Gitlin Law Blog

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.

 

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.

During the Divorce

Q: Why should I be civil to my spouse during the divorce proceedings?
A: The goal in the divorce should be to obtain a fair settlement.  Whatever is done that raises the level of antagonism works to delay and frustrate a fair settlement.  You should be as civil as the circumstances allow.

Q: Now that there is a divorce on file it’s okay to date, isn’t it?
A: Not in my book.  It is true that financial parts of the divorce are decided “without regard to marital misconduct” (which would include adultery).  The practicality is that by dating you will be rubbing salt in your spouse’s wounds and therefore making a fair settlement much more difficult and driving up the fees.  My rule is that it is okay to date as long as it is more than 500 miles from home and you have a written guarantee from God that you will not be caught.  Even in cases where the affair has been ongoing and the other spouse knows about it, I advise my client to suspend the affair during the divorce proceedings.  I want my client to be as unoffensive as possible in order to leverage the best settlement possible.

Q: How do we break the news of the divorce to the children?
A: There is no one size fits all formula.  The elements which should be included in the explanation are that each of you will continue loving the children despite the divorce and that the children were in no way at fault for their parents divorcing.  Sometimes children assume that they somehow contributed to their parents’ divorce.  While living together during the divorce proceedings the spouses should, to the extent possible, be as cordial as possible to each other because this benefits the children.

Q: What do I do about confidential papers I have, like letters from my lawyer?
A: Do not assume that your spouse will respect your right to privacy.  The best course is to have your confidential mail directed either to a trusted friend, or to a post office box.

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

 

Change of Child Custody

Q:  Isn't child custodoy always decided on the basis of what is in the best interest of the child?

A:  No.  the first question in a transfer of custody is not what is in the best interest of the children, but whether there has been a change of circumstances since the original custody order was entered.

Look at it this way.  After child custody is determined by a court order in divorce or paternity proceedings on the basis if the best interest if the child, the judge, in effect, states, "That's it.  I determined the custody of the child once and that was done on the basis of waht is in the best interest of of the child. (And this holds true whether the judge's determination was based on a trial, or the parties' agreement.)  Now, if you want custody changed, you are going to have to show me (the judge) there has been a change of circumstances."

Q:  Does the law have a bias in favor of the custodial parent and against the non-custodial parent?

A:  Yes.  It is a strong bias.  The law has a bias in favor of the child's life being stable.

Q:  What facts would be sufficient to show a change of circumstances sufficient to bring about a change of custody?

A:  Examples are:  a significant drop in the child's school performance; significant health problems due to the custodial parent's neglect; the development of significant social/psychological problems by the child; substantial neglect of the child by the custodial parent, such as leaving the child home alone, neglecting the child so the child becomes injured; exposing the child to what the judge may consider to be immoral conduct, like having a live-in significant other.

Q:  What could other causes be for a transfer of custody?

A:  Serious abuse of a child, whether physical or sexual, may be grounds for a transfer of custody.  The instability of the custodian is frequently a significant (but not sole) factor in allowing a transfer of custody.  Imprisonment of a custodian is an obvious change of circumstances.  Smoking by the custodial parent is now being raised in change of custody proceedings.  In the Illinois appellate court opinion which addressed the smoking issue the custodian's smoking did not result in a change of custody because it was not proved that the children's asthamatic conditions were caused by the smoking and the mother testified that she no longer smoked in the residence.

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

From Around the Nation

Wife’s Applying for Court Order to An Unrestricted Clone of the Husband’s Hard Drive from His Office Computer

Supreme (Trial) Court, Kings County, New York

The wife filed a motion with the trial court seeking access to a hard drive from the husband’s office computer. The husband claimed his annual income was approximately $50,000 and he had few assets. The wife believed the evidence from the hard drive would show otherwise. The trial court denied the wife’s motion, stating the request was overly broad. The trial court did give the wife leave to renew her motion and directed the wife to include a proposed procedure to review the contents of the hard drive in her renewed motion. The trial court suggested the following procedure:

1. Another attorney would be appointed as a “discovery referee.” The discovery referee would supervise the process and make determinations regarding privilege and relevance.

