Independent Vs. Controlled Expert Witnesses In An Illinois Divorce

A trial is “a formal judicial examination of evidence and determination of legal claims in an adversary proceeding” Black’s Law Dictionary (11th ed. 2019)

Witnesses are needed to provide the court with evidence. Evidence is mostly testimony in an Illinois divorce trial. Additionally, no physical evidence can be examined without testimony authenticating that evidence. Authentication is testimonial “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Ill. R. Evid. 901(a).

Surprise witnesses are highly discouraged in an Illinois divorce trial. In fact, surprise witnesses are forbidden…but only if the other side asked about witnesses in an interrogatory.

“Upon written interrogatory, a party must furnish the identities and addresses of witnesses who will testify at trial” Ill. S. Ct. R. 213(f)

Many (but not all) Illinois divorce judges will require an exchange of witnesses at a case management conference to prevent any possibility of a surprise witness.

“[T]he court shall hold a case management…[where]the following shall be considered:

(ii) the area of expertise and the number of expert witnesses who may be called; and(iii) deadlines for the disclosure of witnesses and the completion of written discovery and depositions” Ill. Sup. Ct. R. 218(a)(5)

Illinois Supreme Court Rule 213(f) governs how witnesses must be disclosed and categorized in an Illinois divorce.

“The supreme court rules on discovery are also mandatory rules of procedure that courts and counsel must follow… To allow either side to ignore Rule 213’s plain language defeats its purpose and encourages tactical gamesmanship.” Department of Transp. v. Crull, 690 NE 2d 143 – Ill: Appellate Court, 4th Dist. 1998 (citations omitted)

“Rule 213 provides for the timely disclosure of expert witnesses and their opinions in order to avoid surprise and discourage strategic gamesmanship. Its disclosures are mandatory and strict compliance is required.” In re Davon H., 44 NE 3d 1144 – Ill: Appellate Court, 1st Dist., 5th Div. 2015(citations omitted)

“The purpose of [Rule 213(f)]is to prevent unfair surprise at trial, without creating an undue burden on the parties before trial. The paragraph divides witnesses into three categories, with separate disclosure requirements for each category.” Ill. S. Ct. R. 213(f), Committee Comments

The three categories of witnesses are lay witnesses, independent expert witnesses and controlled expert witnesses.

“(1)Lay Witnesses. A “lay witness” is a person giving only fact or lay opinion testimony. For each lay witness, the party must identify the subjects on which the witness will testify. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party’s knowledge of the facts known by and opinions held by the witness.” Ill. S. Ct. R. 213(f)

“Lay witnesses” include persons such as an eyewitness to a car accident. For witnesses in this category, the party must identify the “subjects” of testimony-meaning the topics, rather than a summary. An answer must describe the subjects sufficiently to give “reasonable notice” of the testimony, enabling the opposing attorney to decide whether to depose the witness, and on what topics. In the above example, a proper answer might state that the witness will testify about: “(1) the path of travel and speed of the vehicles before impact, (2) a description of the impact, and (3) the lighting and weather conditions at the time of the accident.” Ill. S. Ct. R. 213(f), Committee Comments

Lay witnesses are any witness without an expert opinion. Lay witnesses are subject to the numerous objections provided by the rules of evidence to keep out opinion, conclusive answers, speculation and other matters they did not, personally, experience.

“[T]he general rule is that testimony of a witness’ opinion is not admissible into evidence” People v. Brown, 558 NE 2d 309 – Ill: Appellate Court, 1st Dist. 1990

Opinions are important when you are conducting an Illinois divorce trial. The whole point of the trial is for the judge to adopt your opinion. An Illinois divorce judge is not going to agree to your valuation of a marital asset, imputation of income, or opinion on parenting skills without some expert providing a reasonable bases for that opinion.

Opinions can be entered as evidence only if the witness demonstrates some expertise in the field upon which they are opining. “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Ill. R. Evid. 702

Those expert witnesses and their expertise must be disclosed to the other side. Expert witnesses must be disclosed and categorized as either “independent expert witnesses” or “controlled expert witnesses”

“Independent Expert Witnesses. An “independent expert witness” is a person giving expert testimony who is not the party, the party’s current employee, or the party’s retained expert. For each independent expert witness, the party must identify the subjects on which the witness will testify and the opinions the party expects to elicit. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party’s knowledge of the facts known by and opinions held by the witness.” Ill. S. Ct. R. 213(f)

It is not enough to disclose an expert witness. A divorce litigant must also disclose “the subjects on which the witness will testify and the opinions the party expects to elicit.”

“Independent expert witnesses” include persons such as a police officer who gives expert testimony based on the officer’s investigation of a car accident, or a doctor who gives expert testimony based on the doctor’s treatment of the plaintiff’s injuries. For witnesses in this category, the party must identify the “subjects” (meaning topics) on which the witness will testify and the “opinions” the party expects to elicit.” Ill. S. Ct. R. 213(f), Committee Comments

Independent expert witnesses are not paid for and/or controlled by the litigant calling them for testimony. The litigant does not know everything the independent expert witness will say. Therefore, the litigant does not need to disclose exactly what the testimony will be.

“The limitations on the party’s knowledge of the facts known by and opinions held by the witness often will be important in applying the “reasonable notice” standard. For example, a treating doctor might refuse to speak with the plaintiff’s attorney, and the doctor cannot be contacted by the defendant’s attorney, so the opinions set forth in the medical records about diagnosis, prognosis, and cause of injury might be all that the two attorneys know about the doctor’s opinions. In these circumstances, the party intending to call the doctor need set forth only a brief statement of the opinions it expects to elicit. On the other hand, a party might know that a treating doctor will testify about another doctor’s compliance with the standard of care, or that a police officer will testify to an opinion based on work done outside the scope of the officer’s initial investigation. In these examples, the opinions go beyond those that would be reasonably expected based on the witness’ apparent involvement in the case. To prevent unfair surprise in circumstances like these, an answer must set forth a more detailed statement of the opinions the party expects to elicit” Ill. S. Ct. R. 213(f), Committee Comments

“Unlike a Rule 213(f)(3) controlled expert witness, the basis for a Rule 213(f)(2) independent expert witness’s opinion need not be disclosed. Rather, Rule 213(f)(2) requires only the disclosure of `the subjects on which the witness will testify and the opinions the party expects to elicit.'” Cetera v. DiFilippo, 934 NE 2d 506 – Ill: Appellate Court, 1st Dist., 3rd Div. 2010 (citations and quotations omitted)

Controlled expert witnesses are being paid for by the litigant. So, the litigant is expected to know exactly what the controlled expert witness will say…and disclose it appropriately.

“Controlled Expert Witnesses. A “controlled expert witness” is a person giving expert testimony who is the party, the party’s current employee, or the party’s retained expert. For each controlled expert witness, the party must identify: (i) the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness about the case.” Ill. S. Ct. R. 213(f)

“Controlled expert witnesses” include persons such as retained experts. The party can count on full cooperation from the witnesses in this category, so the amended rule requires the party to provide all of the details required by the former rule. In particular, the requirement that the party identify the “subject matter” of the testimony means that the party must set forth the gist of the testimony on each topic the witness will address, as opposed to setting forth the topics alone.” Ill. S. Ct. R. 213(f), Committee Comments

“Rule 213(f)(3) requires parties to furnish, among other things, the subject matter, conclusions, and opinions of controlled expert witnesses who will testify at trial.” Cetera v. DiFilippo, 934 NE 2d 506 – Ill: Appellate Court, 1st Dist., 3rd Div. 2010 (citations and quotations omitted)

Specificity is required when disclosing a controlled expert’s proposed testimony. Vague descriptions of the subject matter, conclusions, opinions, bases, qualifications and reports will not suffice as proper disclosure.

