Sunday, December 13, 2009

Discovery in Divorces

Many of my clients have never heard of Discovery before their divorce case. Many are unprepared for the incredible amount of work it takes to get through the discovery process. Perhaps this brief overview of the Discovery process will help prepare those of you for what is a very important part of many divorce cases.


After the original petition for divorce is filed and before you go to court, you will have to make your way through the discovery process. Please understand that discovery only takes place if the divorce is being contested or you and your spouse are unable to come to a meeting of the mind during settlement negotiations. This is the phase of your divorce that will often cost you the most, financially and emotionally. So, to save money and the stress generated by a long drawn out battle it is best to show all the integrity you can during this phase of the divorce process.


"Discovery" is a legal mechanism designed for gathering information about either party to the divorce. If you use discovery correctly, you can find out what arguments the other party intends to use at trial and prepare a better defense. The discovery process can be time consuming, expensive and, at times frustrating. That makes the process worth the effort. Modern discovery rules are based on the idea that mutual knowledge of all facts and all relevant evidence before trial is essential to a just and speedy disposition of litigation. Discovery affords an opportunity to formulate, define, and narrow the issues, to obtain evidence for use at trial, and to obtain testimony of witnesses unavailable for trial. Done right, discovery usually prevents any "Perry Mason" moments from occuring in the courtroom.


Supreme Court Rules 201 – 222 and certain complimentary sections of the Code of Civil Procedure (CCP), 735 ILCS 5/1-101, et seq., control pretrial discovery after a lawsuit is filed. The scope of discovery in Illinois is broad and includes all matters that are admissible in evidence or that could lead to the discovery of admissible evidence. Information that is protected by privilege may not be discoverable. Great latitude is allowed in the scope of discovery. Discovery is relevant if it tends to prove or disprove a matter in issue. S.Ct. Rule 201(b)(1) requires full disclosure, with some exceptions, of all matters relevant to the subject matter of the suit. Pretrial discovery presupposes a range of relevance and materiality much broader than that of admissibility of evidence at trial.


Rule 201 lists the discovery methods that are described more fully in the following rules. These rules provide for the following discovery methods:


·         Depositions on oral examination. The lawyers will sift through the interrogatory answers and documents- and then question the spouses in person under oath at what is called a deposition. Other people who have relevant information, such as neighbors, friends, relatives, accountants, or other witnesses, may also be questioned at a deposition. A deposition takes place in the presence of a court reporter, who later transcribes what was said into a typewritten booklet.
·         Depositions on written questions.
·         Written interrogatories to parties. Each side sends the other lengthy lists of questions called interrogatories, which have been drafted by the lawyers and which must be answered under oath. Interrogatories are composed of questions about finances, assets, pensions, and similar financial issues.
·         Discovery of documents, objects, and tangible things. Through their lawyers, the spouses can also ask each other to produce documents such as bank statements, credit-card bills, receipts, tax returns, paycheck stubs, and the like.
·         Inspection of real property.
·         Physical and medical examinations.
·         Requests to admit.
·         Discovery before suit to identify responsible persons and entities.



Usually the lawyers are looking for hidden or "wasted" assets, in order to determine how much money, earning power, and other assets each spouse has (or had) so that they can be divvied up. In contested custody cases, the lawyers will be looking for evidence that the parent on the other side is not fit or is not the best parent to have custody.

Trial preparation efforts are important because the information that comes out at a trial depends very much on how well the lawyers understand and present the facts-both favorable and unfavorable-to the judge. Even the best case can be lost if the lawyer is unprepared, careless, incompetent, or otherwise ineffectual.  Regardless of whether you ultimately settle your case or litigate it to the bitter end, trial preparation is essential. Lawyers who do not prepare for court hearings or trial (because they expecting a case will settle without a trial) turn their clients into sitting ducks. If the other side senses that you or your lawyer wishes to avoid a trial, cannot afford one, or is not preparing for one, you will be at a distinct legal disadvantage. In addition to being ill-equipped for a possible trial, the unprepared lawyer cannot negotiate a settlement from a position of strength. If you come to the peace talks with no bombs or bullets, will anyone listen to what you have to say? Keep in mind, a lawyer who is unprepared for a hearing or trial is inviting the opposition to take advantage of his or her client.

Because trial preparation is time-consuming and expensive, you or your lawyer may be tempted to cut corners. Such a move could be penny-wise and pound-foolish, however, because if your case is well prepared, you should be able to proceed from a position of strength to fashion a satisfactory settlement instead of going to trial.





This communication is not legal advice.

This material is produced by Jon McLaughlin. It is intended to provide general information in summary form on legal topics, current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.




Jon D. McLaughlin, Esq.

Allison & Mosby-Scott

210 1/2 North Williamsburg Drive

Bloomington, Illinois 61704

Phone: (309) 662-5084

Cell: (309) 319-6206


Bloomington Legal Newsletter -- New Cell Phone Laws!!

