Tagged as Property Division

Why Fighting Can Actually Be Productive In Divorce Mediation

For many people, divorce mediation can be helpful at opening up channels of communication between parties to air their individual thoughts, desires, and expectations.

It can also provide the opportunity for either party to air specific feelings of sadness about the divorce, fears about the future, and anger at their partner for past hurts large or small.

That last one often can include some pretty explicit and creative name-calling, which isn’t necessarily a bad thing, says Dan Simon in a recent blog on Mediate.com. Below are some of Dan’s reasons why mediators and couples should be open to this strategy in mediation.

  • IT’S QUITE POSSIBLY THE TRUTH. “Mediation can be an opportunity for parties to speak their truth, to name reality as they see it. After having been perhaps horribly mistreated by the other party, the opportunity to tell them what they really think of them is an essential part of a process that’s intended to meaningfully address the conflict,” says Simon

  • IT CAN BENEFIT THE NAME-CALLER. According to Simon, once the naming party gets it off his or her chest, so to speak, in the presence of the mediator, it’s quite possible they can then calmly discuss other key aspects of the divorce process such as property division or child support.

  • IT CAN BENEFIT THE PERSON BEING NAMED. “The namee may become more aware of just how angry the namer is; they may gain insight that the namer is out of control, which might inspire the namee’s compassion; the namee might reflect more deeply on their own behavior that inspired the namer.” It also allows the namee to decide whether to sit there and take it or respond in kind with the mediator there for support.

In Simon’s view, “Mediation is supposed to be about self-determination.” This includes both parties being able to engage each other, say what they need (or want) to say, and even walk away when it suits them.

Parties using divorce mediation generally want the best results for everyone involved. That’s why they chose to mediate. If it takes some name-calling to reach that end, couples should be open to experiencing it and mediators should be ready to let it happen in that safe space they provide for their clients.

As an experience divorce mediator, I can help you successfully work your way through all aspects of this process. Contact me for more information.


ABOUT ERIN BIRT

Erin BirtIllinois attorney Erin Birt is a skilled legal professional with over ten years of experience in trial and divorce law serving clients in many DuPage County cities including Wheaton, Glen Ellyn, Naperville, Warrenville and Winfield.

She opened the Law Firm of Erin Birt, P.C. in 2010 to offer her clients alternative divorce resolution services, specialized collaborative divorce options and family law expertise. She and her expert team continually develop creative outcomes such as divorce mediation and family law mediation that work for all parties involved, particularly children.

Ms. Birt holds a J.D. from DePaul College of Law and is a member of the Collaborative Practice Professionals of Illinois, the Collaborative Law Institute of Illinois, the International Academy of Collaborative Professionals and the DuPage County Bar Association. She is a past board member and presenter for the Mediation Council of Illinois.

 

Key Questions To Achieve The Goals Of Your Divorce

White conceptual keyboard - Legal advice (blue key)Hiring the right lawyer can be a critical decision in any legal matter, but it can be invaluable in your divorce planning–especially if the process will include some type of family mediation or collaboration.

In a recent article on Mediate.com, mediator Justin Kelsey outlines some effective questions to ask yourself about your desired outcomes as well as what to ask an attorney you’re looking to hire.

DETERMINE YOUR GOALS

According to Kelsey, you really should understand what results you want or expect before you meet with a lawyer/mediator. As he puts it, “If the lawyer doesn’t value or agree with your goals, then you are guaranteed to have a negative experience in your case.”

To that end, he suggests asking yourself:

  • What’s the most important issue you want to address?

  • Do you have certain outcomes in mind for specific situations like property division?

  • How do you hope your life will look when the legalities are over?

  • Do you have specific hopes/desires for other people involved in your case, especially in situations of child and spousal support?

  • Why are you deciding to work with an attorney, a mediator, or both?

ENSURE THE ATTORNEY IS A GOOD FIT

Once you know your own objectives, Kelsey advises that you find out if the attorney is right for your situation with questions like:

  • Do you understand and can you support my objectives?

  • What are some of the ways we could achieve my goals?

  • How would your role change if I hired you as an attorney/a mediator/both?

  • What are your strategies for conflicting situations, i.e. reducing tension versus obtaining the best outcome?

  • How will you handle disagreements we may have over the best way to achieve my desired outcomes?

“Going through any type of family dispute can be extremely stressful,” says Kelsey, “and you want to find an attorney that reduces that stress by understanding you and your goals.”

As an experienced divorce attorney and mediator, I understand how connecting with your goals is critical to making them happen. Contact me for more information on how I can help you achieve your desired divorce outcomes.


