What is a QDRO and do you need one?

 A Qualified Domestic Relations Order (QDRO) is generally part of a marital settlement agreement that recognizes an alternate payee's right to part or all of the right to receive benefits payable to a participant under a retirement plan. (US Dept of Labor definition).

In other words, when one of the parties to a divorce has a retirement account (s) that is larger, or if it is the only retirement account a divorcing couple has, a QDRO is the only permitted mechanism to divide the account between the parties. But retirement plans are heavily regulated by  federal  and state law, especially as it pertains to who is allowed access to the funds and when payments may be made.

The IDMA, section 503 (b) (2) recognizes that the division of benefits via a QDRO is presumed to be the division of marital assets.  This provision gives Illinois Courts authority to sign an order requiring a plan administrator to pay out some or all of the retirement benefits to someone other than a plan participant.

It may sound easy enough.  Get a QDRO signed at the time of the entry of the Judgment of Dissolution of Marriage.  The Judge has authority to enter an order dividing a defined benefit or defined contribution plan. But the order must be approved by the plan administrator before it is signed by a Judge and this is where things can get complicated.

All QDRO's must contain certain information, such as the name of the plan participant and alternate payee as well as the date of valuation of the benefits. In addition, plan administrators often have their own "approved" plans.  Some are simple and straightforward; others are complicated and full of minutia. 

If a retirement plan (s) is  going to be divided as part of a marital estate, a QDRO will be necessary.  It's best to discuss this with your attorney as part of your settlement discussions. There may be other options available that will obviate the need for a QDRO, such as getting a larger portion from the proceeds of the sale of the marital home.  Your attorney will be able to provide legal advise about a need for a QDRO.

 

 

How to Recognize a Scam.....so you Don't become a Victim

The information contained in this blog is provided courtesy of Officer Tammy Jacobsen from the Skokie Police Department.  She is part of the Crime Prevention and Community Relations Unit and regularly speaks to area residents about how to protect themselves from the latest financial scams out there.  The following are commonly reported scams in our area:

1.  Grandparent scams:  This scam goes something like this:  Phone rings and victim answers. The caller says Hi Grandma/Grandpa. The victim will then name a grandchild (Is this Josh?).  The caller says yes and launches into a story about being in a car accident or some other situation where he/she needs immediate cash. Can the Grandparent help by going to Western Union and wiring the money to the grandchild?  Of course, the grandparent will help.  Finally, the caller/grandchild asks that the grandparent not to tell Mom.  The Grandparent wires the money to the "grandchild", only to find out later that it was a ruse and the money is gone.  One of the easiest ways to protect yourself from this scam is to phone Mom before wiring money. Mom will know where the child is and if he/she needs money.

2.  Greendot Scam:  The victim will receive a phone from a utility or phone company indicating that the monthly bill is overdue and the victim faces an immediate interruption of services.  As explained by the representative, the quickest way to avoid having the utility turned off is to purchase a greendot card. These are gift cards that can be purchased at gas stations or convenience stores in any amount. They can be cashed over the phone by providing the serial number from the back of the card. If you receive a call like this, you can check out if it is accurate by placing a call to the utility company and inquiring.  Always double-check by initiating your own call to the company.

3. Health and medical scams; These usually involve mobile medical vans that are set up in a parking lot and screen for things like heart disease or diabetes for a nominal fee or free.  In order to get the test done, the victim is asked to provide an insurance or medicare card. Medicare cards contain a person's date of birth and social security number.  Once you provide the mobile van operators/scammers with this information, your identity is compromised and in the hands of scammers.  Before you visit a mobile van, check with the sponsoring organization to confirm they are operating in the specific location.  Another way to confirm the legitimacy of a mobile medical van is to notify the police.  Most entities that do business in an area are required to notify the police or obtain a permit or license from the local government to do business. If the police don't know about it, then chances are it's a scam.

4.  Online dating scams:  No matter how many warnings are out there about not giving money to people that you meet online, it still happens with regularity.  If you are online dating and meet someone virtually, do not send them money.  Never, ever.  It's a scam and you will lose your money.  You'll also get your heart broken at the same time. I"ll address this particular scam in an upcoming blog post.