“Providing the basis of a controlled-expert’s opinion in a “catch-all” provision does not comply with the disclosure requirements of this rule.” Nedzvekas v. Fung, 872 NE 2d 431 – Ill: Appellate Court, 1st Dist., 2nd Div. 2007

If a controlled expert witness encounters new bases for their opinion after the initial disclosure, those new bases must be disclosed.

“A party has a duty to seasonably supplement or amend any prior answer or response whenever new or additional information subsequently becomes known to that party.” Ill. S. Ct. R. 213(i)

If a witness is not disclosed properly, that witness will not testify.

If an expert witnesses’s expertise, subject matter, conclusion, opinion, bases for that conclusion, qualifications and relevant reports were not properly disclosed, the expert witness may not be able to provide their opinion via testimony in court.

“Rule 213(g) limits expert opinions at trial to the information disclosed in answer to a Rule 213(f) interrogatory, or at deposition.” Cetera v. DiFilippo, 934 NE 2d 506 – Ill: Appellate Court, 1st Dist., 3rd Div. 2010 (citations and quotations omitted)

“The information disclosed in answer to a Rule 213(f) interrogatory, or in a discovery deposition, limits the testimony that can be given by a witness on direct examination at trial. Information disclosed in a discovery deposition need not be later specifically identified in a Rule 213(f) answer, but, upon objection at trial, the burden is on the proponent of the witness to prove the information was provided in a Rule 213(f) answer or in the discovery deposition. Except upon a showing of good cause, information in an evidence deposition not previously disclosed in a Rule 213(f) interrogatory answer or in a discovery deposition shall not be admissible upon objection at trial.” Ill. S. Ct. R. 213(g)

Disclosure of opinions and their bases need not be exhaustive. An expert can opine on matters that are, logically, in the same realm of study as the subject matter which was disclosed.

“According to Rule 213(g), an expert’s opinions at trial are limited to the disclosures provided in a Rule 213(f) interrogatory or during a discovery deposition. Information in an evidence deposition not previously disclosed in a Rule 213(f) interrogatory answer or in a discovery deposition shall not be admissible upon objection at trial. An expert witness may expand upon a disclosed opinion provided that the testimony states a logical corollary to the disclosed opinion and not a new basis for the opinion.” Taylor v. County of Cook, 957 NE 2d 413 – Ill: Appellate Court, 1st Dist., 4th Div. 2011

An expert witness whose testimony has been limited by a Rule 213(g) objection can still be asked their opinion by the other side but only as to opinions which were disclosed.

“Without making disclosure under this rule, however, a crossexamining party can elicit information, including opinions, from the witness. This freedom to cross-examine is subject to a restriction that applies in actions that involve multiple parties and multiple representation. In such actions, the cross-examining party may not elicit undisclosed information, including opinions, from the witness on an issue on which its position is aligned with that of the party doing the direct examination.” Ill. S. Ct. R. 213(g)

Proper disclosure of witnesses is crucial in an Illinois divorce. Be sure that your attorney knows how to properly disclose the witnesses necessary to win your case…or you will not be able to use your witnesses at all. To learn more, contact my Chicago, Illinois family law firm to talk to an experienced Illinois divorce attorney.

source https://rdklegal.com/independent-vs-controlled-expert-witnesses-in-an-illinois-divorce/

Arguing Using Emotion In An Illinois Divorce

The words “argue” and “divorce” go hand in hand. In an Illinois divorce proceeding, an argument is not the bickering, squabbling or even screaming that occurred in the underlying relationship.

In an Illinois divorce proceeding an argument is “a statement that attempts to persuade by setting forth reasons why something is true or untrue, right or wrong, better or worse, etc,; especially the remarks of counsel in analyzing and pointing out or repudiating a desired inference, made for the assistance of a decision maker.” Black’s Law Dictionary (11th ed. 2019)

Arguing is what divorce lawyers are paid to do. Lawyers, being analytical by nature, often argue with a mere recitation of facts and application of law. Most lawyers need to remind themselves to insert emotion into their arguments for additional persuasive power.

Argument In An Illinois Divorce

Argument is everywhere in family law. In the opening statement, during testimony and especially during closing arguments.

In a legal setting, arguments happen after evidence is entered. In family law, evidence is rarely formally presented. Communication with the divorce judge is often pure argument via summary hearings.

Divorce lawyers who count bluster as their only skill are usually pretty good at arguing…because that’s all they know how to do. The problem is that these proto-arguers do NOT refer to evidence or the law…which is all the court is allowed to consider.

Judges are supposed to review the evidence and apply the law to the evidence entered into the record. Lawyers are supposed to get that evidence into the record and then argue how the law applies to that evidence.

Divorce lawyers who bother to acquire the skill to adequately present and enter evidence lean on the evidence they’ve deftly included in the record and then act like their case is self-evident. Arguments still need to be made as to why the evidence should persuade the judge’s ruling.

Finally, divorce lawyers with a firm grasp on the Illinois Marriage and Dissolution of Marriage Act and the thousands of binding precedent appellate decisions enjoy making a clever legal argument with little reference to the weight of the facts available for consideration.

This is family law. A divorce judgment applies specific rules to two human beings who, at one point, loved each other passionately. It is an error to argue without reference to the actual human beings whose fates are in play.

Tapping into the emotional aspect of the divorce is what moves judges to adopt your logical arguments. Judges are not computers who accept data and provide a result. Judges are people with families and experiences similar to the divorce litigant. Furthermore, the judge is a lawyer who probably made the same arguments for their own clients years ago.

Gerry Spence is probably the greatest trial lawyer in history. Here’s what Gerry Spence has to say about lawyers using emotional arguments:

“By the time we get through law school, we are thoroughly convinced that to be a successful trial lawyer we have to be skilled in fancy argument, polemics of one kind or another prevail, and that, somehow, we have to put aside our feelings. If we are really real and reveal ourselves we will be shamed and laughed at and found inadequate…But of course, the truth, the exact truth, is the opposite of that. You can’t become a good trial lawyer without being a decent person…but to become a really effective trial lawyer one must become a real human being. We cannot be successful in front of ordinary people if we are not real ourselves. If I can’t love my client how can I ask you to love my client? We have to be real human beings and be as credible as real human beings can be if we’re going to be successful.”

It is this “realness” that a divorce lawyer must tap into in order to persuade the judge beyond merely reciting the facts and cleverly applying the law.

Arguing In The Human Context In An Illinois Divorce

When arguing a client’s divorce case, a divorce lawyer must argue in the context of their client as a person. The client is always a person who everyone in the process must respect as spouse, parent and citizen. The client is not merely a character in a play about evidence and law.

Arguing in the human context is best defined by what it is NOT. The “context as a human” cannot be captured by the court reporter: words typed on a transcript. The “context as a person” is the divorce lawyer’s eyes, the divorce lawyer’s body position, the divorce lawyer’s vocal range and the divorce lawyer’s physicality.

These physical elements are persuasive! Your eyes connect with the judge as a person. Your vocal tone tells the judge how much this matters to you as a person. Your position on-camera or in the courtroom conveys confidence and humility appropriately. Your physicality (code for your arms and hands) keeps the judge’s eyes darting in your direction. 

Not all divorce lawyers are natural physical communicators. More likely, a divorce lawyer prefers preparing lists as their medium of communication. So, here is a list of how to communicate physically in order to convey human context:

Step 1: What is the theme of this case? The theme is the one to three line story of the case as a blurb. Themes are most memorable part of a sticky situation like a divorce case. If you don’t pick the theme for the judge…your opponent or the judge will pick the theme for you. Example: “This is the case about the husband who may not have loved his wife but he loved his kids” or “This is the case about the woman who had a hernia so she couldn’t work”

Step 2: Is that theme real to you? Do involuntarily smile thinking about the bad husband who became a good dad? Do you wince imagining your client’s hernia?