While I concentrate my practice in Family Law, I try to keep a pulse
on other areas of the law that might help me in my Family Law
practice. Recently, I found a new law (effective January 1, 2010) that
would have caught many of us by surprise, and I thought I would pass
it along in this quick email.

Motorists across the state soon must obey new laws banning text
messaging while driving and prohibiting the use of cell phones in
school zones and construction areas. Illinois lawmakers recently added
a new section to the Illinois Vehicle Code to ban text messaging while
driving. 625 ILCS 5/12-601.2. Under the new law, "a person may not
operate a motor vehicle on a roadway while using an electronic
communication device to compose, send, or read an electronic message."

The act targets the use of cellular phones, personal digital
assistants, and portable computers. However, the act does not affect
the use of global positioning systems that are integrated into the
vehicle. The law prohibits several forms of electronic communication,
including text messages, e-mail and instant messages. However, the new
law does not apply to law enforcement officers performing official
duties or to motorists who are reporting an emergency. Drivers may
send an electronic message if they are parked on the shoulder of the

State lawmakers also amended the Illinois Vehicle Code to prohibit the
use of cellular phones in school speed zones and construction speed
zones. 625 ILCS 5-12-610.1(e). The new language forbids the use of
cell phones by all motorists, regardless of age, while driving in
school speed zones or construction and maintenance speed zones. The
new law does not apply to construction or maintenance workers engaged
in a project. Emergency responders, including police, firefighters and
health care providers, also may use a cell phone for emergency
purposes in a school or construction zone.

I hope I just saved a few of you from a ticket or two (or three if you
have teenagers).

This communication is not legal advice.

This material is produced by Jon McLaughlin. It is intended to provide
general information in summary form on legal topics, current at the
time of first publication. The contents do not constitute legal advice
and should not be relied upon as such. Formal legal advice should be
sought in particular matters.

Jon D. McLaughlin, Esq.
Allison & Mosby-Scott
210 1/2 North Williamsburg Drive
Bloomington, Illinois 61704
Phone: (309) 662-5084
Cell: (309) 319-6206

Tuesday, September 1, 2009

Suggestions for Fathers going through a divorce

Here is a list of recommendations for guys who are facing marital separation and/or divorce where there are children involved. I represent both mothers and fathers in court, but sometimes the fathers need a few more pointers than the mothers do. Most of these suggestions are equally applicable to both sexes, so enjoy.


Despite the fact that the statutes stress that court decisions taken in family law litigation should be, first and foremost, in "the best interests of the children", the fact is that almost all rulings are made in favor of the mother, as "primary caregiver" -- ostensibly "on behalf of" the children. As a father, you, supposedly, have rights under the law, but, quite realistically, have few rights at all. 85% of custody decisions go to the mother (mothers have custody in the vast majority of cases); mothers rarely pay child or spousal support ­ fathers are routinely forced into personal bankruptcy or go underground because they cannot pay onerous support orders; mother's routinely withhold children from court-ordered 'access" with their fathers as court orders for access are virtually unenforceable; family equity is split right down the middle, even though a mother may have only provided barely adequate child care and indifferent housekeeping as her contribution. So you must take steps to preempt and mitigate, where possible, a situation wherein you are at the mercy of cut-throat lawyers, biased judges and a very flawed system.


Although the tone of this article may seem pessimistic, I propose that it is, in fact, realistic. The plight of fathers in family law disputes is grave. However, I am optimistic because of the tremendous devotion that so many fathers display for their offspring in facing overwhelming emotional and financial challenges in the simple desire to play a meaningful and critical role in their children's lives. And I sense a rising tide of awareness and anger in the general public, at large, at the inequalities and abuses of their rights that fathers have been suffering for far too long. It's time that innovative solutions like mandatory shared parenting be written into the statutes to give fathers a chance at participating in a reasonable fashion in their children's lives.


The recommendations begin with the supposition that you are still in the matrimonial home, that your marriage is beyond saving and that mediation is not an option. If you have already separated, pick up the suggestions at the appropriate point.



1. Do not move out of the family home. If no custody order is in place, and you move out, you are granting your spouse de facto custody of your children; you immediately expose yourself to petitions for child and spousal support; you abandon all joint possessions ­ and even your personal possessions ­ to your spouse (and you don't have to be a lawyer to know that possession is 9/10ths of the law); and you give your spouse leave to petition for exclusive possession of the house in perpetuity in "the best interests of the children" ­ thus tying up the house as an asset.


2. Throughout the period of final co-habitation with your spouse, do not engage in any verbal battles. PERIOD. If the situation is volatile, do not engage in any discussions about legal or settlement issues. Do not engage in any kind of verbal or physical confrontation with her. If you do, you put yourself at the risk of her getting an order to have you thrown out of the house and possibly restrained from going anywhere near her, the property and, possibly the children. If she becomes confrontational, walk away and avoid close contact. Make the only dialogue between the two of you be about the care and well-being of the children and the day-to-day running of the home.


