ILLINOIS DIVORCE LAW BLOG

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Confusion still reigns with respect to the tax treatment of spousal maintenance for Illinois divorce cases. I still see other law firms discussing online spousal maintenance (support) using the old rules.

In Illinois, spousal maintenance (also known in other states as alimony) is generally not tax-deductible for the payor nor taxable income for the recipient. This change came into effect due to the Tax Cuts and Jobs Act (TCJA) of 2017, which significantly altered the tax treatment of spousal support (maintenance)  nationwide.

Under the TCJA, for divorce or separation agreements executed after December 31, 2018, maintenance payments are no longer deductible by the person paying the maintenance and are not considered taxable income for the person receiving it. This change applies to federal taxes and, in most states including Illinois, state taxes follow federal guidelines on this matter.

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Introducing children to a new romantic partner, or “paramour,” during or after a divorce is a delicate matter that should be approached with careful consideration and sensitivity to the children’s needs and emotions. Here are some factors to consider when determining the appropriate timing for such introductions:

  1. Stability and Adjustment: It’s generally recommended to wait until the divorce process has reached a point where the children have had time to adjust to the changes in their family dynamics and establish a sense of stability. Rushing into introductions too soon can add additional stress and emotional harm for children still grappling with the divorce.
  2. Seriousness of the Relationship: Introducing children to a new partner should be reserved for relationships that are serious and highly likely to endure. Children can be deeply harmed  by the comings and goings of romantic partners, so it’s important to be very mindful about the emotional impact of introducing them to someone who may not turn out to be a long-term presence in their lives.
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My practice has managed successfully cases dealing with NPD traits for many years. People with toxic narcissistic traits can cause a lot of harm and damage in a marriage and with children. In a divorce, people with toxic narcissistic traits can continue their self-centered toxicity, blaming, gaslighting, and other harmful behaviors. Narcissists can present significant challenges in a marriage, as well as a divorce, due to their characteristic traits which often include:

  1. Lack of Empathy: Narcissists typically have difficulty understanding or empathizing with their partner’s feelings and perspectives. This can lead to emotionally abusive behaviors.
  2. Self-Centeredness: Narcissists tend to prioritize their own needs, desires, and achievements above those of their partner and children. This self-centeredness can lead to a one-sided relationship dynamic where the narcissist’s needs are consistently prioritized over their spouse’s, sometimes to the point of abuse.
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One aspect of the divorce case I take seriously is managing the request to the judge for a guardian ad litem in a contested parenting dispute.  Sometimes, there are behavioral and psychological issues in a divorce with one of the parents, that can impact the ability of that parent to safely care for the child or children. A guardian ad litem (GAL) plays a crucial role in divorce cases, particularly when the interests of children are involved. Here’s how they typically assist the court:

  1. Representing the Best Interests of the Child: The primary role of a GAL is to advocate for the best interests of the child or children involved in the divorce. They serve as the voice of the child in court proceedings, ensuring that their needs, wishes, and welfare are considered.
  2. Investigation and Assessment: GALs conduct thorough investigations into the family dynamics, including the living conditions, relationships between the parents and the child, and any other factors that may impact the child’s well-being. This can involve interviewing the child, parents, clinicians, teachers, and other relevant parties, as well as reviewing relevant documents and records.
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I received a call today from a potential client in Illinois whose partner/spouse left the State of Illinois and set up life with the minor children in another state.  As I look back on decades of my Family Law career, I have had a number of similar cases. Sometimes, when a marriage falls apart, a spouse takes the children out of state and goes “home” to where he or she grew up and has family locally. In this situation, sometimes the spouses will file a divorce case is two different states. How does the law handle and reconcile the fact that parents have filed in two states?  This is where the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) comes in: it is a nationally (except for Massachusetts) adopted statute that provides a uniform process for Courts to determine where the case should proceed.