If the theme does not feel “real,” pick a new theme.

Why is the theme real to you? Write out the reason the them is real as if you were explaining to a 7 year old. Do not re-list the evidence and law (the imaginary 7 year old does not understand that). Write the fundamental things that make the story real. The story will almost always be told in a sensory manner. Describe the things you or your client saw, heard, felt, even smelled or tasted. 

Example: My theme is real to me because “He showed up at the mom’s house on Christmas morning. His arms were full of presents for the kids. She slammed the door in his face. He felt the cold winter wind while he heard the muffled voices of his children ask ‘who was at the door?’” or “She laid in bed for six months smelling like Vic’s VapoRub. She ached in pain every time she had to get up to go to the bathroom. Even propping a computer on her lap to send out a resume via email would put her in agony.”

“If I am real, if I am speaking from the heart zone, the right words will come.” Gerry Spence, How to Argue and Win Every Time (1995)

Now, you should be in the right headspace to communicate the realness of the theme…but you cannot communicate your theme in words alone.

How would you communicate this “realness of the theme” with your eyes?

How would you communicate this “realness of the theme” with your position (especially if you’re on zoom)

How would you communicate this “realness of the theme” with your vocal range and tone (Say out loud the things that make the theme real to you, that’s your range and tone)

How would you communicate this “realness of the theme” with your physicality?  (What body movements do you make while explaining the theme)

This can all be done in front of a mirror or on a Zoom screen with no one watching. 

Do you look real and authentic? If not, start all over.

When your presentation does feel and look real and authentic, you can begin working through the evidence that you plan to present or have presented. 

You will describe the evidence that was admitted with newfound zeal and appropriate emotional context with this three-step process:

1) Describe the evidence to be presented or the evidence that was presented

2) Explain how the evidence should make the judge feel.

3) Apply the law to validate how the evidence should make the judge feel (the actual lawyer stuff). 

For every piece of relevant evidence which was admitted or will be admitted, do this three-step process. Each piece of evidence is independent and needs its own three step argument.

Order the evidence in a way that builds on the theme each time. (Chronologically recounting the evidence is to be avoided).

“My client testified that this so-called bachelor party vacation that his ex-wife was upset about was cut short…so my client could see his kids early. This tells us his priorities. This shows us that his kids always came first…even when she didn’t like it…even when he probably didn’t like it. The statute requires us to consider “the willingness and ability of each parent to place the needs of the child ahead of his or her own needs” 750 ILCS 5/602.7(b)(12)

You should remain in the mindset where the theme is real to you. Meanwhile you should be building your argument with the evidentiary building blocks step by step.

Your final argument is how the evidence you have recounted is real, how the evidence should make the judge feel and how the law should be applied to validate those feelings. This final argument should occur to you as naturally as possible to confirm its realness. If you are forcing logical inferences…the argument is probably not real and it’s probably not persuasive.

“My client did everything he could, judge. He sat in the back of the auditorium and watched his children’s graduation even though he wasn’t invited. He sent the children letters saying he missed them. He spent hours with a therapist going over the details of his relationship with his parents and his ex-wife. These were not acts of quiet desperation. These were solid, committed steps towards being the parent that these children needed. The evidence should make you proud, judge. Proud that people can and will change when their children need them. Don’t let all this good work go to waste. Let these children see their father. The father that did all the work hoping someone would notice”

While the words are flowing, your eyes and body should be in perfect synchronicity with the words that come out of your mouth. This is something that you are not just saying. This is something you believe…and the judge should believe it, too.

If a final logical and emotional argument does not occur to you at the end of your monologue about the realness of your theme…then the argument is probably not very good and you should start over again.

This article was largely based off the insights Brendan Hammer shared with his colleagues in his ABA Family Law presentation “Put that Coffee Down…Developing, Delivering, and Defending Against Compelling Opening Statements and Oral Closing Arguments.” If there is a better deliverer of arguments in the family law context than Brendan Hammer…I have not seen them.

If you need crisp legal analysis coupled with emotional heft in your Illinois divorce case, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.

source https://rdklegal.com/arguing-using-emotion-in-an-illinois-divorce/

Bad Investments In An Illinois Divorce

A fool and his money are soon parted. This partition often happens before an Illinois divorce.

Whether the investment was crypto, stock market day trading or other forms of essentially legalized gambling, big losses mean big problems in a relationship. As my mother liked to say “When poverty walks in the door….loves goes out the window.”

When one spouse realizes that the other spouse’s hair-brained scheme has depleted their savings, they quickly file for divorce. After filing for divorce, the more level-headed spouse will wonder if they can get any of the money back.

Of course people rarely ever lose just some of their money. They usually lose all of the money. Other marital assets, however, will hopefully still exist beyond the depleted funds lost to the bad investment.

The remaining assets (a house, a 401(k), jewelry) can still be divided in an Illinois divorce. Perhaps, these remaining assets can allocated to the spouse that did not  fritter away the other marital assets in a bad investment.

An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:

…

the dissipation by each party of the marital property” 750 ILCS 5/503(d)(2)

“[T]he term “dissipation,” as used in section 503(d)(1) of the Illinois Marriage and Dissolution of Marriage Act, refers to the “use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an irreconcilable breakdown.” In re Marriage of O’Neill, 563 NE 2d 494 – Ill: Supreme Court 1990

It does not matter if the spouse who made the bad investment did not profit from the investment. It does not matter if the spouse who made the bad investment did not even enjoy the roller coaster ride of the rise and fall of the investment’s value.

“A spouse may dissipate marital assets even though he or she derives no personal benefit from the dissipation.” In re Marriage of Thomas, 608 NE 2d 585 – Ill: Appellate Court, 3rd Dist. 1993

Is a bad investment a dissipation which would allow the other spouse a greater share of the marital estate?

“[W]hether a given course of conduct constitutes dissipation depends upon the facts of the particular case.” In re Marriage of Carter, 740 NE 2d 82 – Ill: Appellate Court, 4th Dist. 2000

After an accusation (a formal notice) of dissipation is made the spouse accusing dissipation must merely make a prima facie showing of dissipation.

Prima facie means “sufficient to establish a fact or raise a presumption unless disproved or rebutted.” Black’s Law Dictionary (11th ed. 2019)

The prima facie showing for dissipation from a bad investment is incredibly easy. Just show the judge the money in a brokerage account in the past and then show the judge the current balance. After that, the other spouse must explain why the losses were for a marital purpose.

“The spouse charged with dissipation of marital funds has the burden of showing, by clear and specific evidence, how the marital funds were spent.” In re Marriage of Carter, 740 NE 2d 82 – Ill: Appellate Court, 4th Dist. 2000

It does not matter if the crazy investor spouse had the best of intentions and truly believed they would double the family’s money.

“We acknowledge that there is a spectrum of risky conduct by a spouse and that courts may arrive at different estimations of whether the conduct is merely a combination of good faith and bad luck or clear dissipation. However, the dissipating spouse’s intent is not dispositive in this determination. For instance, gambling with marital funds historically has been treated as dissipation, despite the fact that gamblers no doubt go to the racetrack or the casino intending to win.” In re Marriage of Schneeweis, 55 NE 3d 1280 – Ill: Appellate Court, 2nd Dist. 2016

In re Marriage of Schneeweis describes Andrew Schneeweis as a spouse who “commenced a course of speculative, high-risk investing without the necessary acumen and experience.” The court further found that Andrew dissipated marital assets, “in that he caused or allowed the devaluation of the marital estate through his unwise trading practices and his incurring of significant debt without Laurie[ his spouse’s] knowledge.” In re Marriage of Schneeweis, 55 NE 3d 1280 – Ill: Appellate Court, 2nd Dist. 2016

“Andrew’s self-serving statements about his intentions are not the only evidence of the “purpose” of his conduct. The record contains ample evidence that Andrew, the acknowledged sole financial provider for his family, was aware of the devastating effect that his conduct could have on his family, yet he deliberately chose to increase the risk to them — quitting his high-paying job, incurring debt without telling Laurie, and ultimately appropriating essentially all of the family’s savings in order to fund his need for increasing amounts of assets to secure his mounting trading debt. This conduct does not show good faith by Andrew, it shows extreme recklessness — indeed, gambling — by someone who no longer valued his family’s financial security. The trial court did not err in finding that this course of conduct was not “related to the marriage.”” In re Marriage of Schneeweis, 55 NE 3d 1280 – Ill: Appellate Court, 2nd Dist. 2016

The real limit on a bad investments as a dissipation in an Illinois divorce is whether the investment occurred after the irreconcilable breakdown of the marriage.