5.  Gypsy-ruse burglary scams.  These scams involve a meter reader who stops by your house to read the meter. While you go the basement with the meter reader to show him where it is located, a second scammer enters your house and takes your valuables and money. By the time you come back upstairs (or in from the backyard), the second scammer is gone with your belongings.  A variation is a contractor who is working the neighborhood and notices that your driveway or roof is in disrepair.  They will fix it for you. After paying them you discover that they never did the work.  In the case of black topping the driveway, you find it's black paint that washes away in the rain.  Be very cautious who you let into your house.  If someone claims to be a meter reader, get their name and ID badge number.  Have them wait at the door while you verify their identity with the utility company. Or call the police and ask if the meters are being read in the area.  If they do not stick around, you will know it's a scam.  If you are approached by a contractor to do work on your house, notify the police. They will know if there are gypsies operating in the area.

There are many, many scams out there.  Before you give money or personal information to anyone in person, over the phone or online, independently verify their identity.  Initiate your own contact with any company that solicits money from you or wants access to your home.  If something seems too good to be true, it probably is so be careful.

Five Things to Do to Ease the Pain of Divorce

1.  Find a support group.  Many people find comfort and strength in sharing their experiences with others who are similarly situated.There are numerous places to find support wherever you are in the divorce process.  The Lilac Tree in Evanston offers a number of regularly scheduled support groups and workshops for women who are contemplating, in the process of or have recently finished their divorce. You can find their schedule online at thelilactree.org.   Meetup offers many divorce related groups. The meetings are posted online.  In most instances, you can show up when you feel like it and there is no obligation to continue if it's not for you. There is usually no fee to participate either.  Houses of worship are another places to find support.  Many offer programs related to divorce and do not require you to be a member of the congregation to participate.

2.  Find a Therapist. I recommend this to all of my clients regardless if they are the party seeking the divorce or on the receiving end.  Talking to a trained expert is beneficial. Momentous life changes occur as a result of divorce. The way you grocery shop, your daily routine, access to your children, how you spend your money, returning to the work place, dating, feelings of sadness or fear.....the list is endless.  Change is coming and it can be daunting. Get prepared by finding the right therapist to help you navigate the changes.

3. Try something new.  If there is something that you have longed to do, but haven't, now is the time. Take a deep breath, grab a friend or go it alone.  Want to learn to play the guitar, run your best 5K or learn to speak french? Many colleges and universities offer non-credit enrichment classes. Depending on what you are interested in, there are also organizations that offer classes.  Want to grow a vegetable garden? Check out your local park district or botanic garden.  Meetup is an online clubhouse where you can find anything (and I do mean anything) to do. You will now have free time.  Trying something new is a positive way to stay busy and keep the blues away.

4.  Keep a journal.  Many scientific studies have established that journaling has positive health benefits. Research from the University of Texas/Austin indicates that daily journaling will strengthen your immune system.  There is growing evidence that journaling reduces stress.  Writing about your feelings helps clarify them and helps you focus on what you are experiencing.  This, in turn, can result in feeling more centered and in the moment.

5.  Take care of yourself.  Eat healthy. Stay active. Talk to a friend. Go to a movie. Find a reason to laugh. Find a reason to be grateful. Sleep. It's the little things that add up and will help you feel better about going through a divorce. 

 

11 Divorce Related Blogs

Here's a list of blogs that are devoted to various aspects of divorce.  Some provide helpful information, others are humorous.  In order to make the list, there had to be posts within the past 21 days.  There is no significance to the order of the list. I am sure there are others, but I like these blogs.

Blogs for Women:

1. Woman's Divorce.com:  Articles on divorce from different points of view.

2.  Better After 50 (BA50):  This blog is not solely related to divorce, but there are many useful articles in this online magazine for women who are divorced or divorcing.

3. Divorced Girl Smiling: Popular and regularly updated blog from Chicagoland.

4.  Divorced Mom's Blogging Network: Women blogging about all aspects of divorce.  You can find what you are looking for here.