ABOUT ERIN BIRT

Erin BirtIllinois attorney Erin Birt is a skilled legal professional with over ten years of experience in trial and divorce law serving clients in many DuPage County cities including Wheaton, Glen Ellyn, Naperville, Warrenville and Winfield.

She opened the Law Firm of Erin Birt, P.C. in 2010 to offer her clients alternative divorce resolution services, specialized collaborative divorce options and family law expertise. She and her expert team continually develop creative outcomes such as divorce mediation and family law mediation that work for all parties involved, particularly children.

Ms. Birt holds a J.D. from DePaul College of Law and is a member of the Collaborative Practice Professionals of Illinois, the Collaborative Law Institute of Illinois, the International Academy of Collaborative Professionals and the DuPage County Bar Association. She is a past board member and presenter for the Mediation Council of Illinois.

Recent Illinois Divorce Maintenance And Child Custody Rulings

divorce decreeSummarized below are two recent court rulings involving spousal maintenance and child custody issues in two Illinois divorce cases.

SPOUSAL MAINTENANCEIn re Marriage of Roberts

After 37 years of marriage, a public school teacher filed for dissolution of marriage from her husband, a disabled pharmacist. When determining spousal maintenance, the trial court ruled to divide the wife’s pension plan equally between both parties but denied the wife’s request for spousal maintenance. The court did not include the husband’s Social Security disability benefits as part of the decision, citing that these benefits cannot be considered in property division.

The wife filed a motion for the court to reconsider this, stating that this ruling would cause her financial hardship upon retirement because it would prevent her from having the same standard of living she achieved during the marriage, while her husband would have the ability to pay. She requested that the pension money be awarded solely to her or, if split with her husband, that he pay monthly maintenance to her equal to the amount he would receive from pension plan. When the trial court denied this motion, the wife filed an appeal.

The appellate court ruled that the trial court was correct in not considering the husband’s Social Security benefits in marital property division. However, Social Security benefits can be used in determining a maintenance award, and “the trial court abused its discretion in denying petitioner maintenance outright and not reserving the issue of maintenance until a later date.”

They reversed the trial court’s order denying maintenance and ruled that when the wife retires the court must consider the value of her husband’s Social Security benefits in determining the amount of maintenance that she will receive.

CHILD CUSTODYHeisterkamp v. Pacheco

In this case, a father filed a malpractice suit against the clinical psychologist appointed by the court as an expert in the father’s divorce proceedings. The psychologist diagnosed the father with obsessive-compulsive disorder. The father contended that this “diagnosis deviated from the standard of care in clinical psychology and, as a direct and proximate result, [he] lost custody of his children.”

The father claimed that the psychologist was appointed only to advise the court of his children’s wishes around child custody and visitation, and the psychologist exceeded this role by seeking and being granted approval to force the father into psychological testing.

In the end, the court ruled against the father and in favor of the psychologist stating that the “[psychologist] acted at the direction of the court in the dissolution proceedings and [is] entitled to absolute immunity regardless of whether the direction given was proper under section 604(b)” of the Marriage and Dissolution of Marriage Act.

These two cases highlight the hardships–legal fees, time in court, family disruption–that can often be avoided by using settlement-based divorce practices such as family mediation or collaboration in the divorce process.

If you’d like to reduce or prevent these types of difficulties in your divorce, contact me for more information.


ABOUT ERIN BIRT

Erin BirtIllinois attorney Erin Birt is a skilled legal professional with over ten years of experience in trial and divorce law serving clients in many DuPage County cities including Wheaton, Glen Ellyn, Naperville, Warrenville and Winfield.

She opened the Law Firm of Erin Birt, P.C. in 2010 to offer her clients alternative divorce resolution services, specialized collaborative divorce options and family law expertise. She and her expert team continually develop creative outcomes such as divorce mediation and family law mediation that work for all parties involved, particularly children.

Ms. Birt holds a J.D. from DePaul College of Law and is a member of the Collaborative Practice Professionals of Illinois, the Collaborative Law Institute of Illinois, the International Academy of Collaborative Professionals and the DuPage County Bar Association. She is a past board member and presenter for the Mediation Council of Illinois.

Divorce And Your 401(k)

Broken 401KAlthough it seems unfair, your personal 401(k) retirement plan is considered marital property and, as such, is subject to the same rules as other marital possessions in a divorce.

A recent article by Jerry Shaw on NewsMax.com offered advice on how to ensure this asset is shared equitably between both parties.

