New "Right of First Refusal" law to effect in Illinois January 1, 2014

“Right of First Refusal” to take effect January 1, 2014.

Be mindful that changes are around the corner in Illinois with regard to parenting time in court orders. On May 22, 2013, the Illinois legislature unanimously passed the “Right of First Refusal” which amends the Illinois Marriage and Dissolution of Marriage Act.

Taking effect January 1, 2014, the “Right of First Refusal” provides that if the court finds it is in the best interest of the child and awards joint custody or visitation rights, the court shall find that both parties have the right of first refusal to care for the minor children if the absence of either party is necessary during the party's normal parenting time. This gives both parents the opportunity for increased parenting time with the children.

The biggest impact the “Right of First Refusal” will have is on parents that do not have the children primarily residing at their residence or parents that have weekend visitation.  Since the use of baby-sitters, family members, or subsequent spouses is secondary to the right of first refusal, parents with weekend only visitation will now have increased opportunities to spend parenting time with their children. The amendment provides that whenever a parent intends to leave the children for a period of 4 hours or longer, that parent shall first offer the other parent an opportunity for additional time with the children before making other arrangements for the temporary care of the children. The court will take into consideration various factors such as transportation, distance, and time constraints which could make offering the additional parenting time impracticable in certain situations.

Also important to note, parties may agree to add a right of first refusal provision to their Joint Parenting Agreement, but if they do not and the court determines that a right of first refusal is in the best interest of the children, the court will consider and make provisions in its order for specified considerations relating to the right of first refusal. The changes to the Illinois Marriage and Dissolution of Marriage Act regarding the “Right of First Refusal” are only applicable to divorces where both parties are awarded joint custody. The “Right of First Refusal” does not apply to parties that have had their visitation rights terminated.

For questions on how the “Right of First Refusal” can impact you, feel free to contact our Des Plaines law office at (847) 813-6011.

Saving Money on Attorney's Fees in Family Law and Divorce Cases

SAVING MONEY ON ATTORNEY’S FEES IN

FAMILY LAW MATTERS

            Many people these days are in desperate need of legal representation but claim that they cannot afford legal fees. My response to these people is usually, “You cannot afford NOT to hire a lawyer.” The reason I say this is that many people try to handle legal matters (particularly divorce, custody and child support matters) on their own by representing themselves “Pro Se.” Most of the time the result is that the person looking to “save attorney’s fees” makes a huge mistake (or makes a small mistake that is not noticed for a very long time) and ends up having to hire an attorney to correct the mistake. Often times, the mistake cannot be corrected retroactively and a lot of money is wasted. This result means that I will have plenty of business in the years to come but the person looking to save money ends up spending a great deal more in the long.

         Although hiring an attorney may be expensive, there are many ways that a client can limit the amount of attorney’s fees that are necessary to resolve their case. As most family law attorney’s charge hourly rates, any way the client can help to limit the time their attorney must spend working on their file will ultimately lead to a reduction in fees owed. Below is a list of six (6) things that a client can do to limit their attorney’s fees.

1.    Pick the right attorney from the start.  Changing attorneys once your case has started will certainly cost you more money as you will end up paying for two attorneys to familiarize themselves with your case. In addition, the process of firing and hiring a new lawyer will cost time and money. Ask friends, relatives, co-worker’s or other trusted individuals for referrals. Make sure you are clear about what the attorney you choose intends to do, what they intend to charge and how the fees will be charged.

2.    Consider alternative dispute resolution (ADR). Sometimes disputes can be resolved through mediation or some other form of ADR. These methods are often effective and often ordered anyway by a court after significant amounts of money have already been paid to attorneys. Chances are if you cannot come to a compromise quickly, you will be ordered to mediation anyway.

3.    Ask for alternative payment arrangements. If you do not feel you can afford the attorney’s fees. Ask for an alternative payment arrangement. Some lawyers can offer flat fees, contingency fees (not in family law cases – most times), payment plans and discounted rates. You cannot get what you do not ask for but be realistic. If you propose a payment arrangement, get it in writing and be sure you can stick to it. Do not ever hire a lawyer without a clear understanding of your fee arrangement.

4.    Minimize the attention you need. Be prepared when you plan to meet with or call your attorney. Make lists of questions and bullet points of items that need to be discussed or addressed. One phone call to ask five questions will cost you much less than five phone calls to ask a single question.

5.    Be organized. Being as organized as possible will save you money without a doubt. Attorney’s often spend countless hours reviewing documents and evidence and if it is presented to them in a clean, logical organized fashion it takes much less time. Group documents together and make sure all requests are complete. Put documents in chronological order unless instructed otherwise. If you hand your lawyer a box of crumpled disorganized documents you will be paying them steep fees to do work anyone can do. You do not want to be paying your lawyer to do things that you can do yourself.