5. Iamdivorcednotdead.com:  One woman's journey of sexuality as a single divorced mother of 3.  Good for women who are wondering If there is life after divorce.

6. Judith's Divorce Blog:  Enjoyable musings from a UK solicitor and writer who also happens to be divorced.

Blogs for Men:

7.  Men's Divorce Blog:  News and almost daily updates on divorce that is devoted to unique issues facing men who are divorcing.

8.  Men's Divorce Planning Blog:  There is a lot going on here.  Most of the information is good, but none of the entries are dated so it's hard to tell when posts were made.

Blog for Everyone:

9.  Lou Penza dot come:  financial blog not exclusively related to divorce, but much of the content is relevant. It proves that finances and fun can go together.

10. Texas Divorce CPA (.com):  Although geared towards Texas divorces, most of the topics are general interest articles. A recent entry discussed whether or not divorced boomers who have found love again should live together vs remarriage.

11.  Enlightened Divorce Blog:  This blog has thoughtful in-depth articles on the law from a California point of view.  I like the authors' honesty about his desire to get clients.

 

A Cautionary Tale About Maintenance

On June 30, 2015, the Illinois Appellate Court issued a long decision about permanent maintenance awards and valid reasons for its' modification.  IRMO Shen also discusses payment of attorneys fees, child representative fees, who should pay, what assets may be used to satisfy those obligations and in what order.  This post is limited to a discussion of the court's ruling on a post-decree request to modify maintenance.

During the marriage and for approximately one year after the divorce, the husband was employed earning $45,000 annually.  Subsequent to the divorce, the wife was not employed, did not live in the marital home and worked only a few days for a temp agency.  She lived in her car or a hotel and borrowed money from friends and family to survive.  She was awarded permanent maintenance that ended on her 66th birthday when she would be eligible for social security benefits.

About a year after the divorce was final, the husband petitioned to modify the maintenance award.  He claimed that due to lower back pain, he was forced to take a lower paying position at his company and ultimately, he quit his job. Subsequently he opened a therapeutic massage business, from which he claimed, he derived no income.

The trial court ruled that while a change of employment is a valid grounds to modify an award of maintenance, in this case the husband acted in bad faith. Specifically, the court noted that the voluntary change in employment" was in "bad faith" because it was an attempt to "evade (the) maintenance obligation".

The trial court specifically took notice that at no time during the long divorce proceedings, did the husband ever complain about his back.   The husband testified that he demoted himself because 50-60% of his job duties involved heavy lifting. Yet, when the husband self demoted, he did not advise his employer that it was due to the lifting requirements of his position. Neither did he request accommodations  at work or supply at written report from a physician limiting his ability to do the work as expected. Based on the husband's actions, the trial court found "bad faith".

While the husband was under a chiropractor's care, this too was viewed with skepticism by the trial court.   The husband began seeing the chiropractor for lower back pain during the marriage and divorce.  Manipulations were performed and exercises were prescribed.  Three years later, and shortly before the husband petitioned to modify maintenance, the husband revisited the chiropractor who diagnosed a bulging disc.  An xray was ordered, which failed to show the presence of a bulging disc.  The husband declined to get a recommended MRI. The trial court gave "very little weight" to the testimony of the treating chiropractor because the complaints were based entirely on the husbands' "self reporting", Other reasons cited by the Court for to support its' decision not to allow a maintenance modification include that during the earlier treatment period when the husband was employed the chiropractor did not provide a note that the husband could not work, that the xray did not show a bulging disc and that there was a three (3) year gap in treatment.

The trial court went on to say that it was "irresponsible" for the husband to quit work when he had maintenance and child support obligations. Specifically, the Judge was annoyed that the husband allowed the health insurance to terminate (there were ongoing medical issues with the children).  The trial court judge further questioned the wisdom of starting a speculative business yet having enough money to cover the expenses of running it.  In short, she did not appear to believe that the husband did not derive income from the new business.