UNDERSTAND YOUR PLAN

Once you’re sure about your divorce, talk with your plan administrator as soon as possible. It’s important that both you and your attorney are familiar with your plan’s particular requirements, as asset protection in divorce is often a key point of negotiations.

Shaw states, “The plan may have requirements or options to use when dividing the plan with your spouse. Some plans allow disbursement as soon as the divorce is finalized, but other plans may not allow distributions of any kind until retirement age.”

KNOW YOUR OPTIONS

Understanding your alternatives will help you negotiate a property division outcome that works for both parties. Options for dividing a 401(k) plan can vary and include:

  • Simply splitting the assets equally

  • You keep your plan and replace your spouse’s portion of its value with other marital assets

  • Liquidating only a portion of the assets

  • Rolling over a set amount of the asset into your spouse’s retirement plan

Per IRS regulations, dividing the assets of a 401(k) through a cash payment is a one-time option. “Any additional payouts decided later on would be subject to a 10 percent penalty on the withdrawal. Any distribution from the plan before age 59 and a half is also considered an early withdrawal,” says Shaw.

In addition, any money distributed before retirement age requires an employer to withhold a pre-payment tax of 20 percent on the distribution amount.

HAVE YOUR ATTORNEY CREATE A QDRO

A QDRO, or Qualified Domestic Relations Order, tells your 401(k) plan administrator how to divide up the money according to federal regulations. If needed, your plan administrator will have “model copies” of completed QDRO documents for you to follow.

Both your plan administrator and the presiding judge must sign the completed QDRO, which should then be shared with your attorney and your spouse’s attorney so they’re familiar with your plan details for negotiations on splitting this asset.

Ensure that the QDRO is filed, approved and signed as soon as possible. If the party with the 401(k) plan dies or retires before this happens, the other party could potentially lose any funds due to him or her.

Using family mediation or a collaborative divorce process often results in a win-win for both parties around property division in a divorce, and I am well-experienced in these areas. Contact me to learn how I can help with your situation.


ABOUT ERIN BIRT

Erin_Birt_37033-199x300Illinois attorney Erin Birt is a skilled legal professional with over ten years of experience in trial and divorce law serving clients in many DuPage County cities including Wheaton, Glen Ellyn, Naperville, Warrenville and Winfield.

She opened the Law Firm of Erin Birt, P.C. in 2010 to offer her clients alternative divorce resolution services, specialized collaborative divorce options and family law expertise. She and her expert team continually develop creative outcomes such as divorce mediation and family law mediation that work for all parties involved, particularly children.

Ms. Birt holds a J.D. from DePaul College of Law and is a member of the Collaborative Practice Professionals of Illinois, the Collaborative Law Institute of Illinois, the International Academy of Collaborative Professionals and the DuPage County Bar Association. She is a past board member and presenter for the Mediation Council of Illinois.

Potential Changes to Illinois Marriage and Dissolution of Marriage Act

Exit strategyThe Illinois General Assembly has passed a major update to the Illinois Marriage and Dissolution of Marriage Act (IMDMA). If signed by the Governor, the new IMDMA will offer many positive changes for divorcing couples in Illinois.

Here is an outline of proposed changes taken from a recent article in the Illinois Bar Journal by Matthew Hector.

GROUNDS FOR DIVORCE

  • Except in cases of irreconcilable differences, the new Act will remove all grounds for divorce previously listed in the IMDMA.

  • The term “irretrievable breakdown” of marriage will automatically be presumed when divorcing parties have lived separate and apart for at least six months.

  • Couples who are in agreement about divorce can now proceed immediately, no six-month waiting period required. Divorcing couples who don’t agree to a six-month waiting period no longer have a mandatory two-year wait for divorce.

  • A judge must enter an order of dissolution within 60 days of the closing of proofs.

CHILD CUSTODY

  • Emphasis is now on parental responsibility rather than who will get custody of a child.

  • While some decisions (health, religion, and extra-curricular activities) will be shared between both parents, in some cases the responsibility for specific decisions will be granted to the parent who can best make those decisions. For example, a parent who is a teacher might be assigned to make educational choices.

  • The best interests of the child remain paramount.

CHILD RELOCATION

  • Custodial parents in the following counties can relocate with a child up to 25 miles without court approval: Cook, DuPage, Kane, Lake, McHenry and Will.

  • Those in other counties can move up to 50 miles without court permission.

  • Any move of 25 miles or less can be across the state line without leave of the court; Illinois courts will retain jurisdiction over custody issues.

PROPERTY DIVISION AND MAINTENANCE

  • The court must now provide the reasons for allocation decisions.

