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Illinois Divorce Law Blog | 28 | 5.02 | 66 | 5 |
Illinois Divorce Law Blog | 28 | 5.02 | 66 | 5 |
A quick note to discuss the art and science of managing complex divorce and post-decree cases for my clients.
For me, it is a privilege to represent men and women facing some of the most challenging life changes and decisions, whether they are facing a new divorce filing, or dealing with the aftermath of a divorce (often when the predecree case was handled by another attorney) and problems or issues arise that weren’t managed well in the predecree phase.
Doing this work well for my valued Clients requires experience, insight into the best outcomes and solutions, as well as a passion for the craft of managing family law cases. I feel that it is critical that to be successful in this work, a lawyer must approach this profession with a strong measure of empathy and passion; the ability to truly diagnose the problems that the case presents, and to provide creative, insightful and positive outcomes for the Client and their children.
Working with high conflict personalities, I have always been open to approaches that can manage difficult issues with HCPs (High Conflict Personalities), without necessarily involving the courts every time there is a dispute, or transgression by a HCP. One way of dealing with difficult personalities in divorce is to have a Parenting Coordinator involved in the case. What is a Parenting Coordinator (PC) ? Essentially, a PC acts as a middleman, referee, and dispute resolver. The PC can make recommendations to a solution for a disputed issue. In other words, the PC can act almost as a magistrate for the judge, and help the Court manage these difficult issues without court involvement. Because the PC acts almost like a magistrate judge, some judges in the Family Courts do not like to appoint PCs, believing that they are essentially usurping the function of the judge. However, for certain cases, it is my opinion that a Parenting Coordinator can be a valuable tool and resource in managing issues that arise with a HCP.
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Parenting Coordination began gaining recognition in the 1990s as a result of presentations and trainings first offered at conferences such as the Association of Family and Conciliation Courts (AFCC) and by experienced Parenting Coordinators. Initially there were variations in role, source and degree of authority, and practice in different jurisdictions, and different titles were used to describe this innovative intervention model, including Special Masters, Co-Parenting Facilitators, or Mediator/Arbitrators. In 2003, AFCC appointed an interdisciplinary task force to develop Guidelines for Parenting Coordination to guide mental health professionals, mediators, and lawyers with respect to training, practice, and ethics (AFCC, 2006).
An article published in one of the leading bar journals discussed the use of social media postings as evidence in court cases. The article happened to concern a criminal case, where a Facebook posting allegedly made by a defendant using his mother’s Facebook page had statements from the defendant admitting to the time, place and means of the crime. Certainly Facebook and other social media are much more often employed these days in divorce and child custody cases, where parents try to assemble negative information and evidence concerning their spouse’s behaviors, infidelity, or use the social media platforms to stalk or otherwise gather information about their former partners and their habits and behaviors.
Whenever evidence is to be used in a court hearing, the evidence must meet certain tests for reliability. One does not have to be a forensic IT expert to know that a fraudulent Facebook page or identity can be created, or that a post can be posted by someone claiming to be another person. Because of the nature of this possible lack of trustworthiness, courts have struggled to define the foundations that must be laid in order to admit social media evidence.
Social media evidence has garnered the most distrust. As one court explained, “[t]he concern arises because anyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password.” Another concern is that regardless of whether the information is genuine or fabricated, it is “available by performing a Google search… forever,” giving the impression that it is accurate and true. Griffin v. State, 19 A.3d 415, 421-22 (Md.) Generally, a witness authenticating electronic evidence must “provide factual specificity about the process by which the electronically stored information is created, acquired, maintained, and preserved without alteration or change, or the process by which it is produced if the result of a system or process that does so.” As pointed out by Griffin, the “most obvious method [of authentication] would be to ask the purported creator if he/she indeed created the profile and also if she added the posting in question.” Id.
Most of the posts on my Illinois Divorce Lawyer Blog concern important topics such as High Conflict Divorce, Parental Alienation, Personality Disorders in Divorce and Child Custody, or subjects involving complex financial issues in divorce. Yet, in the past issues have arisen in a few of my cases where the parties owned together a beloved companion animal, such as a dog or cat. Previously, the Illinois Divorce Act (IMDMA) considered companion animals owned by the parties as property, and normally judges would make no orders concerning animals beyond what might be ordered for furniture and the like. Touching on issues in a high conflict divorce, one of my cases last year did involve one spouse threatening to euthanize the family dog as a coercive threat to the other spouse to not to move out.
For 2018, the IMDMA is being amended as follows, to allow the Court to consider, in a sense, the best interests of a companion animal that is part of a marital estate:
Provides that the parties may petition or move for the allocation of sole or joint ownership of and responsibility for any domestic animals owned by the parties. Provides that in issuing an order concerning the allocation of ownership of or responsibility for a domestic animal, the court shall take into consideration the well-being of the domestic animal. Provides that the parties may provide for the allocation of ownership of or responsibility for a domestic animal by agreement.
