Gitlin Law Blog

Premarital Agreements

Q: In the event of a divorce, can I protect myself against a claim for maintenance (alimony) with a premarital agreement?

A: Yes.  You can either limit, or eliminate the claim for maintenance by a premarital agreement.  The likelihood, however, is that if you are divorced within ten years and your spouse is in good health, there would not be an award of maintenance.

Q: What is the short of it?
A: 1.   If you are careful to keep assets, such as real estate, stocks, bonds, etc. in your own name you do not need a premarital agreement.

 2.  If you have non-marital income, such as investments before the marriage, or gifts or inheritances you receive during the second marriage, you should keep them strictly in your own name and not put them into a joint account. 

 3.  If you are satisfied with the way the law will distribute your assets upon your death, with or without a will, you do not need a premarital agreement. 

 4.  If you feel that after about ten years of marriage your spouse may be entitled to maintenance you do not need a premarital agreement -- unless you wish to control the amount and duration of maintenance.

For more information on maintenance (alimony) and division of property, visit Gitlin, Busche & Stetler, Woodstock, Illinois lawyers website.

H. Joseph Gitlin covers the practice of family law in Illinois.  Mr. Gitlin is the author of Gitlin on Divorce Reports, which summarize current Illinois opinions.  Click here for Gitlin on Divorce Reports information or contact the office at (815) 338-0021.   Mr. Gitlin's book, Gitlin on Divorce, A Guide to Illinois Matrimonial Law is a necessary tool for lawyers and legal assistants involved in family law and for judges hearing matrimonial cases. 

Bankruptcy, Part III

Q: My marital settlement agreement/divorce judgment requires my ex-spouse to pay certain debts incurred during the marriage.  Can he avoid liability for these debts by filing bankruptcy and will I become liable for these debts?
A: Obligations assumed in a divorce are not dischargeable under Chapter 7.  Therefore the debtor cannot avoid liability for these debts.  These debts, however, may be discharged under Chapter 13 if the debtor complies with the payment plan and has paid all support obligations in full.  Therefore, you may become liable for these debts despite the marital settlement agreement and the divorce.

Q: My marital settlement agreement/divorce judgment requires my ex-spouse to make payments to me as part of the property distribution.  How will these payments be affected if he files for bankruptcy?
A: These obligations are treated the same as the assumption of debts in a divorce.  Under Chapter 7, your former spouse cannot avoid these obligations, but may be able to avoid the obligations under Chapter 13 bankruptcy.

Bankruptcy Part II

Q: What are the different types of bankruptcy and what is the relevance to divorce cases?
A: Individuals can file for bankruptcy under Chapter 7 or Chapter 13.  Chapter 7 is a total discharge of debts whereas Chapter 13 is a repayment plan allowing the debtor to make payments over the course of time (5 years in many cases) and then have remaining debts discharged.  The type of bankruptcy (7 or 13) affects which debts can be discharged, if and when debts will be discharged, and the contents of the bankruptcy estate.  In relation to divorce, one difference is that property settlements contained in a divorce judgment (Marital Settlement Agreement) are no longer dischargeable under Chapter 7, but are dischargeable if certain conditions are met under Chapter 13.

Q: My ex-spouse just filed for bankruptcy.  Will this affect his obligation to pay child support and maintenance?
A: No.  In fact, child support and maintenance (referred to as domestic support obligations in the bankruptcy statute) receive priority treatment.  Therefore, under Chapter 7 property is first distributed to fulfill the support obligation, and under Chapter 13 the support obligation must be paid in full during the bankruptcy proceedings.  Under the new bankruptcy law, failure to pay current support obligations in full can result in denial of a discharge under Chapter 13.

Q: When my ex-husband filed for bankruptcy, he owed a substantial amount of child support.  How and when can I collect the past-due child support?
A: Support obligations, such as child support, are not dischargeable under Chapter 7 or Chapter 13.  The bankruptcy will not affect your ability to collect past-due support, but the automatic stay may prevent you from attempting to collect pre-bankruptcy-petition past-due child support from property in the bankruptcy estate, and a debtor’s income is part of the bankruptcy estate in a Chapter 13 bankruptcy.

 

Divorce & Bankruptcy Part I

Q: If I am contemplating filing for both divorce and bankruptcy, should I file one or the other first?
A: If you and your spouse have substantial debts, it may make sense to complete a joint bankruptcy before completing a divorce.  By discharging debts before completing the divorce, you can simplify the division and distribution of the marital property and avoid problems of possible future liability from debts assigned to your spouse in the event of his or her bankruptcy.  However, the decision is not necessarily an either-or choice.

Q: I’m in the middle of divorce proceedings and my spouse just filed for bankruptcy.  How will this affect the divorce proceedings?
A: When a party files for bankruptcy, an automatic stay becomes effective.  A bankruptcy estate is also created.  The estate includes all non-exempt property of the party petitioning for bankruptcy.  The automatic stay does not affect custody and visitation disputes or divorces except to the extent that division of bankruptcy estate property is at issue.  The divorce court does not have authority to divide property in the bankruptcy estate.  The divorce court retains authority to determine custody, visitation, child support and maintenance.  Therefore, bankruptcy proceedings can stall or delay the division of property in divorce proceedings.

