Giving Thanks for Clients...on Thanksgiving

While it is true that without clients I would most certainly be working in a different capacity, I am thankful for my clients for reasons beyond the mere obvious.   Naturally, I need to work for a living and therefore appreciate those who entrust their most important matters to my care, which in turn allows me to maintain an office, provide work for many outstanding people, and of course pay my own bills.  But this aspect, as it would seem, is merely the beginning of the inherent value to be found in clients.

I recently spoke with a client of mine whose neighborhood took the full brunt of Hurricane Sandy.  During a time in his case when we would normally be maintaining frequent contact, he was absent.  Unreachable.  Silent.  It caused me discomfort.  I cannot legitimately care for one area of a client’s life without being affected when another area is threatened.  So am I a more caring person because of my clients?  I would like to think so.  When my client finally re-established contact with me and recounted the widespread destruction, flooding, food lines, gas lines, and loss of electricity and cell phone, I felt relief that he and his family had survived and celebrated with him the great gift of life. 

And then there are the things my clients teach me.  True, it is I who gets paid to teach my clients about the law and the best way to protect their family and their interests in a divorce storm that is actually worse than anything Sandy could dish out, but in the course of so doing I learn many things about businesses of all sorts, psychology, humanity, and decisions that are both good and bad.  Truth be told, all of my clients are interesting in some form or fashion.  The businesses they have built, run or called home day after day are part of the very fabric that makes our country what it is.  The diverse backgrounds of clients from all over the world bring cultural richness to my office.  Their life stories teach me invaluable lessons about the importance of good decisions, and the life altering effects of bad decisions.  In either event, I am all the better for this knowledge, which only grows as I share lessons learned with the next client.  Such accumulation of practical wisdom screams to be liberally shared with those in need, either to uplift spirits or provide candid caution. 

Finally, by choosing the right clients, I have found a cause to help others, and thus bring fulfillment to my own life.  For just as no student learns as much from any class as its teacher, we all benefit from treating others with dignity, respect, and striving to make better the life of someone else.  No, I have no grand illusions of changing the world, just improving what I can.  And to my clients who help me in this goal, I remain thankful. 

Happy Thanksgiving.

Knowing When to Fight

Some common misconceptions among many litigants are that everything should be fair, that all wrongs should be made right, and that a lawyer’s job is to see justice done in all respects.  The smart litigant understands that life is not fair, that righting some wrongs is either impossible or not cost effective, and that lawyers have a purpose beyond merely pursuing justice.   On occasion, it is not even in your best interest to take a stand based solely on principle.  Allow me to explain.

The Serenity Prayer written by theologian Reinhold Niebuhr and adopted by twelve step programs everywhere states, “Lord grant me the serenity to accept the things I cannot change, the courage to change the things I can, and the wisdom to know the difference.”  This simple prayer takes on added significance in the family law context as individuals learn that the one thing that cannot be changed is the past.  The choices that have been made, the words spoken, the deeds done…all stand for eternity.  How you deal with the past determines whether you are wise, or whether you are acting out of irrational emotion.

Clearly there is a time for action and a time for principle.  There is also a cost for principle as well.  Before taking your first step, think about exactly what you want to accomplish.  Ask yourself what a win looks like, and what will be the financial and emotional price tag associated with getting the win.  And then determine your chances of accomplishing your goal, given the facts at hand.  While some litigants claim not to care if victory seems unlikely because “it’s a matter of principle,” I can assure you that they care when they do not succeed and the other side is emboldened by witnessing an attacking cavalry fall into an oil pit.  On such occasions, if you thought it was bad before, this failed attempt will buoy the other side and make matters worse for you.  Guaranteed.

Perhaps you think that success is inevitable because you hired the biggest and most feared lawyer in town.  Yet while the sweet smell of anticipated success is already in the air, remember that every lawyer is limited in some way to the facts as they exist, and the most that that your lawyer can do in court is to present the facts favorable to you in the most compelling light possible, supported by law that is hopefully on your side.

So what exactly do you need your lawyer for anyway if he/she is not eagerly gunning on your behalf for truth, justice and the American way?   Without question, your lawyer should be counseling you.  Plain and simple.  You hired your lawyer to be a counselor not affected by the emotional baggage of your past.  Your counsel should be an objective voice of reason and experience, providing you with a cost benefit analysis of each strategy.  While you already know to avoid a lawyer who cannot stand the heat of battle, you should also beware the lawyer that fails to explore caution and reason, as well as the one that attempts to fuel your anger and infuses emotion into a case to encourage you to launch an attack where there is no real likelihood of gain (for you—that is).

When you have a just cause and a good chance of gaining a measurable victory worth the effort, seize the moment and attack with confidence.  If there is an time where principle requires action, go for it.  Just remember to choose wisely the hill on which you are willing to die.  Not every hill is worth taking.  A good lawyer can help you gain the wisdom to know the difference. 

