Except for parenting time, almost everything in an Illinois divorce is about who owes what to whom. The transfer of assets, debts and other financial transactions are done pursuant to the orders that were entered by the Illinois divorce court. When a transaction that was ordered does not occur on time, the party owed the money has a money judgment. A money judgment is “a court’s official decision with respect to the rights and obligations of the parties to a lawsuit…A judgment, of course, may require one party to pay money to another.” In re Marriage of Logston, 469 NE 2d 167 – Ill: Supreme Court 1984 If a Marital Settlement Agreement provides for a lump sum payment as part of a distribution of marital assets, the Marital Settlement Agreement itself is a money judgment. In the case of child support or maintenance payments “[w]here a money obligation is payable in installments, a separate cause of action accrues on, and the limitations period begins to run against, each installment as it becomes due.” In re Marriage of Smith, 806 NE 2d 727 – Ill: Appellate Court, 2nd Dist. 2004 For missed payments, the money owed is the money owed upon when it was due to be paid…not based on an order memorializing the amount owed. “[J]udgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied” 735 ILCS 5/2- 1303(a) 9% is a lot! A 9% interest rate will cause the money owed to double every 11 years at simple interest. Good luck getting an investment with that guarantee. From 1992 to 2021, the stock market went up 9.89% (with lots of swings in between). That 9% rate goes back as far as the court reasonably finds the amount was owed. “When judgment is entered upon any award, report or verdict, interest shall be computed at the above rate, from the time when made or rendered to the time of entering judgment upon the same, and included in the judgment.” 735 ILCS 5/2- 1303(a) Interest on an Illinois judgment needs to be calculated a particular way. “It is well-established in Illinois that this accrual of interest is simple interest and not compound interest.” Halloran v. Dickerson, 679 NE 2d 774 – Ill: Appellate Court, 5th Dist. 1997 Simple interest is “interest paid on the principal only and not on the accumulated interest.” Black’s Law Dictionary (11th ed. 2019) Compound interest is “interest paid on both the principal and the previously accumulated interest.” Black’s Law Dictionary (11th ed. 2019) Simple interest accumulates slightly slower than compound interest. For example 9% interest doubles the amount owed every 11 years under simple interest whereas 9% interest doubles the amount owed every 8 years under a compound interest rate. No one pays what they owe on the anniversary of the money judgment. You have to divide the year to determine how much interest is owed. “In all computations of time, and interest and discounts, a month shall be considered to mean a calendar month, and a year shall consist of twelve calendar months; and in computations of interest or discount for any number of days less than a month, a day shall be considered a thirtieth part of a month, and interest or discount shall be computed for such fractional parts of a month upon the ration which such number of days shall bear to thirty.” 815 ILCS 205/10 Like most word problems, interest calculations in an Illinois divorce is best explained by example. “Assume [a judgment of ] $10,000. The…judgment is entered on June 30, 1995. To determine the amount of interest that would be owed on August 7, 1996, the following method applies. Interest stops accruing on any amount that is actually paid. “Interest shall be computed and charged only on the unsatisfied portion of the judgment as it exists from time to time. The judgment debtor may by tender of payment of judgment, costs and interest accrued to the date of tender, stop the further accrual of interest on such judgment notwithstanding the prosecution of an appeal, or other steps to reverse, vacate or modify the judgment.” 735 ILCS 5/2- 1303(a) The problem is that people who owe money usually want to make a deal when they actually pay what they owe. Don’t be surprised when your ex says “I know I owe you $ 30,000 with interest but if I pay you everything today…how about we knock off the interest.” Well, I love to negotiate…but it does not work that way. Debts are only extinguished by tender. Tender is “a valid and sufficient offer or performance, specif., an unconditional offer of money or performance to satisfy a debt or obligation” Black’s Law Dictionary (11th ed. 2019) “It is settled…that a “tender” under section 2-1303 must be an unconditional offer to pay. The law is also clear that, to satisfy the obligation, the “tender” must include the full amount due and owing, including the judgment, costs, and postjudgment interest; anything less is insufficient.” Jacobs v. Yellow Cab Affiliation, Inc., No. 1-18-2462, 7 (Ill. App. Ct. 2020)(citations omitted) “As a general rule, a tender must include everything to which the creditor is entitled, and a tender of any less sum is nugatory and ineffective as a tender. [Tender] must include interest due and costs then due as accrued. It is the duty of the debtor to make sure that his tender is sufficient in amount.” Smith v. Gen Co. Corp., 296 NE 2d 25 – Ill: Appellate Court, 3rd Dist. 1973 (citations omitted) “[A] partial payment of the total amount owed is credited by applying the payment first to the accrued postjudgment interest, and only after all interest has been paid does the judgment amount begin to be reduced by any payments made.” Halloran v. Dickerson, 679 NE 2d 774 – Ill: Appellate Court, 5th Dist. 1997 If you disagree with what you owe, you can still pay what you might owe while you appeal to stop the interest from accumulating if an appeals court does not agree with you. “[I]t is well established that the payment or satisfaction of a money judgment by a judgment debtor does not bar the prosecution of a writ of error or an appeal by such judgment debtor.” Pinkstaff v. Penn. Railroad Co., 202 NE 2d 512 – Ill: Supreme Court 1964 If you are worried about interest on money owed in an Illinois divorce, the actual amount owed must be significant. Contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney. Via https://rdklegal.com/interest-on-money-owed-in-an-illinois-divorce/
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A divorce has a lot of moving financial parts. Divorcing people are earning money. Divorcing people are spending money. Divorcing people are selling assets. Divorcing people are buying things. As my dad used to say when he held up a coin, “It’s made round to go ‘round.” How do we keep track of this marital money as the parties inevitably divide their financial connection entirely in a final Illinois divorce judgment. Often, an Illinois divorce court will order that marital money be held in escrow until further order of court. Escrow is “[a] writing, deed, money, stock or other property delivered by the granter, promissor or obliger into the hands of a third person, to be held by the latter until the happening of a contingency or performance of a condition, and then by him delivered to the grantee, promissee or obligee. A system of document transfer in which a deed, bond or funds is delivered to a third person to hold until all conditions in a contract are fulfilled.” Black’s Law Dictionary (11th ed. 2019) One can imagine many occasions in a divorce where money is presumed to be paid over to the other side…but it’s not certain when or how as the final terms of the divorce are not certain. The most common use of escrow in a divorce case is putting the proceeds from the sale of a marital residence in escrow until the final division of marital assets and debts is agreed or decided on. Typically, one of the attorneys for the divorcing parties holds the money in escrow. The attorneys are not going to steal the money…their licenses are worth way more than the money in escrow. Escrowed money can be ordered by an Illinois divorce court via an injunctive order. To grant injunctive relief, the trial court must find that “(1) the [litigant] has demonstrated a clearly ascertained right in need of protection; (2) irreparable injury will occur without the injunction; (3) no adequate remedy at law exists; and (4) there is a probability that the plaintiff will succeed on the merits of the case.” Village of Westmont v. Lenihan, 301 Ill. App. 3d 1050, 1055 (1998) Usually, injunctive relief does not apply to money because money is fungible. You can always make more money and pay what you owe with that new money. Therefore, when it comes to money, injunctions are not appropriate because an “adequate remedy at law exists” Furthermore, an Illinois divorce court ordering money into escrow can amount to a prejudgment attachment. “Attachment is a remedy by which a party’s property is secured and held to satisfy a debt that the other party hopes to prove.” Carriage Way Apartments v. Pojman, 527 NE 2d 89 – Ill: Appellate Court, 2nd Dist. 1988 People’s money should not be seized until we definitely know who is the rightful owner. This is America! “[T]here is no such thing as equitable attachment in this State and the theory of taking away the control of a person’s property by means of an injunction for the purpose of anticipating a judgment which may or may not thereafter be obtained by a litigant is abhorrent to the principles of equitable jurisdiction.” Lewis v. West Side Trust & Savings Bank (1937), 288 Ill. App. 271, 278, An Illinois court order to put money in escrow is not a prejudgment attachment if “the trial court was exercising its equitable power to protect the two minor children and their right to support.” In re Marriage of Patel, 2022 IL App (1st) 211650 However, when the money is likely to be used and never seen again, “dissipated,” and the money should be used for child support THEN an injunction may be allowed. “[T]he purpose of the preliminary injunction was to prevent respondent from dissipating assets that could eventually provide for her legal remedy. For the same reason, we reject respondent’s contention that the third criterion—the adequacy of legal remedies was not established because petitioner could recover the past-due support through legal remedies.” In re Marriage of Davenport, 388 Ill. App. 3d 988, 991 (Ill. App. Ct. 2009) This means that if there is not a past due child support obligation…there should never be an order for escrowing any funds in an Illinois divorce. Illinois divorce courts do not need a full hearing to issue an injunction to escrow marital funds. Illinois divorce courts only need “a fair question as to the existence of the right