3. Throughout the period of final co-habitation with your spouse, eliminate, or at the very least, reduce, your consumption of alcohol. If you have a drug / alcohol problem, GET HELP IMMEDIATELY, otherwise you may be dead in the water. Alcohol - and most drugs - reduce your inhibitions and may make you more aggressive and thus in danger of confrontation with your spouse. And later, when you come down from your high, you will suffer from depression that will impair your ability to function and may make you susceptible to suicide. In almost all cases of murder / suicide in marital disputes, alcohol is a contributing factor.


4. If there are firearms in your home, GET RID OF THEM. Take absolutely no chances that someone may lose it and grab a gun.


5. Get emotional counseling if you need it. There is no stigma attached to getting help for the stress and the anxiety depression that almost everyone experiences during the ordeal of a high-conflict divorce. Have your family doctor recommend a psychiatrist or check your employment health benefits to see if referral to a counselor is available to employees. If you are a member of an organized religion, your clergyman / priest / rabbi or affiliated lay counselors may provide assistance.


6. Transfer all money from joint spousal accounts to your own sole accounts. If you don't, chances are that she will clean out the accounts before you do.


7. Have your spouse's name removed from all joint credit cards for which you are responsible, get her spousal cards from her and destroy them.


8. Engage legal counsel sooner rather than later. Be prepared for the fact that you will have to provide a legal retainer for a lawyer to begin working on your case. Make sure your lawyer concentrates his practices in family law­ not someone who does part-time family, part-time real estate, etc. law.  Ask him (or her) if he / she is aware of the bias of the family court system against fathers and if he (we'll assume it's a man from here on) is willing to fight for your rights as a parent and not be intimidated by biased court officials. For your first meeting with him be prepared with a written outline of the issues of your case. Do not make this a novel about the emotions of your marital breakdown ­ stick to the hard, cold facts. Go to all meetings with your lawyer with a written agenda, and with all issues, questions, etc. spelled out in detail. Write down all responses and action items. Be prepared to do any legwork for him that you can (document searches, brief preparations, etc.). Use his time wisely. The meter is ticking all the while you are sitting in meetings with him or consulting on the phone.


9. Start and maintain in chronological order a comprehensive and well-organized file of ALL documents, memos, letters, briefings, affidavits pertinent to your case. Your file is critical for referring to past actions, issues, details. Take all relevant files with you for meetings with your lawyer; and take the originals plus a second set of all relevant files with you to court appearances ­ as back up in case your lawyer does not have the appropriate ones with him.


10. Court actions. Don't even THINK about going to court without a lawyer. In most cases, judges will just laugh and scoff at you ­ literally ­ and tell you to get representation. If you persist in forcing them to allow you to represent yourself, her lawyer and the judge will take you apart. Consult with and rely on your lawyer for the timing and the appropriateness of court actions. It may be in your best interests to get to court first with a petition or motion (to be the "petitioner"); or the other side may move quickly and make you the "respondent" to a court action. Your lawyer should know what strategies are best. Assist him as much as you can with written briefs for the affidavits, financial statements, etc. he will prepare on your behalf.


11. Start, and maintain, throughout the duration of your case, a daily journal of all activities relative to your interaction with your spouse and the children. Memory is a faulty faculty. Being able to go to your journal to find the unfiltered facts regarding events that were written at the time of occurrence can be a critical asset.


12. Micro-manage your money. Legal fees and, inevitably, support payments will be major financial hurdles you will have to deal with. Go on an austerity budget. When you finally physically separate, you should be aware that you may be primarily responsible for financing two households. Start a war chest of any and all money you can squirrel away. Line up resources for borrowing ­ because, eventually, you are going to have to solicit loans.


13. Be prepared for the "equalization of family assets". This means that, even though your spouse may not have worked outside the house a day in her life (her parenting and housekeeping are her contribution to the marriage), in general, she is due 50% of all the assets accumulated during the marriage. That is, in general: she gets half the proceeds of the sale of the house and properties, half the investments, half the family liquid assets, half your employment pension, half the value of all vehicles and half the furnishings, etc. of the home accumulated during the marriage. If she works, all her assets including pensions she may have accumulated -- will be included in the division of assets.


14. Be prepared to not get any form of custody of your children. In general, at the present time, if you go to court in dispute over custody of the children,­ say you want joint custody and she wants sole custody,­ the biased judges in the family law system will rule that: "since you two are in dispute over the custody arrangement, joint custody will not work. Therefore 'in the best interests of the children', the primary caretaker of the children (guess who?) will have sole custody of the children." In general, the only way you will ever get joint custody is if she agrees to it; the only way you will ever get sole custody is if she does not want custody at all or you can prove that she is completely unfit and incompetent to be the custodial parent (and you will have to have comprehensive and incontrovertible evidence). There are cases of enlightened judges granting joint custody when there is a dispute, however, it is a very rare exception.


