Divorce & Family Law Blog | Patrick Markey, P.C., Chicago, IL

Child support does not always end when a child reaches 18 years of age or graduates from high school.  Most Illinois family courts will order one or both parents to contribute to children’s college expenses based on their ability to pay and some other factors.  Lawyers and courts refer to these proceedings as “Section 513 Petitions” named for the code of the Illinois Marriage and Dissolution of Marriage Act which provides for support of children after they are emancipated.

What expenses are covered?

College expenes is a liberal term.  It obviosly covers tuition, school fees, books and room and board.  However, medical insurance, medical expenses, travel to and from school, personal expenses and summer needs can and are usually are included.

Ability to Pay

The current trend is that the courts are forcing parents to both pay 50% of the above expenses.  If one parent has a far superior ability pay (for example, one parent earns $300,000 per year and the other $30,000), a court could order the parent with money to pay all the expenses or a greater portion.  It makes the most sense for the parents to pay in proportion their income if neither has major assets.  Ability to  pay is not just income, if one parent has significant assets, but no income, the assets factor into their ability to pay.

New Spouse’s Income

Illinois case law has held that a new spouse’s income can be used to determine a parent’s ability to pay for college expenses.  For example, the Father earns $75,000 per year and has $100,000 in assets.   The Mother does not work and has no income.  Mother’s new husband earns $500,000 per year and their marital estate is $1,000,000.  New husband has non-marital assets also of $1,000,000.  I believe the court would order Mother to pay at least 50%of the college costs or  possibly more in this scenario since Mother has an ability to pay for college based on her new husband income and assets which help support Mother and likely provide her with a good lifestyle.  The court could not order the new husband to pay the costs, but he likely would indirectly be paying for them.  Husband’s non-marital money should not be a factor in determing the parties ability to pay since Mother does not have an entitlement to the money.

Timing

One should file a Section 513 Petition three to four months prior the child staring college or trade school or as soon as the child knows where he/she is going to school and how much it is going to cost.  The issue is generally reserved in a divorce decree or parenting agreement if the children are under the age of 16.

Children’s performance and Assets

The court will sometimes order the children to be responsible for part of the college costs.  Any college accounts, grants or scholarships will always be applied before the parents contribute.  If the child has the ability to pay for their own school (for example if they inherited a lot of money from the grandparents) then the parents may not contribute at all or very little.  Children also need to maintain at least a “C” average if court’s are going to continue to order the parents to pay.  That is not necessarily a rule, just an argument that can be made.

Everyone knows it can be very difficult and expensive to get divorced even if you have been married a short time.  Would some of these individuals not be getting divorced (or not have married) if they would have received pre-marital legal counseling or premarital legal counseling?  Premarital counseling would discuss sharing finances, financial goals, dispute resolution and how to be a good spouse.   Another component would be discovering information about your spouse and how they feel about certain issues.  Do they want children?  How many? How do they feel about debt?  How much debt to they have?

What about the legal side?  Most individuals have no idea or great misconceptions about the legal ramifications of marriage (i.e. potential for alimony, property and debt division) or the legal process of divorce in general (such as the two-year separation requirement in Illinois).  I think it would be good public policy for Illinois to require a certification of completion of pre-marital counseling that has a legal component as well.  This will cut down on some “shot gun” weddings, but more importantly, it will help couples get a good start on the marriages and possibly discourage some couples who are destined for divorce from the beginning.

Here are some other ideas that are interesting:

• All marriage would have a 1-3 year “trial basis.”
• Couples would be charged with creating their own by laws for the marriage (similar to premarital agreement).  All business owners do it.  Why not couples?  Wouldn’t you want to make your own rules then be subjected to the rules made by the Illinois legislature?
• More rigid hurdles for marriage such as a premarital exam.

The Illinois Supreme Court’s recent decision in In re Marriage of Blum v. Koster, found that a trial court cannot order a nonmodifiable and nonreviewable maintenance award. Blum v. Koster. 2009 WL 3212542 (Ill., 2009).  If there is no expressed agreement to the contrary by the parties, the court must classify maintenance as modifiable and reviewable and therefore look to the enumerated factors within Section 510(a-5) of the Act should either party petition for modification, review, or termination of maintenance in a post-decree proceeding.

What does this mean?  First, if a divorcing couple wants to make sure maintenance ends on a certain date, then they will have to expressly provide that in their agreement.  However, this case really just affects cases that don’t settle and have to be decided by a judge at a trial.  That is not to say this new case will not effect settlement awards.  There will also be a new trend in divorce settlement for larger maintenance awards that terminate since the court after a trial cannot make the maintenance “non-reviewable” assuming they award maintenance to the other party.

