mean equal. The Court looks at several factors provided in Illinois law to determine how to divide the marital assets. Some of the factors include:
Calculating Spousal Support and Maintenance When a couple are both employed and earn substantially the same amount, the calculation for maintenance is easy. In that instance, the calculation for division of marital assets is easy as well. However, when the incomes are not equal and the assets are one-sided, the court tries to balance the assets and maintenance so each party will be able to provide for their own needs. For example, if one party earns all the income, but the other party has several non-marital assets, the Court should take that into consideration when awarding spousal maintenance. If the non-income-earning spouse can live a similar lifestyle off of the interest of her non-marital assets, then the Court may not award maintenance or may award less maintenance. Maintenance and Property Division in Long-Term Marriages Maintenance and division of marital assets can become more complicated the longer a marriage lasts. When you look at marriages that are twenty (20) years or more in length with substantial assets and possibly high incomes, the court typically will focus more on the standard of living during the marriage and future earning capacities. Even when both spouses are able to support themselves with their incomes, the court can still award maintenance or an unequal proportion of the marital estate so that the parties can maintain a similar lifestyle to the one enjoyed during the marriage. For example, in Brankin v. Brankin, 967 N.E.2d 358, 361 (Ill. App. 2012), both parties had income sufficient to support themselves and substantial assets. The court, in this case, awarded the husband more of the marital assets but then awarded the wife permanent maintenance. The greater award of marital assets was due to the husband’s contribution toward the assets and his ability to maintain the assets. The maintenance award to the wife was based on the length of the marriage and the standard of living the couple enjoyed during the marriage. Focus on Factors Relevant to Your Divorce Case While the lists of factors for both maintenance and division of marital assets can be overwhelming, the court can put more weight on some factors than others. It is important to focus the court on the factors relevant to your specific case. Make sure the Court understands the nature of the marital assets being divided and how that division affects the ability of each spouse to support themselves which in turn, affects the maintenance award. If you are wondering about spousal maintenance and property division if you and your spouse divorce, it is important to get sound legal advice. Contact Anderson & Boback to speak with an experienced Chicago divorce lawyer about your situation and learn more about spousal support and division of marital assets. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/division-of-marital-assets/spousal-maintenance-division-marital-assets/ Is Cryptocurrency the New Swiss Bank Account?
Imagine you have a coin that is worth thousands of U.S. Dollars. Except unlike the traditional coin that you can hold in your hand, this coin only exists digitally. This is the concept behind Bitcoin, the first and most well-established class of cryptocurrency. Cryptocurrency is a new class of asset that is becoming increasingly popular, not only in the United States but across the world. Cryptocurrency defies the traditional notions of “currency”, in the sense that there is no central issuing authority or governmental regulatory body. Exchanges and transfers of cryptocurrency are encrypted so that each exchange or transfer is anonymous, the data is decentralized, and no third party can control the currency. Bitcoin constitutes forty percent of the cryptocurrency market and is the most well-known form of cryptocurrency. Its “high risk, high return” and unregulated nature have made bitcoin very popular for investors, traders, and, unfortunately, people trying to hide their money from their spouses. In addition to the problem of determining if a spouse has any bitcoins, there is a huge issue in the valuation of bitcoin during the pendency of divorce due to its high volatility. The value of certain types of cryptocurrency can also vary drastically from day to day. For example, in December 2017, Bitcoin hit a high of $20,000, but less than two months later, dropped to $6,000. As bitcoin only started gaining popularity over the past few years, there are very few legal opinions written on the subject. This article will address the basics of bitcoin trading and tips for lawyers to help protect and educate their clients. How Do Bitcoin Transfers Work? In order to help clients or spouses of bitcoin holders, it is helpful for divorce lawyers to have a basic understanding of how bitcoin is exchanged. Bitcoins are exchanged over a worldwide peer-to-peer network. Every time a bitcoin is exchanged or transferred, there is an “entry” on a global, decentralized ledger known as the “blockchain.” A helpful analogy