The Appellate court affirmed the decision. It went further by ruling that the trial court could not terminate an award on maintenance based on a future event.  Here, maintenance ended when the wife turned age 66 and could begin receiving social security benefits.  The appellate court stated that the Dissolution of Marriage Act sets forth three (3) circumstances under which maintenance can end: death of either party, remarriage or cohabitation of the spouse receiving maintenance.  The court can not terminate maintenance based on a future unascertainable event. In these instances,"permanent" maintenance does not mean "everlasting"; more like "indefinite", which is subject to review.

This case is important because it shows that a trial court will examine the facts and circumstances surrounding a request to modify a maintenance award. It will also make a determination if the request is believable.  In this case, the husband's claims of a bad back were not credible because he did not make it known to his employer.  Even the visits to the chiropractor did not help because the husband did not get a note for his employer about his disability and only started seeing the chiropractor when he sought a modification of maintenance.  

 

 

Modern Family Law Bill Signed into Law

Governor Rauner signed Senate Bill 57 into law on July 21, 2016.  It takes effect on January 1, 2016 and applies to all Petitions for Dissolution of Marriage, unresolved issues in pending Dissolution proceedings and Post-decree Petitions for Modification filed on or after that date.

A prior blog post discussed the changes in the law as it relates to the grounds for divorce in Illinois.  There are also significant changes in the way parents and children rights and responsibilities are defined.  The word "custody" has been eliminated from the statute entirely as has the difference between "joint" and "sole" custody.

 Instead, each parent is assigned responsibilities.  If the parties do not agree, the Court will look at a number of factors including the best interest of the child and the past 24 months of parenting to determine how to allocate the parental responsibilities.  These include parental responsibility to manage a child's routine, (bedtimes etc) and ensuring participation and attendance at extracurricular activities. When parents divorce, conflict over a child's routine, such how homework is handled can often escalate. One parent may end up taking the other to court to force the parent to manage the children differently. Even if a court order is entered requiring a parent to adhere to a child's schedule, the enforcement of that Order is next to impossible since some routines, such as mealtime and bathing occur daily. In listing specific parental responsibilities, the parties will now have a baseline of what is expected of them when they have parenting time with their children.  Another goal of the Legislature is to reduce the the amount of post-decree petitions involving family management issues.

Unless the parties agree, the Court will also determine allocation of significant decision making. The statute sets forth areas that are considered significant and include education (choice of school and tutors), health (dental and psychological needs) and religion. As for choice of religion, the court will look at the child's past religious upbringing, if any, and any express or implied agreement between the parents to raise a child in one religion or another.

The new statute states the factors that a Court will examine in order to assign parental responsibilities to each parent.  While the best interest of the child is the number one consideration, other factors such as the desires of the child, the distance of the parents from each other and past course of conduct between the parents are also considered.  Significantly, the Court will specifically not consider the conduct of a parent that does not affect the parent's relationship to the child in making its' determination.  So attempting to prove that one parent is unfit because they are dating will not be considered by the Court unless dating interferes with the parent's relationship with the child. Again, it is reinforcing that "fault" divorces do not exist in Illinois and that a parent will not be punished for conduct that might have been used as grounds for divorce in the past.

To Do or Not To Do....or How to Convert Your Civil Union into Marriage?

On June 26, 2015, in a  historic and, for many people,  life changing ruling, the United States Supreme Court (SCOTUS) recognized a constitutional right for a State to "license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state". In short, same sex marriage is now the law of the land. 

The SCOTUS decision is based on the principle that same sex couples "seek it (marriage) because of their respect and need for its' privileges and responsibilities". SCOTUS affirmed that the right of same sex couples to marry is a "fundamental" right under the 14th amendment of the United States Constitution. (Obergefell V Hodges).

Illinois has had legal options for same sex couples since 2011 when Civil Unions were recognized. In 2013, Governor Pat Quinn signed the Marriage Equality Act, permitting same sex couples to wed.

What do you do if you are in a Civil Union, but have now decided to get married?  It's not as complicated as you might think.  As part of the Marriage Equality Law, provisions were made to convert a civil union into a marriage,  For a one year period, couples could convert their civil union into a marriage and it would retroactive to the date of the civil union. That time frame had expired.  