claimed and that the circumstances lead to a reasonable belief that the moving party will be entitled to the relief sought.” Village of Westmont v. Lenihan, 301 Ill. App. 3d 1050, 1055 (1998) A judge should, however, entertain some argument about whether to escrow marital funds otherwise the the order becomes “sua sponte.” So “important are the basic principles of our system that a party receive notice and an opportunity to respond to a potentially dispositive motion.” Peterson v. Randhava, 729 NE 2d 75 – Ill: Appellate Court, 1st Dist., 1st Div. 2000 “By its very nature, a sua sponte ruling deprives a party of notice and an opportunity to raise objections because the court acts on its own and without any warning.” Peterson v. Randhava, 729 NE 2d 75 – Ill: Appellate Court, 1st Dist., 1st Div. 2000 The escrowed money remains in escrow until further order of court. Money can “be held in escrow pending the trial of the cause. If there is any inequity in this temporary order it can be addressed in the trial court at the hearing for permanent maintenance and division of marital property and debts.” In re Marriage of Meyer, 557 NE 2d 242 – Ill: Appellate Court, 1st Dist. 1990 Once that order to escrow the funds is entered…good luck reversing that order. “The order to place [money] into an escrow account is similar to interim or temporary orders entered in dissolution proceedings wherein relief was granted but not found to be injunctive [and therefore not appealable] in nature for purposes of appeal.” In re Marriage of Tetzlaff, 711 NE 2d 346 – Ill: Appellate Court, 1st Dist., 6th Div. 1999 “The decision to grant or deny a preliminary injunction rests within the sound discretion of the trial court, and the decision will not be disturbed on review absent an abuse of discretion. ” In re Marriage of Davenport, 388 Ill. App. 3d 988, 991 (Ill. App. Ct. 2009) Any order regarding the money beyond placing the money in escrow is appealable, however. An “injunction [is appealable that] requires a party to do far more than place certain funds in an escrow account. [An injunction is appealable if the injunction] requires a party to list a piece of real property for sale, sell the property, and then distribute the proceeds of the sale to the court for apportionment. [Such an] order is not “temporary”…because it requires specific performance and it requires the alienation of a unique asset instead of just concerning the mere location of a pool of money. The trial court’s order in [such a] case cannot be undone—it is a mandatory permanent injunction appealable under Illinois Supreme Court Rule 307” IN RE MARRIAGE OF ROMAN-KROCZEK AND KROCZEK, 196 NE 3d 1102 – Ill: Appellate Court, 1st Dist., 2nd Div. 2021 Make sure money doesn’t just disappear. Get that money ordered to be put in escrow properly. Alternatively, do not let your hard-earned money be put in escrow if there is no equitable reason…and there’s only one equitable reason: past due child support. Either way, hire an experienced Illinois divorce attorney to make sure your money is kept where it belongs. Contact my Chicago, Illinois family law firm today to get a free consultation. Via https://rdklegal.com/escrow-in-an-illinois-divorce/ When a divorce is filed in Illinois…that divorce is filed somewhere. The legal location of a divorce is called the venue. Venue is “the county or district in which a case is to be tried.” Black’s Law Dictionary (11th ed. 2019) The final decisions regarding a divorce will be made in a specific venue. “Venue. The proceedings shall be had in the county where the plaintiff or defendant resides” 750 ILCS 5/104(a)(note: this is the only time the Illinois Marriage and Dissolution of Marriage Act refers to the parties by the antiquated and adversarial terms “plaintiff or defendant. In the rest of the Act the parties are “Petitioners or Respondents”) An Illinois divorce must be filed with the circuit clerk of the county where either the Petitioner (the person who files the divorce first) lives or where the Respondent (the other party to the marriage and future divorce) lives. Forum Non Conveniens Between Different Illinois Counties There can be a great deal of gamesmanship when the two parties do not live in the same Illinois county. The practice of family law varies greatly county to county in Illinois. Some counties lean strongly into the rules (I, obviously, love those counties) while other counties become more personality based (thankfully, my personality is that of a 17 year veteran in the Cook County Domestic Relations division). The experienced Illinois divorce attorney will file a divorce in the county which is likely to benefit his or her client. When the respondent discovers that the divorce is filed in a county they do not live in whose procedure could provoke an adverse outcome, the respondent may object to the venue by citing the doctrine of forum non conveniens. Forum non conveniens is “a doctrine allowing a court with jurisdiction over a case to dismiss it because the convenience of the parties and the interest of justice would be better served if the case were brought in a court having proper jurisdiction in another venue.” Black’s Law Dictionary (11th ed. 2019) In Illinois, “forum non conveniens is an equitable doctrine founded in considerations of fundamental fairness and the sensible and effective administration of justice…This doctrine allows a trial court to decline jurisdiction when trial in another forum ‘would better serve the ends of justice.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 442 (2006)(quotations omitted) The burden of proving that the forum is inconvenient rests on the party trying to change the venue. “The burden is on the party asking for the dismissal to show that the relevant factors strongly favor transfer.” Koss Corp. v. Sachdeva, 975 NE 2d 236 – Ill: Appellate Court, 1st Dist., 6th Div. 2012 There are “private and public interest factors to be considered in applying the doctrine of forum non conveniens.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 443 (2006)(quotations omitted) The private interest test as to whether a court should dismiss the current county’s jurisdiction over an Illinois divorce case is as follows: The current court should consider “(1) the convenience of the parties; (2) the relative ease of access to sources of testimonial, documentary, and real evidence; and (3) all other practical problems that make trial of a case easy, expeditious, and inexpensive.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 443 (2006) When considering a forum non conveniens claim “no single factor is controlling.” Erwin v. Motorola, Inc., 408 Ill. App. 3d 261, 274 (2011) Let us work through each of the private interest factors.
“[T]he [respondent] must show that the plaintiff’s chosen forum is inconvenient to the defendant.” (Emphasis added.) Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 443 (2006); Vivas v. Boeing Co., 392 Ill. App. 3d 644, 657 (2009) You cannot argue that the venue is inconvenient to the petitioner…they chose to file it in that county. The Petitioner has to live with that choice. “[O]ne party cannot argue the other party’s convenience.” Ruch v. Padgett, 2015 IL App (1st) 142972, ¶ 40. 2. The relative ease of access to sources of testimonial, documentary, and real evidence In a divorce case, testimonial evidence of potential witnsesses and where those witnesses live weigh heavily. The is especially relevant when there are children whose custody is subject to the divorce. In fact, a divorce with children must proceed where the children live. “A proceeding for the allocation of parental responsibilities is commenced in the county where the child resides.” 750 ILCS 46/604(b) In the year 2023, all documentary evidence conceivably relevant in a divorce would be electronic rendering no inconvenience to any location. Likewise, real evidence (bringing an object into the court room for inspection) is likewise unlikely and, therefore, not a strong factor. The possible exception may be the valuation of immovable items, like real estate, causing the valuator to travel unnecessarily. 3. All other practical problems that make trial of a case easy, expeditious, and inexpensive Do not get too creative while coming up with “other practical problems” which necessitate a transfer. Most venues are not too far from each other. “Cook County and Du Page County are adjacent: the proximity, and the many roads and trains between, reduce any practical problems.” Meier v. Ryan 2023 IL App (1st) 211674 Likewise, do not claim that a local divorce case needs local attorneys. “[T]he location of the parties’ attorneys is accorded little weight in determining a forum non conveniens motion.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 450 (2006) These private tests to determine the validity of a forum non conveniens claim are a really a common sense “totality of the circumstances” test. “A defendant seeking transfer is not required to show that the plaintiff’s choice of forum is inconvenient; rather, transfer is allowed where defendant’s choice is the substantially more appropriate forum.” Czarnecki v. Uno-Ven Co., 339 Ill.App.3d 504, 508, 274 Ill.Dec. 368, 791 N.E.2d 164 (2003) “If, after considering the totality of the circumstances, defendant proves that the balance of circumstances strongly favors transfer, its motion should be granted.” In re Marriage of Mather, 946 NE 2d 529 – Ill: Appellate Court, 1st Dist., 6th Div. 2011 In addition to the private 3-prong test is a public interests test with the following factors “(1) the interest in deciding controversies locally; (2) the unfairness of imposing trial expense and the burden of jury duty on residents of a forum that has little connection to the litigation; and (3) the administrative difficulties presented by adding litigation to already congested court dockets.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 443-444 (2006) Let us work through each of the public factors
