Monthly Archives: January 2016

Discovery in Family Law: Investigating Assets and Income

 

 

 

Discovery in Family Law: Investigating Assets and Income

discovery family law

Divorce, custody, and child support cases can involve different financial issues.  In divorces, the property and assets between the spouses may be divided.  When custody or child support are at issue, the court must determine how to arrange the parents’ financial responsibilities for their children.  As part of the process, both parties are usually required to fully and truthfully disclose their assets, debts, and incomes from all sources.  Several methods are available to exchange, request or uncover such information.  The process of exchanging this information is referred to as “discovery.”  This article will provide a brief overview of some discovery methods used by litigants to gather information when involved in a family law case. 

 

Notice to Produce

Parties may send each other what is called a Notice to Produce, sometimes referred to as a “Request to Produce.”  It will contain a list of requested documents that the other party must gather and submit.  The receiving spouse is required to provide copies of the requested documents within a certain time frame, generally 28 days.  The items requested can include, but are not limited to, the following:

  • Evidence of income: pay stubs, banks statements, tax returns, W-2’s or other similar tax forms
  • Evidence of assets: titles to residential property, car titles, retirement or investment account statements
  • Evidence of debts: credit card statements, loan statements

There are limits to what can be requested, and a receiving party may object if certain requests are inappropriate.  For example, a valid objection can be made if the documents requested are not relevant to any pending issues in the case.

 

Interrogatories

Interrogatories are written questions, to which the receiving party is required to provide written answers.  The answers are typically accompanied by a signed, sworn statement providing that the written answers are true.  Interrogatories are used to obtain specific information, or answers from a party.  Such information can include:

  • Detailed employment and salary information: where a party works, how much he or she earns, whether he or she receives bonuses
  • A list of a party’s retirement or investment accounts
  • In a custody case, the address and description of the home where the parties’ children will be staying during parenting time

As with a Notice to Produce, objections can be made if the questions are inappropriate, for example, if they are not related to any pending issues in the case.

 

 

Depositions

A deposition is the questioning of a person outside of court, under oath.  Depositions can be oral or in writing.  Oral depositions are usually taken in the presence of attorneys for both parties, and are recorded by a court reporter.  Depositions may be taken to find out what information the other party knows, and what information they might testify to at trial.  The recorded deposition of a party can also be used as evidence at trial. 

 

Subpoenas

Both parties may have the opportunity to request documents directly from entities such as employers, banks or other financial institutions.  Subpoenas can be very useful tools if a party suspects that the other spouse is not disclosing certain information.  For example, if one party stated that he or she worked only part time in the past, a subpoena can be issued to his or her employer requesting documentation of past work schedules to confirm whether or not this is true. 

Discovery Family Law

Requests to Admit

Requests to admit are written questions asking that a party admit or deny specific facts. The party receiving the request to admit typically has 28 days to respond to the questions.  If he or she does not respond by this time frame, the questions will be deemed admitted.  Similarly, Requests to Admit can be used to have the other party verify that certain documents are genuine.  If the party does not reply within the requisite time, the genuineness of the documents will be deemed admitted.

 

Finding and having the right information can be crucial to a case.  If you require professional assistance with uncovering information in a divorce, custody, or other family law case, contact our attorneys at (815) 207-9570, or (815) 409-8858 for an initial consultation.  We represent clients in family law cases in Will County, Dupage County, and Kendall County.

 

 

The information on this site is not legal advice.  Retain an attorney licensed in the state which has jurisdiction over your matter before taking any action which affects your legal issues, legal marital status or custody arrangements, and follow the advice of your retained lawyer.

Divorce Papers: Understanding a Marital Settlement Agreement

 

 

Divorce Papers: Understanding a Marital Settlement Agreement

divorce papers

The final paperwork which both spouses sign at the end of a divorce is commonly referred to as a divorce decree, or divorce papers.  These documents are commonly made up of a Marital Settlement Agreement, and if the parties have minor children, a Parenting Plan as well.   A Marital Settlement Agreement generally outlines how the parties’ financial resources, property, and debts will be allocated after the marriage is dissolved. 

This article will cover some of the common provisions included in Marital Settlement Agreements, to give some insight into common issues in a divorce, and to give you ideas for possible questions to ask your divorce attorney.  To learn more about the general contents of Parenting Plans or Custody Agreements, please read our article here.