“Dissipation is defined as the use of marital property for one spouse’s sole benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” In re Marriage of Tietz, 605 NE 2d 670 – Ill: Appellate Court, 4th Dist. 1992 (emphasis mine)

“[D]issipation is to be calculated from the time the parties’ marriage begins to undergo an irreconcilable breakdown, not from a date after which it is irreconcilably broken.” In Re Marriage of Holthaus, 387 Ill. App. 3d at 375

So, if the non-investing spouse was happily enjoying the run-up of the investment they shouldn’t be complaining when the investment collapses…or should they? If the investment collapse coincides with the beginning of the irreconcilable breakdown wouldn’t the dissipation still apply?

Every dissipation case is determined by its own facts. A bad investment’s characterization as dissipation will be determined by the description of the investment by the divorce attorneys. One divorce attorney will describe the investment result as hapless bad luck while the other divorce attorney will describe the investment as a perfidious waste from the very start.

Divorce judges are not sophisticated investors. Divorce judges are sophisticated argument interpreters. Divorce judges will be swayed by the poetry of a divorce lawyer’s argument.

“How did you go bankrupt?”
Two ways. Gradually, then suddenly.” – Ernest Hemingway, The Sun Also Rises

Make sure you hire an attorney who can make the right argument to accurately describe the investment…to benefit you. To schedule a meeting with an experienced Illinois divorce attorney contact my Chicago, Illinois family law firm today.

source https://rdklegal.com/bad-investments-in-an-illinois-divorce/

Does My Fiancé(e) Need An Attorney To Review A Prenuptial Agreement in Illinois?

Hiring an attorney before signing a prenuptial agreement in Illinois is not necessary. However, it is a good idea to hire an attorney before entering into a life-altering document…but what could be less romantic on the cusp of a wedding date?

A prenuptial agreement in Illinois has formalities that must be observed.

“A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration.” 750 ILCS 10/3

That’s it. The Illinois Uniform Premarital Agreement Act makes nomention of whether a party needs an attorney or not to enter into a prenuptial agreement in Illinois.

“[T]here is no requirement that the parties to an [pre]nuptial agreement be represented by an attorney.” In re Marriage of Sokolowski, 597 NE 2d 675 – Ill: Appellate Court, 1st Dist., 2nd Div. 1992

“The receipt of advice from independent counsel might be relevant to the issue of voluntary execution but is not required.” J. Thomas Oldham, With All My Worldly Goods I Thee Endow, or Maybe Not: A Reevaluation of the Uniform Premarital Agreement Act After Three Decades, 19 Duke Journal of Gender Law & Policy 83-131 (Fall 2011)

However, just because a prenuptial agreement is signed does not mean it is enforceable.

Is A Prenuptial Agreement That Was Not Reviewed By An Attorney Enforceable In Illinois?

To be enforceable, a prenuptial agreement in Illinois must have been entered into voluntarily.

“(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:

(1) that party did not execute the agreement voluntarily” 750 ILCS 10/7(a)

If a party had an attorney who reviewed the prenuptial agreement’s clauses, it would be very difficult to allege that the prenuptial agreement was not entered into voluntarily.

“Where the parties entered into an [pre]enuptial agreement absent fraud, duress or coercion, the agreement is valid and enforceable.” In re Marriage of Murphy, 834 NE 2d 56 – Ill: Appellate Court, 3rd Dist. 2005

Allegations of coercion must be proven otherwise the prenuptial agreement will be enforced.

In Warren v. Warren, the wife, Marcia, signed the prenuptial agreement in her future husband’s office a few months before the wedding in front of the future husband’s staff. The wife later claimed she was coerced into signing the prenuptial agreement.

The court found that there was no coercion based on the circumstances.

“Although Marcia claims that she entered into the agreement under conditions of stress and coercion, the record shows (1) that Marvin encouraged her to seek independent legal counsel, (2) that the marriage did not take place until about two months after the agreement was executed, and (3) that Marcia appeared to be in good spirits at the time of execution. Under these circumstances, the circuit court properly could have found that the agreement was made in the absence of duress or coercion.” Warren v. Warren, 523 NE 2d 680 – Ill: Appellate Court, 5th Dist. 1988

Marcia also claimed she did not understand the prenuptial agreement.

“Although Marcia claims that she did not understand the precise terms of the agreement when she signed it, or know the full extent of Marvin’s financial holdings, the record shows (1) that she had ample opportunity to seek legal counsel between the time of execution and the marriage, (2) that Marcia had the agreement explained to her prior to signing it, and (3) that Marcia was not inexperienced in the ways of the business world.” Warren v. Warren, 523 NE 2d 680 – Ill: Appellate Court, 5th Dist. 1988

If you sign a document, you are bound by the terms of that document…whether you have a lawyer or not.

The real issue with having no attorney when signing a prenuptial agreement is procedural unconscionability.

“Procedural unconscionability is some impropriety during the process of forming the contract depriving a party of a meaningful choice. Procedural unconscionability refers to a situation where a term is so difficult to find, read, or understand that the plaintiff cannot fairly be said to have been aware he was agreeing to it, taking into consideration the disparity of bargaining power between the drafter of the contract and the party claiming unconscionability. Factors to be considered in determining whether an agreement is procedurally unconscionable include all of the circumstances surrounding the transaction, the manner in which the contract was entered into, whether each party had a reasonable opportunity to understand the terms of the contract, and whether important terms were hidden in a maze of fine print.” In re Marriage of Woodrum, 115 NE 3d 1021 – Ill: Appellate Court, 3rd Dist. 2018 (citations omitted)

Can You Hire A Lawyer For Your Future Spouse To Review The Prenuptial Agreement You Have Prepared?

It is not uncommon for the fiancé{e}with the greater assets and income to propose a prenuptial agreement. Along with proposing and preparing that prenuptial agreement, the monied fiancé(e) will also usually suggest and pay for their fiancé(e)s attorney.

Does suggesting and paying for a fiancé{e}s prenuptial agreement attorney create a conflict?

In the case of In Re Marriage of Drag, Tom Hogan was Raymond Drag’s last divorce attorney. Raymond gave his fiancée, Johane, Tom Hogan name to review the proposed prenuptial agreement. Johane hired Tom Hogan. Later, Johane claimed Tom Hogan’s representation created a conflict which should invalidate the prenuptial agreement. On balance, after considering all the facts, the court deemed Raymond’s hiring of Tom Hogan to represent his future wife acceptable.