15. Be prepared to pay child support. Because you will not get joint custody of your children in a contested case, you will automatically be ordered to pay full child support for all children of the marriage (or proven paternity situation). Once the order is registered, the support amount will be automatically collected from you and paid to your ex -- unless you both agree to opt out of the plan and make arrangements for you to pay her directly. You may also be liable for a percentage of childcare expenses, based on the inequity of your salaries, and if your ex is gainfully employed. And you are liable for other "reasonable" extra expenses, i.e.: medical, dental, schooling, sports activities, etc.


16. Be prepared to pay spousal support. If your wife is a homemaker, you will be required to pay "spousal support" until such time as she can become gainfully employed. Some judges put a time frame to spousal support ­ giving the wife a period of one year, etc. to find / return to work. In some cases, where the wife has never worked and is at home with small children, you may be liable for spousal support for quite some time. If your wife is a part-time employee or "under-employed" you may be required to provide an equalizing amount of support relative to your income and hers. The fact that women, typically, make less money than men means there may be an equalization of income by way of spousal support. There are no tables for spousal support. The lawyers and the judge will work out an amount and you will be ordered to pay it.


17. Pay your support orders when humanly possible. You have an obligation to financially support your children even if you believe the order for support was unreasonably arrived at. You will get yourself into very serious financial straits if you let the ordered amounts accumulate over the years. And you will be hounded forever by the enforcement office. If your income declines, go back to court and petition for a reduction in support. But pay the support as ordered until you get the amount reduced. Do not withhold child support if your spouse is interfering with your time with the children. The courts treat child support and access as two completely separate issues. And they are. If you withhold child support, you are engaging in the same dirty tactics that she is. And the children are the ones who suffer. And you look like the bad guy. And you can't afford to look like the bad guy, given the existing bias against you as a father.


18. Be prepared to fight for "access" with your children. When you don't get custody status with your children, you will be required to petition for regular visitation or access time with your children. Depending on your circumstances: job responsibilities, other personal obligations, etc. you will figure out how much time you wish to have with your children. It may be several weekday evenings and one of the weekend days with overnights, etc. Whatever your petition, be prepared for the majority of judges in the family court system to rule in favor of the mother's suggestions for your time with the children, invariably much less time than you want. Typically, rulings are for the father to have the children every second weekend. Every other weekend is not nearly enough time to maintain the bonds you have developed with your children, but you will have to make the best of a bad deal. Once you have an order for access in place, keep a record of all the withheld visits and have your lawyer lodge official protests that may be used, cumulatively as proof of her contempt at later court appearances.


19. Malicious and false allegations of child sexual abuse have become an insidious phenomenon in family law. A recent report revealed that, of 900 cases of allegations of child sexual abuse linked to matrimonial disputes, 600 of them were proved to be completely groundless. Meanwhile the victims of this devastating weapon (fathers fighting for meaningful relationships with their children) are required to PROVE their innocence. The custody / access issue grinds to a halt as the police and psychiatric professionals involve themselves in an already crowded process. Access between the father and his children is severely curtailed or terminated and the emotional and financial costs of an already painful process escalate. The perpetrator of this gross injustice (the mother, usually by prompting the children) faces no recrimination or penalty for her actions. And the relationship between the father and his children is severely strained or, all too often, irreversibly damaged.


20. Face the fact that you may have to endure a very long period of frustrations and disappointments. The processes of the court system are slow enough and frustrating enough on their own. Then there are the lawyers. In collusion with their uncompromising clients, they are masters at delaying and frustrating court actions. They conveniently and consistently "miss phone calls", ignore messages, "miscommunicate" and "misunderstand"; disappear on holidays; ask for continuances (delays in proceedings), all with the intention of frustrating you from getting court actions completed that they may feel are not in their client's interest. Patience and persistence is the only thing that will get you through, guys. Patience and persistence.


21. Maintain lines of communication with your children. LISTEN TO THEM. Let them express their fears and concerns and hurts. Reassure them, as much as you can. Prepare for your time with them. Line up activities: bowling, a movie, etc.; have the fridge stocked with their favorite meals (from lists you can have them prepare). Don't just let them plunk down in front of the TV and order in fast food (although that's what they may demand). Get them outside participating in sports and physical activities, walking by a lake or stream, visiting favorite relatives (don't forget Gramma and Grandpa!). Avoid shopping ­ even grocery shopping ­ with them. Your finances will be strained and you don't need the pressure they will bring to bear on you to buy them "things". Instead, listen and watch for a special item they may be yearning for and, where practical, buy it for them as a surprise gift. Make sure you buy something for each child, though.


22. Do not trash talk your ex in front of the children. Even if you are aware that she puts you down in their presence. The children love you both equally and your criticisms of one another will only confuse them and stress them even more than they already are. In the long run, it is counterproductive for either parent to put down the other. Eventually - and it may be a long way down the road - the children will see through the criticisms and lies and will turn against the trash-talking parent. And never argue about aspects of the case or any other issue in front of them. This will just make them more anxious and angry about their new fractured life situation.


