Gitlin Law Blog

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.

 

Discovery of Hidden Assets

Q: How are hidden assets discovered?
A: The first procedure is self-help on the home front.  Any papers with dollar signs and numbers are potential clues.  The storage place for records of assets is often in the computer, or places to which the other spouse does not have easy access.  Other hiding places include the locked trunk of the car and a locked briefcase.  There are opportunities to gain access to keys.

 The second means of learning about attempts to hide assets is in the court proceedings, through what is known as “discovery”.  In discovery your spouse is required to answer written questions (interrogatories) regarding the location, transfer etc. of assets, and he is required to produce documents relating to assets.  Your reliance is not placed solely on your spouse.  For example you may ask your spouse for bank records, and receive none, but if you suspect your spouse has been doing business at a certain financial institution, you may subpoena the records of that institution.

Q: How about gaining access to data in the computer?
A: Even materials that are “deleted” from the computer can be brought up by a forensic computer consultant.  The kid next door may be your “computer consultant”, but you need the sophistication of a computer consultant who is trained in discovering data for use in court, a forensic computer consultant.

Q: What is a “paper trail”?
A: For the ownership of most valuable assets, such as real estate, stocks and bonds, accounts of money, motor vehicles etc. there is a registration, or paper record of ownership and transfer of ownership.  If A transfers a valuable asset to B, there will usually be a paper trail.  Most divorcing parties who are seeking to hide assets do not have the sophistication required to hide transactions.

Q: My spouse owns a business.  It is a corporation.  Is there an opportunity to hide assets within the business?
A: Yes, you bet.  By law the corporation is a distinct legal entity, that is, like another person.  To complicate matters there can be a primary corporation and that primary corporation can own other subcorporations.  It sometimes takes a lawyer with sophistication about corporate structures, and a forensic accountant to find the paper trail within corporations.

Q: Is there an opportunity to hide assets, or income, within a small business which is not incorporated?
A: Absolutely.  Cash is the easiest to hide and often not traceable.  There are, however, creative ways of investigating.  For example, a spouse who is a carpenter-contractor will usually buy most of his building materials from one source, for example, a lumber yard.  The records of the lumber yard in regard to this spouse’s purchases can be subpoenaed.  The records will show the site to where the materials were delivered.  The homeowner can then be subpoenaed to discover how much was paid to the contractor.  This type of investigation can also be applied to other small businesses.

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. 

 

Divorce Lawyer, How Do I Find One?

Q: Where do I get recommendations for a lawyer in divorce or paternity matters?

A: Try a combination of sources. This is a most important decision. Your welfare and the welfare of your children will be in the hands of your lawyer.

1. With about 50 percent of marriages ending in divorce, you have friends who are divorced. If their circumstances are like yours, ask friends.

2. Through recommendations of professional people including clergy, therapists, accountants and marriage counselors. Courthouse personnel may also know good divorce lawyers.

3. Lawyers are often a good source for a referral to a divorce lawyer. Most people’s initial contact with a lawyer has been for the purchase of real estate. You can ask that lawyer, or any other lawyer you know, for a referral. An initial question to ask when receiving a referral is the extent of the lawyer’s practice in matrimonial law. Another question to ask is: Would you send your sister to that lawyer? Your business lawyer, if you deal with one, may also be able to make a referral.

4. Bar associations, which are listed in the telephone yellow pages (for example the Illinois State Bar Association, Illinois Lawyer Referral, or the McHenry County Bar Association) could be a good source for a referral if they refer you to an experienced matrimonial lawyer. The danger is that they may just be going down a list of lawyers and it may be the luck of the draw whether you are referred to a good matrimonial lawyer. You should ask to be referred to an experienced divorce lawyer.