Divorces should occur in the county that the marriage largely passed its time in. “In domestic relations cases where the marriage occurred in the same county that the marital home was located and the children resided, there is a strong tie to that county.” In re Marriage of Mather, 946 NE 2d 529 – Ill: Appellate Court, 1st Dist., 6th Div. 2011 2. The unfairness of imposing trial expense and the burden of jury duty on residents of a forum that has little connection to the litigation Illinois divorces do not have juries. “There shall be no trial by jury under th[e Illinois Marriage And Dissolution of Marriage Act].” 750 ILCS 5/103. Furthermore, 80% of Illinois residents live in the Chicagoland area. A drive is not an unfair trial expense. “[T]he unfairness of imposing trial expense is really not a consideration when the two county court locations are only 32 miles apart.” Shirley v. Kumar, 404 Ill.App.3d 106, 112, 343 Ill.Dec. 630, 935 N.E.2d 638 (2010). 3. The administrative difficulties presented by adding litigation to already congested court dockets Usually, “court congestion is a relatively insignificant factor, especially where the record does not show the other forum would resolve the case more quickly” Berbig v. Sears Roebuck & Co., 378 Ill. App.3d 185, 189, 317 Ill.Dec. 721, 882 N.E.2d 601 (2007) As of March, 2023, the publication of this article, Cook County’s domestic relations court system is extremely overburdened. Judges often give trial dates in 2024. A Cook County judge may find this factor extremely compelling. “When deciding forum non conveniens issues, the trial court is in the better position to assess the burdens on its own docket.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 302 (2006) At the end of the day, courts are about power. People with power, judges, can be loath to give up that power. Once a case is in a judge’s jurisdiction, that judge will be inclined to keep that case…and they have plenty of case law to allow them to do so. “Before weighing the relevant factors, a court must first decide how much deference to give to a plaintiff’s choice of forum.” Vivas v. Boeing Co., 392 Ill. App. 3d 644, 657 (2009) “[T]he battle over forum begins with the plaintiff’s choice already in the lead.” First American Bank v. Guerine, 198 Ill. 2d 511, 521 (2002) It is “assumed on a forum non conveniens motion that the plaintiff’s chosen forum is a proper venue for the action…Plaintiff’s choice of forum is entitled to substantial deference.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 442 (2006) Only when the petitioner has chosen a venue different from his home does a court seriously weigh the appropriateness of the forum. When neither the petitioner’s residence is not in the chosen forum, the petitioner’s choice is “entitled to somewhat less deference…the deference to be accorded to a plaintiff regarding his choice of forum is less when the plaintiff chooses a forum other than where he resides…nonetheless the deference to be accorded is only less, as opposed to none.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 442 (2006) (quotations omitted) In a divorce, the only other option for venue is the Respondent’s home…and how can the respondent argue with that venue? Forum Non Conveniens Claims When You Live Outside Of Illinois “Forum non conveniens is applicable when the choice is between interstate forums as well as when the choice is between intrastate forums.” Glass v. DOT Transportation, Inc., 393 Ill. App. 3d 829, 832 (2009). Usually, a divorce occurring in Illinois that should occur in another state has a bunch of better jurisdictional arguments than forum non conveniens. The Illinois “Code Of Civil Procedure” has much better arguments to move your divorce case out of Illinois than the forum non conveniens claim outlined above in this article. “Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts: (1) The transaction of any business within this State; (2) The commission of a tortious act within this State; (3) The ownership, use, or possession of any real estate situated in this State; (4) Contracting to insure any person, property or risk located within this State at the time of contracting; (5) With respect to actions of dissolution of marriage, declaration of invalidity of marriage and legal separation, the maintenance in this State of a matrimonial domicile at the time this cause of action arose or the commission in this State of any act giving rise to the cause of action; (6) With respect to actions brought under the Illinois Parentage Act of 1984, 1 as now or hereafter amended, or under the Illinois Parentage Act of 2015 2 on and after the effective date of that Act, the performance of an act of sexual intercourse within this State during the possible period of conception; (7) The making or performance of any contract or promise substantially connected with this State; (8) The performance of sexual intercourse within this State which is claimed to have resulted in the conception of a child who resides in this State; (9) The failure to support a child, spouse or former spouse who has continued to reside in this State since the person either formerly resided with them in this State or directed them to reside in this State; (10) The acquisition of ownership, possession or control of any asset or thing of value present within this State when ownership, possession or control was acquired; (11) The breach of any fiduciary duty within this State; (12) The performance of duties as a director or officer of a corporation organized under the laws of this State or having its principal place of business within this State; (13) The ownership of an interest in any trust administered within this State; or (14) The exercise of powers granted under the authority of this State as a fiduciary.” 735 ILCS 5/2-209(a) If you don’t like where your Illinois divorce is, you’d better file a motion for dismissal. If you live in another Illinois county use the doctrine of forum non conveniens. If you live in another state, dismiss the case under the Code of Civil Procedure. Either way, contact an experienced Illinois divorce attorney to make sure you best argue your case. Via https://rdklegal.com/forum-non-conveniens-in-an-illinois-divorce/ When parents split up they must immediately make arrangements to keep the children’s lives and schedules as stable as possible. Maintaining a consistent schedule for the children is difficult in the opening phases of a divorce. Typically, one parent disappears from the home at the initial stages of the divorce and is absent from the children’s lives until further orders are made for temporary visitation and then final custody. What happens to visitation and custody at the beginning of a divorce or parentage action before any orders are entered? It first has to be determined whether the courts even consider the parents to have any rights over the child. Determining Who Is A Parent When There Is No Court Order In Illinois If the parties are not married, the father is not deemed to have any presumptive rights until a court has adjudicated him to be the parent. To adjudicate Is to “rule on judicially” Black’s Law Dictionary (11th ed. 2019). “An individual may not be adjudicated to be a parent unless the court has personal jurisdiction over the individual” 750 ILCS 46/603(b) The father will not be deemed a parent with rights until an order is issued by the court confirming they are the father. Until the unmarried father of a child declares himself the father via court order…he has no rights to that child. Declaring yourself the father is as simple as signing the Voluntary Acknowledgment of Paternity. “Voluntary acknowledgment. A parent-child relationship may be established voluntarily by the signing and witnessing of a voluntary acknowledgment” 750 ILCS 46/301 Mothers (due to biology) are automatically conferred rights to the child. “The parent-child relationship is established between a woman and a child by:(1) the woman having given birth to the child” 750 ILCS 46/201(a) Married parents are presumed to the parent of the child without a court order. “A person is presumed to be the parent of a child if:(1) the person and the mother of the child have entered into a marriage, civil union, or substantially similar legal relationship, and the child is born to the mother during the marriage, civil union, or substantially similar legal relationship” 750 ILCS 46/204(a) If the parties are married…nothing happens before an order is entered. If the parents are married, the court presumes both parents have their children’s best interests. The court won’t intercede regarding a married couple’s parenting time until asked. “It is presumed both parents are fit and the court shall not place any restrictions on parenting time… unless it finds by a preponderance of the evidence that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health.” 750 ILCS 5/602.7(b) Determining the custody of a child before an order is entered is really determining the parenting time of each parent until the final issues are adjudicated. Parenting Time Before A Court Order Is Entered In Illinois Parents who are legally presumed to be the parents of the child without a court order still don’t have an automatic visitation schedule….even if they are presumed to be a fit parent. Parents can agree to a temporary parenting schedule at any moment once a divorce or parentage action is filed. “A court may order a temporary allocation of parental responsibilities in the child’s best interests before the entry of a final allocation judgment.” 750 ILCS 5/603.5(a) But, if you could agree on a parenting schedule…you probably would not need a court order. Parents who cannot agree on a schedule before a court order is entered must manage their best (after all, they are the grown ups) while the file and wait on a motion for temporary parenting time to be entered. A motion for temporary parenting time will not be heard immediately. In Cook County, Illinois, you cannot bring parenting time motions before the court as an emergency. “Absent the risk of imminent harm or severe prejudice, the following matters will generally not be heard as an emergency: Motions to establish or modify custody, set child support, paternity, or visitation, unless risk of imminent harm to child” Cook County Domestic Relations Administrative Order 2021 AO 3(2) You will have to co-parent for some time before the court issues an order for visitation. This time between filing the petition for temporary parenting time and the court ordering parenting time is crucial…because it will show the court how you behave when there are no orders. When awarding temporary and permanent parenting time, an Illinois domestic relations court will consider the “[t]he willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” 750 ILCS 5/602.5(c)(11) and 750 ILCS 5/602.7(b)(13) The parent who denies parenting time to the other parent in the absence of the order can expect that singular factor to weigh heavily in the mind of the court. “Any temporary allocation shall be made in accordance with the standards set forth in Sections 602.5 and 602.7: (i) after a hearing; or (ii) if there is no objection, on the basis of a parenting plan that, at a minimum, complies with subsection (f) of Section 602.10.” 