23. Keep in touch with your children through any channel possible when you see them very little or not at all. Write to them, send them cards and little gifts, telephone them, send them emails. Keep a record / copies of the things you send if you suspect your ex is intercepting your correspondences and the children are not getting them. Somewhere down the road, you can show your child proof of your efforts to keep in touch. And they are going to know that it wasn't your lack of interest in being part of their lives, but their mom's interference.


24. Throughout the ordeal of the divorce process, rely on your spiritual path ­ be it Christian, Jewish, Muslim, Buddhist ­ to help you get through. Attend your church, synagogue, temple on a regular basis. Find some quiet time for reflection and meditation, to drop right out of your ordeal and renew your soul and spirit.


25. Don't be too proud, as a man, to rely on your friends and family for emotional support. Don't think that you have to carry the often overwhelming burden of the injustices and the stresses of your case by yourself. Your friends and family, who love you, will usually be there to share the weight of the ordeal. WARNING: realize that, even though your family and friends can lend a sympathetic ear, they can also get overwhelmed by your case if you go on about it too much. Don't be a broken record; use their sympathy wisely. And let your friends periodically entertain and distract you to help you relieve yourself of the seriousness of your circumstances.


26. Help others in similar circumstances and join the fight for Fathers' Rights. Be generous with your time and advice with fellow victims of the sham of so-called "family" law. Write letters to newspapers, your elected representatives, the governing bodies for judges and lawyers. Join a father's rights organization and picket and protest the inequities in court decisions. It will take serious and concerted efforts by all of us to bring about the changes that are needed in the true application of the principles of family law.


27. Get regular exercise and eat well. Try to jog or participate in sports on a regular basis. Avoid the grease and salt and sugar of fast food. Take the time and care to feed yourself nutritious and healthy foods. It bears repeating here: eat lots of fresh fruit and vegetables; have good amounts of whole grain breads and cereals; eat lean cuts of red meat, poultry and fish. Make sure you go for your yearly physical.


28. Get yourself a pet. Especially a dog. There's nothing like the unconditional love and affection of a faithful pet when you return home from work at the end of an exhausting day. That wagging tail, affectionate gaze and total lack of attitude can do wonders for you. And the walk it will demand every night will be good for your mind and body too.


29. Be easy on yourself. You are going to feel like a failure: a failure in marriage, a failure to your children, a financial failure. Accept responsibility for the role you played in the debacle, but DON'T BEAT YOURSELF UP OVER IT. About the perceived failure of your relationship with your wife: realize that "incompatibility is like rain: it just happens." Realize that your children need your emotional support, so give yourself a break: be easy-going and affectionate with them. Realize that you walked into a financial minefield when you entered the domain of family law. Unless you started off filthy rich, you are going to take a financial pounding, and it ain't your fault. Try to not let it stress you out.


30. Last point: Women are not the enemy. Just because your wife turned out to be your worst nightmare; and just because family law is completely biased in favor of mothers - even mothers from Hell; don't get down on the "fairer sex". Your mother, your sister, your female friends, your new partner are all as appalled as you are at the injustice of it all. And they stand by to help and support and nurture you in your fight for fairness for you and your children.




This communication is not legal advice.

This material is produced by Jon McLaughlin. It is intended to provide general information in summary form on legal topics, current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.




Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600

Google Business Listing


Tuesday, July 28, 2009

Parenting Classes/Mediation/Guardian ad Litems

Parenting Classes/Mediation/Guardian ad Litems

When there is a dispute regarding an issue relating to children, the parties must attend mediation and attend a parenting class. These requirements come from Supreme Court Rules 923 and 924, which state that “[t]he parents shall show proof of completion of an approved parenting education program as required by Rule 924, provide a fixed schedule for compliance, or show cause to excuse compliance,” and that “the court shall schedule the matter for mediation” at the initial case management conference.

Mediation can be waived or excused for good cause. Locally, mediation runs anywhere from $120 to $175 per hour. The cost is usually split between the parties. In my experience, the normal length of mediation is 2-3 sessions. With the time and money involved, it is a significant incentive for folks to come to some agreement rather than endure through the mediation process. It is important to note that the mediator usually only discusses child-related issues, excluding financial issues such as child support. Mediation, unless agreed otherwise by the parties, does not involve the property and financial issues of the divorce—it is solely focused on the children. Nothing said in mediation can be used against a party later on during the trial, so it is a great opportunity to openly discuss the issues without worrying about something being used against you later.

However, mediation should not be viewed as something to completely avoid. When there are a few points upon which the parties cannot see eye-to-eye on, it is usually a good idea to see a mediator on the parties’ own volition in order to quickly resolve such disputes. Such measures by the parties will usually save them from large legal fees and court time in the long run.  

