Going to trial can be a nerve-wracking experience. As Chicago divorce attorneys, we know first-hand clients are nervous and unsure of what to expect at trial if their divorce or family law case is headed to court. It is helpful to know a bit about what will happen to ease your anxiety. When you actually testify, there are a set of rules that your lawyer needs to abide by, and the more you understand about those rules, the easier it will be. Knowing something about the rules of evidence will be helpful.
What are the Rules of Evidence Your attorney needs to introduce evidence at your trial. The rules dictate how the evidence is permitted to come and in what manner. Going over some common rules will make your Chicago divorce trial process easier to understand. When an attorney does not follow the rules of evidence, the other attorney will object. Here are some common objections you might hear make at trial. Questioning Witnesses at Trial and Objections During the divorce trial process, your attorney will call you as a witness. When you are called as a witness by your own attorney, you will be asked questions, however, the manner in which a question is asked will determine if the court will allow it. Objection: Leading the Witness When your attorney asks you questions, those questions must be asked in a non-leading manner. A leading question is a question that suggests the answer or contains the information the attorney is hoping to confirm. Examples of leading questions are:
If you hear an objection for "leading" from the other lawyer, they are complaining about how the question is asked. Your lawyer is not allowed to “lead” you but must ask a non-leading question. Objection: Foundation All evidence or conversations need a “foundation” in order to come into evidence. Think of it like building a wall. You need essential foundational questions answered before you can testify about conversations you had or present exhibits to the court. When you hear an objection for "foundation", the other lawyer is complaining that you have not testified about when the event happened, where it happened, or who was there before you say what happened. If your lawyer asks you to explain what happened, without asking the foundational questions of who, when, and where, an objection from opposing counsel is likely. If the judge agrees with the objection ("sustains the objection"), then your lawyer will ask you more questions to build that foundation. When answering a question, think about when the event happened that you are testifying about, who was there, and where it happened before telling the court what happened. OBJECTION: Relevance Unlike the discovery part of your case, (where everything can be called relevant if it can lead to something relevant) at trial, the court will only consider evidence that is relevant. If a lawyer tries to ask questions that are not relevant to the case, an objection for relevance is made. It is hard to understand just what will be considered relevant by the court, but you are likely to hear this objection sometime during your trial. If an objection is raised, the other attorney has to convince the court that the information elicited is relevant to the proceedings. Otherwise, the judge will not allow the evidence. OBJECTION: Character There is something about domestic relations court where someone is always trying to demonstrate that one party is not a good person, or that they are a good person. Evidence that someone is an adulterer is not relevant in Illinois divorce court now that our statute (law) has taken away “grounds” to get a divorce. There is also no need for you to introduce evidence that you are a good person. Your good character is not relevant either. The law prohibits the judge from awarding you more of the property in your case because you are the better person, and likewise, a person does not get less because they are a horrible person. There are circumstances where a person’s character is relevant, but for the most part in family court, bringing evidence about how good or how bad someone is not important. OBJECTION: Beyond the Scope The person who goes first in the trial is putting on their “case in chief.” The first lawyer conducts a direct examination of the witnesses that are called. Once a witness is done testifying for one side, the other side is allowed to cross-examine the witness. The general rule for cross-examination though, is that the questions asked can only relate to questions asked during the direct examination. Sound confusing? If the first lawyer only asks the witness questions about parenting styles and the children, then the other lawyer can only ask questions about parenting styles and the children. The second lawyer cannot veer off and start asking questions about money for instance during cross-examination. To do so would be “beyond the scope” or “outside the scope” of the direct examination. The judge should sustain an objection that is raised. OBJECTION: Hearsay There are lawyers that cannot grasp this concept, and the exceptions to the hearsay rule are voluminous. As a general rule, keep in mind that you cannot testify that "Joe told you that Sue said that Amy hit him." You are only allowed to testify about what you personally have seen, what you personally could smell, taste, or hear. Hearsay is when you try and testify about things that have happened when you were not there. If someone told you about it, it is hearsay and not allowed. The rules do allow for an exception to the hearsay rule though for the two parties in the case. If your spouse said something, then that statement can come into evidence. Keep in mind that when you testify, it can only be about things within your personal knowledge. You cannot testify about things that happened or things that were said if you were not there. OBJECTION: Best Evidence One does not hear this objection for "best evidence" at trial too much anymore since many forms of evidence are now in electronic format. If a person tries to introduce a copy of a document, however, this objection can be raised. The court will want to see an original of the document to make sure that it was not tampered with or altered in any way. The best evidence objection also applies to pictures or recordings. OBJECTION: Authentication Every piece of evidence that comes in at trial has to be authenticated. What exactly does that mean? If you are trying to introduce bank