750 ILCS 5/603.5(a) Furthermore, an Illinois domestic relations court will likely appoint a Guardian Ad Litem or Child Representative to investigate the parenting dynamic before ordering parenting time. “As soon as practicable, the child representative, attorney for the child or guardian ad litem shall interview the child, or if the child is too young to be interviewed, the attorney should, at a minimum, observe the child. The child representative, attorney for the child or guardian ad litem shall also take whatever reasonable steps are necessary to obtain all information pertaining to issues affecting the child, including interviewing family members and others possessing special knowledge of the child’s circumstances. A parent’s behavior before and after an order is entered will be in that Guardian Ad Litem’s report to the judge. Subsequent Orders For Parenting Time In An Illinois Divorce Or Parentage Action. Temporary parenting time orders are NOT final. A temporary order “terminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed. 750 ILCS 5/501(d)(3) Each parent must submit a proposed final parenting plan within 120 days of filing their petition for dissolution or petition for parentage. “All parents, within 120 days after service or filing of any petition for allocation of parental responsibilities, must file with the court, either jointly or separately, a proposed parenting plan.” 750 ILCS 5/602.10(a) Eventually the court will propose or agree to a final schedule with the child based on the parent’s best interests. “The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 5/602.7(a) If that final parenting time order never gets entered…any temporary orders get extinguished and you are back to square one. “A temporary order allocating parental responsibilities shall be deemed vacated when the action in which it was granted is dismissed, unless a parent moves to continue the action for allocation of parental responsibilities filed under Section 601.5.” 750 ILCS 5/603.5(b) Kidnapping And Abduction When There Is No Parenting Time Order In Illinois If one parent takes the child without the other parent’s permission, that is not kidnapping. Kidnapping in Illinois is the “[c]onfinement of a child under the age of 13 years is against his will within the meaning of this Section if such confinement is without the consent of his parent or legal guardian.” 720 ILCS 5/10 1(d) A parent who has the child is consenting to whatever is going on…even if the other parent does not consent. You cannot kidnap your own child. But, a parent who withholds a child in the absence of a court order can be guilty of child abduction. “A person commits the offense of child abduction when he or she does any one of the following: … Being a parent of the child, and if the parents of the child are or have been married and there has been no court order of custody, knowingly conceals, detains, or removes the child with physical force or threat of physical force.” 720 ILCS 5/10-5(b)(7) Child abduction is a class 4 felony in Illinois (1 to 3 years in prison). So, both parents (if legally deemed parents) must endeavor to agree to a parenting schedule so as to not technically commit child abduction. Coming to a temporary parenting agreement is not that hard. Each parent used to see the child regularly….just keep doing that. If you cannot agree to a parenting schedule in spirit or in writing, you must go to court. Contact my Chicago, Illinois family law firm to learn more about how to obtain parenting time before and after a court order is entered. Via https://rdklegal.com/who-has-custody-of-a-child-if-there-is-no-court-order-in-illinois/ A deposition is “a witness’s out-of-court testimony that is reduced to writing (usually by a court reporter) for later use in court or for discovery purposes.” Black’s Law Dictionary (11th ed. 2019) “Any party may take the testimony of any party or person by deposition upon oral examination or written questions for the purpose of discovery or for use as evidence in the action.” Ill. Sup. Ct. R. 202 At the end of a deposition, the court reporter will announce, “do you waive signature?” The court reporter is asking if the deponent will certify that everything the court reporter wrote (which originally came out of the deponent’s mouth) is true and correct. “Um, we’re going to read it, first,” will be the standard answer by the deponent’s attorney. Really? Has a court reporter ever grossly misconstrued someone’s deposition testimony to the point where corrections need to be made? Still, it is the deponent’s right to review their testimony for errors. “Unless signature is waived by the deponent, the officer shall instruct the deponent that if the testimony is transcribed the deponent will be afforded an opportunity to review (but not copy or disseminate) the deposition, without charge for the review, and that corrections based on errors in reporting or transcription which the deponent desires to make will be entered upon the deposition with a statement by the deponent that the reporter erred in reporting or transcribing the answer or answers involved.” Ill. Sup. Ct. R. 207 A deponent who said something regrettable at the deposition might think, “I know what I’ll do. I will just refuse to sign the deposition and the transcript will become hearsay because the court reporter wrote it and the court reporter will not be there to testify.” “”Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801 – Definitions, Ill. R. Evid. 801 “Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Supreme Court, or by statute as provided in Rule 101.” Rule 802 – Hearsay Rule, Ill. R. Evid. 802 A deposition transcript (if a spouse testified) is the admission of a party opponent and therefore an exception to the bar against hearsay…which renders the strategy of not signing a transcript to frustrate the other side pointless. “The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity” Ill. R. Evid. 801(d)(2) Even if the deposition is of a third party who is not subject to this hearsay exception, the court will deem the transcript signed after 28 days. “After the deponent has examined the deposition, the officer shall enter upon it any changes the deponent desires to make, with the reasons the deponent gives for making them. If the deponent does not appear at the place specified in the notice within 28 days after the mailing of the notice, or within the same 28 days make other arrangements for examination of the deposition, or after examining the deposition refuses to sign it, or after it has been made available to the deponent by arrangement it remains unsigned for 28 days, the officer’s certificate shall state the reason for the omission of the signature, including any reason given by the deponent for a refusal to sign. The deposition may then be used as fully as though signed, unless on a motion to suppress under Rule 211(d) the court holds that the reasons given by the deponent for a refusal to sign require rejection of the deposition in whole or in part.” Ill. Sup. Ct. R. 207(a)(3) Failure to sign the transcript is not a tactic that makes the other side’s case more difficult at trial. Transcripts unsigned or unfiled can be considered by a court. The transcript must merely exist, be noticed (somehow) and be available. “[W]here the transcripts were available to the opposing party and the opposing party was present, the trial court’s decision to consider the depositions was allowed.” Payne v. City of Chicago, 16 NE 3d 110 – Ill: Appellate Court, 1st Dist., 3rd Div. 2014 The only way to keep a deposition out of evidence in an Illinois divorce hearing or trial is to file a motion to suppress the transcript. “Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after the defect is, or with due diligence might have been, ascertained.” Ill. Sup. Ct. R. 211(d) Court reporters know what they are doing. They will swear the deponent to testify truthfully and accurately take the deponent’s testimony. It will be very difficult to convince a judge that they did otherwise. “If the testimony is transcribed, the officer shall certify within the deposition transcript that the deponent was duly sworn by the officer him and that the deposition is a true record of the testimony given by the deponent. A deposition so certified requires no further proof of authenticity.” Illinois Supreme Court Rule 207(b) Depositions are supposed to make a divorce case clearer not more complicated. Sign the transcript and move on with your life. Do not accept another party’s refusal to sign the transcript as any kind of equivocation…they said what they said. To speak with an experienced Illinois divorce attorney, contact my Chicago, Illinois family law firm today. Via https://rdklegal.com/what-if-the-deponent-does-not-sign-a-deposition-transcript-in-an-illinois-divorce/ After 17 years of divorcing people, I have learned that the average Illinois resident only has two assets: their 401(k) and their home. Their home is worth as much as it would sell for on the open market less than the balance of the mortgage for that home. This amount of surplus in value over what is owed is referred to as the “equity” of the home. The equity of the home is usually divided between divorcing couples via a buyout or a division of proceeds after the sale of the home. When the outstanding mortgage owed is greater than the value of the home, the mortgage is referred to as being “upside down.” When a marital property’s mortgage is upside down, the parties do not divide any value in the home during an Illinois divorce…because there is no net value in a home with an upside down mortgage. Instead, a house with an upside down mortgage has a negative value. That negative value must dealt with during the sale of the house or accounted for if one party keeps the house…and the greater debt. Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 503(d) “”[M]arital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 503(a) (emphasis mine) This is not a new problem. I have been practicing family law since 2006. From 2008 to 2014….all of the houses were worth less than the mortgage against them. It looks like we are going to have a similar situation in the next year or two. Luckily, I remember how we dealt with upside down mortgages three presidents ago. If One Party Gets The House And Remains Responsible For The Mortgage Just because a mortgage has a greater balance than the value of the house does not mean that the house is not worth keeping. The monthly payment of the mortgage may still be a manageable expense for one party. In that case, one party can keep the house and be responsible for the mortgage payments. The mortgage will still remain in both parties names because no lender will allow a refinance of a mortgage that is greater than the value of the underlying property. The party keeping the house promises to indemnify the other party for the debts associated with the assets they are keeping. Indemnification is “the action of compensating for loss or damage sustained.” Black’s Law Dictionary (11th ed. 2019) Every marital settlement agreement should include language similar to that below. “Each party shall and does indemnify the other against any liability for the unpaid past, present, or future debts, taxes, or other liabilities, associated with the assets, liabilities, and income allocated to him or to her pursuant to this Article, except as otherwise provided in this Agreement.” Should the party keeping the house fail to pay the mortgage (which is still under both parties names), the other party can file a contempt petition in divorce court against the party who should pay the mortgage. In the meantime, the party that does not keep the house cannot have their credit tied up in a house that they are not even living in. The party keeping the house should agree to make continuous good faith attempts to refinance the mortgage and, thereby, remove the other party’s obligation. I typically suggest an exchange of 3 good faith refinance attempts a year with a maximum of 3 years to refinance. Furthermore, I suggest the parties contract that a “failure to refinance per the agreement shall result in the immediate sale of the house by a real estate agent to be chosen by [party who didn’t keep the house]. All proceeds to be split equally. All liabilities after the sale shall be born by [party who kept the house].” This language worked fine for the dozens of clients I had from 2008-2014 who used that language in their marital settlement agreements. Presumably, their mortgage balances got small enough and the values of their homes got large enough where they were able to refinance…because I never heard from any of those clients after. Selling A House With An Upside Down Mortgage During An Illinois Divorce If neither party elects to keep the house and the house’s debts. The house must be sold. What happens to the surplus debt after the sale in an Illinois divorce? In theory, the divorcing couple should have to pay the extra money owed against the mortgage after the sale of the house…but that never happens. Instead, the mortgage company will offer the mortgage holders a short sale of their property. A short sale is where the mortgage lender agrees to forgive the balance between the sale of the property and the outstanding mortgage. It is almost always in the mortgage lender’s best interest to cooperate with a short sale. “In exchange for the bank’s forgiveness of the total debt, plaintiffs agreed to walk away with $0 at closing. The advantage to the bank was that it received a substantial amount of the mortgage balance quickly versus having to go through the costly foreclosure process.” Morse v. Donati, 136 NE 3d 1043 – Ill: Appellate Court, 2nd Dist. 2019 Even if neither party to a divorce wants the house or the trouble of selling the house, the parties can still approach the mortgage lender and get away with owing nothing via a deed in lieu of foreclosure. A deed in lieu of foreclosure is “a deed by which the borrower conveys fee-simple title to a lender in satisfaction of a mortgage debt and as a substitute for foreclosure.” Black’s Law Dictionary (11th ed. 2019) Again, it is almost always in the mortgage lender’s best interest to just forgive the mortgage and take the house. “[A] mortgagee may, if he so chooses, accept a conveyance from the mortgagor in order to avoid the expense of proceeding with a foreclosure action.” First Illinois National Bank v. Hans, 493 NE 2d 1171 – Ill: Appellate Court, 2nd Dist. 1986 Sitting in the house while not paying for the mortgage and letting the house go into foreclosure is the worst option. The bank will demand that the house be turned over and that both parties be responsible for the debt against the house. The bank can even intervene in the divorce to be sure they are paid from whatever other assets the parties have. “Upon timely application anyone shall be permitted as of right to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court or a court officer.” 735 ILCS 5/2-408(a) Illinois divorce courts are pretty liberal about adding new parties to divorces. Including intervening parties is really the only way to resolve outstanding and unknown obligations of the divorcing parties. “The court may join additional parties necessary and proper for the exercise of its authority under th[e Illinois Marriage and Dissolution of Marriage Act].” 750 ILCS 5/403(d) If your mortgage is underwater and you are getting divorced in Illinois contact an experienced Illinois divorce attorney to guide you through the process of removing your spouse and possibly your upside down mortgage from your life. Via https://rdklegal.com/illinois-divorce-with-an-upside-down-mortgage/ The divorce process is a massive buildup. You file a petition for dissolution of marriage, you exchange discovery, you participate in pretrials, you finally either settle all issues or take the matter to trial. During the entire divorce process, your soon-to-be-ex-spouse is your opponent. If only there was a way to know what your divorce opponent was thinking during the machinations of your divorce. Actually, there is a way to determine what your spouse is thinking, planning and even what they will testify to at the eventual divorce trial…you can just ask them. During the course of an Illinois divorce you can request to question your spouse at any time in a deposition. A deposition is “a witness’s out-of-court testimony that is reduced to writing (usually by a court reporter) for later use in court or for discovery purposes.” Black’s Law Dictionary (11th ed. 2019) “Any party may take the testimony of any party or person by deposition upon oral examination or written questions for the purpose of discovery or for use as evidence in the action.” Ill. Sup. Ct. R. 202 There are two kinds of depositions: discovery depositions and evidence depositions. “The purpose of a discovery deposition is to explore the facts of the case, and for this reason wide latitude is given in the scope and manner of questioning. In contrast, an evidentiary deposition is generally used for the purpose of preserving testimony for trial, and questioning is therefore limited by the rules of evidence.” In re Estate of Rennick, 692 NE 2d 1150 – Ill: Supreme Court 1998 Evidence depositions are really for putting someone on the record in a quasi-trial because they might not be available at trial (i.e. they’d be dead or out of the country). In a divorce case, a spouse will almost always be deposed as a discovery deposition. “The deponent in a discovery deposition may be examined regarding any matter subject to discovery under these rules. The deponent may be questioned by any party as if under cross-examination.” Ill. Sup. Ct. R. 206(c)(1). (emphasis mine) Depositions can involve “any subject matter”! You can ask your spouse anything. (I’ll address when depositions go too far later in the article.) So, what should you ask your spouse during their deposition? What To Ask Your Spouse During A Divorce Deposition In Illinois Because the possible questions in a deposition are potentially limitless, the initial question is “where do I even start?” I would recommend perusing “Family Law Depositions: 2nd Edition” by John Nichols and Joe Phillips. Mr. Nichols and Mr. Phillips have included generalized versions of hundreds of divorce related depositions on subjects ranging from adultery to invasion of privacy. In that book, you’ll find lots of inspiration for your upcoming deposition…and, hopefully, deflate the stress of questioning your spouse under oath. But, you cannot cut and paste Mr. Nichol’s and Mr. Phillip’s depositions hoping it will work for your spouse’s deposition. Instead, you should customize your deposition questions as I outline below. I attended the National Institute for Trial Advocacy’s (NITA) deposition training course in March of 2023. I was the only divorce lawyer there…but I learned a lot. Nita advocates a theory of conducting depositions called “The Funnel Technique.” The funnel technique is a strategy to organize your deposition questions to maximize the gathering of information and, possibly, extract damaging admissions from your opponent. The theory of the deposition funnel technique is to ask extremely broad questions which eventually get narrowed down into an answer that you (probably) want. The broad questions need to be organized by topic. In an Illinois divorce case, the topics are easy…they are the sections of the Illinois Marriage and Dissolution of Marriage Act. The Illinois Marriage and Dissolution of Marriage Act divides almost every aspect of a divorce into different chapters. These are your deposition funnel technique topics. 750 ILCS 5/501: Temporary Relief 750 ILCS 5/502: Agreement 750 ILCS 5/503: Disposition of property and debts 750 ILCS 5/504: Maintenance 750 ILCS 5/505: Child support; contempt; penalties 750 ILCS 5/506: Representation of child 750 ILCS 5/508: Attorney’s fees; client’s rights and responsibilities respecting fees and costs 750 ILCS 5/510: Modification and termination of provisions for maintenance, support, educational expenses, and property disposition. 750 ILCS 5/513: Educational expenses for a non-minor child. 