What Divorcees Can Learn From Memorial Day

As the country prepares to celebrate Memorial Day, most anticipate the opening of beaches and look forward to good cookouts and time with friends.  Very few give pause to consider the purpose of the day and how it came to be.  In a somewhat surprising sense, we need this day.  And the same balm that has helped to assuage our nation’s pain can also bring healing to divorcees.

            Simply stated, Memorial Day is a tribute to soldiers and the wars they fought.  It is a day to remember the fallen -- those who gave their all for our country.  We memorialize them by remembering their sacrifice.  Since the very founding of our country, parents have lost sons and daughters to the ugliness of war.  Their pain has been too deep for words and well beyond measure.

To know what Memorial Day is, is to know what it is not.  Memorial Day is not a day to revive grudges.  It is not a day to exercise hatred for the British for their actions prior to and during the American Revolution.  It is further not a day to exercise hatred for Germans for their role during World Wars I and II.  Still yet it is not a day to hate the Japanese for bombing Pearl Harbor.  History is there to document what happened so that we might never forget.  But to move forward with life, there must be an element of putting the past where it belongs and an attitude of forward thinking.

Had we as Americans held a forever grudge against Great Britain, they would not be today our greatest ally.  The bond we now share with Germany, Japan, Italy, Vietnam, and numerous other countries, is the result of a willingness to put the past behind us and let prior wrongs and differences be something that we remember, but something we refuse to let control us.  Interestingly enough, this attitude gained traction almost immediately after each war ended.  We even went so far as to aid our former enemies in helping them rebuild.  We actually helped them clean up the devastation that they brought upon themselves.

The reasoning behind our “forgiveness” and acts of benevolence is simple:  we wanted future generations to benefit from our selflessness.  The grudges we hold make life all about us.  Forgiveness makes way for future generations to live in peace and harmony, and to engage in relationships that make for happiness and successful living. 

Divorced parents must always remember that they chose their former spouse.  They also chose their children’s parent.  Let that concept soak in.  If you are a divorced parent, you alone chose your child’s father or mother.  Further, your divorce does not render your child an orphan.  Courts divorce spouses through judgments for dissolution of marriage.  They do not issue judgments for dissolution of a parent/child relationship.

The happiness and success of future generations, i.e. your children, your grandchildren, and so on, depend in large part on your ability to begin a healing process and move on with life.  You should want your child to have the best relationship possible with your ex spouse.  Why?  Because everybody benefits when that happens.  You will someday be a grandparent and a great grandparent.  Your willingness today to put the past behind you will have an everlasting impact on generations to come.

Let the healing process begin.  Happy Memorial Day.

Snoozing and Losing…How Hoping for an Agreement on College Can Cost You.

In a recent post, I explained how most divorcing parties use language in their Marital Settlement Agreements that defers allocation of college expenses to a time when the child is ready for college (this provision also applies to parents who were never married).  While the practice is sound for a number of reasons, most people are entirely unaware that the date on which they file a formal request with the court to force the ex spouse to pay is of extreme importance.  And this issue is a clear example of what you don’t know, can in fact hurt you.

In 2009 a mother contacted me to pursue her former husband for contribution to their daughter’s college expenses.  The mother explained that the daughter had attended five different schools and had graduated only a few months earlier.  Never before had anyone waited until the child graduated from college to ask me to seek contribution.  After researching the law and finding no time limitation for filing such a request, I proceeded with an action, took it to trial in 2010, and collected a tidy sum for my client.  And shortly thereafter, along came the Petersens.

The Petersen family (not clients of mine) litigated the issue of whether a parent can ask for retroactive contribution to college expenses.  After the trial court weighed in, it went to the Appellate Court and ultimately the Illinois Supreme Court.  There it was held in September 2011 that contribution to college expenses is in the same nature as child support.  Accordingly, courts are now obligated to apportion expenses from the date the request was formally filed, and may not order reimbursement of expenses incurred prior to the filing of the request.  Did you catch that? 

If you and your former spouse (or former significant other in the case of paternity matters) are discussing matters and negotiations break down when it is time for junior to head off to school, should you advance payment for the first semester of bills, do not expect any relief from the court when you seek reimbursement.  In other words, when it comes to getting your request on file, if you snooze, you lose.

Another related factor of great importance is that in an effort to avoid legal fees, many people continue negotiations and avoid filing a request with the court as long as possible.  Unfortunately, they fail to realize that it takes time for the request to work its way through the system.  Bringing the point home, do not think you can file in the summer and be assured that the court will hold a hearing before the fall semester.  In fact, I once filed a petition in March and made a request in May for a hearing to be held on college contribution sometime prior to Labor Day.  The court informed me that its docket was overly crowded, and it had no openings for hearings until late September!