I am a certified Guardian ad Litem (GAL). If necessary, the court will appoint a GAL to protect the best interest of the children. In most cases, this includes an investigation and the filing of a report and recommendation with the court. A GAL’s investigation can be quite extensive, including the interviewing of extended family members, friends, teachers, and physicians. The cost of a GAL is significant. Currently, in McLean County, the parties are typically ordered to split the $200 per hour fee that GAL’s charge. With the time and investigation takes, and the attendance of the trial by the GAL, the costs for having a GAL are substantial.

The message that I hope I am conveying here is that it is well worth the time and effort to attempt some sort of a settlement when it comes to the child-related issues in a divorce. Not only does it save each party significant money and time, but it will spare the children from being made apart of their parents’ disputes more than they already are. If you or any one you know needs to schedule an appointment with a mediator, please have them contact my office. While I am not a mediator myself, I can certainly point people in the direction of a few mediators that I trust in the area.    

This communication is not legal advice.

This material is produced by Jon McLaughlin. It is intended to provide general information in summary form on legal topics, current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.

Jon D. McLaughlin, Esq.
Cannell & Maulson, P.C.
211 West Jefferson Street
Bloomington, Illinois 61701
(309) 319-6206 

Monday, July 27, 2009

Subpoena ISPs and more


How many times do you wish that you could subpoena a telephone company, a cellular  provider, an ISP providing email and Internet service? EBay and PayPal? The list goes on. Finding the right office or person to serve can be pretty frustrating, if not downright impossible.

The ISP List in the toolbox is, therefore, a very valuable tool. You'll find contact information for those who can accept service of subpoenas for cell phone and regular phone service, for Internet service providers, credit card companies, etc.

This site and ISP list was developed for use by law enforcement and contains a wide variety of ISPs and similar information services, specifically, contacts at the legal departments for service of subpoena, court orders, and law enforcement search warrants. It is updated regularly by law enforcement personnel. For more information about the reliability of the information and for access to the site.



Friday, April 24, 2009

Divorce in Illinois After 50

By: H. Joseph Gitlin

Q: My husband has been the primary breadwinner in the family.  Will I lose social security benefits on his account if there is a divorce?
A: A former spouse, age sixty-two or more, who has not remarried, can receive social security benefits on account of the other spouse if the marriage lasted more than ten years.  When the worker spouse retires, dies or becomes disabled, the former spouse can often receive monthly benefits equal to fifty percent of what the worker spouse receives.

Q: If my spouse’s pension plan is not in pay status, that is, my spouse is not retired, how much of the pension plan will I receive and in what form will I receive it?
A: First, to the extent the pension plan was earned during the marriage, it is marital property, that is, it will be divided in the divorce.  For example, if your spouse has been in the pension plan for thirty years and you have been married for twenty-five years, the pension plan is 25/30 (or 5/6) marital property.

You can take your interest in the pension plan out in one of several ways: (1) The pension plan is evaluated and you may take out your interest in cash and roll it over into your own individual retirement account, within sixty days.  If you do not roll it over into your own retirement plan within sixty days, you will pay income tax on all of it in the year received, plus a 10% penalty.   (2) The court can enter a QDRO (qualified domestic relations order) which carves out of your husband’s pension plan your interest.  You will be entitled to exercise all of the options your spouse can in reference to the plan, including early retirement.

Q: Will the court divide my husband’s social security benefits as a property right, the same way as a pension plan is divided? 
A: No.  The law is that social security benefits are not regarded as an asset which will be divided in the divorce judgment, however, the income your spouse receives from social security will be considered in regards to maintenance and child support payments.

Q: Take a marriage in which the husband and wife are seventy years old, they have been married for forty-five years, they are both retired and both receiving social security.  How will the court divide the assets and incomes?
A: There are insufficient appellate court cases with a fact scenario as above so I can make a prediction.  My sense of fairness is, under the circumstances, the court ruling should be that the parties will have equal assets and equal incomes, so the party with a higher income, because of higher Social Security benefits and higher pension benefits, would be paying maintenance to the other.



Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600





Tuesday, April 21, 2009

Change of Child Custody

By: H. Joseph Gitlin

Q:  Isn't child custodoy always decided on the basis of what is in the best interest of the child?

A:  No.  the first question in a transfer of custody is not what is in the best interest of the children, but whether there has been a change of circumstances since the original custody order was entered.

Look at it this way.  After child custody is determined by a court order in divorce or paternity proceedings on the basis if the best interest if the child, the judge, in effect, states, "That's it.  I determined the custody of the child once and that was done on the basis of waht is in the best interest of of the child. (And this holds true whether the judge's determination was based on a trial, or the parties' agreement.)  Now, if you want custody changed, you are going to have to show me (the judge) there has been a change of circumstances."

Q:  Does the law have a bias in favor of the custodial parent and against the non-custodial parent?

A:  Yes.  It is a strong bias.  The law has a bias in favor of the child's life being stable.

Q:  What facts would be sufficient to show a change of circumstances sufficient to bring about a change of custody?

