Glossary of Terms
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Is one party leaving the home with or without the children considered “abandonment”? The answer is generally ‘No’. Necessarily in a divorce the parties will inevitably at some point live apart. That physical separation must start sometime. There is no automatic “abandonment” concept that will be detrimental to any ultimate physical custody schedule. Leaving the home is not abandonment but staying away from children for long periods of time may reduce the chances of being a primary physical custodian. Practical concerns moving out of the home involve the payment of the mortgage, utilities, and the preservation of personal property within the home. It is conservative to presume that once someone leaves the home, they will have great difficulty getting back in or retrieving all of their personal property to their satisfaction.
- ATTORNEY FEES
A simple dissolution with no children and either little property or agreements on all property, including court costs is about $2,000.00. As disagreements, negotiations, and communication with your attorney increase, so do the costs. It would not be uncommon for a contested divorce involving children and significant property disputes, to cost up to $25,000.00. Therefore, be mindful of your attorney’s fees and the issues that truly. You decide whether resolving an issue is a matter of principle, or economics.
ATTORNEY FEES – Can the other party be ordered to pay yours? Yes, but probably not.
- BUSINESS VALUES and INCOME
If a spouse is an owner of a business established or acquired during the marriage, the business is marital property subject to equitable division. An initial measure of value can be determined from the business’s own tax returns. However, gross receipts, deductions, depreciation, compensation of officers and employees can all vary significantly leaving a true value of the business undeterminable from the taxes alone. There is much interpretation in the use of funds and deductions in a business, and how those uses can effect child support and maintenance. To get a true value of a business it may need a professional business valuation. The value of a business is different than its ability to generate income. Its value creates property settlement issues in a divorce, while its income is more of a child support and maintenance matter.
- CHILD SUPPORT
In Illinois, child support is based upon a percentage of the payor’s net income. 20% for 1 child, 28% for 2 children. Net income is gross income from all sources, minus federal and state taxes, social security, medical insurance premiums, union dues, mandatory retirement contributions, and repayment of student loans. Household expenses are not considered by the Court in assessing child support. Refer to this Financial Affidavit to calculate your income and expenses.
A Modification of child support is possible retroactive to the date that a Petition for Modification is filed. Child support cannot be changed, suspended, or terminated without a court order. Out-of-court-agreements with the other parent to modify or reduce child support are not binding. A modification of child support can be requested where there has been a “substantial change in circumstances”.
The dependent exemption. A customary method to address the dependency exemption is to rotate it between each parent each year. It does not matter if the child lives with one parent more than the other, that exemption can still be rotated.
Under very limited circumstances, a court can abate child support amounts that are past due. This usually only occurs in a situation where it is discovered that the custodial parent was not taking care of the child during a time that parent was presumed to have custody.
750 ILCS 5/505(a): The court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for the support of the child, without regard to marital misconduct. The duty of support owed to a child includes the obligation to provide for the reasonable and necessary educational, physical, mental and emotional health needs of the child.
- CHILDREN FIRST SEMINAR
Supreme Court Rule 924 requires divorcing parents to attend a Children First Seminar and provide a Certificate of Completion. The seminar is a few hour session with information on the effects of divorce on children and suggestions as to deal with common issues. Download the Children First Program information see it in the Forms section.
Contempt is a generic term that has multiple meanings. A person is not in contempt simply because they have caused some infraction that could be considered contemptuous. A person is only in contempt when a Judge specifically orders it. The remedy is the resolution of the particular issue that may be contemptuous. Examples include violations of visitation schedules and late payment of child support. Once the isolated matter that caused the problem is resolved, it ordinarily does not have an effect on any other parts of the case.
- CREDIT CARDS
If your spouse is a co-owner of credit cards then you are both liable to the credit card company for any charges. If your spouse is merely an authorized user, then only the owner is liable to the credit card company, despite who charged on the account.
- Decision Making (formerly Custody)
As of January 2016, Illinois has eliminated the terminology of Custody and Visitation. They are replaced with Decision Making and Parenting Time. Both necessitate consultation and cooperation between parents on significant matters involving children. It does not mean equal physical parenting time and does not affect visitation. Joint Decision Making is limited to major decision making for the child regarding medical, school, religion, and extracurricular. The decision making terms do not change the time spent with the child. The court considers, “the ability of the parents to cooperate effectively and consistently in matters that directly affect the joint parenting of the child.” Despite the terminology, both parents have the right to be informed as to the medical issues of the child, school schedule, activities schedule, and any other events that occur in the child’s life.
