Many questions arise about property division when couples are facing divorce, especially when the couple owns a home during the marriage. What should you do with it now that you are divorcing? Should you sell your house before divorce? Should one spouse buy out the other? How do we decide which way is best?
Selling Your House Before Divorce If you are in Chicago, it is a good time to sell your house. The current real estate market is pricing homes at an all-time high, and sellers can sell their homes for top dollar. If you decide to sell your house before your divorce is final, and you and your spouse cannot agree as to the division of the monies received once you have paid off all the necessary expenses like the realtor, the judge will require that the proceeds be placed in the care of one of the attorneys until the case is over. Many times, couples will wait until the divorce is finalized to sell the house, but it is not necessary to do it that way. If both parties can find substitute housing and can agree to sell the home, then there is no better time than the present. If you decide to sell, you will both be involved in picking a realtor. In the event, you cannot agree on the realtor, have your spouse pick three different realtors and you can pick one of the three already chosen. Meet with the realtor then and see what needs to be done to the home, if anything, to ensure that you receive top dollar for it. You would likely be responsible for any joint repairs you decide upon, or any expenses related to making the home sell better. The real estate agent will suggest some things that will enhance the sale, like painting or new carpeting. Those joint expenses are typical and once those are completed, the property can be listed. With any luck, you will have the house sold quickly, and you can then either elect to split the proceeds equally or at least take some of the money to get you started on a new residence. Should I Sell Our Home If I Have Children? If you both live in the marital residence together with the children, then you are forcing a division of the parenting time between the two of you if you sell the house now. This may or may not be a mistake depending on the strategy of your case. Each case is fact-specific, and you should consult with your lawyer to see if it makes sense to sell the house if you are both living in it with children. Of course if you do sell, then you will need to focus on a parenting plan that incorporates that move and what it means for the children, including where they will go to school if you are moving out of the school district. What Happens If One Spouse Wants to Sell the Hose and the Other Does Not? It depends on the facts of your case. In some instances, one person may not want to sell the home because they want to remain in the home. Most times, the court will allow one parent to purchase the house from the other instead of forcing a sale. But the person who wants the house must be able to afford to buy the other out and remove the person’s name from the mortgage and deed. It makes sense then for the person who can qualify for a new mortgage to go ahead and do that. If there is an agreement for one of the parties to attempt a refinance to remove the other’s name from the title and mortgage, then you should seek a court order stating that. If there is no agreement on anything related to the home itself, then the judge may order the house sold. If the house can continue to be paid for, many judges will wait until the end of your case before ordering the home to be sold. Both parties must decide if they (a) want the house and if yes, (b) can they afford it, and are they able to refinance it? Even if you want the house, you must be able to afford it. Do you have a job that pays you enough to afford the house without your spouse? If not, even though you want to keep the house, you may have to sell it. If you can afford it, but your credit is bad and you cannot get a loan, then you may have to sell it. There are a lot of factors to consider when one spouse wants to buy the house, but the other does not want to sell it. What are the Benefits of Selling Your House Before Divorce? The main benefit right now is the hot real estate market, which has given sellers a large advantage. If you wait, who knows what the market will be like a year or two from now? If a sale will be required, it is better to act now while the real estate market is favoring the sellers. Another benefit of selling the house is that when your divorce date is finally here, you will have already taken care of the division of this marital asset. There will not be any post-decree litigation surrounding the sale and you will not have to come back to court to argue about taking a lower price than the list price, or if additional repairs will be needed. All of these discussions surrounding the sale of the house will be conducted when you are in court, anyway, discussing other matters in your divorce. Once your divorce is finalized, then both of you will be able to move on and not have lingering issues in court past the divorce date. Is It Better to Wait to Sell Your House After the Divorce is Final? Again, it depends on the facts in your case and what the strategy is to end the case. If you and your spouse are not in agreement as to the house value, or there are contribution issues surrounding the housing issue, it may be in your best interest to wait. If you intend to buy out your spouse, then it is in your best interest to have the house value as low as you can get it. Maybe by waiting a year or two until your case is over, the market will lower to more reasonable values, and the amount of money you would have to pay would go down. That can be a benefit to you if you intend to buy out the interest of your spouse. Everything about your divorce case is fact-specific, so it is best that you sit down with a seasoned divorce attorney to find out exactly what you want and decide what is the best strategy. Just because your best friend waited to sell her house until after the divorce, does not mean it will be the right decision for you. You will only know that by discussing the case, informing your attorney what your goals are, and working together to develop the best plan for you. That might include selling the house right now, or it might be best for you to wait until after the divorce. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/property-division/should-you-sell-your-house-before-divorce-or-wait/