statements, for instance, someone needs to testify that these are in fact the bank statements belonging to a party in the case. A banker could be called as a witness to authenticate this type of document. An accountant could be the witness to authenticate a profit and loss statement for a business. I rarely see this objection anymore since there is a strong leaning from the judge to stipulate to these types of documents. If there is an issue about the truth of a document though, and what it purports to be, a lawyer could be subject to this type of objection. OBJECTION: Settlement Negotiations I am always amazed when attorneys try to interject mediation discussions or settlement position to the court. It is not allowed. The court wants you to attempt a settlement. No one would try to settle if they knew the position they took in those settlement discussions would be used against them. No one would offer to take less money to get the case over with if they knew that the lawyer would ask them, “isn’t it true that in the conference room you agreed to take $100 less in child support?” These are discussions designed to settle the case and cannot be used against you. An objection will be raised if the opposing attorney tries to use it against you. One should always be allowed to attempt settlement without worrying that it will hurt you later. Understand Objections and You'll Be Prepared at Trial Understanding the process of giving testimony is an important part of being prepared for trial. There are many other objections that could occur at trial, but these are some of the more common ones. No one will expect you to memorize them, that is what you have any attorney for! But it does ease the anxiety a bit if you hear about the objections ahead of time and you are not learning them for the first time during a trial. Before you go to trial in your divorce or family law case, be sure to read through these common objections used at trial and try to understand them. Better yet, try a practice session with your lawyer before you take the stand and you will be ready! THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce-litigation/what-to-expect-at-trial-chicago-divorce/
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When it comes to divorce, money is always a hot point of contention especially when one spouse earns a discretionary bonus that accrued during the marriage but paid after the divorce judgment issued. With the end of the year approaching and receiving an annual bonus may bring concerns for a person going through a divorce in Illinois. For the spouse that learns her ex received a bonus shortly after the divorce is final, it is only natural to question whether it is subject to division as a marital asset. In the Illinois case, In re Marriage of Wendt, the Appellate Court ruled no. The Appellate Court held that a non-vested discretionary bonus accrued during the marriage, but received after entry of a judgment for dissolution of marriage, is not marital property.
Bonus Accrued During Marriage but Non-Marital Property? The parties filed for divorce in July 2010. Scott Wendt, a software developer for Citadel, received a considerable bonus payment for 2008, but it was not paid until early 2009. Scott received no bonus for 2009 and he received a bonus for 2010 that was payable in 2011 and one for 2011 that payable in early 2012. In September 2012, the trial court entered a Judgment for Dissolution of Marriage with an accompanying Marital Settlement Agreement. Additionally, the trial court entered an order awarding Scott's 2012 bonus payable in early 2013 to him after a finding that it was his non-marital property. Scott’s wife, Allison appealed the decision to the Illinois Appellate Court. The Court affirmed the trial court's decision and held that Scott's 2012 bonus was non-marital property. So why was this bonus considered non-marital property? The issue turned on the fact that the bonuses that Scott received were not guaranteed, and were not spelled out in an employment contract as a contractual benefit. Rather, the bonuses were purely discretionary and analogous to accrued vacation and sick time, which the Court has identified as non-marital property because of its speculative nature. Bonuses were Discretionary and Not Tied to Husband's Job Performance The Appellate court distinguished Scott's bonuses from non-vested pensions, stating that employees have contractual rights to a non-vested pension under an employment agreement. Whereas, Scott's agreement with Citadel provided that all bonuses were discretionary and depended on factors other than Scott's performance, such as the overall performance of the company. Additionally, even though Scott received bonuses for 2008, 2010, 2011, and 2012, Scott did not receive a bonus for 2009 and contributed the lack of such bonus to the overall performance of the Company, which was a factor out of Scott's control. Taking those facts into consideration, the Illinois Appellate Court found that Scott's bonus was his non-marital property and not subject to division. Consult with an Experienced Chicago Divorce Attorney Dividing assets in an Illinois divorce can be complicated, especially when a couple has multiple retirement investment accounts that include a mix like bonuses, pension plans, and 401(k) accounts. Be sure your rights to and share of pension plans, 401(k)s and any bonuses are protected in your divorce. Feel free to contact Anderson & Boback when you need trusted legal advice from a Chicago family law attorney. With our extensive experience representing clients in high asset and high-income divorces, you can count on us to achieve the best outcome in your divorce. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/property-division/discretionary-bonus-accrued-during-marriage-but-issued-after-divorce/ In a Chicago divorce, the Illinois law requires the court to divide marital property equitably. This is not necessarily equally but equitably which may very well be equally, but it is important to note that many people believe the law says "equally" when in fact it says equitably. In order to determine what is equitable, the court takes many factors into consideration such as how long was the marriage, how much does each spouse earn, how likely are they to continue to earn what they are earning, their ages, occupations as well as what each spouses contribution has been to the marriage.