If you have decided that now is the time to convert, both parties will need to apply, in person for a marriage license.  The marriage must be performed within 60 days of the license being issued. You will need  government issued identification.  It is recommended that you bring along a copy of your Civil Union license as well.  According to the Lake County Clerk's Office, it is easier for the State to put your civil union and marriage together if both were performed in the same county. In most counties, the license fee will be waived.

 

GETTING A DIVORCE IN ILLINOIS IS ABOUT TO CHANGE…….HERE’S HOW

 

    A family law committee comprised of family law attorneys, Judges and others have been working for years to overhaul the Illinois Dissolution of Marriage Act (750 ILCS 5/ et seq.) that was passed in 1997.  The changes are intended to bring the law in line with current thinking and practices as it relates to divorce, parenting time (child custody) and maintenance (alimony). It’s an attempt to equalize treatment of parties statewide, or, at least provide Judges with the same starting frame of reference when determining these issues.

    The new act, SB57, or as some in the media call it, “Modern Family” law has passed the House and Senate and is currently awaiting Governor Rauner’s signature.  At that time, it will become law in Illinois.

    Gone is the necessity of proving that one spouse is at “fault” in order to get divorced. Adultery, mental cruelty and the like are no longer necessary to prove that a party is entitled to a divorce. Back in the day there also existed actions for “alienation of affections”, “breach of promise to marry” and “criminal conversion”.  These actions, known as “Heart Balm” are abolished under the new law. These antiquated actions were moved from the “Divorce” section of the Illinois Civil Code back in 1997 to other sections of the Code. The potential damages associated with their violation was significantly reduced. But they still existed and would pop up in some divorce cases. It’s important to note that “heart balm” actions were primarily brought by women.  This year, the Legislature recognized and abolished these outdated notions and for further recognized that “men and women should have equal rights under the law”.

    In 1997, the legislature recognizing the stress, acrimony and pain for the family when one party/parent was obligated to establish wrongdoing on the other party’s part to get divorced so they established another grounds for divorce.  Referred to as “irreconcilable differences” or what we now think of as “no-fault”, parties were allowed to divorce without having to establish grounds or the other parties misdeeds. Instead, parties seeking a divorce are required to testify that “irreconcilable differences” have arisen in their marriage, that attempts at reconciliation are futile and that dissolution is in their best interest.

    Over time more couples divorced under this provision of the IDMA. In theory, it is less stressful and more amicable when the parties do not have to prove the other party did something wrong.  The Legislature has recognized that the overwhelming majority of couples choose this option when divorcing and have abolished “fault” based divorce.

    Under the 1997, IDMA, the parties were required to live separate and apart for two (2) years before a divorce would be granted under the irreconcilable differences provision. For a variety of reasons may couples could not comply with the 2 year rule.

    For instance, a couple might settle their divorce quickly or if the marriage was short there may not be much to settle if the parties did not have children or joint property.  Other couples could not afford to live apart and maintain two separate residences.  To deal with these types of situations, the parties were allowed to sign a wavier of the two year rule. Instead, the parties need only live separate and apart for six (6) months.  But, both parties were required to sign the waiver.  If one party did not want to get the divorce, she/he could simply refuse to sign the waiver resulting is more fighting.

    The new law recognizes the legal fiction that exists with the 2 year requirement and that most parties utilize the waiver.  The 2 year rule is now eliminated. The new law requires the parties to live separate and apart for 6 months in order to divorce.  It also removes another way for the parties to bicker with each other and promotes the statutes stated goal of “mitigate (ing) harm to spouses and children from exposure to conflict”…..

In subsequent posts, other provisions of the SB57 will be discussed.

Proposed Law In Illinois Will Require Court To Award Mandatory Parenting Time To Non-Custodial Parent.

An Illinois legislator has proposed a bill that requires a court to award a non-custodial parent at least 35% parenting time per week.  Parents involved in child custody litigation will have 90 days after bringing an action to agree on a parenting plan.  If they cannot agree within that timeframe, then the Court may intervene.