  1. Uniformity: Before the UCCJEA, each state in the US had its own laws regarding child custody jurisdiction. This lack of uniformity often led to conflicting custody orders and forum shopping, where parents would try to file for custody in a state they believed would rule in their favor. The UCCJEA provides consistent rules for determining which state has jurisdiction over child custody matters, promoting fairness and predictability in custody disputes across state lines.
  2. Child Protection: The primary goal of the UCCJEA is to protect the best interests of the child. By establishing jurisdictional rules based on the child’s home state and prioritizing continuity and stability in custody arrangements, the UCCJEA aims to minimize the disruption and trauma that can result from custody battles.
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Through the decades of practicing divorce and child custody law in Illinois, I have encountered the myriad reasons that a spouse or couple is seeking a divorce.  In some cases, there are serious behavioral issues that make staying together unhealthy for the marriage, and unhealthy for the children. In a minority of time that people meet with me for a complimentary initial consultation, the issues are fixable…for example, young couples that need counseling to learn how to manage conflicts in a marriage. I always encourage fixable family situations to seek counseling or other behavioral health modalities before initiating a divorce process.

As every relationship is unique and complex, some common reasons for considering a divorce include:

  1. Communication issues: Ineffective communication can lead to misunderstandings, resentment, and feelings of being unheard or unappreciated. Communication issues are amenable to counseling and family therapy before a divorce is considered.
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In Illinois, child custody (now called allocations of parenting time and decision making) can be modified through the courts if there is a substantial change in circumstances that warrants a modification. In general, the modification will be sought after two years has expired from the original judgment, but some cases allow for a modification before two years if the issues presented are serious, or if the changes are moderate and needed to serve the interests of the child(ren).

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Here are the basic steps:

  1. File a Petition in Kane County: The process begins by filing a petition with the court requesting a modification of child custody. This petition should outline the reasons and changes that have occurred in the child’s life or circumstances of the parent(s) for the requested modification, and any supporting evidence.
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A few years ago, I tried a lengthy case in Will County, Illinois that ended up on appeal on a few key issues. One of these issues is that at trial, I put in evidence and argued that the small company owned by the parties should have its retained earnings considered as marital property, insofar as the practice of this husband and wife company had been to distribute the retained earnings out to themselves as dividend income. While the trial judge held that they were part of the valuation of the marital business, the appellate court agreed with my approach, and ordered that the retained earnings be considered a cash asset of the marriage. This ruling was a significant financial win for my client, and my case ended up clarifying an area of Illinois law and was cited nationally on the following principle: retained earnings in a closely held corporation can be found to be a marital asset (outside of the value of the company itself) subject to distribution in the divorce.

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Retained earnings in a small corporation refer to the portion of the company’s net income that is not distributed to shareholders as dividends but rather kept within the company for reinvestment in its operations or for other purposes. Essentially, it’s the cumulative amount of profits that the company has retained since its inception, minus any dividends paid out to shareholders. Retained earnings are an important asset class in an Illinois divorce with a closely held company.

Retained earnings can be distributed to the shareholder(s) as a 1099 dividend, and many owners of small companies use retained earnings for this purpose. These dollars can also serve as a source of funding for various activities such as business expansion, research and development, debt reduction, or building up cash reserves. They are an important indicator of a company’s financial health and its ability to reinvest in itself for future growth.

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One aspect of my practice is to deliver high level legal skill to my clients, while at the same time optimizing their outcomes in a cost-effective manner. Divorces don’t need to cost an “arm and a leg.”

Divorce can be emotionally and financially taxing for all parties involved. While the emotional aspect might be harder to mitigate, there are several strategies to save on the cost of divorce:

  1. Mediation: Consider opting for mediation instead of litigation. Mediation involves a neutral third party who assists in facilitating discussions and negotiations between spouses to reach mutually acceptable agreements. It’s often faster, less adversarial, and less expensive than going to court.
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Parental alienation is defined as a mental condition in which a child—usually one whose parents are engaged in a contentious separation or divorce—allies themself strongly with the preferred (alienating) parent and rejects a relationship with the other (targeted) parent without legitimate justification.

– The mental component of this condition is a false belief that the rejected parent is evil, dangerous, or not worthy of love.
– The behavioral component of parental alienation is the firm, persistent rejection of a relationship with the targeted parent.

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