750 ILCS 5/513.5: Support for a non-minor child with a disability. Virtually every one of these sections directs the court to consider various factors. “The court shall…consider[]… all relevant factors, including:” 750 ILCS 5/503(d), 750 ILCS 5/504(a), 750 ILCS 5/505(a)(2), 750 ILCS 5/510(a-5) These statutory factors are the questions for your topics! For example, the “standard of living” is a factor in temporary motion, maintenance (formerly known as alimony), child support, college expenses and support for a disabled child. You simply ask 6 broad questions about the standard of living to your spouse? “What was your standard of living during your marriage?” “When did you enjoy that standard of living?” “Where did you live when you had that standard of living?” “Why did you have that standard of living?” “How did you achieve that standard of living?” “Who provided for the standard of living” It is just who, what, when, where, why and how for every factor! (Except who always comes last because in a divorce “who” is almost always a rhetorical question). That is the top of the funnel! Now we narrow the funnel in the first stage by filling in what you know about the topic and verifying. Again, be broad the specific questions come later. “You had two luxury cars?” “Those cars were bought in 2019?” “You had the cars shipped back and forth from Illinois and Florida?” “Having a nice car is important to you?” “Where did the money come from for those cars?” Now, you can extrapolate and make logical connections based on what you asked. These questions always begin with a “So”. “So, because you worked hard, you deserved to drive a luxury car?” “So, because your spouse was with you when you worked hard, you got her a luxury car, too?” Then you eliminate any other alternate realities by asking questions that must be answered with a “no.” “When shopping for cars did you go to any used car lots?” “You didn’t consider buying a used car in 2019?” “You didn’t buy any other people a luxury car in 2019? The only cars you bought were for you and your wife?” Now you restate the facts as the deponent told them to you to confirm you got it right? “You worked hard in 2019. You bought yourself and your wife two luxury automobiles. You didn’t even consider a used or lower model car? Is that correct.” Now, you can finally ask a question to get an admission of a party. “Owning a luxury automobile is part of the standard of living for you and your wife, isn’t it?” If they say “yes” then the factor is solidified in black and white coming from the deponent’s own sworn testimony. The deponent now must repeat the same phrase to the divorce judge if asked at trial (or be impeached). If they say “no” then you can go over all the other questions they answered that confirm or imply your gotcha question. They will either eventually say yes…or look like an idiot or a liar. Either way…you are really preparing your cross-examination at trial. Depositions are a great dry run for the eventual cross-examination. “The deponent may be questioned by any party as if under crossexamination.” Ill. Sup. Ct. R. 206(c)(1) Every topic should have a final, ideal question that the other questions lead to. The topic helps you learn. The final, ideal question makes your point. All you need is a topic and a final, ideal question. You can fill in the blanks in between using the funnel method. In between all of this, you can show your spouse the exhibits you intend to use. In the process you can verify their admissibility for a later request to admit. Objections From Your Spouse’s Counsel In An Illinois Divorce Deposition If your deposition is going really well, your spouse’s attorney will try to trip you up by objecting. Objections are barely allowed during discovery depositions, however. The only real objection in a discovery deposition is the question relates to privileged information. “When information or documents are withheld from disclosure or discovery on a claim that they are privileged pursuant to a common law or statutory privilege, any such claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced or disclosed and the exact privilege which is being claimed.” Ill. Sup. Ct. R. 201(n) Other than objecting for privilege, the only thing an attorney defending a deposition can do is ask that the question be restated for clarity. Just comply with objections related to form of the questions. “You want more questions directed towards your client? Don’t mind if I do!” If the deposition defending attorney insists on telling his or her client to refuse to answer the question…he or she can. If the deponent’s attorney has “objections to the questioning during the deposition, he should state, “I’m not allowing my client to answer…” and certify the question to the circuit court.” Badea v. Phillips, 906 NE 2d 615 – Ill: Appellate Court, 1st Dist., 1st Div. 2009 A certified question is “a point of law on which [a litigant] seeks guidance from [a court].” Black’s Law Dictionary (11th ed. 2019) The question can later be brought before the court to determine if the question should, in fact, be answered. An objection does not stop the deposition. “If a party or other deponent refuses to answer any question propounded upon oral examination, the examination shall be completed on other matters or adjourned, as the proponent of the question may prefer.” Ill. Sup. Ct. R. 219(a) The only thing that does stop a deposition is if the attorney defending the deposition deems the line of questioning to be harassing. “At any time during the taking of the deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in any manner that unreasonably annoys, embarrasses, or oppresses the deponent or party, the court may order that the examination cease forthwith or may limit the scope and manner of taking the examination as provided by these rules. An examination terminated by the order shall be resumed only upon further order of the court. Upon the demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to present a motion for an order.” Ill. Sup. Ct. R. 206 Depositions are not nice. They are a series of pointed questions…where the answers are eventually bad for the deponent. If an attorney defending a deposition deems the deposition to be “embarrassing,” immediately suggest that the deposition be covered by a protective order. After all, the questions and answers cannot be embarrassing if they are a secret. How To Use Your Spouse’s Deposition Transcript In An Illinois Divorce A divorce judge is not supposed to hear the contents of a discovery deposition because judges are supposed to use the Rules of Evidence. “[B]y order of the Illinois Supreme Court, the Illinois Rules of Evidence will govern proceedings in the courts of Illinois” Ill. R. Evid. Preamble The rules of evidence don’t apply in a discovery deposition. There are no objections for foundation, relevance, hearsay, etc. in a discovery deposition. When deposing a spouse in an Illinois divorce, you are deposing a party opponent. Statements from an opposing party will be allowed into evidence“[t]he statement is offered against a party and is (A) the party’s own statement” Ill. R. Evid. 801(d)(2) Everything a spouse said in a deposition can be presumed admissible and is, therefor, disclosable to the court. “Statements of a party made during a deposition are admissible as an exception to the rule excluding hearsay when introduced by a party opponent. For this reason, a party and his or her attorney know at the time of the party’s deposition that any statement made could be used as an admission. The evidentiary rules that limit the use of a nonparty witness’ deposition testimony simply do not apply to a party deponent.” In re Estate of Rennick, 692 NE 2d 1150 – Ill: Supreme Court 1998 Your pretrial memo should be ripe with your spouse’s admissions as quoted from the deposition transcript. A judge will likely make strong recommendations based on those admissions. If either party doesn’t accept the judge’s recommendations…you are off to trial. Using The Deposition Transcript At Trial Beyond asking your spouse the same questions you asked at the deposition. You can use the deposition transcript to impeach your spouse at trial should they contradict their previous answers. “Discovery depositions taken under the provisions of this rule may be used only: for the purpose of impeaching the testimony of the deponent as a witness in the same manner and to the same extent as any inconsistent statement made by a witness” Ill. Sup. Ct. R. 212(a)(1) Your marriage started with a question, “Will you marry me?” Likewise, your marriage may end with a barrage of questions…at a deposition. If you would like to learn more about how to properly prosecute your divorce using all the discovery techniques available, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney. Via https://rdklegal.com/how-to-depose-your-spouse-in-an-illinois-divorce/ Parents will immediately offer to help their children, emotionally and financially, when their children get divorced. Some parents actively encourage their children to get divorced. Some parents wish they could take it a step further…and ensure that their ne’er-do-well son-in-laws and daughter-in-laws cannot profit from an inheritance. Can a will actively require a child to divorce a spouse in order for that child to collect an inheritance? You can write anything you want in a will or trust. There is no governing body that oversees wills and trusts for “acceptability.” Once wills and trusts are written, they are executed per the language in the will or trust. “In construing a will, the court’s objective is to ascertain the testator’s intent and to effectuate that intent, provided that it is not contrary to public policy.” In re Estate of Matthews, 948 NE 2d 187 – Ill: Appellate Court, 1st Dist., 4th Div. 2011 If the will or trust says that beneficiary should divorce someone in order to receive the benefit…that’s what the will or trust means. “[T]he plain intention of the settlor may be ascertained from the unambiguous language of the trust agreement.” Storkan v. Ziska, 94 NE 2d 185 – Ill: Supreme Court 1950 The problem with a clause that encourages divorce in a will or trust is that Illinois law, as a whole, tries to encourage marriage. The stated goals of the Illinois Marriage and Dissolution of Marriage Act are to “[S]trengthen and preserve the integrity of marriage and safeguard family relationships.” 