“Hogan’s advice to Johanne was not tainted by his previous relationship with Raymond. Ideally, an attorney representing a wife in a pre-nuptial agreement should not have had the husband as a former client. However, Johanne was given the names of two other attorneys and chose Hogan even though she knew that he had represented Raymond in the past. Additionally, Hogan received a waiver from Raymond so that he could discuss Raymond’s assets with Johanne. Hogan also advised Johanne several times that the agreement was not generous and that she should postpone the marriage until he could negotiate better terms. Johanne declined that advice. For these reasons, we find that Hogan’s previous relationship with Raymond did not invalidate the pre-nuptial agreement.” In re Marriage of Drag, 762 NE 2d 1111 – Ill: Appellate Court, 3rd Dist. 2002

In re Marriage of Woodrum, Greg Woodrum hired Don Weston to represent his fiancée, Jennifer. Jennifer claimed that she thought Don Weston was Greg’s attorney even after meeting with Weston. The court did not care about her confusion or the possible conflict of Greg hiring Jennifer’s attorney.

“Even if Jennifer did not know Weston was representing her, she had time before executing the agreement to seek out legal advice from an attorney of her choosing, which she did not do. We acknowledge that Weston did not have Greg’s written disclosure when reviewing the premarital agreement with Jennifer. However, Jennifer had a reasonable opportunity to seek out Weston’s counsel, or the counsel of another attorney, upon subsequently receiving the disclosure. Thereafter, even after executing the agreement on June 13, 2007, Jennifer had over two weeks prior to the wedding to review the agreement and seek legal advice or modification of the terms, which she did not do, before marrying Greg. See 750 ILCS 10/5 (West 2016) (a premarital agreement becomes effective upon marriage). Jennifer was free to choose to remain single rather than sign the agreement.” In re Marriage of Woodrum, 115 NE 3d 1021 – Ill: Appellate Court, 3rd Dist. 2018

In reality, most lawyers will advise their clients to not sign a prenuptial agreement. After all, they are giving up their rights with little in return beyond getting married. If a person signs a document after a lawyer advises them and especially after a lawyer says “don’t sign that document” they must really want to enter into that agreement.

A Prenuptial Agreement is A Contract!

“A premarital agreement is a contract, and the rules of contract construction apply in interpreting such agreements.” In re Marriage of Heinrich, 7 NE 3d 889 – Ill: Appellate Court, 2nd Dist. 2014

If you sign a contract without reading the contract, the contract is presumed to be valid….whether you read the contract or not.

“[T]here is generally little that courts can do to protect persons who are prone to signing contracts without reading them from the natural consequence of their folly, the law being that a party who is afforded an opportunity to read a contract prior to signing but signs the contract without reading it, cannot be heard to say that he was deceived as to its contents.” Hintz v. Lazarus, 58 Ill. App. 3d 64, 66, 15 Ill.Dec. 546, 373 N.E.2d 1018 (1978)

If an unread contract is valid, then a prenuptial agreement that was not reviewed by an attorney most certainly is valid.

Can You Depose A Spouse’s Attorney Later To Ask About The Spouse’s Understanding Of The Prenuptial Agreement?

Despite all of the above details regarding a lawyer not mattering as to whether an Illinois prenuptial agreement is valid or not…a spouse may wish to question their spouse’s lawyer in a deposition to verify that the prenuptial agreement was signed voluntarily.

A lawyer disclosing a client’s possible understanding is a violation of attorney-client confidentiality.

“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent” Ill. R. Prof’l Conduct R. 1.6 (eff. Jan 1, 2016)

The lawyer representing the party challenging the prenuptial agreement should object. The lawyer who originally advised on the prenuptial agreement should object.

Be realistic. No one remembers how people reacted years ago to something as boring as a contract review.

“[N]either [the lawyer nor the spouse] could recall any of the specifics of the conversations they claimed to be privileged. All of the questions tendered were answered with the witnesses professing a lack of recollection. No allegedly privileged information was revealed.” In re Marriage of Barnes, 755 NE 2d 522 – Ill: Appellate Court, 4th Dist. 2001

If you are about to get married, congratulations. If you are also about to sign a prenuptial agreement, do yourself a favor and hire everyone an attorney. Attorneys will eliminate the entire issue of voluntariness. Attorneys will save you from the headaches the prenuptial agreement was supposed to solve. Contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.

source https://rdklegal.com/does-my-fiancee-need-an-attorney-to-review-a-prenuptial-agreement-in-illinois/

Waiver And Release Clauses In An Illinois Divorce Decree

Illinois final divorce documents include a lot of boilerplate language. Most divorce lawyers will skim the standard paragraphs. After all, the boilerplate language is the same in every Marital Settlement Agreement.

I am not most divorce lawyers. I write 3000 word articles on the weekends about the intricacies of my job. I want to know why we include waiver and release clauses and what effect they have on a client’s divorce and future rights.

What Is A Waiver And Or Release Clause In An Illinois Divorce

The Marital Settlement Agreement is the document which finalizes all financial obligations between divorcing couples.

Marital Settlement Agreements should finalize as many issues as possible so that the couples do not find themselves in court again.

Illinois divorce “courts should seek a high degree of finality so that parties can plan their future with certainty and are not encouraged to return repeatedly to the courts.” In re Marriage of Hellwig (1981), 100 Ill. App.3d 452, 459, 426 N.E.2d 1087, 1092.

Releases and waivers extinguish future issues by explicitly contracting that the parties will not act on those issues in the future.

“A husband and wife may make a valid separation agreement by which one or each of them releases all his rights in the other’s property, including inchoate rights of inheritance and dower.” In re Estate of Trecker, 246 NE 2d 56 – Ill: Appellate Court, 1st Dist., 3rd Div. 1969

A release is a “liberation from an obligation, duty or demand; the act of giving up a right or claim to the person whom it could have been enforced” Black’s Law Dictionary (11th ed. 2019)

A waiver is “[t]he voluntary relinquishment or abandonment – express or implied – of a legal right or advantage.” Black’s Law Dictionary (11th ed. 2019)

Releases and waivers specify that the parties will not proceed against each other in future legal actions.

“[T]he purpose of a waiver provision is to act as a safeguard and protect both parties from those interests and contingencies that may unexpectedly vest in the former spouse at some future point in time.” In re Marriage of Velasquez, 692 NE 2d 841 – Ill: Appellate Court, 3rd Dist. 1998

After a divorce with a complete and comprehensive division of assets and debts…what else could a couple go back to court for?

Former spouses can returne to court to address anything that was not included in the divorce decree.

Additionally, “[a] divorce does not terminate property rights of a husband and wife which exist independent of the marriage.” In re Marriage of Velasquez, 692 NE 2d 841 – Ill: Appellate Court, 3rd Dist. 1998

Rights that exist independently between a husband and wife are the same that would exist between any two people: the right to contract with each other, the right not to be harmed by the other, etc.

“[T]he logical implication of the language of a waiver is that each spouse intended to relinquish any rights and interests that they may have otherwise possessed” In re Marriage of Velasquez, 692 NE 2d 841 – Ill: Appellate Court, 3rd Dist. 1998

My Illinois family law firm includes the following releases and waivers in our standard MSA: 1) Mutual Release Of Claims For Injury, 2) Waiver of Estate Claim and 3) Mutual Release of Additional Rights.

Mutual Release Of Claims For Injury

You only hurt the ones you love(d). So, you do not want your ex claiming they are sick, injured or caught a sexually transmitted disease from you. If you are hurt, bring it up during the divorce proceedings…or never again.

“Mutual Release of Claims for Injury. To the fullest extent permitted by law, each of the parties does hereby forever relinquish, release, waive and forever discharge the other from all claims and causes of action of any type, known or unknown, that either of them had in the past against the other, for whatever reason, including by reason of their marriage or their relationship prior to their marriage.  This release includes, but is not limited to, all claims based on injury to the person, whether negligent, willful and wanton, intentional or otherwise.  This release is final and irrevocable, regardless of any facts which may exist but are not known to the parties.  Each party further covenants and agrees for himself, her heirs, personal representatives and assigns, attorneys or agents, that neither of them shall at any time hereafter sue the other or her estate, heirs, personal representatives, grantees, devisees or assigns, for the purpose of enforcing any rights specified to be released, waived or relinquished under this Agreement; and each party further agrees that in the event any suit shall be commenced, this release, when pleaded, shall be and constitute a complete defense thereto.   As set forth in the Judgment, nothing contained in this Paragraph or any other paragraph herein shall release either party of their obligations under this Marital Settlement Agreement.”

