Archive for the ‘Prenuptial’ Category
Mediation in Family Law Cases
Mediation is a form of alternative dispute resolution. In a typical mediation setting, the parties meet with a mediator who attempts to assist the parties in resolving their conflict. In a contested family law case, there may be many issues to resolve. For example, many issues upon which people disagree include: how to divide property and debts, with whom a child shall live, whether the parties will share joint legal custody of the child, and whether one party will pay maintenance to another party. While some cases are destined to be decided by the Judge in court because the parties cannot agree, other cases can be resolved more quickly and cheaply through mediation.
A mediator will not make a decision after hearing both parties’ positions, but rather should attempt to guide the parties to a resolution. There are many benefits to mediation. It is usually much less expensive than a divorce trial, it is confidential, and you and the other party control the process of resolving your disputed issues. Mediation can be particularly helpful in child custody cases because it encourages parties to communicate with each other, which will undoubtedly be useful as they continue to raise their child after the court case has been resolved. In Chicago, the Cook County Circuit Court requires parties in a contested custody case to go to mediation before scheduling hearings or a trial on the issue.
Parties can meet with the mediator by themselves or they can bring their respective attorneys. It is best to have an attorney with you during the mediation process so you can be fully advised of your legal rights while negotiating with the other party. If you do not bring an attorney to mediation, you may benefit from reviewing the terms of the proposed agreement with an attorney after mediation is complete. The attorney should go over the agreement with you and advise you about how the terms will affect you. Even if the mediator is an attorney, they are not your attorney and they are not looking out solely for you. Their job is to help you and the other spouse reach an agreement. Your attorney should carefully advise you of what you need to know about your case and will help you assess whether the agreement you reached in mediation is in your best interests.
Mediation may not be appropriate in certain situations. For mediation to be successful, the parties need to have somewhat equal bargaining power. If one party has physically or emotionally abused the other party, mediation is not recommended. Mediation may not work in this situation because the abused party may give in to the other party’s demands due to a fear that they will be abused again.
Mediation can be a great way for parties to resolve their family law case, and it is become more popular. If you have any questions about mediation in family law proceedings, call Chicago divorce attorneys The Witt Law Firm, P.C. at (312) 948-9884 or email info@thewittlawfirm.com. The above blog post does not constitute legal advice. Please discuss your specific rights with an attorney in your jurisdiction.
Factors Considered By the Court When Awarding Maintenance
In Illinois divorce cases, the term “maintenance” refers to spousal support and used to be known as “alimony.” The Illinois legislature created a guiding formula to calculate a minimum amount of child support. However, the legislature did not provide such a formula for determining when maintenance should be awarded and how much the maintenance award should be.
Instead, Illinois law outlines several factors for a court to consider when awarding maintenance:
1 the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance;
2. the needs of each party;
3. the present and future earning capacity of each party;
4. any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;
5. the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment;
6. the standard of living established during the marriage;
7. the duration of the marriage;
8. the age and the physical and emotional condition of both parties;
9. the tax consequences of the property division upon the respective economic circumstances of the parties;
10. contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;
11. any valid agreement of the parties; and
12. any other factor that the court expressly finds to be just and equitable.
There are also several Illinois cases that provide guidance on when maintenance is awarded in divorce cases. Every case is different and has unique facts that affect whether maintenance may be awarded. If you want to be awarded maintenance or if you believe that you may be ordered to pay maintenance to your spouse, you should discuss your case with an experienced family law attorney. People can also address the right to receive maintenance upon divorce in a prenuptial agreement or a postnuptial agreement. If you have any questions about maintenance, call Chicago divorce attorneys The Witt Law Firm, P.C. at (312) 948-9884 or email info@thewittlawfirm.com. The above blog post does not constitute legal advice. Please discuss your specific rights with an attorney.
Defining Marital and Non-Marital Property
One of the most important tasks for Illinois courts in a divorce case is to divide the divorcing parties’ property. Before a court can divide the parties’ property, it must first determine whether property is marital or non-marital.