to explain the blockchain is thinking about it like a giant, worldwide poker game where the players left their chips and cash at home. In order to keep track of all the transactions, multiple players keep their own ledger on their own notebooks and compare their lists of transactions to catch any discrepancies. You can think of each “page” as a “block” of transactions “chained together” on a ledger, hence the name “blockchain.” Therefore, for each proposed bitcoin transaction, the bitcoin holder will need to announce to the network their account number, the account number of the person they are sending bitcoins to, and how many bitcoins they want to send. This ensures the blockchain is updated with all bitcoin transactions. To further protect user identities, when a user creates an account (a “wallet”) on the bitcoin network, the account is linked to two “keys”, unique to the given user. The user has one public key and one private key. For each proposed bitcoin transaction, the user will “sign” the transaction using their private key, which only they have access to. The other members of the bitcoin network will then be able to use that user’s public key to verify the transaction. Each user also has a unique “wallet address”, which can be used to look up any cryptocurrency transactions for that given user. Tax Consequences of Bitcoin Transfers An often-overlooked issue when dealing with bitcoin and divorce are the potential tax consequences of bitcoin transfers. The IRS considers bitcoins as capital assets subject to capital gain or loss treatment on all sales and exchanges. In fact, earlier this year, the IRS specifically issued a statement warning that “taxpayers could be subject to criminal prosecution for failing to properly report the income tax consequences of virtual currency transactions.” There are two recommended approaches for tax reporting for bitcoin transfers/exchanges: (1) Convert Bitcoin to U.S. Dollars for each purchase and sale transaction using the Bitcoin market price that day in U.S. Dollars, or (2) Use Bitcoin as a functional currency, using an average Bitcoin vs. U.S. dollar conversion rate for the tax year. Regardless of the approach a bitcoin holder utilizes, the potential capital gains are substantial and should be contemplated in a couple’s marital settlement agreement or final judgment. An important distinction to note is that unlike sales of stocks or bonds where your typical brokerage firm or bank will send you a statement, Coinbase will only issue a statement if a spouse has realized over $20,000 in gains and had at least 200 transactions. Therefore, the burden falls on the bitcoin holder to accurately report gains and losses from bitcoin transfers for a particular tax year. When negotiating settlements, lawyers or professionals may consider using websites like Bitcoin.tax and Cointracking.info to help estimate how much tax may be owed in a given tax year. Cryptocurrency in Divorce Proceedings Divorce is difficult and you often times have trust issues between the spouses when one believes the other is hiding money or property to gain an advantage during the divorce proceedings. The difficulty is seeing another layer in this day and age of virtual currencies, such as Bitcoin, that are easy to hide and have values that extremely volatile and difficult or impossible to determine. Parties have a duty to fully disclose their assets and liabilities, however, with the purchase and sale of virtual currencies like Bitcoin being anonymous it may be a new way for a spouse to hide money during or in contemplation of a divorce. The lack of a paper trail lends itself to the potential for deceit. If you obtain cryptocurrency online or with funds from a bank account, there will be a trial to follow. However, if someone were to trade using a virtual wallet it makes tracing more difficult. Even more difficult is if the digital wallet is transferred from a computer, smartphone, or tablet onto a USB, not only is there no trail — there is very little or no evidence that a transaction has taken place. Another example of this virtual power to obtain cryptocurrencies without having a withdrawal on a bank statement is by purchasing items on Amazon, which are then sent to the seller in exchange for Bitcoin. Bitcoins: Treated Like Cash but Mined Like Gold There is also the potential to “mine” cryptocurrency. Mining is the terms used to describe the creation of new units. This needs some explanation: Bitcoins are treated like cash but are mined like gold. There are three ways to obtain (1) buying them on an exchange; (2) accepting them for goods or services; and (3) mining new ones, like finding gold! In the virtual world of mining for cryptocurrency — it really means the verification of a bitcoin transaction, such as Joe buys a radio from Bob with bitcoin and in order to make sure Bobs bitcoin is genuine, he will have to verify or “mine” the transaction. And it is not just one transaction that Joe will have to verify. He will have to use a computer program(s) to find the key to open the virtual padlock on many transactions that