Those in favor of the legislation believe it will remove the prolonged fighting that often accompanies custody cases.  It will help alleviate the stress associated with determining how parents will co-parent after they are divorced.  Proponents state that if parents know what a Court will order, they will be more likely to cooperate with each other in agreeing on a parenting plan.

Those opposed to the bill argue that because each family’s situation is unique, a set time allowance for non-custodial parenting time will not work.  The parents work schedules, distance between homes and the children’s school and extra-curricular activities are among a few of the factors that must be taken into account when determining how much time a non-custodial parent will have to spend with his/her children each week.

The bigger issue is if a set time amount is “in the children’s best interest”.  Given the large number of factors that must be coordinated for a successful parenting plan to be successful, court mandated parenting time is not an ideal solution.

Here are some basic issues to consider: Will the time the children are sleeping or being driven back and forth be counted in the mandatory time?  Is 35% co-parenting time enough or too much for a particular family?  Does one parent stay at home while the other works? Is one parent more involved in after-school activities (scouting or coaching for instance)? What is the interest level in parenting? Will the parent who is not parenting be allowed to attend events that occur during that time?

The sheer volume of issues to be resolved in a parenting plan is best left up to the parties themselves.  This includes the amount of parenting time a non-custodial parent spends each week with his/her children.

House Bill 5425 introduced by Rep. John Cabello, R-Machesney Park.

Is “Nesting” For You?

 

Nesting is a post-divorce living arrangement that has gotten a lot of press recently.  It’s a child-centered approach to co-parenting after divorce where the parents take turns moving in and out of the family home rather than the children moving between “mom” and “dad’s” home.  In theory, it puts the needs of the children first in that it can help ease the stress and confusion that surrounds a family when the parents get divorced. Proponents believe that it is easier for children to adapt to a new way of living if they are surrounded by their possessions, in their familiar environment and with less disruption to their daily routines. The parents either share or maintain separate residences where they live when it is not their parenting time.

Nesting is controversial, in that there are many reasons why it is a good idea, and an equal number of reasons as to why it won’t work and will end up causing even more disruption to the children.

On the plus side is the stability that can be maintained during the major life adjustment that necessarily occurs with divorce.  In order to be successful the parents must have had a low-conflict divorce. A nesting arrangement requires cooperation, communication and mutual respect of the parents towards each other.

A best case scenario would involve an agreement entered into by the parents that sets forth with specificity how the arrangement will work.  Issues such as adhering to a routine, meal times, homework and approaches to discipline should be included. The parents must have a clear and articulated understanding of boundaries during their “non-nesting” time. Are they free to come by unannounced and walk into their home?  Or should the interaction be limited to phone calls and texts?  Each individual case is different, so the more specific the parents are with each other, the greater the likelihood the arrangement will be successful.

Another predictor of successful nesting is a parents’ willingness and ability to abide by the terms of their agreement.  We can all be guilty of “we know best”, especially when it comes to our children.  It can be challenging to step back and allow an “ex” to run things in his or her own way.   If parents/ ex-spouses are committed to a successful nesting arrangement, then they will have to be willing and able to let go of the need to control the situation. This is extremely difficult under a traditional post-divorce two home living arrangement where there are “mom’s rules” and “dad’s rules”  It’s even more complicated when it happens under previously shared space where one spouse usually dominated the household.

When considering whether or not nesting is right for you, spend some time thinking about if it is possible for you and your ex-spouse to cooperate with each other in this manner and respect your different parenting and lifestyles.  Also consider how nesting will be funded and include that in your agreement.

Finally, there are many issues pertaining to a spouse’s ability to separate and move on that my prevent nesting from being a viable option post-divorce. If one party is hoping to reunite, is resentful of being left or hoping to manipulate the situation for his or her own benefit, nesting will not work.  In fact, it will be destructive to the children’s well being.

Nesting is not for most divorcing couples.  The level of trust, cooperation and respect required is often not present at the end of a divorce.  But, in some cases nesting can be very successful and satisfying to the family.