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The blogs on our website are always about family law, but the rules of evidence are important in all cases. In a family law case, the use of a Facebook post is often used to expose negative aspects of one of the parent’s behaviors. It is for that reason; I tell my clients to be very careful of what is posted on social media. The case of Lorenzo Kent highlights exactly why posts on Facebook should never occur. 2017 IL App (2d) 140917-State of Illinois v. Lorenzo Kent
Man Convicted of Murder Denies Facebook Post The trial court heard the evidence against Lorenzo Kent who was accused of shooting and killing Donmarquic Jackson. Lorenzo was sent to prison for 55 years. On the evening of May 6, 2013, Donmarquis was shot in the driveway of the residence he shared with his girlfriend, Doris Gregory, and her mother, Sally Gregory. Donmarquis did not have a good relationship with his former girlfriend, Kimiko Wilson, who was in a relationship with Lorenzo around the time of the shooting. Donmarquic and Kimiko had two children together. Two days before the murder, Lorenzo accompanied Kimiko to Donmarquic’s house and a fight ensued. That fight resulted in the shooting of Donmarquic and Lorenzo was arrested for his murder. The State's Evidence The State claimed that Lorenzo had a Facebook account and that he posted a photo that resembled Lorenzo, along with a statement that said, “it's my way or the highway.....leave 'em dead in his driveway.” At trial, the defense argued that the State did not lay an adequate foundation to admit that Facebook post. The State represented that it would introduce evidence at trial that Donmarquis was killed in his driveway, the photograph in the Facebook post resembled Lorenzo, and that the Facebook records have an IP [internet protocol] address that belongs to Kimiko. The trial court ruled that the Facebook post was admissible “subject to foundational requirements” being met at trial. The Facebook post was not the only evidence presented at trial. There were other witnesses and evidence. Officer Weber testified that the victim had five gunshot wounds. The medical expert testified that he died from a gunshot wound to his back, which went through his rib, heart, and lung. Defense Objects to Facebook Evidence The defense renewed its objection to the Facebook evidence during the trial. The State indicated that Detective Dwayne Beets would testify that he searched the Facebook website and found a profile under the name “Lorenzo Luckii Santos” with the defendant’s photograph and the relevant post. The court held that this was a sufficient foundation and allowed the post into evidence. The problem of course is that anyone can set up a profile using an e-mail address. The detective testified how he had created a fake Facebook account which he uses for investigations. His own profile had a picture of someone else, and not his own picture, and the information is his account was all fake. Following the detective’s testimony, the defense renewed its objection to the Facebook evidence, arguing that there had been insufficient authentication. The Court overruled the objection. Guilty Finding The jury found Lorenzo guilty of first-degree murder and he was sentenced to a prison term of fifty-five years. On appeal, Lorenzo argued that the trial court erred in admitting a screenshot of a Facebook post on a profile under the name “Lorenzo Luckii Santos.” The screenshot showed a photograph of someone resembling the defendant and an undated post that states, “it's my way or the highway.....leave 'em dead n his driveway.” The trial court deemed the evidence admissible “subject to foundational requirements” being met at trial. Lorenzo argued that it was not him and that the foundation used to put that evidence in was faulty. Facebook Posts Qualify as a “Document” and Are Admitted in Trials Case law shows that other courts have allowed Facebook posts into evidence. Email and text messages are treated like any other form of documentary evidence, and so long as a proper foundation can be made, those messages come into evidence. Usually, the testimony of a witness who has sufficient personal knowledge of the messages is enough to allow their entry into the court. If a witness testifies that they know the other person’s email address, or that they have received text messages in the past, that could very well be enough foundation to allow these types of messages into court. In Lorenzo’s case, there was no evidence that he created the Facebook page or that he was responsible for its contents. If the State had been able to show that Lorenzo wrote the post, it would be considered an admission of his guilt. What was critical in this trial was that Lorenzo never admitted creating a Facebook profile or making the post, and he was not seen composing the communication. The concern over authentication arises because anyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password, and, consequently, the potential for fabricating or tampering with electronically stored information on a social networking website is high and poses challenges to authenticating printouts from the website. Smith, 2012-CT-00218-SCT (¶ 19) (citing Griffin v. State, 19 A.3d 415, 421-22 (Md. 2011)). Here, the State offered no evidence that the defendant ever accessed Facebook or even used the Internet. At best, the photograph and the name on the Facebook profile are about the defendant and not evidence that the defendant himself had created the post or was responsible for its contents. Appellate Court Finds That It was Error to Admit the Facebook Post The Appellate court found that the trial court abused its discretion in admitting the Facebook evidence and allowing the State to argue that the post was an admission by defendant that he committed the offense. Lorenzo’s conviction was overturned as a result. DO NOT POST ANYTHING ABOUT YOUR CASE ON FACEBOOK We see the errors committed by our clients daily now. Everyone is eager to share every activity, every conversation and everything that happens in their life on Facebook. If you are involved in litigation in the court system, stay off of Facebook. Do not tweet your feelings about your spouse. Don’t post pictures of your party. It is a . take and one you will regret. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/illinois-family-law/man-convicted-of-murder-denies-facebook-post/ Many clients do not realize that they can switch divorce attorneys should they choose to do so, during the course of their divorce litigation. They remain with attorneys whom they are dissatisfied with because they do not understand the process for switching attorneys, or because they don’t realize that it is permitted. While there are certain reasons you may not want to switch counsel in the middle of your case, it is something that is possible and should be explored in the event that you are dissatisfied with the services of your divorce lawyer. Red Flags and Reasons to Consider a Switch Your Divorce Attorney So, when should you consider switching divorce attorneys? The reason to do so is going to be different for different people. You cannot switch divorce attorneys every time the judge doesn’t make a ruling in your favor because it ends up being very expensive and it is probable that the attorney may not be at fault for the result. In our experience as Chicago divorce lawyers, there are 5 reasons appropriate to consider switching. 1. You Can No Longer Afford Their Services If you can no longer afford your attorney’s services it is best to disengage representation, and the sooner, the better. Being open and honest about your financial situation can help ensure it is a clean break. In some instances, the attorney might be able to transfer your case to someone else int heir office at a lower rate so that you don’t have to start over with a new firm. However, incurring a lot of fees and then stiffing the attorney on the invoice is not likely to play out well. It is best to be honest about what you can afford so the attorney can try to work with you. 2. They Do Not Return Your Phone Calls or Emails in a Timely Manner, or At All If your attorney never responds to you it makes it difficult for them to advise you. Keeping communication open with clients is very important. A good attorney will respond, even if it is just to let you know they are backed up and will be in touch with you soon. The process of family court is anxiety-inducing on its own, your attorney should not be adding to this. They should be in touch with you in a reasonable time frame. 3. They Do Not Update You on What Happens in Court This is huge. If your attorney is letting you go overnight, or through a weekend without telling you what happened in Court on a date of a hearing or something similar, that is a red flag. You are entitled to know what happened in Court and you shouldn’t be kept waiting. If this happens once, you may want to have a conversation with the attorney regarding your expectation to be updated, but most attorneys will do this automatically without being told. 4. They Consistently Blow Deadlines This is another big problem. All attorneys can miss a deadline or mis-docket a court appearance. This has become more commonplace during the COVID-19 pandemic as it has been harder to get orders back from the clerk’s office in some cases and deadlines sometimes pass before the orders are even signed. So, attorneys and Judges have been a bit more flexible about this while everything is virtual. However, if this happens often, it can cost a client money. If discovery is late without explanation or without an agreement to extend the deadline, sanctions can be imposed against the client, even if the client turned everything over to their attorney in a timely manner. A mistake is one thing, but chronic failure to make filing deadlines is a major red flag. 5. They are Condescending or Do Not Consider Your Feelings and Opinions Your attorney is supposed to listen to you as the client and take into consideration your opinions and feelings. They cannot do things that could be viewed as unethical, but if there is a difference of opinion as to two different ways to handle a situation and neither would be problematic, the attorney should seriously consider what the client has to say. There are some situations where clients will want attorneys to act in ways that are not in the client’s best interests and in those situations the clients should listen to their attorneys. However, if your attorney is condescending and isn’t having open communication with your regarding your concerns, it may be time to move on. For What Reasons Should I Not Switch Attorneys? The biggest reason not to switch divorce attorneys is cost. Any new attorney who picks up your case file will have to review what has happened so far and become knowledgeable of your divorce case. That is going to be a bit costly. They have to get the documents, which sometimes can also be a struggle, and get up to speed, and the client pays for this time. So, if cost is a big concern and the case is close to finished it may not be worth the cost to change attorneys. There are also some scenarios where a Chicago family court may not permit a divorce attorney to withdraw, such as when the case is set for trial. However, generally speaking, if you have already picked out and retained a new attorney who will replace your current attorney, without having to move the trial dates around, the Court will likely grant a request for a new divorce attorney to replace your current one. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/is-it-too-late-to-switch-divorce-attorneys/ If you are facing a child custody case in Chicago, you may be wondering what a child custody evaluation is and how it is used in the custody process. A child custody evaluation is a standard evaluation ordered by the Court. It helps the Judge make decisions about parental responsibilities and parenting time. The Court may order this pursuant to 750 ILCS 5/604.10(b).