 

 

Maintenance

A Marital Settlement Agreement will generally include a provision regarding maintenance, commonly referred to as “alimony.”  It would usually contain such details as how much maintenance will be paid, the frequency of payments, and when maintenance payments will end.  If no maintenance will be paid between the parties, language to that effect will generally be included in the agreement. 

 

 

Child Support and Child Expenses

If the parties have minor children, responsibilities for child support and other child expenses must be included in the divorce papers.  Generally the agreement will detail how child support was calculated and the frequency and method of payments.  The agreement will also list how the parties will split costs for the children’s educational, medical, extracurricular, and day care expenses. 

If the parties have never been married, and thus are not getting a divorce, financial matters related to their children would be detailed in the Parenting Plan or Custody Agreement

 

 

Insurance

With regards to insurance matters, Marital Settlement Agreements can include the following:

  • Whether both parties will be responsible for carrying their own health insurance, or whether one party will keep the other party on his or her policy after the divorce
  • Which party will have the children under his or her health insurance
  • Whether one of the parties will have the children, or the other spouse as beneficiaries on his or her life insurance after the divorce

 

 

Marital Property

A Marital Settlement Agreement will outline the parties’ agreement as to how to divide their property.  This can include, but is not limited to, residential property, physical property, bank accounts, retirement accounts, investment accounts and even a spouse’s interest in a business.  This section can include the following:

  • The property that each party will keep
  • Whether any property will be sold after the divorce
  • How the proceeds of a sale of property will be distributed between the parties
  • If ownership of property is transferred, the method and deadline for transfer

 

 

Marital Debts

This section will describe how the parties will be responsible for paying off the remaining marital debt between them.  It can list the following:

  • The debts each party will be responsible for paying
  • The percentages of each debt the parties shall be responsible for paying
  • The date and/or methods by which the debts must be paid off

It is important to keep in mind that if one party is named responsible for payment of a particular debt under a Marital Settlement Agreement, the party who actually incurred the debt may still be legally responsible  to pay the creditor or entity which is owed payment.

 

 

Taxes

If the end of the year is approaching, the parties can agree to finalize the divorce in the new year, and file taxes jointly if it will give them additional tax benefits.   The agreement can also detail how the parties will alternate years claiming the children as tax exemptions.

 

 

Finalizing the Agreement

Generally a Marital Settlement Agreement is the result of both spouses reaching a settlement in the divorce case.  Once an agreement is reached, both parties will sign the divorce papers.  The Marital Settlement Agreement (and Parenting Plan if the parties have minor children) will be incorporated into a Judgment of Dissolution of Marriage.  The Judgment is another official legal document which converts the divorce papers into an official court order.  There will generally be a final court date called the prove up, on which the judge will examine the Agreements and determine if they are proper, valid, and truly agreed upon by the parties.  After the divorce papers are signed and entered by a judge, they become an official court order, and both parties are legally obligated to follow the terms of the Marital Settlement Agreement and Parenting Plan going forward.

 

Each divorce case will have different facts and circumstances, and will likely require different language in the Marital Settlement Agreements.  If you or someone you know is in need of professional assistance with drafting, reviewing, or negotiating divorce papers such as a Marital Settlement Agreement or Parenting Plan, contact our family law attorneys for an initial consultation at (815) 207-9570 or (815) 409-8858.  Our divorce and custody attorneys represent clients throughout Will County, Dupage County and Kendall County.

The information on this site is not legal advice.  Retain an attorney licensed in the state which has jurisdiction over your matter before taking any action which affects your legal issues, legal marital status or custody arrangements, and follow the advice of your retained lawyer.  

New Illinois Custody Laws in 2016: Parenting Plan

 

 

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New Illinois Custody Laws in 2016: Parenting Plan

child custody attorneys

New Illinois child custody laws have come into effect starting January 1, 2016.  First and foremost, as detailed in our previous article on new Illinois custody laws, the term “custody” is no longer used.  The concept of “child custody” will now be formally referred to as “allocation of parental responsibilities.”  Whether two parents are disputing how to arrange their parental responsibilities, or simply wish to enter into an agreement, Illinois law requires that a Parenting Plan be established through the court system.

 

 

What is a Parenting Plan?