6.    Be realistic. You cannot expect to achieve unrealistic results. Get a fair assessment of your case from your lawyer in the beginning and understand that things can change as the case progresses. It is nearly certain that both parties will have to compromise a little (or a lot) to resolve the case and it is uncommon for anyone to be 100% happy with the final result. It is a fact that two people cannot live the same standard of living apart, as they did when they were together. Something has to give. Be realistic.

By reviewing this list and following these tips, it is nearly certain that you can cut down on the time it takes to resolve your case which will lead to less fees for which you will be responsible. Lastly, show your attorney your appreciation by paying your bills timely as agreed. I often discount bills for clients that follow these tips and pay immediately upon receipt of a bill. If I do not have spend unnecessary time on their case and I do not have to chase them down for payment, I can concentrate on what matters… the case and the outcome. 

Major Changes In Family Law May Be On The Way

After four (4) years of research and public meetings, an Illinois House committee has recommended several major reforms to Illinois laws regarding divorces and custody matters.

House Bill 6191 and House bill 6192 have been drafted by The Illinois Family-Law Study Committee and they are currently under review by the House Rules Committee. If approved after joint hearings early next year, House Bill 6191 would create the new Illinois Parentage Act of 2012, repealing older versions of the act. House Bill 6192 would amend the current  Illinois Marriage and Dissolution of Marriage Act of 1977 and the amendment would likely be significant.

Hundreds of amendments have been proposed to the marriage and divorce statutes, however, six amendments in particular that are believed to affect the most families and family-law attorneys in the state.

No more grounds for divorce

One major proposal would eliminate the requirement of alleging “grounds” to obtain a divorce. An overwhelming majority of divorce cases in Illinois are brought under the grounds of irreconcilable differences and with Illinois being a “no-fault” state, this change would include eliminating the necessity of alleging grounds.

Judgments within 90 days

Another major proposal is that all judgments of divorce be issued within 60 days of the close of proofs in the legal proceedings, with one 30-day extension if the court files a statement of reasons for the delay. This change will require Judges to issue Judgments in a reasonable time frame allowing parties to move on with their lives or initiate appeals quicker as it has not been uncommon for parties to wait several months or even longer to have their cases decided. This requirement may also help protect assets that could be dissipated while the parties wait on a decision.

Shared-income approach for child support

A third significant proposal is to change the factors used to calculate child-support payments. Under the current system, statutory guidelines are used to calculate child support payments based almost exclusively on the non-custodial parent's income and assets, without taking into account such factors as the amount of time a non-custodial parent spends with the children or the level of the custodial parent's income and assets.

The proposed income-sharing model would force courts to consider how time spent with the child might impact the situation and whether the custodial parent's income needs to be considered.  The goal of this proposed change is to make child support orders more fair by considering multiple factors other than the non-custodial parents income and assets.

Maintenance awards explained in writing

Another proposal suggests a rule requiring judges to provide written and reviewable findings in regards to spousal maintenance formerly known as alimony. This change will require judges to explain in detail why they ordered maintenance in a specific amount and/or duration and to explain what factors were considered in making their findings. The goals is to help parties obtain or prevent modifications of these awards when circumstances change or to appeal awards that are believed to be unfair under the circumstances.

Custody Hybrid

A fourth proposal is the adoption of a third of custody called "joint and sole custody." Currently, the courts either award one of the parties “sole custody” to make major decisions on behalf of minor children or award both parties “joint custody” to make major decisions together. With joint and sole custody, parents could enter a joint-custody agreement, but one or both of the parents could simultaneously obtain the right to make some decisions on behalf of the child without the other parent's input.

An example of the above would be allowing the custodial father to make decisions regarding issues like the child's education, religion, and extra-curricular schedule, but it would also make sense for the non-custodial mother (a medical doctor) to make decisions regarding the child's health care.

The committee also unanimously agreed that Illinois should adopt a statutory presumption that it is in a child's best interest to spend at least 35 percent of their time with each parent.

Elimination of old common law remedies

Old “common laws” still exist such as suing a cheating spouses love interest for alienation of affection, breach of promise to marry when damages are incurred and civil charge of adultery against a cheating spouse.  These remedies are rarely sought, are often abused and widely believed to be out dated and unnecessary.

Timeline

Hearings regarding these proposals will likely begin in early 2013 but if adopted will likely not go into effect until at least 2014 and will not apply retroactively to cases that have already been decided.

Brian M. Radke
Des Plaines Lawyer