One way around this issue would be for the trial court to award maintenance “in gross” which is similar to a property award, but the payments in gross are deductible by the payor and income to the payee.

Leveling the Playing Field

This law was enacted in 1997 to allow both parties in a divorce, custody or other domestic relations case seek interim attorneys fees from the other party.   The party would need to show that they do not have the ability to pay their own fees, or that the other party has a superior ability to pay fees.   In a divorce case any award of interim fees was usually an “advance” to the spouse from what he/she may receive from the marital estate at the end of the case. Interim attorney fee hearings in pre-decree divorce cases are summary non-evidentiary hearings.  One judge in Cook County has a two part test 1) How much do you want and 2) where am I going to get it.  The answer to question number 2  is usually the most difficult.  The court will first look to see if there is cash to pay attorney fees.  If there is not, the court may order it to go on a credit card or for the party to liquidate an assets (such as a 401(k) or IRA).

In paternity, custody or child support cases, there is not marital estate.  Also, in post-divorce there is no marital estate.   Interim attorney fees in this cases are now no longer summary and non-evidentiary.  So the burden in obtaining interim attorney fees in these situtations are more difficult.

Interim fee payments are not automatically considered dissipation of marital funds

Section 503 of the IMDMA (the standard for dividing property in a divorce) has now added a factor for the court to determine the distribution of marital property “any such decrease attributable to a payment deemed to have been an advance from the parties marital estate under Section 501.”  This means that the court can “add back or charge to” one parties litigation costs.

A party should always factor in the other parties payment of attorney fees to their attorney in a divorce.  If the fees are show to be “selfish and excessive” then the court could still find those fees to be dissipation of marital assets and the court could award the other spouse a greater share of the remaining marital property.

The term “legal separation” is almost always misused by the general public and even lawyers who do not practice in the area of family law.   The term itself is very confusing, so I can understand why.   Many people say they are “legally separated” from their spouse when what they really mean is that they broke up and are not getting back together or the relationship is over.   Usually a spouse will have moved out or moved to another area of the house until they are ready to move out, however this is not “legal separation” but just “physical separation”.   The confusion with the term legal separation is likely due to separation requirement under Illinois law that spouses be physically separated for 2 years before a divorce can be finalized and granted (the 2-year requirement can be waived after 6 months of physical separation).   Legal separation has nothing to do with physical separation.  A couple could live separate and apart for 20 years and not be legally separated.  They would, however, have satisfied the 2-year requirement to get divorced, but would still be 100% married.

Legal Separation is 99.9% the same as divorce.

I say 99.9 because there has to be some difference between divorce and legal separation otherwise I would not be writing this blog post.   The only difference is that a couple that is legally separated is actually still married under the eyes of the law when it comes to some legal benefits including:  being on a spouses employer sponsored health insurnace plan.   A legal separation is the same as a divorce when it comes to dealing the issues that people need to deal with to get divorced.  In a legal separation the following needs to be determined:  custody of children, child support, property division, debt division, alimony or maintenance and all other issues.   A legal separation agreement is almost identical to a divorce agreement.  The only difference is the title “legal separation agreement” vs.  “marital separation agreement.

Legal Fiction

I am not sure why legal separation exits in the law.  It is not frequently used by individuals.  They usually decide to get divorced when they find out that getting “legally separated” is not any easier or harder than getting divorced.  Individuals who are legally separated cannot get remarried to another person until they get a dissolution of marriage (divorce) from their spouse.  Legal separation is considered the same as divorced according the IRS so even though parties are legally married, they must file as single on their tax forms.  It is my belief that legal separation exists because there was a time when getting divorced was taboo or against certain peoples religious beliefs.  These individuals desired to work out all of their “issues” such as property division and spousal support but technically stay married  and not be divorced.  It gave them a sense of peace and order in their lives without the tag of being “divorced.” Legal separation is a relic of the past, but still exists today and there is no talk of getting rid of it.