A deposition is a question and answer session, with the witness under oath, in the presence of a court reporter who takes down every word of testimony. The questions are asked by one of the attorneys representing the other side.
Discovery is the exchange of written questions and answers (Interrogatories) and the exchange of documents (Request for Production of Documents). It is a necessary information gathering component of a divorce or custody matter. Requests are made that each party provide income information, pay-stubs, tax returns, investment values, pension and retirement values, checking and savings account records, credit card statements, and lists of personal property. Sometimes one spouse has historically been in charge of finances and the other may have little knowledge of the marriage’s financial condition. The discovery process helps to answer questions on values, intentions, custodial preferences, and allow each party knowledge and access to the couple’s finances, debts, and expenditures. In preparation for a divorce, compile the last three years of: income tax returns, pay stubs or any other sources of income, savings account statements, checking account statements, health insurance and medical bills, credit card statements, photos of the home and personal property.
- FINANCIAL AFFIDAVIT
If there is any dispute over financial matters, the court will require a Financial Affidavit. The Financial Affidavit is the court’s reference for all your income, assets, and debts. In preparing a financial affidavit, the starting point is to include all monthly income received whether by employment, self employment, businesses, rental, investments, and even unemployment compensation. The financial affidavit form is available on the home page of this www.carnine.net website.
- GROUNDS for DIVORCE
As of January 2016, Grounds for divorce in Illinois no longer exist. There were formerly various requirements as to the proof necessary to establish grounds, but the only reason, and necessary allegation for a divorce, is that irreconcilable differences have caused the irretrievable breakdown of the marriage. The issues that may have caused, or lent themselves to the reason for the divorce, can still be helpful to prove other contested issues. For example, adultery is not grounds for divorce, but if a parent spent time away from the child to spend that time in an extra-marital affair, that choice to spend time away from the child could be useful in arguing who should be the primary decision maker.
The court only has to find that “Irreconcilable differences have caused the irretrievable
breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family.” 750 ILCS 5/401(a)
- HEALTH INSURANCE
If a child is currently covered with health insurance by one parent, they can (and should) continue to provide health insurance after the divorce or separation. Health insurance is a deduction for purposes of calculating net income for child support. Whoever pays child support is allowed to deduct the full amount of premiums paid each month. Either party may have health insurance for the child and often one policy is primary and the other secondary. Health insurance is a concern for divorcing spouses when one has relied upon the employer-provided insurance of the other. After the divorce, the usual method of addressing bills not covered by health insurance is for the parties to equally split them. Use www.ourchildinfo.com to keep track of health insurance cards, card updates, proof of continued insurance, medical bills and reimbursement.
- INTERVIEW of CHILDREN with JUDGE
In Illinois there is no age at which a child may decide with which parent they shall live. Whether or not the child is able to speak with the judge depends on the maturity of the child and the circumstances of the case. Effort is made to keep the interview informal and, to the extent possible, not intimidating. The child usually meets with the judge in the judge’s office and both attorneys as well as a court reporter may also be present. The judge conducts the interview and generally the attorneys do not ask questions or can sometimes request the judge ask certain questions. The judge will speak with the child about the child’s likes and dislikes and general concerns and activities with each parent. The testimony of the child is not shared with either parent. The “In-Camera Interview” is only a factor to be considered by the judge in making a custody determination and, by itself alone does not determine a final custodial outcome.
Disputed custody and visitation matters must be mediated. A locally approved Attorney will act as a mediator and will meet with mom and dad at the same time. The goal is to develop a physical custody schedule for the children between the parents. If an agreement is reached during mediation we can ask the court to approve the agreement and that will end and resolve the matter. If an agreement is not reached, the case proceeds through its normal course and a Judge will decide.
Advising the other party prior to taking a particular action and giving notice to the other party of school and extracurricular activities of a minor child is an important element of Joint Parental Decision Making. You cannot fault a party for not showing up to a baseball game or a Christmas play if they were not made aware of it in the first place. Proving that the other party was made aware is also a necessary element in showing that they have notice and then voluntarily chose to not participate in the action or event. The child should not be used to pass notice of events between the parties. It is not the burden of the child to provide information on activities to the other party. A letter, e-mail, or, a text message is, at a minimum, a good way to pass notice of an event to the other party. Websites that have school and extracurricular activity schedules allows parents to find that information out for themselves. Use www.ourchildinfo.com as a secure, private, and documented method of providing information to both parents.