Q:  How long does the automatic stay last?
A: Generally the automatic stay remains in place until the debtor receives a discharge in the bankruptcy case.  However, there are other significant limitations on the automatic stay which a debtor, or anyone seeking to avoid the automatic stay, should discuss with a bankruptcy attorney. 

For more information visit Gitlin, Busche & Stetler, Woodstock, Illinois lawyers website.

H. Joseph Gitlin covers the practice of family law in Illinois.  Mr. Gitlin is the author of Gitlin on Divorce Reports, which summarize current Illinois opinions.  Click here for Gitlin on Divorce Reports information or contact the office at (815) 338-0021.   Mr. Gitlin's book, Gitlin on Divorce, A Guide to Illinois Matrimonial Law is a necessary tool for lawyers and legal assistants involved in family law and for judges hearing matrimonial cases

Modification of Judgments

Q: Can maintenance be increased merely on the basis that the obligor is making more money now?
A: No.  In theory the original maintenance award was made in order to allow the receiving spouse to enjoy the same economic lifestyle after the divorce as she had during the marriage.  She is not entitled to a maintenance increase to live beyond that level merely because her former husband is now enjoying a higher lifestyle.

Q: If I can prove that it would now be in the best interest of my children for the judge to transfer custody to me will the judge do so?
A: No, not based on what is in the best interest of the child.  The best interest of the child is the standard by which the court awards an original grant of custody.  But for a modification (transfer) of custody, as in child support modification, you must first prove a change occurred in the circumstances of the child, or the custodian and that those changes have had an adverse effect on the child, plus thereafter proving that it would be in the best interest of the child to transfer custody.  In addition, during the first two years after the divorce judgment is entered, you must establish that the “child’s present environment may endanger seriously his physical, mental, emotional health.”  This is very difficult to establish.

What is Surrogacy?

In traditional surrogacy the egg of the surrogate is fertilized by the intended father’s sperm through artificial insemination.  In gestational surrogacy the egg of the surrogate is not involved.  She is merely the gestator for the embryo (fertilized egg) which has been transferred into her uterus.  The egg and sperm are fertilized in vitro, the so called test tube.  The positions of most states, as detailed below, are not friendly to surrogacy.

For more information on surrogacy, visit Gitlin, Busche & Stetler, Woodstock, Illinois lawyers website.

H. Joseph Gitlin covers the practice of family law in Illinois.  Mr. Gitlin is the author of Gitlin on Divorce Reports, which summarize current Illinois opinions.  Click here for Gitlin on Divorce Reports information or contact the office at (815) 338-0021.   Mr. Gitlin's book, Gitlin on Divorce, A Guide to Illinois Matrimonial Law is a necessary tool for lawyers and legal assistants involved in family law and for judges hearing matrimonial cases. 

Can I Reduce Child Support in a Bad Economy?

In the present recessionary economy people who are obligated to pay child support and/or maintenance may suffer a restriction of income, or even job loss.  Typically what happens is that the person obligated to pay child support and/or maintenance merely stops paying, or pays reduced amounts and takes no court action to reduce the court ordered payments.  The former spouse then files a contempt petition.  Now he wants his child support reduced retroactively.

A CHILD SUPPORT AND/OR MAINTENANCE OBLIGATION CANNOT BE REDUCED RETROACTIVELY, except to the date of filing of a petition for reduction and serving notice of that petition on the other party.  If you are out of work or your income has been reduced substantially you should contact a lawyer immediately.

J

Divorce Summons

Q: Out of the blue I was served with a divorce summons.  What do I do?
A: The practical answer is that as soon as possible you should hire the best lawyer you can afford.

For more information visit Gitlin, Busche & Stetler, Woodstock, Illinois lawyers website.

H. Joseph Gitlin covers the practice of family law in Illinois.  Mr. Gitlin is the author of Gitlin on Divorce Reports, which summarize current Illinois opinions.  Click here for Gitlin on Divorce Reports information or contact the office at (815) 338-0021.   Mr. Gitlin's book, Gitlin on Divorce, A Guide to Illinois Matrimonial Law is a necessary tool for lawyers and legal assistants involved in family law and for judges hearing matrimonial cases

 

H. Joseph Gitlin

H. Joseph Gitlin has annually been named one of the nation's best divorce lawyers in the book Best Lawyers in America  since 1983 and has been named one of the nation's top 43 matrimonial lawyers by the National Law Journal. Mr. Gitlin is a Fellow of the American Academy of Matrimonial Lawyers.

Mr. Gitlin is on the cutting edge of family law, chairing the American Bar Association's Surrogacy Committee during the time of the famous "Baby M" case, and chairing the ABA Laws of Reproduction & Genetics Committee. He has appeared on national and local television and radio shows, and is frequently quoted in the media.  He now chairs the Illinois State Bar Association Task Force on Genetics and Human Reproduction.

Mr. Gitlin is a widely published author of books and articles on family law issues and regularly lectures to fellow lawyers.