Illinois law presumes that any property acquired by a spouse during the marriage is marital property. This may include earned income, personal property, cars, real estate, investments, etc. Contributions to retirement accounts are also presumed to be marital property. Property may be marital even if it is titled in only one spouse’s name. Illinois courts divide marital property in an equitable manner. This does not necessarily mean that the court will divide the property equally in half between the parties. One party may be awarded a larger portion of the marital property if the court believes such a division to be appropriate under the circumstances.
Illinois law also outlines certain categories of non-marital property. A court can assign a party’s non-marital property to him or her after the divorce. Non-marital property includes the following:
1. property acquired by gift, legacy or descent;
2. property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent;
3. property acquired by a spouse after a judgment of legal separation;
4. property excluded by valid agreement of the parties;
5. any judgment or property obtained by judgment awarded to a spouse from the other spouse;
6. property acquired before the marriage;
7. the increase in value of property acquired by a method listed in paragraphs 1 through 6 of this subsection, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, and it may subject to the right of reimbursement;
8. income from property acquired by a method listed in paragraphs 1 through 7 of this subsection if the income is not attributable to the personal effort of a spouse.
A good family law attorney will be able to gather the property information in order to properly classify property as marital or non-marital. The process of gathering this information is called “discovery.” Occasionally, information revealed in discovery can help a party argue that non-marital property should be turned into marital property and be subject to division by the court. This is one of the reasons why it is important for people to conduct discovery in divorce cases.
If you have any questions about classifying property as marital or non-marital, call Chicago divorce attorneys The Witt Law Firm, P.C. at (312) 948-9884 or email info@thewittlawfirm.com. The above blog post does not constitute legal advice. Please discuss your specific rights with an attorney.
Infidelity Clauses in Prenups and Post-Nups
The press has reported that a number of celebrities have “infidelity clauses” in their prenuptial agreements. Jessica Simpson, Catherine Zeta-Jones, and Chelsea Clinton are said to have prenups that entitle them to large financial payments if their husbands commit infidelity. Sandra Bullock was reported to have a prenup with her ex, Jesse James, that provided that he would get no marital funds or marital property if he cheated and they divorced. Apparently, this did not keep Jesse from cheating but it probably allowed Sandra to keep all marital income and property.
In Illinois, cheating clauses in prenups can be enforceable if the infidelity can be proven and the prenup meets the requirements of Illinois law. Since wives cheat also I wonder why we do not hear about infidelity clauses being mutual. It could strengthen the enforceability of the clause if it applied to both parties. As long as the legal requirements are met, it is up to the individuals entering into a prenup whether to include an infidelity clause and whether it should apply only to one person or to both. A downside to include a cheating clause in a prenup is that proving the cheating could make the divorce more expensive and protracted. Since one of the reasons for having a prenup is to make divorce less expensive and quicker, cheating clauses are not common. If there are significant assets and high income at stake, however, including an infidelity clause in a prenup may make sense.
Infidelity is usually irrelevant in an Illinois divorce and does not affect how marital property is divided or whether alimony (“maintenance”) is awarded. If a Chicago couple wants infidelity to matter in the event they divorce, a premarital, or post-nuptial, agreement could be the answer. Proving infidelity will usually add to the cost and duration of a divorce. If there is not a lot of money at stake including a cheating clause may not make good financial sense.
If you have questions about premarital or post-nuptial agreements, call Chicago divorce lawyer Tanya Witt at (312) 948-9884 or email info@thewittlawfirm.com. The Witt Law Firm, P.C. represents men and women in Chicago, Lake County, DuPage County, and Will County needing premarital and post-nuptial agreements as well as divorce. The above blog post does not constitute legal advice. Please discuss your specific rights with an attorney.
Jewish Prenup and Divorce Issues
In Jewish wedding ceremonies, the couple signs a ketubah, a Jewish prenuptial contract. Historically, a ketubah was signed to protect a wife and specified the husband’s obligations to her. Ketubot (plural of ketubah) stated a financial settlement the wife was to receive should the husband divorce her or die. Today, most Jewish couples view the ketubah as symbolic and not an enforceable Illinois prenuptial contract. However, some Jewish couples include the optional Lieberman Clause in their ketubah and this can have signficiant legal implications that the couple may not realize.