Health Insurance

The #1 reason and really one of the only reasons individuals choose to get legally separated and not divorced is so one spouse can maintain his or her health insurance with the other’s spouses health insurance plan usually through that spouse’s employer sponsored plan.  This option would not be available to a former spouse.  Yes, a former spouse is entitled to COBRA for up to 18 months, however, COBRA is expensive and only lasts 18 months. What do they do after that?  If a spouse has serious medical issues and pre-existing conditions they may be uninsurable or insurable at an exorbitant rate.  Sometimes over $1,000 in month for premiums.   If neither party intends to get married again or it is unlikely that they would find another spouse, then legal separation instead of divorce can save the parties significant money in the short and long term.  Both parties benefit from the legal separation not just the spouse that gets to stay on the health insurance plan.  The spouse with the plan and usually the spouse who is/was the breadwinner of family, can argue for reduced spousal support during the case and in settlement discussions  since the needs of the spouse without the health plan or in need of support will be lower.

Legal separation still exists in the law even though it is frequently not used by individuals, probably because they cannot remarry until they acutally get divorced and there are really no other benefits other than health insurance.  However, given the current state of health insurance costs and the uncertainty that exits in health care reform, many couples could benefit from seeking a legal separation over divorce in order to keep their former partner on their current health insurance plan and save money for both parties.

Most people associate divorce with dividing property equally (50/50).  It is true that many cases do end up to a be a 50/50 division.  I believe that is the case because it is just the easist way to do it.   Here is an example:  A couple is married for 50 years.  One spouse (Spouse A) consistently earns 30-40% more in annual net income than the other spouse (Spouse B).  They do not have children and both worked during the marriage.  Both parties generally had home making duties of cleaning, shopping, making food, etc.  Spouse B did a little bit more of that than Spouse A. Section 503 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) states  one factor the court must consider in allocating property is “ the contribution of each party to the acquisition, preservation, or increase or decrease in value of the property”

Fast forward to the trial in this matter.  In theory, it looks like Spouse A should get better than 50% of the property because he acquired more of the marital property during the marriage.  Spouse B did do more housework, but she was not a stay at home person taking care of Spouse A.  How is the Judge going to figure this out?  They aren’t.  It is too complicated and there is no easy way to figure it out.

More wrenches

What if spouse B has saved all of her money during the marriage in 401(k) assets or other savings?  What if Spouse A spent all of his extra money on himself and had no money saved when the parties started the divorce.  Sure, some of Spouse A’s money was spent on Spouse B like dinning out or paying expenses.  However, over a 10 year marriage how would a party or a Judge quantify all of these variables.  It can be done, but it is difficult.  The court is probably going to just do an equal division of property.  Sometimes there is debt involved.  Can you invision Spouse A having a lot of debt in his name?  The court might stick Spouse A with his debt and give him less of the assets if Spouse B could prove with bank and credit card statements that Spouse B dissipated marital assets by not saving and spending it all on himself.

Property Acquired by a Spouse After the relationship has ended and parties have lived separate an apart.

There is no common law divorce in Illinois.  I have seen cases where parties have been separated for 10 years before filing for divorce.  In that time period one of both spouses acquire property and debt on their own.  A good argument can be made and is supported by Illinois case law, that the spouse who acquired property after the parties were no longer living as husband and wife should be awarded that property or a larger share of it.  The theory is that the other spouse did nothing to contribute to that acquisition of that property since the marriage was over and the parties were living separate lives in separate residences.

This argument does not work so well if the parties have been separated for less than 2 years (the statutory waiting period in Illinois).  However, it it has been more than 2 years (or even 10 years), the party who acquired property such as real estate, 401(k) or even lottery winnings should argue hard for the court to award that party a larger share of the assets acquired after the separation if not all of them.

One should not assume that the court will automatically do (50/50).  The term (50/50) or dividing property equally does not appear in Section 503 of the IMDMA which is the law on property division.  If you have facts which support an unequal division of property, you should make the argument to the court.

I am taking a different approach to this post because some people benefit more from hearing what they shouldn’t do than what they should do.  I tell almost all my clients that custody cases are won or lost at the beginning of the case.  Critical mistakes made at the beginning of the case or before a case is filed put many parents at a severe disadvantage at becoming the residential/primary parent or even having joint custody.

Possession/Time with Child

This is huge.  If you move out of the marital/joint residence and leave your child with the other spouse, you are essentially giving away custody.  This sounds so simple but many people make this mistake.  You can’t move out without your child–period.  No matter how bad the situation with your partner, you need to maintain your living arrangement with the child(ren).  Find a way to make it work.  Sleep in another room or on the couch.  Not only does this make the most sense from a custody stand point, but it saves you money by not having to rent another apartment.  If you have decided that moving out of the joint residence is what you need to do, make sure you get the other’s spouse’s consent in writing to do so.   You don’t have to write up a formal agreement they will sign (because they likely will not due to everyone’s skepticism in signing documents).  However, you can ask them in an email to respond to your request to move out with the children. If they email or text you that it okay to move out with the child, then you have the green light to move out and the other parent has just blown their chance of being the residential parent.