Waiver of Estate Claims In An Illinois Divorce

After one spouse is dead…they cannot complain if the other spouse demands money from their estate. To prevent your heirs from having to deal with your ex, estate claim waivers are included in Illinois Marital Settlement Agreements.

“Waiver of Estate Claim. Each of the parties hereby waives and relinquishes all right to act as administrator with-the-will-annexed of the estate of the other party and each of the parties hereto does further relinquish all right to in­herit by intestate succession any of the property of which the other party may have or possessed, and should either of the parties hereto die intestate, this Agreement shall operate as a relinquishment of all right of the surviving party hereafter to apply for letters of administration in any form, and the estate of such deceased party, if she or she dies intes­tate, shall descend to the heirs of such deceased party, in the same manner as though the parties hereto had never been married, each of the parties hereto respectively reserving the right to dispose, by testament or otherwise of her or her respective property in any way she may see fit, without restriction or limitation whatsoever.”

Release And Waiver For Everything Else In An Illinois Divorce

No one wants to deal with their ex after the divorce. So, an all-encompassing release and waiver clause is usually included to prevent clever lawyers like me coming up with interesting ideas to hassle their client’s former spouses.

“Mutual Release of Additional Rights. To the fullest extent permitted by law, and except as herein otherwise provided, each party releases and relinquishes all rights and claims against the other party and her agents, attorneys and servants, and each of the parties does hereby forever relinquish, release, waive and forever quitclaim and grant to the other, her heirs, personal representatives and assigns, all rights of maintenance, alimony, inheritance, descent and distribution, homestead, dower, community interest and all other right, title, claim, interest and estate as Husband and Wife, widow or widower, whether existing by reason of the marital relation between said parties hereto pursuant to any present or future law, or otherwise including any and all right, title, claim or interest which she otherwise has or might have or be entitled to claim in, to or against the property, assets and estate of the other, whether real, personal or mixed, whether marital or non-marital, whether community or separate, whether now owned or hereafter in any manner acquired by the other party, whether in possession or in expectancy and whether vested or contingent, and for all damages and/or injuries arising out of the intentional or unintentional acts by either party against the other, whether or not within or incident to the marriage relationship existing between the parties so long as the acts occurred prior to the entry of the Judgment.  Each party further covenants and agrees for himself, her heirs, personal representatives and assigns, that neither of them shall at any time hereafter sue the other or her estate, heirs, personal representatives, grantees, devisees or assigns, agents or servants for the purpose of enforcing any rights specified to be released, waived or relinquished under this Agreement; and each party further agrees that in the event any suit shall be commenced, this release, when pleaded, shall be and constitute a complete defense thereto.  Each party further agrees to execute, acknowledge and deliver at the request of the other party, or her heirs, personal representatives, grantees, devisees, or assigns, any or all deeds, releases or other instruments and further assurances as may be required or reasonably requested to effect or evidence such release, waiver or relinquishment of such rights; provided, however, that nothing herein contained shall operate or be construed as a waiver or release by either party to the other of the obligation on the part of the other to comply with the express provisions of this Agreement.”

These all-encompassing waiver and release clauses which waive everything from everyone can be enforceable or not depending on the context of what is being pursued.

Enforcing Waiver And Release Clauses In An Illinois Divorce

If a former spouse sues or pursues their former spouse, the other spouse can interject and say, “we’re not allowed to bring this up anymore. It was part of our waiver and release.

The enforceability of a waiver and release clause is dependent on the waiver and release clause’s language. In determining enforceability, a court’s “analysis focuses on the meaning of the language used in the Agreement itself by applying ordinary rules of contract interpretation” In re Marriage of Karafotas, 932 NE 2d 510 – Ill: Appellate Court, 1st Dist., 5th Div. 2010

The Marital Settlement Agreement is a contract. A contract should be “sufficiently definite and certain to be enforceable.” Morey v. Hoffman (1957), 12 Ill.2d 125, 131.

The more specific the waiver and release, the more enforceable the waiver and release will be. Situations not mentioned in the contract may not be enforced. Situations that could not have even been contemplated before the contract was entered into may not be enforced.

“It is clear that a contractual release cannot be construed to include claims not within the contemplation of the parties, and it will not be extended to cover claims that may arise in the future.” Feltmeier v. Feltmeier, 798 NE 2d 75 – Ill: Supreme Court 2003

“A release with very general boilerplate language, such as the two provisions at issue, cannot be construed to release future causes of action between the parties.” Feltmeier v. Feltmeier, 798 NE 2d 75 – Ill: Supreme Court 2003

If something is not mentioned as being released…it may not be enforced.

An Illinois divorce court will “reject [an] argument that such a waiver is implicitly included in the boilerplate mutual release at the end of the MSA.” IN RE MARRIAGE OF KNUTSON AND KNUTSON, Ill: Appellate Court, 3rd Dist. 2016

Waivers and releases should not cover assets not mentioned (but they still might…see the case law mentioned later)

An Illinois divorce “court [can] refuse[] to apply a broadly worded waiver provision in the agreement, not because the terms of the waiver provision were too general, but because the assets in dispute were not specifically listed as marital assets.” In re Marriage of Velasquez, 692 NE 2d 841 – Ill: Appellate Court, 3rd Dist. 1998

That being said, the whole point of a waiver and/or release clause is to eliminate problems from unforeseen situations. So, broad waiver and/or release clauses are largely accepted and enforced within reason.

Illinois courts “enforce[]…broad waiver language” Hebert v. Cunningham, 129 NE 3d 539 – Ill: Appellate Court, 1st Dist., 6th Div. 2018

Property rights are knowable and foreseeable so they should be enforced by a waiver and/or release clause.

An Illinois divorce court will enforce a “divorce decree’s waiver provision [when] unambiguously broad and prospective, encompassing all future as well as present property rights” Hebert v. Cunningham, 129 NE 3d 539 – Ill: Appellate Court, 1st Dist., 6th Div. 2018

“[I]t would defeat the very purpose of a waiver provision for this court to find that the waiver at issue is an ineffective general waiver due to the drafter’s failure to expressly enumerate every specific property interest.” In re Marriage of Velasquez, 692 NE 2d 841 – Ill: Appellate Court, 3rd Dist. 1998

“To determine a waiver’s effect, the court considers two factors: (1) whether the disputed asset was specifically listed as a marital asset and awarded to one spouse; and (2) whether the waiver provision specifically states the parties are waiving any expectancy or beneficial interest” Estate of Albrecht v. Winter, 26 NE 3d 975 – Ill: Appellate Court, 3rd Dist. 2015

Illinois divorce courts can choose whether to enforce waivers and releases to current existing assets based on the circumstances. However, in Illinois, there are very specific rules for waiver of an expectancy interest.

An expectancy interest is a future interest. A future interest is “a property interest in which the privilege of possession or other enjoyment is future and not present.” Black’s Law Dictionary (11th ed. 2019)

In a divorce, an expectancy interest is usually a life insurance policy or stock options.

In an Illinois divorce, an expectant interest can only be waived if specifically mentioned and then waived.

