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. 

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.

Income Tax Consequences of a Divorce

Q: Where else can I go to find answers to my tax questions?
A: The IRS has a website at www.IRS.gov.  Publication 504 provides additional guidance for divorced or separated individuals.

WARNING:  The income tax consequences of a divorce, especially one involving substantial income and/or substantial assets, are legally complex.  You should receive advice from a lawyer who is divorce-income tax knowledgeable, or an accountant.

Attorney Michael Stetler of Gitlin, Busche & Stetler strives to achieve the best possible post-tax results for clients through effective asset selection and tax consequence arbitrage.  He enjoys working with financial documents, understands and can speak effectively with numbers.  His background in taxation and accountancy brings a welcome perspective to Gitlin, Busche & Stetler.

Putative Father Registry

Q:  What is the Putative Father Registry?

A:  To keep from forfeiting his parental rights, a father must register his claim for paternity within 30 days after the child's birth.  The registration is with the Department of Children and Family Services.

Q:  How is paternity proved?

A:  The usual method is by DNA testing.  These test results can pinpoint whether a man is a child's father with better than a 99% likelihood.

Q:  What if the mother wants to place the child for adoption?

A:  If the identity of the father is known, he must consent to the adoption (unless he did not register with the Putative Father Registry within 30 days of the birth of the child) or grounds for unfitness, such as abandonment or desertion, exist.  If the identity of the father is not known, a "To Whom It May Concern" notice must be published in a newspaper.

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 Custody

Q: We have "joint custody," with the mother being the residential parent/primary custodian. Doesn*t the joint custody give the father a leg up in gaining residential custody?
A: No. The joint custody does not give the father any advantage.

Q: I originally agreed my husband could have custody, but now my circumstances have greatly improved so that it would be in the best interest of my child to be in my custody. Will I win?
A: Gitlin, Busche & Stetler has been involved in cases where a young parent gives up custody because she does not want the responsibility of raising the child. Some years later she becomes more mature, has made an economically fortunate marriage and she is now ready for parenthood. The modification of child custody statute is, however, specific in stating that the required change of circumstances must be on the part of the child, or the parent having custody, that is, a change of circumstance on the part of the non-custodial parent will not bring about a change of custody.

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. 

Confidential Priveleged Communications

In domestic relations proceedings (divorce, custody, paternity etc.) there is often a concern about who said what to whom and whether those conversations can be admitted into evidence in a trial.  Here are the communications which are considered privileged (and cannot be admitted into evidence) by Illinois law.

Husband and Wife.  They may not testify as to any communication or admission made by either of them to the other, or as to any conversation between them during the marriage, except in actions between the husband and wife, such as divorce, and in actions where the custody, support etc. of their children is in issue.  735 ILCS 5/8-801

Physicians and Patient.  Physicians are not permitted to disclose any information acquired in attending any patient, but there is a string of exceptions such as in trials for homicides, malpractice actions against the physician etc.  For the purpose of this law dentists are considered surgeons.  735 ILCS 5/8-802

Rape Crisis Personnel.  No rape crisis counselor is to disclose any confidential communications without the written consent of the victim.  735 ILCS 5/8-802.1

Personnel Counseling Victims of Violent Crime.  If a person who is a victim of a violent crime makes a statement to personnel counseling such a victim, the statements are considered confidential unless a judge determines that what was said is relevant to the case on trial before the judge.  735 ILCS 5/8-802.2

Clergy.  Because this privilege is complex, the entire statute is quoted.

A clergyman or practitioner of any religious denomination accredited by the religious body to which he or she belongs, shall not be compelled to disclose in any court, or to any administrative board or agency, or to any public officer, a confession or admission made to him or her in his or her professional character or as a spiritual advisor in the course of the discipline enjoined by the rules or practices of such religious body or of the religion which he or she professes, nor be compelled to divulge any information which has been obtained by him or her in such professional character or as such spiritual advisor.  735 ILCS 5/8-803

Attorneys.  Virtually everyone knows that communications between a lawyer and client are confidential except that the lawyer may reveal information about a client to the extent necessary to prevent the client from committing an act that would result in death or serious bodily harm.  RPC Rule 1.6

Blowing the Confidentiality.  If another person is present during your “confidential” consultation with your lawyer, this will blow the confidentiality.  Rules of confidentiality only apply when they are made under circumstances where you expect confidentiality.

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 the children will sometimes have a commitment which interferes with visitation.

For more information on your rights to visitation, 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. 

Negotiation

Q: When do lawyers attempt to negotiate a settlement?
A: Lawyers and parties need to know the facts before they can take settlement positions.  Usually this means that discovery must be completed.

Q: How long does the negotiating process take?
A: This depends on the complexity of the case and what is at issue.  Child custody cases are the most difficult to settle.  Typically the negotiations are by exchange of letters and documents, supplemented by telephone calls and sometimes in person conferences between lawyers.

What do I do if I have been served with summons?

Q: On the petition for dissolution of marriage with which I was served there is stamped a “NOTICE,” which states that the case is set for a “scheduling conference” on a certain date.  Is this the trial date?
A: No.  It is merely a time when the judge determines the status of the case and if necessary the judge schedules future action in the case.

Q: Together with the summons and petition for dissolution of marriage I was served with a “Notice of Motion” with a “Petition for Temporary Relief” attached.  The Notice of Motion states a date, time of day, and identity of a judge before whom my spouse’s attorney is going to appear.  Is this a court date with which I should be concerned?
A: Yes.  Definitely.  This means that the other side is seeking temporary relief, which can be by way of temporary child custody, temporary visitation, temporary maintenance (alimony), attorney fees etc.  It is unwise not to be represented by counsel at a hearing for temporary relief, but if you have not yet had time to retain a lawyer you should appear before the judge at the time and place indicated and ask the judge to continue the hearing to give you an opportunity to hire a lawyer.

Duties and Rights of Children Born out of Wedlock

Q: What significance is there in placing the father’s name on the birth certificate in Illinois? 
A: If it is without the man’s consent, it is of no significance.  If it is with his consent it is evidence of paternity, but does not establish paternity.  The law states that the name of the father should not be entered without his consent. 

Q: Where the parents are in agreement is there a simplified procedure for establishing paternity?
A: Yes.  This can be accomplished by the signing and witnessing of a voluntary acknowledgment of parentage.   The voluntary acknowledgment must be signed by each parent and the signatures of each parent must be witnessed.  The statement should also contain the social security numbers of the parents.  This voluntary acknowledgment of paternity may be used as a basis for seeking a child support order without any further legal proceedings to establish paternity.  This acknowledgment does not establish an obligation for child support.  Child support can only be established by a court order or administrative order by the Illinois Department of Children and Family Services.

Q: What is the Putative Father Registry?
A: To keep from forfeiting his parental rights, a father must register his claim for paternity within 30 days after the child’s birth.  The  registration is with the Illinois Department of Children and Family Services.