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

Jon@CannellandMaulson.com

 

 

 

 

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