Law Journal & Other Legal Magazine Articles:

• "Don't Take Sides in a Divorce ", Illinois Bar Journal, Vol. 95, No. 1, 1/07
• "Sexual Morality and Children of Divorce", Illinois Bar Journal, Vol. 92, No. 9, 9/04
• "Mental-Health Professionals in Child-Custody Cases: Giving 'Expert' Testimony It's Due", Illinois Bar Journal, Vol. 89, No. 7, 7/01
• "The Standard for Changing Child Custody Within Two Years of Final Order", Illinois Bar Journal, Vol. 87, No. 9, 9/99.
• "Kessel and Kessel v. Leavitt et al.: A Case of Interest to Adoption Attorneys", American Journal of Family Law, Vol. 13, No. 1, Spring 1999
• "No Standing to Adopt Unless Parents Are Found Unfit: Would It Prevent Baby Richard II?", Illinois Bar Journal, Vol. 85, No. 9, 9/97
• "Joint Custody in Illinois: From Panacea to Placebo", Illinois Bar Journal, Vol. 83, No. 4, 4/95
• "Defining the Best Interest of Children: Parents vs. Others in Custody Proceedings", Illinois Bar Journal, Vol. 79, No. 11, 11/91
• "Divorce Illinois Style: Ten Years Under the Marriage and Dissolution of Marriage Act", Illinois Bar Journal, 7/87
• "Open Adoption Records", Family Law Advocate (ABA), 4 Family Advocate No. 2, 1981
• "Mental Cruelty -- A Look at the Past", Illinois Bar Journal, 10/68
• Editor:  Illinois State Bar Association, Family Law Newsletter, 1976-1977.

Lectures:

• Illinois State Bar Association Continuing Legal Education programs
• Illinois Institute for Continuing Legal Education Continuing Legal Education programs
• Divorce Law Education Institute
• Several state and local bar associations and civic groups

Leadership:

• Chair, American Bar Association Laws of Reproduction & Genetics Committee, 1987-2000
• Chair, Illinois Bar Association Genetics & Human Reproduction Task Force, 1994-1996
• Chair, American Bar Association Committee on Surrogacy 1987-1990
• Chair, American Bar Association Committee on Adoption 1985-1987
• Former Co-Chair, American Bar Association Trial Advocacy Institute
• Former Mayor, Woodstock, Illinois
• Former Chair, Illinois State Bar Association Family Law Section Council
• Founder and Former President, Family Service Agency for McHenry County
• Former President, Mental Health Center for McHenry County
• Former McHenry County Public Defender
• Former Member, Woodstock High School Board of Education
• Delegate to Presidential Convention

Awards:

• Laureate, Illinois State Bar Association, for exemplary legal career
• Berger Award, Academy of Matrimonial Lawyers, Illinois Chapter, for exemplary career in matrimonial law
• Distinguished Service Award by the McHenry County Bar Association for exemplary services to McHenry County and the legal profession
• Illinois State Bar Association, John C. McAnderws Pro Bono Award, for continued commitment to providing free legal services to the poor

Visitation

(For the purpose of this Q&A it is assumed the mother is the child’s custodian because this is the usual case.)

Q: The mother tells me I cannot visit until I am current in my child support payments.  Is she right?

A: No,  absolutely not.  The law specifically states child support and visitation are not related.  You can enforce your visitation despite owing child support.  On the other hand, you can’t withhold child support because you are not receiving visitation.

Q: Can visitation be withheld because the children say they do not want to visit?                       

A: No.  A child and the custodian must obey the court ordered visitation.  There is no age at which a child can decide (until 18).  It is not an excuse to contempt proceedings against the custodian that the children do not want to visit.  In fact, it may be possible to also have older children held in contempt.  But there should be a common sense approach; the visitation should be made enjoyable for the children, and especially as children grow older the father should allow for the fact that the children will sometimes have commitment which interfere with visitation.

Q: What visitation is customarily ordered by the court, or agreed upon by the parents?                

A: (1) Alternating weekends starting Saturday morning, to Sunday evening; or sometimes from after school/work Friday with a return to school/home Monday morning.

 (2) Alternating legal holidays; split or alternating Christmas and spring holidays; special arrangements for Christmas Eve, Christmas Day and children’s birthdays.

 (3) Not less than two weeks during the summer, but in exceptional cases, a substantial part of the summer vacation.

Q: What is the most effective way of enforcing visitation?                                                

A: Contempt of court proceedings.  Contempt of court can be punished by imprisonment.  Because of the possibility of imprisonment the proceedings are somewhat technical to assure there is no imprisonment without just cause.  For this reason, it is highly advisable that both parties are represented by lawyers in contempt proceedings.

For more information visit Gitlin, Busche & Stetler, Woodstock, Illinois lawyers website.

H. Joseph Gitlin covers the practice of family law in Illinois.  Mr. Gitlin is the author of Gitlin on Divorce Reports, which summarize current Illinois opinions.  Click here for Gitlin on Divorce Reports information or contact the office at (815) 338-0021.   Mr. Gitlin's book, Gitlin on Divorce, A Guide to Illinois Matrimonial Law is a necessary tool for lawyers and legal assistants involved in family law and for judges hearing matrimonial cases