  • For marriages of ten years of less, fixed periods can be set during which a maintenance decision cannot be changed by a court order.

  • Allocation decisions are no longer automatically subject to review by either party filing a motion.

“HEART BALM” DECISIONS

  • The following divorce actions will be eliminated in the new IMDMA:

    • Alienation of Affection

    • Breach of Promise to Marry

    • Adultery/Criminal Conversation

Contact me if you would like to learn more about current Illinois family law or the proposed changes to the IMDMA and how they could affect your divorce planning.


ABOUT ERIN BIRT

Erin_Birt_37033-199x300Illinois attorney Erin Birt is a skilled legal professional with over ten years of experience in trial and divorce law serving clients in many DuPage County cities including Wheaton, Glen Ellyn, Naperville, Warrenville and Winfield.

She opened the Law Firm of Erin Birt, P.C. in 2010 to offer her clients alternative divorce resolution services, specialized collaborative divorce options and family law expertise. She and her expert team continually develop creative outcomes such as divorce mediation and family law mediation that work for all parties involved, particularly children.

Ms. Birt holds a J.D. from DePaul College of Law and is a member of the Collaborative Practice Professionals of Illinois, the Collaborative Law Institute of Illinois, the International Academy of Collaborative Professionals and the DuPage County Bar Association. She is a past board member and presenter for the Mediation Council of Illinois.

What Your Kids Want To Say About Your Divorce

parents with children talking silhouette vectorIn a recent Huffington Post article, 12 Things Kids Think About Divorce But Are Too Afraid To Say, family therapist Tara Kennedy-Kline outlines what your kids probably want to tell you about the divorce, “but don’t have the world experience to say directly.”

She developed this list after counseling hundreds of divorcing families and observing the children’s behavior.

You can see the entire list in her article, but it really boils down to three basic rules your kids want you to follow.

RESPECT AND ACKNOWLEDGE THEIR FEELINGS

“Quit telling me I’m ‘being dramatic’ about what’s happening.” Your kids have every reason to feel upset about the divorce. They’re scared and might even be wondering when they’ll make you mad enough to stop loving them, too, states Kennedy-Kline.

Try to include your kids in decisions around child custody and visitation, perhaps through family mediation. Sometimes what they prefer might actually be best for everyone. This can be facilitated by the use of a Child Specialist, or even taking the time to discuss your personal knowledge of the children’s expressed feelings during the mediation session.

Let children have (and express) their thoughts and feelings about your new relationships, and expect that those feelings may not always be warm and fuzzy. Often that’s a signal that your kids need quality time with just you.

BE CIVIL TO AND ABOUT YOUR EX IN FRONT OF THEM

If they could find the words, your children might say, “Please stop talking badly about each other to me or in front of me; it just makes me disrespect you,” according to Kennedy-Kline.

Don’t whine in front of your kids about how you got the worst of the post-divorce property division. They will think you care more about the material things than about the loss of their family. Try to admire the gifts your ex gives them rather than being jealous and insulting.

Accept that your ex may be better at teaching your kids something than you are. In your child’s words, “When you allow me to learn from and value both of my parents, that teaches me to appreciate the gifts in others and to ask for help when I need it.”

REMEMBER THAT YOU ARE ALWAYS THEIR PARENT

You might have stopped being married, advises Kennedy-Kline, but you have not stopped being parents.

This means being able to attend your children’s celebrations or sports event and be civil to each other. You also need to continue to protect them from anyone or anything that would hurt them, possibly including the new person in your life.

Finally, if they could, your children would ask you, “Please get on the same page when it comes to values, rules and discipline,” states Kennedy-Kline. Letting them have free reign to spite your ex will only confuse and frustrate your children in the long run.

Divorce mediation with a qualified DuPage County Divorce Attorney can help you deal with many of these issues. Contact me to learn more about mediation and other services I offer.


ABOUT ERIN BIRT

Erin_Birt_37033-199x300Illinois attorney Erin Birt is a skilled legal professional with over ten years of experience in trial and divorce law serving clients in many DuPage County cities including Wheaton, Glen Ellyn, Naperville, Warrenville and Winfield.

She opened the Law Firm of Erin Birt, P.C. in 2010 to offer her clients alternative divorce resolution services, specialized collaborative divorce options and family law expertise. She and her expert team continually develop creative outcomes such as divorce mediation and family law mediation that work for all parties involved, particularly children.

Ms. Birt holds a J.D. from DePaul College of Law and is a member of the Collaborative Practice Professionals of Illinois, the Collaborative Law Institute of Illinois, the International Academy of Collaborative Professionals and the DuPage County Bar Association.