750 ILCS 5/102(2) People cannot explicitly create written documents that effectuate things that are against public policy. Public policy is “the principal that a person should not be allowed to do anything that would tend to injure the public at large.” Black’s Law Dictionary (11th ed. 2019) Wills (or portions of wills) can be voided for public policy only “if it is injurious to the interests of the public, contravenes some established interest of society, violates some public statute, is against good morals, tends to interfere with the public welfare or safety, or is at war with the interests of society or is in conflict with the morals of the time.'” Vine Street Clinic v. HealthLink, Inc., 222 Ill.2d 276, 296, 305 Ill.Dec. 617, 856 N.E.2d 422 (2006) (citations and quotes omitted) The first principle of public policy is that wills should be followed based on the intent of the testators (the will writers). “Our case law also demonstrates the existence of a public policy favoring testamentary freedom, reflected in the many cases in which a court strives to discover and to give effect to the intent of a deceased testator or settlor of a trust.” In re Estate of Feinberg, 919 NE 2d 888 – Ill: Supreme Court 2009 While society wants the wishes of the deceased to be followed, society does not want to encourage those wishes to be against the greater good of society (for example, you cannot contract to hire a hitman). Encouraging divorce is against public policy. Therefore, any clause of a will or trust that explicitly requires divorce will not be enforced in Illinois. “A condition to a devise, the tendency of which is to encourage divorce or bring about separation of husband and wife, is against public policy, and void.” Hall v. Eaton, 631 NE 2d 805 – Ill: Appellate Court, 4th Dist. 1994 The right to give away your estate must be balanced against the public policy against divorce. “While it is of the first importance to society that contract and testamentary gifts which are calculated to prevent lawful marriages or to bring about the separation or divorcement of husbands and wives should not be upheld, it is no less important that persons of sound mind and memory, free from restraint and undue influence, should be allowed to dispose of their property by will, with such limitations and conditions as they believe for the best interest of their donees.” Ransdell v. Boston, 172 Ill. 439 – 1898 For example, it is perfectly reasonable to leave more money to a child who is divorced and, therefore, has less resources than they would have otherwise. “Not every encouragement of divorce is objectionable. The interest of parents in advising and protecting their children, even after marriage, is recognized by a privilege to alienate the affections of a spouse, or to induce one spouse to leave another, where that is done to advance what the parents reasonably believe to be their child’s welfare.” Hall v. Eaton, 631 NE 2d 805 – Ill: Appellate Court, 4th Dist. 1994 A term in a will that might tend seem to encourage divorce will still be valid “if the dominant motive of the testator is to provide support in the event of such separation or divorce.” In re Estate of Gerbing, 337 NE 2d 29 – Ill: Supreme Court 1975 The distinction can be more explicitly seen in that an additional award can be allotted if a spouse is dead at the time of the bequest whereas requiring divorce to inherit is invalid. A will would likely include the possibility that the unwanted spouse die before the heir. “By the provisions of the codicil an absolute future estate was created to vest in [the beneficiary] upon the happening of one of two contingencies, viz., his survival of the death of his wife or his becoming divorced from her. The first is a lawful contingency. It is a common provision in wills that a devise or bequest shall vest in certain beneficiaries upon the death of a person named. Such conditions have never been held invalid. The second, as we have shown, is contrary to public policy and therefore void.” Winterland v. Winterland, 59 NE 2d 661 – 1945 Testators can put conditions in their will that encourage what they believe is moral behavior. For example, requiring a child to be married at the time of death in order to inherit is allowed…but requiring a divorce after the death of the testator is not allowed. One rewards behavior that happened while the other requires behavior to happen in the future. “[Testators are] free to distribute their bounty as they saw fit and to favor [beneficiaries] of whose life choices they approved over other grandchildren who made choices of which they disapproved, so long as they did not convey a vested interest that was subject to divestment by a condition subsequent that tended to unreasonably restrict marriage or encourage divorce.” In re Estate of Feinberg, 919 NE 2d 888 – Ill: Supreme Court 2009 Usually, parents and grandparents do not really want to cut their children and grandchildren off completely. Testators just want their heirs to divorce their disliked spouses. Courts can interpret the true intent as wishing to give the beneficiary something despite the void divorce conditions. “[G]athering the testator’s intent from the entire will, that had the testator known that the conditions were void she would have preferred to have absolute title vest in her son rather than to have the gift fail.” In re Estate of Gerbing, 337 NE 2d 29 – Ill: Supreme Court 1975 Parties who contest a will usually are prevented from inheriting anything until the controversy is resolved (this usually eliminates the controversy) “[T]he doctrine of election, which prohibits a party from both accepting a benefit conferred by a will while simultaneously maintaining an action to contest the validity of that document” In re Estate of Joffe, 493 NE 2d 70 – Ill: Appellate Court, 1st Dist. 1986 Beneficiaries who are contesting a will’s clauses as void for public policy do not have to wait to get their uncontroverted inheritance, however. “[E]ven though a person accepts a benefit under the will, he is not precluded from questioning the validity of any provisions of the document that are contrary to the law or public policy.” In re Estate of Boyar, 964 NE 2d 1248 – Ill: Appellate Court, 1st Dist., 4th Div. 2012 This divorce lawyer would be a lot busier if wills and trusts required divorce. Instead, I will use my time to research the complicated convex of divorce and probate law in Illinois. If you’d like to speak with an experienced Illinois divorce attorney, contact my Chicago, Illinois family law firm today. Via https://rdklegal.com/can-a-will-or-trust-encourage-divorce-in-illinois/ There used to be a very specific order in which people did things: they got engaged, they got married, they bought a house and then they had a baby. At least that’s what they told us. Now, people often get engaged, buy a house and then get married (and there might be a baby before or during all of that). What happens to a house that is bought before marriage and/or during an engagement if the couple eventually get divorced in Illinois? Houses bought before marriage are divided depending on who is on the deed. If Both Parties Are On The Deed Before Marriage In Illinois If both parties are on the deed to the house, an Illinois divorce court can divide the property. A deed is “A written instrument by which land is conveyed.” Black’s Law Dictionary (11th ed. 2019) The deed controls who owns the land. If both parties own the land before the divorce, an Illinois divorce court can deem the land/building non-marital property but still divide the land. “[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d) Non-marital property is “property acquired before the marriage” 750 ILCS 5/503(a)(6) “[I]t is the parties’ obligation to present the court with sufficient evidence of…the property [and its value]” In re Marriage of Smith, 114 Ill. App. 3d 47, 54 (Ill. App. Ct. 1983) A divorce court (in theory) should deem the property to be non-marital. Therefore, the property should only divisible via a partition action (but this never happens which I will explain later). “The court shall ascertain and declare the rights, titles and interest of all the parties in such [a partition] action, the plaintiffs as well as the defendants, and shall enter judgment according to the rights of the parties…If the court finds that a division can be made, then the court shall enter further judgment fairly and impartially dividing the premises among the parties with or without owelty. If the court finds that the whole or any part of the premises sought to be partitioned cannot be divided without manifest prejudice to the owners thereof…then the court shall order the premises not susceptible of division to be sold at public sale in such manner and upon such terms and notice of sale as the court directs. If the court orders the sale of the premises or any part thereof, the court shall fix the value of the premises to be sold.” 735 ILCS 5/17-105 This requires the sale of the property (if indivisible…and all houses are indivisible) to be done at a sheriff’s sale. Stadnyk v. Nedoshytko, 2017 IL App (1st) 152103-U No one is going to give you a good price for your house at a sheriff’s sale (which is an auction for distressed properties, usually) So, in lieu of going through a division of assets resulting in a sheriff’s sale, the divorce court can consider the partition action because it includes the same parties as the underlying divorce. Illinois law encourages “the elimination of repetitious suits and the relief of courts and litigants alike from the unnecessary burden of trying the same issues pending in another action.” Skolnick, 32 Ill.2d at 59, 203 N.E.2d 428. Divorce courts have the authority to bypass the partition act and divide the property based on the Illinois Marriage And Dissolution of Marriage Act (which provides a lot more direction). “Where…the primary marital asset is the marital residence, and where that asset is held in multiple tenancy between spouses, it is not an abuse of the chancellor discretion to conclude that the public policy embodied in the Marriage and Dissolution of Marriage Act would be circumvented if the partition action were to proceed.” In re Marriage of Clearman, 407 NE 2d 189 – Ill: Appellate Court, 3rd Dist. 1980 (citations omitted) The Illinois Marriage and Dissolution of Marriage Act allows property to be divided “in just proportions.” This means the court can consider the contributions of each spouse in acquiring the asset and the needs of each spouse after the divorce. Even if contribution and needs arguments do not favor you in the division of a pre-marital house in a divorce, you would still prefer to use the Illinois Marriage and Dissolution of Marriage Act in lieu of a partition action in order to avoid a bargain basement sheriff’s sale price. If One Party Is Not On The Deed Of A House Bought Before Marriage In Illinois If one party is not on the deed to a house purchased before marriage…they are probably NOT going to be awarded any portion of that property. Previously in Illinois, “property purchased prior to marriage but in contemplation of marriage should be classified as marital property.” In re Marriage of Jacks, 558 NE 2d 106 – Ill: Appellate Court, 2nd Dist. 1990 This is NO LONGER THE LAW. The Illinois Marriage and Dissolution of Marriage Act has since been updated. “Property acquired prior to a marriage that would otherwise be non-marital property shall not be deemed to be marital property solely because the property was acquired in contemplation of marriage.” 750 ILCS 5/503(a) Furthermore, the written contract is what governs all land transfers. If your name is not written somewhere associated with the land…you do not own that land in Illinois. “No action shall be brought to charge any person upon any contract for the sale of lands, … interest in or concerning them…unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.” 