- PARENTING TIME (formerly custody)
Parenting Time defines the time spent by each parent with the children. Factors the court considers include, but are not limited to the wishes of all parties and the children, the relationship of the children with parents and others that the children has come to know, adjustment to home, school, and community, health of all individuals, potential negative influences on the children, and the willingness and ability of each parent to facilitate a close and continuing relationship between the other parent and the children. Those best interest factors are extensive in scope and each one depends on your particular circumstance. The child’s best interest is often found in the details that make a parent — who has taken the primary responsibility for day to day needs of the children, medical appointments, work schedules, availability, discipline, rules, etc.
750 ILCS 5/600(e) “Parenting time” means the time during which a parent is responsible for exercising caretaking functions and non-significant decision-making responsibilities with respect to the child.
A pension pays a monthly amount to a retiree upon retirement, usually for the life of that retiree. Pensions do not reflect a defined current sum of money. If a pension accrued during the marriage, the right to receive those pension payments upon the retirement of the retiree is marital property subject to division. The spouse without the pension is entitled to receive a portion of the monthly pension bound by the same rules and conditions as the pension holder. The spouse awarded a portion of the other’s pension will have to wait until the other is eligible for retirement before being able to receive benefits. Often, the entire pension is not marital property. A pension could have been growing for a few years prior to the marriage, in which case those amounts accrued and interest on those amounts should be considered non-marital property not subject to division. Similarly, if a divorce is final and the pension holder continues to work for many more years, those additional accruals represent non-marital property. The formula in a pension division includes the length of the marriage as a percentage of the total time the pension accrued.
- PERSONAL PROPERTY
Personal property includes clothing, furniture, appliances, electronics, photographs, firearms, tools, etc. Value is based upon current value, not purchase price. The court values personal property based on what a willing objective buyer would pay for the item. It is rarely economical to fight about the distribution of personal property. I do not want to bill $500 of your money in attorney fees fighting over something worth $400. Take digital photographs of all your personal property to preserve its location, condition, potential value. Photos will establish the fact that the property actually existed before it mysteriously disappears during the divorce. It is helpful to identify property in its current condition to avoid accusations regarding the location or value of that property. You should take pictures in every room including closets, attic, basement, garage etc. Presume that if you leave the home and leave behind personal property, you will never see that property again.
Photos are also helpful in geographically distant custody matters when mom and dad live far apart. Use www.ourchildinfo.com as a secure method to share photos of children and to comply with any Parenting Agreement communication requirements.
- PERSONAL PROPERTY VALUE and DIVISION
If the parties have acquired significant amounts of personal property through the marriage and are unable to agree on an equitable division or values, an appraisal for personal property may be necessary. The values of personal property is not the original cost or even retail value but, what I consider “garage sale” value. What was paid for the item has no relevance to its current value as a divisible marital asset. Considering that, make sure that the values of the personal property outweigh the time and fees that will be incurred in arriving at these final values.
- PROPERTY – MARITAL
Property acquired after the marriage becomes jointly owned marital property. Simply having one name on land, a house, a vehicle, or a retirement account does not effect the determination in Illinois as to whether or not that property is marital or non-marital. The only document that matters it is your marriage license, after the signatures on that document, all subsequent acquisitions are marital property. The goal in a dissolution to divide property equitably. Dividing it equitably does not mean dividing it equally. Factors unique to your situation could create an unequal distribution, but still an equitable one. When a particular piece of property or item was acquired will help determine its marital or non-marital status. It is possible for property to be part marital, and part non-marital. This is especially true of pensions that began to accrue before the marriage. That pre-marital accrual should be set aside and not subject to division.
- PROPERTY – NON-MARITAL
Non-marital property includes property acquired before the marriage and property acquired during the marriage by inheritance, gift, or excluded by a valid prenuptial agreement. Non-marital property is not to be divided as marital property in a dissolution. It should not be used as a factor in the calculation of an equal division of assets. However, courts can consider non-marital property in its equitable division of marital assets. Non-marital property can lose its status as non-marital if it is used for a marital purpose. For example, if you receive an inheritance of $10,000 during the marriage and use it to pay off marital debt or fix up the house, you have given that money to the marriage and it is no longer considered non-marital. Too maintain its non-marital status put that $10,000 into an individual account with your name on it and don’t touch it.