A:  Examples are:  a significant drop in the child's school performance; significant health problems due to the custodial parent's neglect; the development of significant social/psychological problems by the child; substantial neglect of the child by the custodial parent, such as leaving the child home alone, neglecting the child so the child becomes injured; exposing the child to what the judge may consider to be immoral conduct, like having a live-in significant other.

Q:  What could other causes be for a transfer of custody?

A:  Serious abuse of a child, whether physical or sexual, may be grounds for a transfer of custody.  The instability of the custodian is frequently a significant (but not sole) factor in allowing a transfer of custody.  Imprisonment of a custodian is an obvious change of circumstances.  Smoking by the custodial parent is now being raised in change of custody proceedings.  In the Illinois appellate court opinion which addressed the smoking issue the custodian's smoking did not result in a change of custody because it was not proved that the children's asthamatic conditions were caused by the smoking and the mother testified that she no longer smoked in the residence.


Jon D. McLaughlin, Esq.
Cannell & Maulson, P.C.
211 West Jefferson Street
Bloomington, Illinois 61701
(309) 828-5600



Tuesday, March 31, 2009

Simple Divorces

By: H. Joseph Gitlin



Q. Is there an inexpensive and simple way to be divorced?
A. Yes.   A do-it-yourself divorce kit is available for the short-term, no children, limited asset-income marriage.  The Illinois Divorce Act has a “Joint Simplified Dissolution (of marriage) Procedure.”  This is a do-it-yourself procedure with forms which are available at the office of the Clerk of the Circuit Court at the county courthouse. 


Q. Who is eligible for the do-it-yourself divorce?
A. Parties to whom all of the following conditions apply:

  1. No maintenance (alimony) is being sought.
  2. Grounds for divorce are irreconcilable differences.  This means the parties have been separated for six months or more.  Separation for six months or more does not require the parties to be living under separate roofs, but requires that they live in separate bedrooms, do not have sexual relations and have no meaningful marital communications.

  3. No children.

  4. The marriage is under eight years.
  5. Neither party owns real estate.
  6. The value of the property acquired during the marriage (other than by inheritance or gift) is less than $10,000 and the combined gross annual income of both parties is less than $35,000, and neither party has a gross income in excess of $20,000.


Q: Do I need a lawyer if my case does not fit into the “Joint Simplified Dissolution Procedure?”
A: Yes.  If there are children, and if the assets or debts are significant, while you are legally able to obtain a divorce without a lawyer, the consequences could be disastrous.  The parallel is that I am entitled to do brain surgery on myself.


Q: To save money, can a husband and wife have the same divorce lawyer?
A: No.  A lawyer cannot represent both parties to a divorce even though you frequently hear that it is done. But, while the parties believe that a lawyer is representing both of them, a close look will show that the lawyer actually only represented one of the parties.  It is Biblical and it is true: “A servant can only serve one master.”



Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600



Thursday, March 19, 2009

Unlawful Visitation Interference

Unlawful Visitation Interference


Illinois law provides avenues in both criminal court and family court for divorced parents (and parents who were never married) to enforce their rights regarding visitation. The laws apply to both the non-custodial parent who may be denied visitation and the custodial parent who may have to deal with a former spouse who refuses to drop the children off timely.

Civil Enforcement vs. Criminal Prosecution:  Where court-ordered visitation is withheld, Illinois law provides for both civil and criminal prosecution for visitation interference. In other words, a parent who detains or conceals a child in an effort to thwart court-ordered visitation may be punished by the family law court judge or prosecuted by the State's Attorney in a criminal trial. It is possible for a trouble-making parent to be punished by the family law court and also criminally prosecuted for visitation interference.1 This is the only instance we know of in American law where a defendant can be subjected to double-jeopardy – seemingly in violation of the U.S. Constitution. If you decide to go back to (or are taken to) the family law court, work with an experienced and knowledgeable attorney. If, however, you decide to go to criminal court, as a complaining witness you'll work with the State's Attorney – as a defendant, you should hire your own defense attorney (call our office).

Civil remedies in family law court typically result in a modification of the parenting schedule (more time or "make-up time" with the kids for the injured parent and less time for the offending parent, the shifting of a holiday, etc.). Family law judges, however, have sent obstreperous visitation violators to jail – like the mother was sentenced to 180 days in jail merely for thwarting a weekend visit between the father and the children. 2 Civil actions are brought as “contempt of court” charges.  To prove contempt, you must show that the offending party acted willfully and “contumaciously.”  Contumacious conduct is that which is “calculated to embarrass, hinder, or obstruct a court in its administration of justice or lessening the authority and dignity of the court.”3

Under the criminal law,4 visitation interference is a "petty offence" (like a traffic ticket) for the first two violations. After that, however, the stakes are raised and the charge becomes a Class A misdemeanor which means punishment may be in the form of imprisonment for up to one year or a fine of up to $2,500.