2. The parties would select a computer expert. The expert would clone the hard drive, determine if any files were deleted, and determine whether any data wiping software was used. Wife would bear the cost for the expert.

3. The wife would submit a list of keyword and other searches. The expert would run the search and collect files and file fragments that contain data related to the proposed searches. The data will be transferred to a CD or DVD which would be delivered to the husband’s counsel who then could assert privilege. The referee would receive an exact copy of the data sent to the husband’s counsel. The expert would also send a report to both parties and the referee showing the results of searches, the files hit by the searches, and whether a data wiping utility had been used.

 4. The husband would then deliver all non-privileged information to the wife. His counsel would also provide a privilege log identifying each document which allegedly contained privileged information. Any disputes regarding relevance or privilege would be decided by the referee, with the referee’s decision being final.

5. The referee would retain the clone until the case is concluded at which time it would be returned to the husband for disposal

Schreiber v. Schreiber, No. 2010 NY Slip Op 20271

 

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Regrets re Thin Screen TV Sets

I regret that I now have only thin screen tv sets.  It deprives me of a flat space to empty my pockets of items I use daily, like my wallet, keys, money, handkerchief etc.  I also regret that I can only control my tv set from the remote (which I cannot always find) and not from the tv set itself (which I can always find).

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Pension Plans in a Divorce

Q: All through the marriage I worked for my pension plan.  Does this mean now that there’s a divorce I have to share it with my wife?
A: Generally yes.  A pension plan, to the extent it is earned during the marriage, is marital property.  There are two ways to consider the value of the plan.  One party can be awarded an interest in the plan and the other can be awarded property with a value that offsets the value of the pension plan.    Otherwise, the parties can divide the interest in a pension plan through a document that is called a Qualified Domestic Relations Order (QDRO).

Q: Contributions to my pension plan at work started 15 years ago and I have been married for 10 years.  Is my pension plan marital or non-marital?
A: Both.  The law favors a fraction approach to dividing a pension plan.  This pension plan would be 5/15 non-marital and 10/15 marital, or 2/3 marital.  A pension plan is marital whether it is vested or not.

Q: But the pension plan was paid for entirely by my employer.  I didn’t put any money into it.  Does it still belong to the marriage?
A: Yes.

For more information on pension plans 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. 

WINNING

 

FACTS WIN, NOT LAWYERS

 

The best lawyer in the community will not win a case with bad facts.  A mediocre lawyer will win a case with good facts.

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Child Support - What is "net income?"

Q: Is “net income” the same as take home pay?
A: No.  The law defines net income.  It is gross income “from all sources” minus certain deductions:  federal and state tax, social security, mandatory retirement contributions, union dues, health insurance premiums, former court ordered child support obligations actually paid and repayment of business debts.

Q: Is income from overtime, second jobs, bonuses, commissions, etc. considered “income”?
A: Yes.  The statute says that income from all sources is considered.  Thus, rental property income, stock dividend income, interest income, etc. are all considered income for the purpose of calculating child support.

Q: I am self employed and have overhead expenses.  Can I deduct from my gross income all of my overhead expenses?
A: No.  The law in this area is not solid, and the present law is not totally sensible.  The child support statute makes “expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income” deductible.  Recent cases held, in effect, that if a child support obligor borrows money to pay business expenses, then there may be a deduction for repayment of the debt, but if it is merely an expense, it is not deductible for child support purposes.  This is not sensible, but it is the law.

Q: In addition to child support can the child support obligor be required to pay other expenses of the children?
A: Yes.  It is customary for the noncustodial parent to be required to pay half of the custodian’s child care expenses during the time the custodian is employed, and for the non-custodial parent to obtain health insurance coverage (pay the premiums) for the children.

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. 

COLLEGE EDUCATION FUNDS

SUING FOR COLLEGE EDUCATION FUNDS
RETROACTIVELY: IT’S TRICKY

 

A recent First Appellate District opinion, IRMO Petersen (filed July 30, 2010), ruled that a mother could not sue for post-high school educational expenses of a child retroactively because educational support is in the nature of child support and child support can only be modified retroactive to the date of filing the petition for modification and giving notice.

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