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

 

Grounds for Divorce

Q: Don’t the grounds for divorce in the divorce petition tell the reason for the divorce?
A: No, not by a long shot.  Illinois has ten fault finding grounds for divorce and one no fault basis (irreconcilable differences).  Grounds are the legal hook on which the divorce hat is hung, but the grounds stated in the petition for divorce seldom have anything to do with the real reason for the dissolution of the marriage.  You can’t have a divorce by stating nice things about your spouse.  You can only have a divorce by stating grounds for divorce and these grounds, except for irreconcilable differences, are fault finding.

Q: Do the legal grounds for divorce really matter?
A: Not usually.  As a matter of law if the person bringing the divorce cannot establish the grounds for divorce the judge cannot grant a divorce, however, the alternative is in living apart for two years and then no fault (irreconcilable differences) kicks in and the divorce is virtually automatic.  In fact the “living separate and apart” does not require separate residences, but may be accomplished by staying in separate bedrooms and no sexual relations.

Q: Why would a person resist a divorce when the other side is intent on it?
A: Either for leverage, in order to obtain a better settlement, or because of a desire to reconcile.  When my clients want to reconcile the marriage I tell them lawyers (and judges) can do virtually nothing about reconciling a marriage, except be supportive of the spouse wanting to reconcile the marriage and not to stand in the way of a reconciliation.  One concrete thing a lawyer can do is to buy time.  Simply not agreeing to the divorce should buy seven or eight months, and a case not coming to conclusion for about two years is not unheard of.

Q: What is the down side to holding up a case on account of grounds for divorce?
A: There is hostility in virtually every divorce case.  The question is only of the level of hostility.  By resisting the grounds for divorce you will raise the level of hostility and make the case much more difficult to settle fairly.

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

 

Pre-Divorce

Q: Will separation for a time help solve marital problems?
A: No, that has not been my experience.  My experience is that in order to resolve problems a couple must communicate.  If you separate you either do not communicate, or you significantly cut down on communications.  Statements like, “I need my space,” or “I need to get my head together,” are usually malarkey.  Usually the spouse wanting a “trial separation” is merely paving the way for a divorce. 

Q: Can’t I just leave the marital residence?
A: Yes.  You do not lose your marital property interest in the house because you leave it, however, child custody may become an issue, and if you leave without the children this will hurt you.

Q: How can I determine if I can get along financially after the divorce?
A: For a quick answer I use the rule of safe harbor often used by mortgage houses: you need a net (spendable) income which is three times the amount of your cost of housing.  For example, if your mortgage and real estate taxes are $1500 a month, you will need a spendable income of $4,500 a month.  If you receive $1500 in child support and/or maintenance (alimony) you will need to earn a net of $2,000 per month.   A more accurate way of determining the amount of money you need is to make a budget.

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

Men's Lawyer/Women's Lawyer

Q: For a divorce will I be better off retaining a lawyer of the same gender?
A: The choice of a lawyer (like the choice of a physician) is a highly personal matter.  If you believe you will be more comfortable with a lawyer of the same gender, then you should do so.  Your choice, however, should not be made solely on the basis of gender.  The most significant item is the qualifications of the lawyer.

Q: Is there a sufficient number of women lawyers so I can select one of my liking?
A: Yes.  When I started practicing in McHenry County, there was only one woman lawyer.  Now, of the lawyers who regularly appear in the divorce courtrooms, my observation is that slightly more than half are women.

Q: If I want aggressive representation, am I better served by retaining a lawyer who holds himself out as a men’s rights lawyer, or she holds herself out to be a women’s rights specialist?
A: No.  There is a divorce firm in Chicago which advertises as being a men’s rights firm.  There also is one lawyer in McHenry County who holds himself out as a men’s rights lawyer.  In my view this is strictly a business promotion.  The fact that a lawyer holds himself/herself out as being a man’s lawyer, or a woman’s lawyer, does not in itself make that lawyer knowledgeable about the law or a capable litigator.  In regards to negotiations a one gender lawyer is sometimes at a disadvantage because he/she is viewed as a lawyer with a strong bias who is on a crusade.