The Lieberman Clause was created in the middle of the 20th century by a professor to address the problem of “chained wives” not getting the “get“, or a Jewish divorce. Under Jewish law, until the husband choses to present his wife with a bill of divorce (the get), the couple is still married and the wife may not remarry or have children with another man. If the husband does not voluntarily give his wife a get and she has children with another man, even after obtaining a secular divorce, her children are mamzer (“bastards”) under Jewish law. Under Jewish law, a mamzer may only marry another mamzer and not a Jew. Further, the descendents of mamzer are also mamzer and the inherited stigma status continues for 10 generations or, to some rabbis, forever. So, it is very important to many divorcing women that they obtain a get. Some husbands used the get as leverage in divorce negotiations. Professor Lieberman created the Lieberman Clause in an attempt to address the problem of men not providing a get to their soon to be ex-wives. The issue is that the Lieberman Clause states that in the event of divorce, the divorce will be adjudicated or decided by the rabbinic court (the Beth Din). This means that issues of alimony, child custody, property division could be decided by the rabbis sitting on the Beth Din and not by the secular court of law. Thus, the Lieberman Clause introduces legal ambiguity that could be detrimental.
During my research, I came across what may be a solution and alternative to the legal ambiguity caused by the Lieberman Clause. If you have questions about your ketubah or your get, call the Chicago family law and divorce law firm, The Witt Law Firm, P.C., at (312) 948-9884 or email info@thewittlawfirm.com. The above blog post does not constitute legal advice. Please discuss your specific rights with an attorney.
Why Prenuptial Agreements Are On The Rise
Reuters reports that prenuptial agreements are on the rise and not just among affluent couples. Prenuptial agreements can protect against debt, assign who gets to keep pets and contain adultery clauses. More middle-class couples are signing prenuptial agreements and more women are requesting them. Because prenuptial agreements can protect against debt they can be beneficial to couples at all income levels. An agreement can aim to protect one spouse from debt accumulated by the other spouse prior to marriage. The contracts can contain payment provisions or a “signing bonus” for a spouse who sacrifices his or her career for the marriage. An example, is a couple that decides one of them will sacrifice his or her career because the other spouse has a career that requires frequent relocations. Also gaining in popularity are provisions that protect retirement benefits in the event of divorce. The American Academy of Matrimonial Lawyers (AAML) recently polled its membership regarding prenuptial agreements. Three-quarters of the attorneys who responded to the poll reported that prenuptial agreements have increased in popularity in the last five years and over half said more women are requesting them. If you have questions about prenuptial agreements, call me — Chicago divorce lawyer Tanya Witt at (312) 948-9884 or email info@thewittlawfirm.com. The above blog post does not constitute legal advice. Please discuss your specific rights with an attorney.
More Large Companies are Hiring Small Law Firms
The American Bar Association Journal reports that more large companies are hiring small law firms than in the past. For example, AutoNation hired a 7-lawyer firm in Fort Lauderdale to handle some of AutoNation’s legal needs. Having worked in several large law firms and also having practiced in my own boutique firm, I can see why. Solo attorneys and small firms are usually much more efficient. Large firms often have oversized, overpriced offices and lots of support staff such as secretaries and receptionists. In my large firm experience, I found that secretaries added to the expense but did not streamline or improve the practice. Most of us noticed we almost always had to correct secretarial mistakes and eventually found we got a better finished product and a quicker turn-around if we prepared and transmitted our own documents and communicated with clients directly. So the efficiency of solo attorneys and small firms translates to greater service and value to the client. Also, solo attorneys and small firms usually work with a smaller number of clients compared to large firms so each client receives more customized service. When an attorney has a smaller number of clients, keeping every client very satisfied is a high priority. And the bottom line is solo attorneys and small firms usually cost significantly less because they are more efficient with less support staff and overhead. Lastly, I started my own practice because the large firms did not want to work with start-up or small businesses. They looked down at start-ups and smaller businesses. I find it very satisfying to work with a start-up business and help it grow and succeed.