Visitation Interference vs. “Dance Card Booking:” In its simplest form, visitation interference is easy to recognize: the non-custodial parent goes to pick up the children but they’re not where they’re supposed to be at the prescribed time. Visitation interference can, however, come in disguises. The most common ploy is to “book the child’s dance card.” The custodial parent registers the child for every conceivable extracurricular activity, lesson, or social event that, not so coincidentally, falls during the time scheduled for the non-custodial parent’s visitation. Although “dance card booking” has not been found to violate the (criminal) visitation interference law, it has been used as the basis for contempt citations in (civil) family court. Cases come down both ways, though: sometimes the court will tell the non-custodial parent to take the child to scheduled extracurricular activities during visitation time, and other times the court will declare that “visitation time is visitation time and is not to be infringed upon by extracurricular activities.”

When in doubt, obey court orders in letter and spirit. One mother thought extracurricular activities should take priority over visitation. In the case that ultimately found her unilateral decisions to have been willful and contumacious, the court said “In the event that the children’s extracurricular activities unduly interfered with [the custodial parent]’s ability to comply with the court-ordered visitation schedule, then the appropriate action [she] should have taken was to seek modification of the... visitation order rather than to ignore its provision.”

If you have concerns about dance card booking, call our attorneys to learn how your case stacks up – they have the experience to help guide you to a favorable resolution.

When Children Refuse to Visit: Occasionally a parent will claim that the kids “just don’t want to spend time with the other parent.” Illinois courts look upon such claims with GREAT suspicion. If you are a custodial parent whose child objects to visitation, call our office immediately to seek a court-approved modification, or termination, of the visitation schedule. DON’T TAKE THE LAW INTO YOUR OWN HANDS BY DENYING VISITATION! Call our office – no charge, no obligation.

Illinois courts have held that a custodial parent may not disregard visitation requirements merely because the children do not desire to visit the non-custodial parent. One court said: “the custodial parent cannot escape his or her duty to comply with the visitation provisions by attempting to shift this burden to the discretion of [his or] her children.” Another court said “[a] parent must comply with court-ordered visitation even where the child has expressed hostility toward the other parent.” That court went on to explain that the experience of visitation affords the children and the non-custodial parent the opportunity to communicate and, thus, diminish hostilities and foster an atmosphere in which a renewal of affection may take place.

Technically, the court has jurisdiction over the children. Where children petulantly demand that they be excused from visitation, and the custodial parent fails to either motivate them or seek to modify or terminate the visitation schedule, the court may order the children to go on visitation and may even cite them for contempt. In one notorious case, a Will County judge sent two sisters to jail for refusing to visit with their father.

Joint Custody Negates Criminal Interference: Illinois’ criminal visitation interference law doesn’t apply to divorced parents who enjoy joint custody. The law itself doesn’t say so. In fact, the plain language of the law says that it applies to “every person” and, logically, to every court order – regardless of whether the custody award is “sole” or “joint.” Nevertheless, an Illinois Supreme Court ruling in a criminal prosecution case has been interpreted by many police departments to mean that the law cannot be applied to parents who have joint custody. Indeed, in light of the ruling, many police departments don’t even bother writing up a citation if the parents have an award of joint custody.

If you’ve been cited for “visitation interference,” call our office for a solid defense. If you have joint custody, and are having visitation problems, you can try calling the police... then call our office to protect, and enforce, your rights.

The Criminal Law:

720 ILCS 5/10-5.5
§§ 10-5.5 Unlawful visitation interference

(a) As used in this Section, the terms "child", "detain", and "lawful custodian" shall have the meanings ascribed to them in Section 10-5 of this Code.

(b) Every person who, in violation of the visitation provisions of a court order relating to child custody, detains or conceals a child with the intent to deprive another person of his or her rights to visitation shall be guilty of unlawful visitation interference.

(c) A person committing unlawful visitation interference is guilty of a petty offense. However, any person violating this Section after 2 prior convictions of unlawful visitation interference is guilty of a Class A misdemeanor.

(d) Any law enforcement officer who has probable cause to believe that a person has committed or is committing an act in violation of this Section shall issue to that person a notice to appear.

(e) The notice shall:

    1. be in writing;
    2. state the name of the person and his address, if known;
    3. set forth the nature of the offense;
    4. be signed by the officer issuing the notice; and
    5. request to the person to appear before a court at a certain time and place.

(f) Upon failure of the person to appear, a summons or warrant of arrest may be issued.

(g) It is an affirmative defense that:

  1. a person or lawful custodian committed the act to protect the child from imminent physical harm, provided that the defendant's belief that there was physical harm imminent was reasonable and that the defendant's conduct in withholding visitation rights was a reasonable response to the harm believed imminent;
  2. the act was committed with the mutual consent of all parties having a right to custody and visitation of the child; or
  3. the act was otherwise authorized by law.

(h) A person convicted of unlawful visitation interference shall not be subject to a civil contempt citation for the same conduct for violating visitation provisions of a court order issued under the Illinois Marriage and Dissolution of Marriage Act.



Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600