Oftentimes the contribution to the marriage provides an equal and legitimate benefit by the spouse who is a homemaker so that the other spouse can work full time outside of the home. The job of a homemaker is not discounted and is considered as an important job by the court. However, there are cases when one of the spouses works outside of the home and the other spouse spends years obtaining a college degree or professional license. In that case, if there is a divorce proceeding the spouse working outside the home may argue that the contribution to the marriage was the educational degree or professional license which should be considered marital property. College Degree or Professional License Not Marital Property Illinois courts do not characterize college degrees or professional licenses as marital property or even non-marital property, it is not property at all. In the situation above the spouse who earned the degree or license would not have to divide that somehow in the divorce but the court would take into consideration the contribution of the spouse who worked outside the home and supported the family while the other spouse obtained the professional license or degree. When it comes to "dividing" an educational degree in a divorce, the court would consider the earning potential of the spouse with the degree or professional license. Perhaps one spouse has recently graduated medical school and a residency while the other spouse worked full-time supporting the household contributing to tuition and paying for all of the household expenses. Presumably, within a few years, the medical doctor will have a very high earning potential that the court would consider and potentially award the other spouse more of the marital estate. This would reimburse the spouse for the contributions made during the marriage. The courts will generally look to make sure the contributing spouse who supported the other while he or she obtained a lucrative educational degree is somehow compensated. Marriage of Weinstein Case Addresses a Medical Degree as Marital Property In the case of Marriage of Weinstein 128 Ill. App. 3d 234, 470 N.E. 2d 551 (1st Dist. 1984) the wife was asking the court to determine that the husband’s medical degree and license was marital property. Wife argues that Illinois has never definitively resolved this specific issue and urged the court to adopt the view that a spouse’s professional license or degree earned while married is marital property subject to distribution. The Weinstein cases declined to find that the husband’s medical degree and his medical license was marital property and detailed the following: Twenty-three (23) jurisdictions have considered the appropriate manner in which to distribute the marital assets and award maintenance or other relief when the spouse who engaged in employment in order to support the family unit while the other pursued academic interests argues upon dissolution of marriage that the student spouse’s degree or license constitutes marital property. Of those 23, 16 have held that the student spouse’s degree or license is not marital property. Four (4) jurisdictions have declined to resolve the specific issue concluding instead that the degree or license is to be considered in determining the distribution of property, maintenance or some form of equitable reimbursement. 3 jurisdictions in which some authority may be found to support the contention that a degree or license may be marital property in certain circumstances and in one state (Michigan) where courts have concluded that a degree or license is to be treated as a marital asset only where there is no marital property to distribute and the contributing spouse is not entitled to maintenance. Valuing an Education Degree By Future Earning Potential A majority of courts have refused to accept the argument that an educational degree or professional license is marital property. They justify this result on the grounds that an educational degree or license is not “property” because it cannot be assigned, transferred, sold, conveyed, pledged, or inherited. The courts that have concluded that a degree or license is marital property have done so with the focus primarily on achieving an equitable result and valuing the degree by the future earning potential. Even though in Illinois your educational degree or license is not marital property and belongs to the holder, if you are going through a divorce in Chicago or elsewhere in Illinois, the court will look at the degree or license in distributing marital assets equitably, awarding maintenance, awarding a monetary award or other such methods to achieve an equitable solution. Although an educational degree or license is not classified as a marital asset it is a relevant factor in the distribution of the couple’s marital assets and liabilities. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/is-my-educational-degree-subject-to-division-during-my-divorce/ In the 2012 Supreme Court case of In re Marriage of McGrath, the Court held that the amount withdrawn by the father from his savings account should not be considered “income” for child support calculations because the money already belonged to the father. However, if using the statutory guidelines for child support generates an amount that the court finds inappropriate, the court can make specific findings of this and adjust the child support amount accordingly by using the factor that allows the court to consider the financial resources and needs of the parent.