740 ILCS 80/2 Illinois divorce courts can consider contributions made by the spouse who is not on the title. “When a spouse contributes personal effort to non-marital property, it shall be deemed a contribution from the marital estate, which shall receive reimbursement for the efforts if the efforts are significant and result in substantial appreciation to the non-marital property” 750 ILCS 5/503(c)(2)(B) Those contributions must be proven with specific facts. “No such reimbursement shall be made with respect to a contribution that is not traceable by clear and convincing evidence or that was a gift.” 750 ILCS 5/503(c)(2)(A) Mortgage payments do not count as marital contributions to a non-marital estate. “[A] marital estate is not entitled to reimbursement for mortgage payments toward nonmarital property when the marital estate has already been compensated for its contributions by use of the property during marriage.” In re Marriage of Crook, 813 NE 2d 198 – Ill: Supreme Court 2004 A mortgage payment to a house you do not own is indistinguishable from paying rent. Any reduction in liability and increase in equity due to the mortgage payment is merely reimbursement for the mortgage payment. “[T]he parties benefited from living in the house for a substantial period of time, [so] the court could reasonably have found that the marital estate had already been compensated for its contributions.” In re Marriage of Snow, 660 NE 2d 1347 – Ill: Appellate Court, 4th Dist. 1996 If the mortgage against the house gets subsequently refinanced in both parties’ names without putting the deed in both parties’ names, that debt becomes a marital debt. “”[M]arital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 503(a) (emphasis mine) That marital debt can then be allocated between the parties. Because the property is fixed to the debt…the property can be divided between the parties, too. Buying a house is a good thing. Getting engaged is a good thing. Let’s hope it all works out. If not, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney. Via https://rdklegal.com/what-happens-in-an-illinois-divorce-to-a-house-you-bought-when-you-were-engaged/ Custody battles occur when two parents have different parenting styles. Naturally, two parents from two different cultures will be prone to different parenting styles and the subsequent conflict that can create. While the parties may have looked past or embraced each other’s racial differences in the marriage…they may make issue of those racial differences during their divorce. Race can be a factor in an Illinois custody determination but race cannot be the only factor. Custody in Illinois is now split into the twin, usually parallel concepts of parenting time and parental responsibilities. Illinois divorce courts determine the parenting time and parental responsibilities of each parent based on the “best interests of the child.” “The court shall allocate decision-making responsibilities according to the child’s best interests” 750 ILCS 602.5(a) AND “The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 602.7(a) “In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including, without limitation, the following:” 750 ILCS 602.5(c) AND “In determining the child’s best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:” 750 ILCS 602.7(b) The factors for parenting time and parental decision-making are largely the same and are listed as follows.
On the surface, all of these factors appear to be race neutral. But, it wouldn’t take too much imagination to see how the issue of race could seep in or even dominate each factor. A parent could argue that the child wishes to speak Spanish at home, that a child feels more comfortable in a diverse neighborhood, that the parents wish to expose the child to their culture, etc. An Illinois divorce court is supposed to be looking at the content of each parent’s character not allocating custody based on racial stereotypes. “No unit of State, county, or local government in Illinois shall…utilize criteria or methods of administration that have the effect of subjecting individuals to discrimination because of their race, color, national origin, or gender.” 740 ILCS 23/5(a)(2) Still, race cannot be ignored in an Illinois custody battle. “[T]he question of race alone can overweigh all other considerations and be decisive of the question.” Fountaine v. Fountaine, 133 NE 2d 532 – Ill: Appellate Court, 1st Dist., 2nd Div. 1956 While race can be considered, race cannot be the primary focus of an Illinois divorce court. “Illinois case law provides that race may be considered, but that it may not outweigh all of the other relevant factors.” In re Marriage of Gambla and Woodson, 853 NE 2d 847 – Ill: Appellate Court, 2nd Dist. 2006 The United States’ Supreme Court has deemed that acknowledgment of race in custody disputes is constitutional. “A core purpose of the Fourteenth Amendment was to do away with all governmentally imposeddiscrimination based on race. Classifying persons according to their race is more likely to reflect racial prejudice than legitimate public concerns; the race, not the person, dictates the category. Such classifications are subject to the most exacting scrutiny; to pass constitutional muster, they must be justified by a compelling governmental interest and must be “necessary . . . to the accomplishment” of their legitimate purpose. The State, of course, has a duty of the highest order to protect the interests of minor children, particularly those of tender years. [M]ost states…mandate[] that custody determinations be made in the best interests of the children involved. The goal of granting custody based on the best interests of the child is indisputably a substantial governmental interest for purposes of the Equal Protection Clause. It would ignore reality to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated. There is a risk that a child living with a stepparent of a different race may be subject to a variety of pressures and stresses not present if the child were living with parents of the same racial or ethnic origin. It would ignore reality to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated. There is a risk that a child living with a stepparent of a different race may be subject to a variety of pressures and stresses not present if the child were living with parents of the same racial or ethnic origin. The question, however, is whether the reality of private biases and the possible injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural mother. We have little difficulty concluding that they are not. The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held.” Palmore v. Sidoti, 466 US 429 – Supreme Court 1984 (citations omitted) The issue is whether a court considered NOTHING BUT race when allocating custody. When “[a] court took into consideration all relevant factors and did not allow the matter of race alone to overweigh all other considerations and did not regard the racial factor as decisive. Instead, [if] the court simply acknowledged that social pressures could develop that would be difficult or detrimental for [the child, the balanced considerations would be acceptable]. In re Custody of Russell, 399 NE 2d 212 – Ill: Appellate Court, 5th Dist. 1979 Deciding “custody based solely on race is an impermissible exercise of the court’s discretion.” In re Marriage of Gambla and Woodson, 853 NE 2d 847 – Ill: Appellate Court, 2nd Dist. 2006 In reality, race is rarely brought up as a primary issue in any Illinois domestic relations court. The issue is simply too politically charged. Courts will, instead, make findings that parallel a possibly unsaid racially based finding. Example: “Mom lives in bad neighborhood.” The one time when race gets brought up explicitly in open court is when a Guardian Ad Litem is appointed. Guardian Ad Litems are attorneys who represent the best interests of the child. “The guardian ad litem shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506(a)(2) That investigation becomes a report that an Illinois divorce court will rely on when making custody determinations. “The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child.” 750 ILCS 5/506(a)(2) Guardian Ad Litems are allowed to consider ANYTHING including race. “In discharging his or her duty, the GAL will review or consider all kinds of information regarding the child, both admissible and inadmissible at trial. Such information assists the GAL in determining the existence of problems that might cause the child psychological or physical harm. We fail to see any prejudice where the GAL listens to information that may be inadmissible at trial.” In re Marriage of Karonis, 296 Ill. App. 3d 86, 91 (Ill. App. Ct. 1998) Because of this enormous contextual flexibility in both investigation and reporting, courts will be eager to appoint a Guardian Ad Litem who understands the context of the family dynamic. This means that Guardian Ad Litems are commonly appointed to families who share the same ethnic group as the Guardian Ad Litem. While the idea of a court appointing an attorney because they are African-American, Jewish or speak Spanish may be unseemly to some, the investigation and report are probably clearer and more accurate because of that ethnic preference. While a Guardian Ad Litem’s report may consider racial, cultural and religious factors, the court’s final findings cannot be exclusively based race or ethnic considerations. The judge “is the ultimate fact finder in a child custody case, not the…witness.” In re Marriage of Saheb & Khazal, 377 Ill. App. 3d 615, 628 (2007). Therefore, a Guardian Ad Litem’s findings about the race of the parties can be adopted by the court so long as they are balanced by other factors as enumerated in 750 ILCS 5/602.5(c) and 750 ILCS 5/602.7(b) We live in a racial society but the domestic relations courts should endeavor for us not to live in a racist society. Race should be handled in context with the many other facets that courts consider when determining the custody of a child. To speak candidly about the issues race poses in an Illinois divorce, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney. Via https://rdklegal.com/race-and-child-custody-in-illinois/ |
About UsGetting a divorce can be a stressful and emotional time in a person's life. This is why it's very important to have a skilled and compassionate divorce lawyer who can help guide you during this difficult time. Whether you are looking for help with family law matters, uncontested or contested divorce, child support, or custody, At the Law Office of Russell D. Knight, we help clients navigate divorce proceedings both inside and outside of courtrooms. For a consultation with a Chicago divorce attorney, contact our office today at (773) 334-6311. ArchivesNo Archives Categories |