- PROPERTY – SENTIMENTAL
Photographs, family heirlooms, pre-marital collections, and family gifts are not as much an issue of value but more of the personal attachment they represent. Sentimental property should be secured immediately by the person who claims to have the greater sentimental attachment. If the property was acquired prior to the marriage, or was a gift during the marriage, it could be excluded in the division of marital property. Property should not be disposed until a final agreement or order.
- PROPERTY VALUE and DIVISION
Value of land or a home is usually the difference between its appraised value and the amount owed on it. If the property was acquired during the marriage, it is presumed to be marital property and then divided equitably between husband and wife.
- REMOVAL OF CHILD FROM STATE
As of January 2016 in Illinois, a custodial parent cannot relocate more that 50 miles away from the child’s current residence. The custodial parent wishing to move has to prove that the move is in the best interest of the child, not the parent. If removal is contested, evidence will need to be presented to the Court as to why the move is in the best interests of the children. Factors that the Court considers include the impact on the quality of life for the removing parent and the children, a comparison of schools and activities available to the children, employment and motives of both parties, remarriage and stability of the children, the ability to maintain a reasonable visitation schedule, the involvement of both parents and the activities of the children, and any other relevant considerations. Warning: in a circumstance where the parents were never married and nothing has been filed in court, the mom may not need permission to relocate. Call me for a free consultation on this or any other family law matter.
- SETTLEMENT CONFERENCE
The Court can require a settlement conference, or one can be set upon the request of either party. It is an informal hearing at which the parties and their attorneys appear, meet in a back room at the courthouse, and attempt to resolve the case. It is possible to agree on some issues and leave others unresolved. Is it generally a good idea to attempt at least one settlement conference. At a subsequent hearing, the court will decide the unresolved matters.
- SOCIAL MEDIA and EMAIL
Do not post anything online, E-mail or text messages that you don’t want read in court. Posting negative comments or even general comments on social networking sites can easily multiply into larger problems. If a negative conversation emerges and any children at issue happen to see it, it certainly does not help to settle any pending custodial issues and more likely than not causes a detriment, delay, and bad feelings between the involved parties. It is best to keep your animosity to yourself for the benefit of children. Online accounts are often available to the attorneys and Judges as well. Likewise, leaving a recorded voice message or a text message is a clear implication that you know you are being recorded and that recording can be admissible in evidence. This is the converse of you or someone else not knowing they are being recorded.
- TAXES – JOINT OR SEPARATE
If you are married on December 31, you have to file taxes married or married filing separately. The decision between those two usually rest upon the amount of a tax refund. The most common way is to file jointly and to evenly divide any refund. The alternative is to file married filing separately but then a decision must be made as to who claims the children. If there are no children then the decision involves finances and the refund. Disagreements can arise when one spouse earned more than the other and makes the argument that they should be entitled to more of the refund. However, the dissolution as a whole contemplates all of the financial issues and not just the earnings of one spouse. Another fair but complicated method is for both spouses to prepare a separate return and also a combined joint return to see the refund differences. If there is a disagreement as to the refund, it can be held in an attorney’s trust account to be distributed based upon a settlement or court order.
- VERBAL AGREEMENTS
Verbal agreements are not worth the paper they are printed on. Common verbal agreements include a rearrangement of a visitation schedule or a modification of child support. An agreement to modify times or exchange visitation weekends should at least be in writing, at best should be confirmed by attorneys. Don’t assume your ex will reciprocate on a visitation switch if based on a verbal agreement. It can be difficult and costly to enforce a verbal agreement. Court’s will often not enforce or even recognize verbal agreements to modify child support. Use www.ourchildinfo.com to coordinate and create permanent documentary evidence of a verbal agreement.
Witnesses should testify about their direct observation of the child with the parent. A witness who only has an opinion as to “what kind of a person” one parent is, is not helpful. The best witness is one who can testify to direct observation of an incident, event, or anecdote involving the child and one of the parents. Examples include a witness that can confirm that one parent was at every ball game and every school function and that the other parent never showed up. We do not need “character witnesses”. Any witness you call will likely already have good things to say about you and that self-serving style of witness is unnecessary.