have been gathered together in a blockchain. Once the computer finds the correct combination that verifies and unlocks the box, it pops open which means the transactions are verified and the reward to the “miner” is 25 newly generated bitcoins. It is published that the current number of attempts it takes to find the correct key is approximately 1,789,546,951.05 (Blockchain.info — a top site for the latest real-time bitcoin transactions). Even with so many attempts necessary, the reward of the 25 mined bitcoins was given out about every 10 minutes in 2017 and in 2018 the reward for mining transactions will be cut in half to 12.5 and will continue to cut in half every four years. Why is this you ask? It gets even more interesting. When this Bitcoin algorithm was created in 2009, it was under the pseudonym Satoshi Nakamoto — which I understand to be a very common Japanese name. This individual set a limit on the number of bitcoins that will ever exist at 21 million. Currently, 16.6 million are in circulation which means less than 5 million bitcoins are waiting to be mined. The way this system was set up was that it was easier to mine for cryptocurrency in the beginning and as we get closer to that 21 millionth bitcoin it gets much more difficult, exponentially more difficult with a greatly reduced reward. At the current rate of creation, it is estimated that the final bitcoin will be mined in the year 2140. That 21 millionth bitcoin — it has a name, the smallest unit of currency possible for bitcoin is a Satoshi (named after guess who) which is 0.00000001. How to “Find” and Transfer Cryptocurrency To give you an idea of how the value of bitcoin has grown over time, the first retail purchase using bitcoin was on May 22, 2010, when a guy in Florida paid 10,000 bitcoins for two pizzas worth $25. At the time, bitcoin had an exchange rate of a few cents. Today one bitcoin is worth $11,390. Those pizzas in today’s value are $113,900.00. So you suspect your spouse has been purchasing cryptocurrency and you want to know how to find it so that it can be properly valued and accounted for in divorce proceedings. There are services and forensic experts available that trace Bitcoin transactions, but they are not yet widely available because this type of work is so specialized. You also want to keep in mind that you are not just looking for Bitcoin. Although Bitcoin is the most well-known of the cryptocurrencies, there is also Etherium, Litecoin, Ripple and Monero and over a thousand other cryptocurrencies available for purchase and there are more coming available to the open market almost every day. Discovery Requests and Seeking Evidence of “Virtual Currency” It is important to formally request documentation concerning cryptocurrency as you would any other financial account. Initially, you would take a look at all of the financial statements for signs of cryptocurrency transactions. Look for large, unexplained cash withdrawals and entries showing “localbitcoins.com” or other peer-to-peer sites on a bank statement and outgoing wire transfers could be a clue. Include in your standard discovery a request for all information regarding bitcoin and cryptocurrency in general and when you start getting more specific you may want to define the terms such as “Virtual Currency” with a definition perhaps as “any medium of exchange that operates like a currency to some but does not have all of the attributes of legal tender, whether or not that medium of exchange is recognized as legal tender.” A document request may continue like this:
Web-based Wallet Address, Hardware Wallet and Private Keys Keeping in mind there may not being any document trail if the cryptocurrency is being kept in a web-based wallet or moved to a hardware wallet which is a USB memory stick that stores your private bitcoin key and requires you to use that USB to transact without exposing your “key” to the internet where it could be vulnerable to hackers. A private key is a secret, alphanumeric password/number used to spend/send bitcoins to another Bitcoin address. It is a 256-bit long randomly selected number which is generated as soon as you make a wallet. This is how the Bitcoin private key looks (it always starts with 5): 5Kb8kLf9zgWQnogidDA76MzPL6TsZZY36hWXMssSzNydYXYB9KF. If you lose your private key, there is a 24-word seed phrase that you can use to unlock your account to still access your virtual wallet. Bearing lack of documentation in mind, it is important, just as with any asset, to do your due diligence in considering the addition of targeted questions, either in the form of written interrogatories or in an oral deposition, along with the lines of the following:
You may anticipate some pushback in terms of requesting the private key, as it is akin to asking for someone to give you the password for their bank account. For all practical discovery purposes, having the wallet address should be sufficient for purposes of determining what cryptocurrency exchanges the holder has performed. Once you have their wallet address, you can also look up the holder’s incoming and outgoing transactions by typing the wallet address into the explorer for the specific currency. Obtaining the wallet address is also the most critical piece of information in the event your client wants to divide the cryptocurrency in kind, rather than agreeing upon a cash buyout or offset against another asset based on a valuation date. Specifically, say you represent Wife (the spouse with no cryptocurrency) and she wants Husband to transfer coins to her. Your final divorce agreement would have to provide a process similar to the following: Husband needs to provide either 1) an accounting of all cryptocurrency he holds or 2) his wallet address within x number of days to the non-holder spouse so Wife can verify all existing coins. The Wife would need to obtain a wallet and the necessary hardware and provide the Husband with her wallet address. Within x number of days of receiving the Wife’s wallet address, Husband would transfer the coins to the Wife’s wallet. Alternatively, in this same example, if Wife wants to agree on a valuation date and buyout/offset for negotiation and balance sheet purposes, you can look at coinmarketcap.com, a website that calculates the average coin price based on all the exchanges. One important note is that there is no “open” or “close” time like in the stock market, so in addition to a valuation date, you should also consider specifying the time of day for valuation or agree to the average price for the day. This is critical given the amount of volatility a particular coin can have even on one day. Be Aware of Cryptocurrency Issues in Divorce Many attorneys and people generally stray away from addressing cryptocurrency holdings because they are new and foreign concepts to them. However, at the end of the day, cryptocurrency holdings are conceptually very similar to stock or stock options, which family law attorneys deal with regularly. The question at the end of the day becomes if a spouse wants to ride out the risk of taking a coin “in kind”, or if they want to just take a cash buyout/offset against other assets up front. The most important takeaways are to become knowledgeable about this new type of currency including its associated tax consequences, adjust your discovery requests accordingly, and understand how to transfer it or calculate a buyout in a final divorce settlement. This article is was co-authored by Janice L. Boback, Anderson & Boback, ISBA Privacy and Information Security Law Section Council Member and Stephanie L. Tang, Kogut & Wilson, L.L.C., ISBA Family Law Section Council Member. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/property-division/cryptocurrency-divorce-proceedings/ Questions surrounding the legal rights of grandparents in Illinois are commonplace in our practice. We often hear grandparents ask if they can get “visitation rights” or if there is a possibility of gaining “custody” of their grandchild due to unforeseen circumstances. The following are the most common topics when it comes to the legal rights of grandparents.
Remember that a few years back Illinois stopped using terms such as “custody” and “visitation” in cases involving the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Instead you now hear people refer to custody as “decision-making responsibilities” and visitation as “parenting time.” Parental responsibilities are broken down into two categories: parenting time and decision-making. One of the Child’s Parents is Deceased Generally speaking, grandparents cannot petition to be allocated parental responsibilities. However, if one of the child’s parents is deceased, then the grandparent on that side (deceased parent) may be able to petition the court to be allocated parental responsibilities. In this situation the petitioning grandparent could be the deceased party’s parent or step-parent. The grandparent can file a petition to be allocated parenting time or decision-making responsibilities so long as one or more of the following existed at the time the parent passed away: (A) the surviving parent had been absent from the marital abode for more than one month without the spouse knowing his or her whereabouts; (B) the surviving parent was in State or federal custody; or (C) the surviving parent had:
You can see that in the above-mentioned situations the surviving parent is almost completely out of the picture. The surviving parent is in jail or prison. The surviving parent essentially abandoned the spouse and child. The surviving parent violated the law in a way that directly impacted the deceased parent and or child. What about when the child’s parents just will not let you see your grandchild? We often hear from grandparents that want to see their children more often. Maybe there is a disagreement between the parent and the grandparent? Maybe the child’s parents are going through a divorce? What can be done in these situations? The Good News: Illinois has a statute that addresses “visitation” by certain non-parents. Remember that term not used anymore? “Visitation”- well, here it is in Section 602.9 of the IMDMA. However, it makes sense for it to be used in this section