Don’t let the child(ren) leave

This is more difficult to control than your ability to stay in the marital/joint residence with your partner and children.  First, if it is clear that you are getting divorced or separating from your spouse/co-parent, then make it very clear to them that they cannot leave your joint residence without your permission.  Make this clear in several emails that you do not consent to the children’s removal.  Your partner/spouse, can move out, but the kids need to stay until at least the case is resolved.  You should also file a Petition for Dissolution of your marriage or Petition for Custody (for unmarried couples) right away and have your spouse served.  If your spouse moves out with the children behind your back, then you will have a good case for a court to bring them back on an emergency basis.  You will have an email stating you don’t agree for them to leave and you will also have a case pending which will allow you to go to court immediately and not have to wait and file a case.  Failure to make a record of your lack of consent or having a case on a file could prove fatal if your spouse moves out without notice to you.

Don’t defer to the other parent

Why would a court want to give custody to a parent who defers to the other spouse in regard to the children’s needs?  You’re right, they won’t.  Have you spoke to the children’s teachers?  Do you schedule doctor’s appointments?  Do you sign the children up for activities?  Do you spend time with your children?  Do you take them to buy clothes?  Do you take them to buy school supplies? Do you attend their school events/extra-curricular activities?  If you answered “no” to any of these questions, then you have a problem and are probably not going to be the primary parent.

Don’t alienate or try to cut out the other parent

Discuss the children’s issues with the other parent.  Do it via email if you have to.  You two may not agree, but at least you have a record that you tried.  Courts don’t like parents who try to become “super mom or super dad” during the case by taking total control of the children’s life without involving the other parent.  This does not mean that you shouldn’t be taking control, but you should also remember that there are always two parents and both deserve input into the children’s lives and this is good for the children.  A court will appreciate a parent  who is not trying to box out the other.  Nobody likes to see that.   Domestic violence is one caveat to this point, but if the other spouse has an order of protection against them or domestic battery, you don’t really need to be worrying to much about custody at that point.

Don’t put yourself into a position where your spouse could get an order of protection against you or worse, a criminal charge.

Separating couples often have at least one big blowout.  They also are prone to fight and argue a lot.  This will not change.  However,  don’t ever put yourself in a position where you spouse could make allegations to support an order of protection against.  Don’t stalk them.  Don’t contact their job.  Don’t contact their new boyfriend or girlfriend.  Avoid verbal altercations at all cost.   Don’t every send threatening emails or text messages.

Don’t be a bad parent

Finally, don’t be a bad parent.  This is good advice for anyone even if you never get divorced or separated.  If you don’t take an interest in your child’s life until a Petition for Custody case is on file or a divorce, then you are unlikely to be able to turn it around in time to become the residential parent.  In my experience custody needs to be earned from day one of the child’s life.  If you were absent from the child’s life or took a back seat to the other parent, then your hopes for custody are pretty unrealistic.

Divorce cases are fairly easy.   I can figure out how to solve most of them in a few minutes after receiving all the relevant information I need from the parties.  However, it is no surprise to anyone that many divorces take a long time, sometimes several years.  A major reason for these long divorces is mental health issues for either the husband, wife or both parties.

Stressful

Divorce is one of the most stressful events that a person will ever encounter.  Some psychologists have rated divorce to be more stressful than the death of a close family member or even a jail sentence.   The stress from the uncertainty of:  Will I see my children? or Will I be financially okay? cripples peoples ability to deal with the real issues of divorce such as division of property and child custody.   The pain of infidelity or just the loss of someone who does not want to be with them anymore lingers in divorce cases and affects individuals ability to deal with the real issues necessary to dissolve their marriage.

Take the stress out the best you can

In my experience, once the emotional issues are dealt with by both parties a case wraps up very quickly.  Once both parties have faced the reality of divorce and accept it, dividing the marital estate and working out a visitation schedule is fairly easy.  Unfortunately it takes both spouses to be able to do this and an individual can only control their own emotional issues or mental fitness.  I have a number of suggestions on how to do this:

1) Educate yourself on divorce law in your state.  Learn as much as you can online and discuss it with your attorney.  Take a financial inventory of your assets and liabilities.  If you do not know anything about finances because your spouse took care of that during the marriage, contact a Certified Financial Planner (CFP) or other financial specialist who can educate and help you in decisions on whether to keep the house, etc.  They can also educate you on insurance and retirement accounts among other things.