“[A] dissolution agreement may extinguish a divorced spouse’s expectancy interest in a land trust or an insurance policy if the agreement includes a clear expression of the spouse’s waiver of that interest.  To determine the effect of a waiver, two factors must be considered: (1) whether the asset in dispute was specifically listed as a marital asset and awarded to a spouse; and (2) whether the waiver provision contained in the settlement agreement specifically states that the parties are waiving any expectancy or beneficial interest in that asset.” In re Marriage of Velasquez, 692 NE 2d 841 – Ill: Appellate Court, 3rd Dist. 1998

“Any waiver of an expectancy interest…must be specific and boilerplate language is insufficient to waive the interest.” Estate of Albrecht v. Winter, 26 NE 3d 975 – Ill: Appellate Court, 3rd Dist. 2015

Releasing A Divorce Lawyer From Liability

Finally, there is an additional release included in any Marital Settlement Agreement which releases the lawyers from liability.

“Release of Attorneys. Both parties acknowledge their separate instructions to their respective counsel, if any, relieving each of them from certain professional responsibility they would otherwise have as counsel in the negotiation and drafting of this Agreement. Specifically, both Counsels have been directed not to undertake any independent verification of the representations made by the other in the course of exchanges of correspondence, conferences and memoranda. Counsel have been instructed not to request, schedule or conduct depositions with respect to either party or any agent for a party, to conduct any further investigations or valuations.  Both parties hereby absolve their respective counsel of and from any liability for their compliance with the foregoing instructions, each of them asserting their satisfaction that they possess sufficient independent knowledge to knowingly and confidently express their conclusion that the various agreements herein made are fair and reasonable under all the circumstances and fully satisfy their respective needs.”

The release of attorneys’ clause is largely pointless as it is practically impossible to sue a divorce lawyer for legal malpractice.

“[A] reviewing court will not review [a divorce] counsel’s conduct which involves an exercise of judgment, discretion, strategy, or trial tactics.” Person v. Behnke, 611 NE 2d 1350 – Ill: Appellate Court, 4th Dist. 1993

Judgment, discretion, strategy or trial tactics? That’s everything.

Even if a malpractice court found a divorce attorney liable, they would still have to redo the entire trial to prove damages. It’s never worth it to put on a fake trial about what the real trial would have looked like.

“To prove [a] legal malpractice claim, plaintiff had to establish that [plaintiff]  would have received a larger share of the marital estate as a result of the divorce proceedings but for [the defendants’] malpractice.”  Weisman v. Schiller, Ducanto & Fleck, Ltd., 368 Ill.App.3d 41, 306 Ill.Dec. 29, 856 N.E.2d 1124 (2006)

Divorces never end, so there are no final damages to be determined in a divorce malpractice suit. Virtually everything is modifiable in an Illinois divorce except for property distribution.

“Property provisions of an agreement are never modifiable.” 750 ILCS 5/502(f)

Even if a divorce lawyer missed a hidden asset, that asset can still be reconsidered if discovered later.

“Although property settlement agreements are generally favored, an agreement may be vacated if it is unconscionable or if it is the product of fraud or coercion on the part of either party.  Fraud exists where one party’s knowing and material misrepresentations induce detrimental reliance by the other party.  Fraudulent concealment consists of affirmative acts or misrepresentations intended to exclude suspicion or prevent injury. However, nondisclosure of a material fact is in essence a misrepresentation.’” In re Marriage of Palacios, 275 Ill. App. 3d 561, 566 (Ill. App. Ct. 1995)

Do not worry about signing a waiver regarding your divorce attorneys. The alternative is that your divorce attorney will do every possible due diligence effort…and bill you for it. If something goes wrong, you are better off just taking your ex back to court than taking your divorce lawyer to court.

It is important that you understand what you are signing when you are getting divorced. You are not contracting your obligations to your former spouse and their obligations to you, you are also contracting for what you DO NOT required to ever do with your former spouse.

To learn more, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois divorce attorney.

source https://rdklegal.com/waiver-and-release-clauses-in-an-illinois-divorce-decree/

Parents And Other Third Parties On A Deed In An Illinois Divorce

Married people often put both of their names on the deed to their home. Sometimes, a parent or other person will also be on the deed with the married couple. If two is company, three is a crowd…especially during an Illinois divorce.

Why Are Multiple People On A Deed In Illinois

Both spouses on a deed to a house makes a lot of sense! If the deed is held by two spouses in joint tenancy and a spouse dies, the other spouse keeps the entire house.

If the deed is held in tenancy by the entirety by two spouses, there is a right of survivorship and the house cannot be sold if the one of the spouse’s gets sued.

Married people can use the credit or money from some third party to buy a home. That person will often insist on a stake in the ownership of the home by putting their name on the deed.

When additional people are on the deed beyond two spouses…the property is usually held by as tenants in common.

Tenancy in common is ownership “by two or more persons, in equal or unequal undivided shares, each person having an equal right to possess the whole property but no right of survivorship” Black’s Law Dictionary (11th ed. 2019)

When additional people are tenants in common on a deed in Illinois, unless there is a contract specifying what shares each person owns, they each own an equal share.

“Where two or more persons take as tenants in common…under an instrument which is silent in regard to their respective shares, there is a presumption that their shares are equal.” Castle v. Hulcher, 312 NE 2d 836 – Ill: Appellate Court, 5th Dist. 1974

What Happens To A Property With Multiple People On The Deed In An Illinois Divorce?

An Illinois divorce court cannot even make an order regarding a real estate property in an Illinois divorce if there are multiple people on the deed.

“Courts are not authorized in divorce proceedings to order disposition of property interests of third persons who are not parties to the proceeding…. Deviation from this rule denies the third party a day in court.” In re Marriage of Simmons, 409 NE 2d 321 – Ill: Appellate Court, 1^st Dist. 1980

An Illinois divorce court must include the third party on the deed to a marital property if the Illinois court wishes to properly finalize the divorce.

“In distributing property, courts should seek a high degree of finality so that parties can plan their future with certainty and are not encouraged to return repeatedly to the courts.” In re Marriage of Hellwig (1981), 100 Ill. App.3d 452, 459, 426 N.E.2d 1087, 1092.

If finality can only be achieved by including a third party, then an Illinois divorce court can and will include that party.

“The court may join additional parties necessary and proper for the exercise of its authority under this Act.” 750 ILCS 5/403(d)

“[A] third-party holding alleged marital property should be brought into the dissolution proceeding by a third-party complaint and proper summons” In re Marriage of Peshek, 412 NE 2d 698 – Ill: Appellate Court, 1st Dist. 1980

There’s no way around it. The third party must be included in the divorce. It’s necessary to include in the divorce someone “whose presence in the suit is required for any of three reasons: (1) to protect an interest which the absentee has in the subject matter of the controversy which would be materially affected by a judgment entered in his absence; (2) to reach a decision which will protect the interests of those who are before the court; or (3) to enable the court to make a complete determination of the controversy” Lerner v. Zipperman (1979), 69 Ill. App.3d 620, 623, 387 N.E.2d 946. (citations omitted)

If you thought a divorce was bad, imagine having your in-laws being made parties to your divorce.

How Does An Illinois Divorce Court Allocate The Property Held By The Spouses And The Third Party?

The spouses and the third party should have a contract as to how they will all hold the property and what will happen in case they no longer become partners in owning the property…but they almost never do.

If there is a contract between the spouses and the third party, an Illinois divorce court will honor that contract.

“We must presume that the “marital property” will be distributed pursuant to section 503(b) so as to avoid the impairment of any contractual obligations owed to third parties who are not parties to the dissolution proceeding.” Kujawinski v. Kujawinski, 376 NE 2d 1382 – Ill: Supreme Court 1978

Parties will often claim there was a verbal contract or understanding about the property they all held together. This is a shame because only written contracts are binding when those contracts are about land. This concept is called “the statute of frauds.”

Illinois’ Statute of Frauds is as follows:

“No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith” 750 ILCS 80/2

This means that no one cares what you meant to do about a property…unless you put those intentions in writing and signed them.