Q: Won’t a one gender lawyer be more aggressive?
A: Maybe, but being a consistent pit bull usually backfires.  It is the judge who decides the case.  Judges do not like “in your face” lawyers.  In litigation aggression and anger should be used only most sparingly and with the utmost discretion.  On the other hand confidence and assertiveness, born out of being a superior lawyer, are appropriate and desirable.

Q: Does Gitlin, Busche & Stetler represent one gender more than another?
A: No.  While we do not have current statistics, several years ago we did a 12-month survey. I was surprised and pleased to find that the spread between female and male clients was almost exactly 50/50.

Discussions Regarding a Proposed Divorce

Q: On a recent talk show the host was asking a divorce lawyer and a psychiatrist about how a discussion, anticipating a divorce, should be conducted by the spouses.  The lawyer suggested the discussion should be at a public place, like a restaurant.  The psychiatrist recommended the discussion be at home.  What are your views?
A: I saw the same show.  I am frequently asked the same question.  I do not agree either with the lawyer or the psychiatrist.  The first question I have is whether there should be a discussion regarding divorce between the spouses, or whether the other spouse should merely be served with a summons.

Q: Why did the lawyer on television suggest that the discussion be held in a restaurant?
A: I sometimes make the same recommendation if my client insists on announcing the divorce to the spouse, but is fearful of a confrontational encounter.  Having the conversation in a public place usually results in controlling angry outbursts.

Q: Why would you advise against a discussion prior to the initiation of divorce proceedings?
A: I would not advise against a discussion, but I would inquire as to whether it would be productive.  I do not want my client to do something that will bring about no favorable result, or may be counter-productive.  If it is believed that discussion will bring about a favorable result, or at least will not bring about any adverse results, then there may be a discussion.  There should not be a discussion if the other spouse has been controlling and will simply try to continue control in the pre-divorce discussion.  There should also not be a discussion if the other spouse may become verbally or physically abusive as a result of the announcement.

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

Etiquette in Divorce

Q: Isn’t announcing the divorce before my spouse is served with summons the polite thing to do?
A: Yes.  If yours has been a polite and respectful marriage then you should continue to act consistently and do the polite thing, which is to announce your intentions.

Q: Isn’t it a good idea to try to resolve all the problems that will be encountered in a divorce ahead of time?
A: Yes, but not until you know, that is, until you are advised by a lawyer, as to what the likely outcome of your case will be if it is decided by a judge.  Chances are 95 to 5 that your case will not be decided by a judge, but will be settled.  However, the yardstick of what is fair is what the judge is likely to award.  An experienced lawyer can tell you this.

Q: Should the divorce be discussed with the children?
A: Yes, definitely.  From my experience there are two things which should be stressed to the children.  First, that the divorce is not the child’s fault and it is an adult problem between the parents.  Second, you should assure the child of both parents’ continued love.  As my children were growing up I found that almost any problem the children had could be overcome with a strong overdose of love and attention.

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

 

Obligation for Orthodontic Treatment

This subject is sometimes addressed in marital settlement agreements and sometimes comes into play in post judgment proceedings when the custodian applies for the child support obligor to pay for the orthodontia for the child. The general rule in Illinois is that if the divorce judgment requires the noncustodial parent to provide medical insurance, hospitalization, dental and ophthalmology expenses for the child, he thereby, is not obligated to insure or cover expenses for the child’s orthodontic treatment. IRMO Jorczak,, 315 Ill. App. 3d 954, 248 Ill. Dec. 862, 735 N.E.2d 182 (4^th Dist. 2000)

A provision in a divorce decree, however, for maintaining dental insurance and payment of dental expenses does include orthodontic treatment. IRMO Mitteer, 241 Ill. App. 3d 217, 181 Ill. Dec. 534, 608 N.E.2d 2d 607 (4^th Dist. 1993)