I receive calls almost every day from people considering filing for a divorce. I always take these calls seriously, and try to get a phone or personal meeting set up as soon as is possible as every person that I meet with has good and thoughtful questions. My policy has always been to never push or encourage people into a divorce filing (absent other factors like Domestic Violence or other pathology, where an Intervention is needed) , and of course, to never promote a divorce when a divorce is not needed between a couple. Sometimes, people that I meet with simply wish to know what their options are, and what a divorce might entail if they decide to separate from their spouse and improve their life and family system.
Yet, with the new rules regarding maintenance, a single point needs to be made. If you’re going to pay (the majority of time, this is the Husband), it might be beneficial to file before the new statute’s benchmark dates kicks in for maintenance (spousal support). If you are going to receive maintenance (the majority of time, the Wife), be mindful of the benchmark dates; you might wait a month or two (assuming there’s no pathology or domestic violence in the marriage) if you’re on the threshold of a higher maintenance percentage. Here what the new statute requires:
The duration of maintenance is calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: 5 years or less (.20); more than 5 years but less than 10 years (.40); 10 years or more but less than 15 years (.60); or 15 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court in its discretion will order maintenance either permanently or for a period equal to the length of the marriage.
Throughout my decades of practice as a Divorce and Custody attorney, I have worked tirelessly to deliver the best results possible for my clients with respect to their complex child custody cases. As many of you are aware, many divorce cases with child issues also have significant financial issues, sometimes involving complex financial concerns such as business valuations and allocation of complex financial assets and liabilities.
I tried a case in 2015 and 2016 that had both complexities with the child issues and with the marital property concerns. The trial itself took two months to try, with the trial going nearly day to day for an extended period. Months after the trial ended, the Court returned with a judgment, but I can say that the Court’s conclusions on a number of property issues were seen to be incorrect. As a trial lawyer, I can say that despite the best efforts of both counsel and the Court, courts sometimes do not get it right the first time. This is why we have an appellate process.
Only last week, the Appellate Court ruled that the trial court, in rejecting some of what I considered to be very strong issues (ie: business valuation, allocation of retained earnings), evidence and arguments at trial, erred in doing so. In fighting for my client on every issue, we are now vindicated and the appellate court has sent the case back for retrial on the most important financial issues.
My office is pleased to announce that once again Illinois Divorce Lawyer Blog has been recognized as one of the top Divorce Blogs….in fact, we’re Number 16 ! I’d be happier with a Number 1 ranking, but at the end of the day, this is some recognition for what I consider a labor of love to write about Divorce and Custody issues that face my clients…as well as the solutions that my office provides.
” Divorce blogger and attorney Michael Roe is experienced in dealing with high-conflict divorce and child custody cases involving psychological disorders. With his divorce blog, Michael wants to simplify divorce processes and make life better for parties going through a divorce.”
” Going through a divorce is always stressful. During this period of your life, you’ll need emotional support and understanding to better manage the stress in your life. It’s also important to know what your legal rights and obligations are.
When parents come to court with a dispute over children, such as allocation of parenting time, most of the judges in northern Illinois counties will insist that the parties make an effort at resolution of their issues through mediation. In my experience with high conflict cases, mediation is usually not a useful approach at resolution of cases; the disordered or angry party will often refuse to participate in the mediation appropriately. However, in some cases where the parents are not in a high degree of conflict and are otherwise looking to reach a resolution, versus a court battle, mediation can be effective. So what kind of approach is best to bring to mediation?
1. First, communicate with your attorney beforehand. As a mediator myself, I spend time with my clients coaching them on the mediation process and how to best use mediation to work toward resolution. It’s important for me to hear my client’s concerns, so I can provide clarification, validation, and direction. It’s also important for me to develop an agenda with my client to make sure that mediation is effective, and that goals are set and fully in mind before the mediation begins.
2. Be effective. Only do or say those things which will be effective and help you move forward. Being effective means advancing toward goals which are consistent with your interests and principles.
Thoughts from Law Offices of Michael F Roe as 2015 winds to a close:
2015 has been a year of successes for clients, and challenges in Illinois divorce practice, with some of the challenges including managing the maintenance statute (the statutory guideline formula) that caused a radical change in how support is calculated for incomes below a benchmark amount of $250,000.00
2016 will bring us substantial changes to the practice of divorce and custody law. I use the term “custody” despite the fact that the new IMDMA has done away with the terms “custody” and “visitation” and now instructs the Court to determine “allocation of parental responsibilities,” along with allocations of parenting time for the parents and children. Other new rules affect relocation within the state of Illinois; previously, a residential parent could relocate anywhere within the state with the children after a divorce, sometimes wreaking havoc on the nonresidential parent’s access to the children.