“[T]estimony cannot control the effect of the deed upon the joint tenancy but that issue must be determined as a matter of law. The deed was unambiguous and its legal effect cannot be changed by parol evidence that it was intended to have a legal operation different from that which would be imported by its terms” Jackson v. O’CONNELL, 177 NE 2d 194 – Ill: Supreme Court 1961

If there is no contract between the spouses and the other title holder(very common), an Illinois divorce court will not know what to do with the property.

“The Illinois Marriage and Dissolution of Marriage Act makes no provision for the filing of a third-party action during a dissolution proceeding to determine the parties’ rights in alleged marital property held by a third person.” In re Marriage of Peshek, 412 NE 2d 698 – Ill: Appellate Court, 1st Dist. 1980

In reality, a partition action is necessary to divide property that was not held exclusively by married parties.

Third Parties On Deeds Mean That It Is No Longer A Divorce, It Is A Partition Action Within A Divorce.

The process for dividing property in Illinois where there is no contract between the title holders is both vague and specific.

“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.” 735 ILCS 5/17-105

“Without owelty” means without “equality as achieved by a compensatory sum of money given after an exchange of parcels of land having different value or after an unequal partition of real property.” Black’s Law Dictionary (11th ed. 2019)

An Illinois partition action can only divide up a property into portions (you get the front yard, I get the house, and third-party gets the back yard). In Illinois, a partition action cannot award a party money in exchange for their share of the physical property. This makes partitions really impractical.

Houses cannot really be physically divided like an open field can. So, a partition action must order a sale of the property and the allocate the proceeds to the parties.

“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

One non-binding case says that a property subject to a partition action cannot even be sold by a realtor…the property can only be sold at a sheriff’s sale. Stadnyk v. Nedoshytko, 2017 IL App (1st) 152103-U

A forced sale, much less a forced sale at a sheriff’s auction is not how most married couples want to allocate their marital home. Someone usually keeps the marital home after a divorce. So, parties usually come to an agreement to avoid a court-mandated disaster.

Without an agreement, either of the married owners of the property can ask the court to apply the laws in the Illinois Marriage and Dissolution of Marriage Act based on fairness (if not the letter of the law).

“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)

What a headache! Everyone who includes a third party on a deed and then gets divorced always regrets it. Maybe the divorcing couple could simply agree to pay the third party to sign a quit claim deed to avoid all of these civil procedure hassles.

If the divorcing couple took on debt to get rid of the third party, that debt would be divisible by the Illinois divorce court. It would not be pretty…but it would be prettier than an intervention, followed by a partition action, followed by a sheriff’s sale.

If you are trying to get your spouse and the parent, relative or friend who is on the deed out of your life, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.

source https://rdklegal.com/parents-and-other-third-parties-on-a-deed-in-an-illinois-divorce/

False Statements In An Illinois Petition For Order Of Protection

Divorces in Illinois can often start with a bang. Specifically, one party can make horrible accusations about the other party in a Petition for Order of Protection. A Petition for Order of Protection can be granted on an emergency basis causing one spouse to be immediately awarded use of the marital home and physical custody of the children.

Because the stakes are so high and the incentives so strong, parties to an Illinois divorce may be tempted to stretch the truth in the allegations listed in their Petition for Order of Protection.

Lying in a Petition for an Illinois Order of Protection is a big problem. Not only will it cause the Petition for an Order of Protection to be denied…it can cause the party defending the Petition for Order of Protection to be awarded attorney’s fees as a punishment.

“Untrue statements. Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal, as provided in Supreme Court Rule 137.” 750 ILCS 60/266

There are two elements to find liability for attorney’s fees for untrue statements in a Petition for Order Of Protection: 1) that they were “made without reasonable cause AND found to be untrue.”

Just stating false allegations is not enough. The allegations also had to be unreasonable at the time they were made.

The allegedly false alleger can simply say “I believed those allegations were true at the time. Here’s why I thought that.”

The statute does not say whether the “reasonable cause” must be objectively or subjectively reasonable. Do any lawyers reading think we have a strict scrutiny vague statute?

In addition to 750 ILCS 60/266, there is Illinois Supreme Court Rule 137 which forbids false allegations in ANY pleading and allows attorney’s fees caused by said false signed allegations.

“The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other document, including a reasonable attorney fee.” Ill. Sup. Ct. R. 137(a)

A Motion For Fees For False Statements In A Petition For An Order of Protection will inevitably come after the Petition For An Order of Protection is heard.

The Motion for Fees For False Statements must be specific.

Because former section [750 ILCS 60/266] is penal, it is strictly construed. Thus, the complaining party may seek only those costs and fees which have a direct connection to the sanctionable pleadings or statements. A party seeking an award under section 2-611 has the burden of establishing that he or she actually incurred fees and expenses by reason of the untrue pleadings.  The petition for fees must specifically identify both the statements falsely made and the fees that resulted from those false statements. These principles are consistent with the plain language of the statute, which allows recovery of fees actually incurred by the other party by reason of the untrue pleading. If untrue portions of the pleading would not actually affect the outcome of the case, recovery of fees unrelated to the specific untrue statements is not allowed.” Patton v. Lee, 940 NE 2d 802 – Ill: Appellate Court, 2nd Dist. 2010 (citations omitted)

The Motion For Fees For False Statements cannot just accept the findings of the order that resulted from the original Petition for Order of Protection’s

“A finding under the requirements of [750 ILCS 5/266] is an independent determination distinct from any previous judgment relating to any prior motions to dismiss, motions for summary judgment or motions for a directed verdict.” La Salle Nat’l Bank v. Union Oil Co., 532 NE 2d 277 – Ill: Appellate Court, 1st Dist. 1988

If the falsehoods in the Petition for Order of Protection are so egregious, the court can refer the case to the State’s Attorney office for prosecution for perjury.

“The court may direct that a copy of an order entered under this Section be provided to the State’s Attorney so that he or she may determine whether to prosecute for perjury.” 750 ILCS 60/266

Practically, the entire motion must be heard again in order to be awarded fees…so you just accrue the fees again in order to collect the fees you spent on the first petition.

If the Petition for Order of Protection is part of a divorce or parentage case in Illinois, the costly 750 ILCS 60/266 fee petition can be replaced by the very simple fee petition process provided for by the Illinois Marriage and Dissolution of Marriage Act.

“The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay a reasonable amount for his own or the other party’s costs and attorney’s fees. 750 ILCS 5/508(a).

You do not even need evidence to proceed on fee petition under 750 ILCS 5/508(a).  Any request for fees associated with an Order of Protection could be deemed a temporary fee petition.

“Except for good cause shown, a proceeding for (or relating to) interim attorney’s fees and costs in a pre-judgment dissolution proceeding shall be nonevidentiary and summary in nature.” 750 ILCS 5/501(c-1)(1)

“A petition for temporary attorney’s fees in a post-judgment case may be heard on a non-evidentiary, summary basis.” 750 ILCS 5/508(a-5)

Furthermore, the Illinois Marriage and Dissolution of Marriage Act provides that “If at any time a court finds that a hearing under this Act was precipitated or conducted for any improper purpose, the court shall allocate fees and costs of all parties for the hearing to the party or counsel found to have acted improperly. Improper purposes include, but are not limited to, harassment, unnecessary delay, or other acts needlessly increasing the cost of litigation.” 750 ILCS 5/508(a)

The only problem is that Petitions For Orders of Protection are not brought under “this Act.” But what if the Petition for Order of Protection was consolidated into the underlying Divorce or Parentage actions?  Would that be enough to satisfy the requirements of 750 ILCS 508(b) in spirit if not in exact language.

If your Illinois divorce case has a Petition for Order of protection, with false allegations or not, you have a real problem on your hands. Contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.  

source https://rdklegal.com/false-statements-in-an-illinois-petition-for-order-of-protection/