In Illinois, the law defines “net income” for purposes of child support calculation, but it does not define “income”. Net income is defined as the total of all income from all sources minus several enumerated deductions. Funds that you withdraw from the savings account that already belonged to you do not increase your wealth or provide you with a "gain or a recurrent benefit" these funds as withdrawn are not income. Illinois Supreme Court Defines Meaning of "Income" The Illinois Supreme Court has discussed in detail the plain and ordinary meaning of the term “income” in the In Re Marriage of Rogers case, 213 Ill. 289 Ill Dec 610, 820 N.E. 2d 386 providing that “as the word itself suggest, income is simply something that comes in as an increment or addition . . a gain or recurrent benefit that is usually measured in money.” There are other Illinois court cases that define income as “a gain or profit and is ordinarily understood to be a return on the investment of labor or capital thereby increasing the wealth of the recipient.” In applying the analysis of the courts in Illinois the money in a savings account already belongs to the account owner. By withdrawing the money in the savings account it does not provide a gain or benefit to the owner of the account. The money is not coming in as an increment or addition and the account owner is not receiving money that already belongs to him. "Gross Income" as Defined by Updated Illinois Child Support Law In the new Child Support Law in Illinois which changed in July 2017 to shared support based on both parties income as opposed to a percentage of the obligor’s income, there is now a definition of gross income as follows: “The total of all income from all sources, except "gross income" does not include (i) benefits received by the parent from means-tested public assistance programs, including, but not limited to, Temporary Assistance for Needy Families, Supplemental Security Income, and the Supplemental Nutrition Assistance Program or (ii) benefits and income received by the parent for other children in the household, including, but not limited to, child support, survivor benefits, and foster care payments. Social security disability and retirement benefits paid for the benefit of the subject child must be included in the disabled or retired parent's gross income for purposes of calculating the parent's child support obligation, but the parent is entitled to a child support credit for the amount of benefits paid to the other party for the child. "Gross income" includes maintenance treated as taxable income for federal income tax purposes to the payee and received pursuant to a court order in the pending proceedings or any other proceedings and shall be included in the payee's gross income for purposes of calculating the parent's child support obligation.” What About Business and Self-Employment Income? Another area of interest in the family law courts is income generated through self-employment, a business, or through income-producing rental property. The statute provides that for calculating business income for child support you get the net business income by taking the gross receipts and deducting ordinary and necessary expenses required to carry on the business. Client Victory Addressing Income for Calculating Child Support In a recent child support case argued by Anderson & Boback, opposing counsel wanted to include, in addition to our client’s W-2 wages, all of the gross rental and business income of our client for calculating child support. The court agreed with us that any child support obligation should not include income from the rental properties when his testimony was unrefuted that the net proceeds from those properties was zero. In addition, our client owned and operated a small business that breaks even over the course of the year based on the ordinary and necessary expenses required to operate the business. Our client owned and operated the business but employed others to work the business since he had a full-time job elsewhere. In Tegeler, 365 Ill.App.3d at 456, 302 Ill.Dec. 173, 848 N.E.2d 173, the mother argued that the father's testimony that his expenses were reasonable and necessary was insufficient in the absence of any receipts substantiating such expenses. The court rejected the argument pointing out that the father's tax returns showed itemized totals of expenses... The court concluded that such evidence constituted a prima facie showing that such expenses were legitimate, which the mother failed to rebut. And as in In re the Marriage of Baumgartner, 890 N.E. 2d 1256 (1st Dist 2008) husband’s non-reimbursed business expenses, as stipulated to by wife, constituted a prima facie showing that the expenses were legitimate. While the wife did not stipulate to the reasonableness of the business expenses, her argument, based solely on the lack of profit, does not rebut the reasonableness of the expenses. Prior to July 1, 2017, Illinois section 505(a)(3)(h) of the Act permitted, in relevant part, deductions for “expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income.” 750 ILCS 5/505(a)(3)(h) (West 2016). Thus, for an individual to successfully claim a deduction, he or she had to establish that it was a reasonable and necessary expense for the production of income and that “ ‘it [fell] into the category of debt repayment as evidenced by a specific repayment schedule.’ ” In re Marriage of Vance, 2016 IL App (3d) 150717, ¶ 42 (quoting In re Marriage of Nelson, 297 Ill. App. 3d 651, 655 (1998)); ¶23 as quoted from the most recent third district case Hochstatter and Hochstatter 2020 Ill App (3d) 109132. Illinois Section 505 - Defining Business Income Effective July 1, 2017, section 505 of the Act was substantially rewritten, including the provisions applicable to calculating gross and net incomes. In part, the legislature added a section for the calculation of business income. See 750 ILCS 5/505(a)(3.1) (West 2018). In relevant part, section 505(a)(3.1)(A) provided: “(3.1) Business income. For purposes of calculating child support, net business income from the operation of a business means gross receipts minus ordinary and necessary expenses required to carry on the trade or business. Id. Although the Hochstatter case dealt with depreciation, the court provided guidance as to the July 1, 2017 modification to section 505 relating to calculating net income from business income. Joshua’s testimony was unrefuted and there was no evidence presented to show that the business expenses he pays for his rental properties and his small business were or are inappropriate or excessive and therefore should not be excluded from the total of ordinary and necessary business expenses to be deducted in the determination of net business income from gross business income. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-support/is-money-from-savings-account-income-for-child-support/ |
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