of the Act. This is the section that can be used to gain access to grandchildren by their grandparents. This Section can also be used to address visitation requests by a child’s sibling (including half and step), step-parent, or great-grandparent. The Bad News: Parents are presumed to be fit. Parents have the right to limit or restrict a family member’s access to their child. A non-parent, as mentioned-above, can file a petition with the court to request visitation with a child IF the child is at least one-year old AND if one of the following applies: (1) the child’s other parent is deceased or has been missing for at least 90 days; (2) a parent of the child is incompetent as a matter of law; (3) a parent has been incarcerated in jail or prison for a period in excess of 90 days immediately prior to the filing of the petition; (4) the child’s parents have been granted a dissolution of marriage or have been legally separated from each other or there is pending a dissolution proceeding involving a parent of the child or another court proceeding involving parental responsibilities or visitation of the child and at least one parent does not object to the grandparent having visitation with the child. (The visitation of the grandparent must not diminish the parenting time of the parent who is not related to the grandparent.); OR (5) the child is born to parents who are not married to each other, the parents are not living together, and the petitioner is a grandparent and PARENTAGE HAS BEEN ESTABLISHED by a court of competent jurisdiction. FILING A PETITION IN A PENDING DIVORCE OR ANY CHILD-RELATED ACTION The grandparent can also file the petition in a pending dissolution action or any action that involves allocation of parental responsibilities regarding the child. The petition would be filed in the same county where there is pending litigation involving the minor child or in the county where the child resides. A non-parent, however, may not file a petition for visitation if there is a petition pending (1) pursuant to Section 2–13 of the Juvenile Court Act of 1987 or (2) for an unrelated person to adopt the child. A non-parent cannot petition for visitation if the child has been relinquished pursuant to the Abandoned Newborn Infant Protection Act. A non-parent cannot petition for visitation if the parents have voluntarily surrendered the child (except in situations where the child was surrendered to the Department of Children and Family Services or a foster care facility). Likewise, a non-parent cannot petition for visitation if the child has already been adopted by an unrelated person. Thinking about filing a petition for visitation for your Grandchild? The court can grant a grandparent reasonable access to the grandchild, which includes visitation and electronic communication (phone, email, text, video chat, etc.) but that does not mean that the court has to give overnight or possessory visitation. BEFORE YOU FILE FOR VISITATION WITH YOUR GRANDCHILD REMEMBER THAT IN ADDITION TO THE ABOVE-MENTIONED REQUIREMENTS YOU MUST BE ABLE TO SHOW THAT THE CHILD’S PARENT HAS UNREASONABLY DENIED YOU VISITATION AND THAT THE DENIAL HAS CAUSED THE CHILD UNDUE MENTAL, PHYSICAL, OR EMOTIONAL HARM. As previously mentioned, there is a presumption that the child’s parents are fit and that their actions and decisions regarding visitation to a grandparent are not harmful to the child. However, the presumption is rebuttable, which means you are able to overcome the presumption with proof. The burden to prove that the child is being harmed is on the grandparent who is requesting visitation. Just like in most other sections of the IMDMA, the court must consider a number of factors when determining whether to grant a grandparent visitation over the parents’ wishes. Below are the factors for :
Did the child resided with the petitioner for at least 6 consecutive months with or without a parent present? Did the child have frequent and regular contact or visitation with the petitioner for at least 12 consecutive months? Was the grandparent the primary caretaker of the child for a period of not less than 6 consecutive months within the 24-month period immediately preceding the commencement of the proceeding? Adoption or Termination of Parental Rights and Grandparent RightsIf you are a grandparent and you have been granted visitation in a court order pursuant to Section 602.9 remember that your rights will automatically terminate if an order is entered that terminates the child’s parents’ rights or if the child is adopted by an unrelated person. When the child is adopted by a family member then you will have standing to petition for visitation even after the adoption. If you are a grandparent wanting to take legal steps to gain visitation or parental responsibility of your grandchild, we can help. Contact Anderson & Boback to schedule a confidential consultation related to the legal rights of grandparents in Illinois. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/grandparents-rights/what-legal-rights-do-grandparents-have/ |
AuthorArchives
August 2022
Categories |