In conclusion, it should be noted that filing a formal request for college contribution protects your rights and in no way precludes you from reaching a settlement with your former spouse.  In fact, this step forward often serves as a catalyst to bring matters to a head so they can be resolved.  So inasmuch as time is money, do not waste it and do not delay in filing your petition– or it could really cost you.

How Your Parents May Be Saving Money for Your Ex

The overwhelming majority of people who divorce while their children are still minors have at best a murky vision of what they will pay toward their children’s college expenses.  In fact, there are a myriad of variables that will come into play.  Will the children go to an ivy league university or an in state public school or will they instead opt for a local community college?  Will they get sports scholarships, academic scholarships, or no scholarships?  What about grants and loans?  What will they qualify for?  And how much will each parent contribute?

Fortunately, the Illinois Marriage and Dissolution of Marriage Act provides in section 513 that unless the parties have agreed otherwise, the court can order a parent to contribute money toward college expenses to the extent of his or her ability.  Because most people do not know what the future holds, they wisely opt to incorporate into their Marital Settlement Agreement what we Illinois divorce lawyers call “section 513 language” and therefore choose to have the court make a determination at the time a child is ready for college (unless the parents reach their own agreement later).

So what does any of this have to do with your parents saving money to give to your former spouse?  Here’s the rub:  Under section 513, the court orders parents to contribute based on the unmet needs of the child.  To determine unmet needs, the court looks to the total educational costs and then the resources of the parents and the child.   So if your parents have selflessly been putting aside college money in the names of their grandchildren, that fund will be considered a resource of the child.  And guess who gets the benefit of that:  your ex.

Let us consider a very simple example where you and your former spouse each make the same income and where there is an unmet need of $20,000.00 for your child to attend college.  All things being equal, you and your husband will each pay $10,000.  Now let us assume that your ex spouse’s parents set aside no college funds whatsoever for your child but your parents sacrificed and set up funds or savings bonds in the child’s name for college that are now worth $20,000.  In this scenario, the court would most likely apply the grandparent savings to the unmet need and require neither parent to contribute.  Sure, you are off the hook.  But so is your former spouse…and your parents just saved your ex $10,000.  Altering the numbers for a moment, if the grandparents had saved only $8,000.00, then the unmet need would be $12,000.00 and each parent should contribute $6,000. 

Had the grandparents kept the money in their own names, they could have made a payment on your behalf after the judge ordered you to pay your portion and you would be out of pocket for nothing, while your ex spouse will have to come up with his/her own share of the money.  It is a simple difference, but one that most people fail to consider.  And when you factor larger unmet needs for several children each attending college for a minimum of four years, the cost of such a mistake can be devastating.  So tell the folks that it is okay for them to save for the grandkids, but they need to make sure to consult an estate planning attorney and to not put the money in the grandchildren’s names (…even if you are still married).  Unless, of course, they do not mind saving for your ex.

'Till Death Does You and Your Documents Part

If you thought “till death does us part” was only for the wedding vows, consider how it applies to your documents.  It is indeed the time of year when many engage in spring cleaning and purge their home of unneeded papers.  There is something liberating about “traveling light” through life.  But if you have been ordered to pay child support, you might want to think twice before ever throwing out those old cancelled checks, money order receipts, and related documents. 

Let us suppose that as a child support obligor (i.e. the one who paid support as opposed to the one who received support), your children were emancipated long ago.  Let us further suppose that you paid support in full, you divorced in 1977, and you have not had any contact with your ex spouse since 1985.  No matter how tempting the urge to feed them to the shredder, don’t do it!

What would you do if you destroyed those receipts and the following week you were served papers from your long ago divorced spouse claiming you failed to pay child support and asking that you be held in contempt of court, thrown in jail, and that a judgment be placed against you for fifty thousand dollars plus interest compounded annually for decades at the rate of nine percent?  Unless you have proof, you might be in a really bad position.  In short, once your prior spouse testifies under oath that you did not pay, the burden shifts to you to show you did.   Without documents, your claims that you paid and your representations that she knows you paid are meaningless.

While you might think this process makes no sense, it actually does.  From the beginning when child support laws were first put on the books, non-custodial parents have skipped out on their financial responsibilities to their children, moved out of state, and made themselves poor on paper (at least for a time).  As a result, some states have changed their laws to declare that child support obligations have no statute of limitations.

If you now wonder whether you will ever get rid of that box in the attic, the answer is that you can throw it out, but only if you have some way of proving you are paid in full, such as previously entered court orders that say you have paid all of your child support and related expenses.  To learn more specifics, be sure to consult a divorce attorney in your state.  Otherwise, hang onto those documents…” 'till death do you part.”