Illinois statute 750 ILCS 5/604.10(b) states: “(b) Court’s professional. The court may seek the advice of any professional, whether or not regularly employed by the court, to assist the court in determining the child’s best interests. The advice to the court shall be in writing and sent by the professional to counsel for the parties and to the court not later than 60 days before the date on which the trial court reasonably anticipates the hearing on the allocation of parental responsibilities will commence. The court may review the writing upon receipt. The writing may be admitted into evidence without testimony from its author, unless a party objects. A professional consulted by the court shall testify as the court’s witness and be subject to cross-examination. The court shall order all costs and fees of the professional to be paid by one or more of the parties, subject to reallocation in accordance with subsection (a) of Section 508. The professional’s report must, at a minimum, set forth the following: (1) a description of the procedures employed during the evaluation; (2) a report of the data collected; (3) all test results; (4) any conclusions of the professional relating to the allocation of parental responsibilities under Sections 602.5 and 602.7; (5) any recommendations of the professional concerning the allocation of parental responsibilities or the child’s relocation; and (6) an explanation of any limitations in the evaluation or any reservations of the professional regarding the resulting recommendations.” Simply put, the Court orders a professional in the field to interview all parties to the case, the minor children involved and any other relevant person or source that would assist them in determining what is in the best interest of the child(ren). To determine what is in the best interest of the child, we can look at the factors provided in the statute for the designation of parenting time and parental responsibility. The Court will look at factors like: the wishes of the child, mental and physical health of all individuals involved, child’s needs, willingness to facilitate and encourage a close relationship with the other parent, occurrence of abuse or violence towards or around the child, etc. The Court also adds a final factor that allows them to consider any other factor the court expressly finds to be relevant. This is a “catch-all” factor that allows the court to look at the situation as a whole and allows the uniqueness of the case to assist them in their decisions. These interviews and evaluations by the evaluator are throughout and will most likely take longer than one session. Not only should the evaluator assess what is being said, but they also look to body language and context clues to get a full picture of what the child(ren)s living situation is and then assess what it should be. These evaluators typically are individuals whose work primarily revolves around conducting the 604.10(b) evaluations, so they know exactly what to ask and what to look for. Child custody evaluators are licensed professionals who need to meet certain state standards to be able to conduct these particular evaluations. The Judge may assign an evaluator, or you may choose from a court-appointed list. Typically, the cost of an evaluator is split between the parties based on their respective incomes, but the Court may also order one parent to pay significantly more, depending on the circumstances. An evaluation by a professional is used by the Court to determine what is in the best interest of the child and this feat does not happen overnight. Depending on the complexity of the case, these evaluations could take anywhere from one month to several. Being diligent by promptly responding to your evaluator and making sure to prioritize their appointments will only make this process quicker. If you choose your child custody attorney appropriately, they will be able to assist you with strategies to assist the evaluator with their duties while keeping your desires in mind. A seasoned attorney will also have years of experience with certain evaluators and will know which people they find more effective, specifically for your case. These evaluators, as professional as they may seem, are still human. Thus, finding one that can remain objective while also providing the specific care and attention your case needs is very important. Although the Court is not bound to the evaluator’s report, the Court does give high deference to their recommendations because the evaluators are the ones with first-hand knowledge of the situation. In the end, it all comes down to what is best for your child(ren) and the Court strives to do just that, with the assistance of a 604.10(b) evaluation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/what-is-a-child-custody-evaluation/ |
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