2) Therapy. Seek out therapy to deal with the death of the marriage.  You will have a difficult time getting divorced if you have not fully dealt with these issues.  I do not believe that any individual can successfully get through a divorce without some sort of mental health therapy.  It does not matter how “tough” you consider yourself.

3) Support Group. Build a support group.  Get involved in new things to take the focus off your divorce.   If you feel ready, start dating to get your mind off your ex.  Go back to school.  Get a job.  Just do something.  A divorce will consume you if you don’t have something to take your mind off it.

Take Advice

Most individuals going through a divorce have an attorney representing them.  Communicate with your attorney and do what they tell/ask you to do.  You will likely find that things will work out better for you if you do.  Since your attorney 1) knows the law, 2) is not dealing emotional issues and 3) has been through many divorce cases, they probably have good ideas and better judgment than under the circumstances.  If you cannot communicate with your attorney you should get a new one.  Your attorney is supposed to help decrease the stress of a case and not add to it.  It is easy to change attorneys–just go hire someone else.  Your new attorney will fire your old one (one more stressful thing you will not have to deal with) .

This is my first blog post in what I hope to be many more dedicated to marriage and divorce law.  As a full-time divorce attorney who does litigation, I receive many petitions and motions (also referred to as pleadings) in the mail and via fax from opposing parties and counsel.  The most common pleadings I receive are to set child support, maintenance, a child visitation schedule and or modify the above.  There are also petitions for interim and prospective attorney fees, to sell property like the marital residence, for exclusive possession of the residence, for a spouse to maintain a job diary, for a restraining order regarding property, for a physical or mental exam of children or parent, or to vacate, modify or reconsider a previously entered court among many more.

I, like many other attorneys, send a copy of the petition or motion to the client via email pdf or mail when I receive it from opposing counsel.   Sometimes within minutes or even seconds my phone is ringing or I am receiving an email from the client stating “Can they do that? or Why should they get (insert relief requested here)?”  First, the answer to “Can they do that?” is generally “Yes.”  I answered yes to that question because parties can generally file whatever motion they want as long as it is brought “in good faith,”  “warranted by existing law,” and “to the best of his or her knowledge formed after a reasonable inquiry as to the facts.”  This standard is fairly broad.  Do attorneys and litigants get sanctioned by the court for filing frivolous pleadings?  Yes, but it is not that common.

Second, “Why should they get_____?”  Who says they are getting it?  Many parties interpret a court motion or petition filed by the other side as a court order.  It is not.  It needs to be heard by the judge where the opposing party can respond in writing and orally to the judge as to why their spouse or other side should not recieve what they are asking for.  Judge’s do deny motions and petitions regularly.  Sometimes certain motions are never heard by the judge at all either because the attorney changed his or her mind due to a change in facts or strategy.  Sometimes pleadings get filed simply to get a rise or reaction from the other spouse.

A petition or motion asking for relief from a court is supposed to cite relevant statutes or law which entitles them to the relief they are asking.  The remainder of the pleading is supposed to state facts which support that parties’ position that the court should rule in their favor.  You should not necessarily need to be a lawyer to decide whether a petition or motion is bound to fail.  I always ask my client’s to read what is stated and then ask them what they would do if they were the judge deciding this case.  There are some cases, for example, a custodial or residential parent seeking child support, where it is fairly certain that that person is going to get what they are asking for (child support).  However, in petitions for maintenance or attorney’s fees, there is sometimes a “knee jerk” reaction from some attorneys if a one spouse earns more money than the other to seek this relief despite bad facts.  For example, the husband consistently earns $90,000 per year.  The wife consistently earns $75,000 per year.  In this example most of their assets are illiquid like home equity or retirement assets (pension/401k) and they both have no debt.  Every case is very fact specific, but does this look like a case where the Wife should receive maintenance or attorney fees from the husband? No.  Would that necessarily stop the Wife from filing a petition for both?  No.  Would she be sanctioned for filing it?  Probably not.

In conclusion, don’t freak out if you spouse files a motion for something.  It does not mean they will receive it.  If they objectively have good reasons for receiving it and the law is on their side, they might (or should) get it.   If they don’t have both the facts and law on their side, then usually they will not get what they want.