A Parenting Plan is a legal document which establishes the legal rights and obligations of both parents as relating to their children.  Prior to 2016, Parenting Plans were commonly  referred to as “custody agreements,” “parenting agreements,” and other titles.  These were the official legal documents which established child custody arrangements.   While the terminology and concept of “custody” has changed, the same concerns and parental responsibilities are accounted for in today’s Parenting Plans.  A Parenting Plan can cover several issues, including but not limited to:

  • The parents’ responsibilities for making decisions in major areas of their children’s lives
  • A schedule for when each parent will have parenting time with the children
  • Driving responsibilities of each parent for the exchange of the children for parenting time
  • The access that each parent will have to the children’s school, medical, or other records
  • Restrictions on how far a parent can move with the children

If both parents agree as to how to establish their parental responsibilities, a Parenting Plan can be drafted by their attorneys, and entered by a judge.  After it is entered by a judge, it becomes an official court order which must be followed by both parents.  If the parties disagree as to how to arrange parenting responsibilities, a judge can hold a hearing and determine the arrangement, taking into consideration the best interests of the children.

 

 

Requirements for a Parenting Plan

At a minimum, an Illinois Parenting Plan must contain the following:

  • A section designating which parent or parents will be assigned to significant decision-making responsibilities for the child, including matters relating to the child’s education, medical treatment, extracurricular activities, religious upbringing, and choice of daycare or babysitter.
  • A schedule designating where the child will live, and on what days; or a formula or method for determining such a schedule.
  • A section providing that the parties may attend mediation to resolve future issues regarding a change of parental responsibilities or parenting time schedule.  This provision is not necessary if only one parent will be assigned all decision-making responsibilities for the children.
  • A section providing that each parent has access to the children’s mental, dental, and psychological records; child care records, school and extracurricular records, reports and schedules. This would not be required if there is a court order restricting parenting rights.
  • A section designating which parent has the majority of parenting time, pursuant to 750 ILCS 5/606.10, for purposes of all State and federal statutes that require a designation or determination of custody or a custodian.
  • A paragraph designating the child’s residential address, for school enrollment purposes.
  • Each parent’s home address and telephone number.
  • Each parent’s employment addresses and telephone numbers.
  • A provision that each parent must give 60 days advanced written notice if they change their residence. The written notice must include the intended date of the move, and the new address.  Such notice is required unless it is impracticable, or unless a court orders otherwise.  If impracticable, the moving parent must give notice at the earliest practicable time.
  • Provisions requiring each parent to notify the other of emergencies, health care, travel plans, or other significant child-related issues.
  • Provisions establishing the transportation arrangements relating to the exchange of the children for parenting time.
  • Provisions establishing when and how each parent shall be able to communicate with the children during the other parent’s parenting time.
  • Provisions for how to resolve issues if a parent wishes to change residences in the future, if applicable.
  • Provisions relating to future modifications of the parenting plan, if certain events occur.
  • A provision for the exercise of the right of first refusal, if desired by both parents. This refers to a parent’s right to have the child during the other parent’s scheduled parenting time, if the other parent is unable to have his or her scheduled parenting time for work or other reasons.  This provision must set out how the right for first refusal can be invoked, the notice and response required of both parents in such an event, the transportation requirements, and any other necessary related requirement to protect and promote the child’s best interests.
  • Any other provision that would address the child’s best interests, or that would facilitate cooperation between both parents.

 

 

Other Requirements for a Parenting Plan

Parents must file a proposed parenting plan with the court within 120 days of commencing a court case for allocation of parental responsibilities.  That is, if one parent files a petition with the court asking that parental responsibilities be established, both parents have 120 days to file a proposed parenting plan.  The parents can each file different parenting plans, or can file an agreed parenting plan.   If a parenting plan is not filed with the court, the court will hold an evidentiary hearing to allocate parental responsibilities. 

(815) 207-9570

Call to schedule an initial consultation

If you or someone you know is seeking legal representation relating to child custody or parenting plans in a Will County, Dupage County, or Kendall County case, contact our family law attorneys at (815) 207-9570 to schedule a consultation.  

The information on this site is not legal advice.  Retain an attorney licensed in the state which has jurisdiction over your matter before taking any action which affects your legal issues, legal marital status or custody arrangements, and follow the advice of your retained lawyer.