Part of Real World Divorce: web edition | Kindle edition
As an experiment to see how much our answers might vary depending on whom we interviewed, in Illinois we found four experienced and distinguished attorneys to provide their perspective from more than 150 years of handling family law matters. All have been recognized as "Super Lawyers".
Donald Schiller was our first source for answers to questions about Illinois law. He teaches at the University of Chicago Law School and in 1981 co-founded Schiller, DuCanto, and Fleck, a 46-attorney firm that does a lot of work in the largest divorce court in the nation, the Circuit Court of Cook County, Domestic Relations Division. Schiller has represented some notable clients, such as the wives in the divorces of basketball pro Michael Jordan, R&B singer R. Kelly, casino mogul Steve Wynn, and his firm represented Anne Dias Griffin in her pre nup when marrying hedge fund billionaire Ken Griffin. See www.sdflaw.com for more biographical data.
Schiller handles a roughly 50/50 mix of male and female clients in cases that are predominantly initiated by women (the "petitioner") against men (the "respondent"). The ratio of women to men starting the lawsuits that Schiller handles may be approximately 2:1, though Schiller does not keep precise records. Schiller goes to a "final trial" only one to four times per year because the cases that he is handling now are "large and complex." This number is misleading, however, because Illinois has a system of evidentiary hearings or "mini-trials" for contested motions, e.g., for temporary custody.
Our second source was Dorene Marcus, partner in the firm of Davis, Friedman, former faculty at the South Texas School of Law, and former president of the Illinois Chapter of the American Academy of Matrimonial Lawyers. She has been handling Illinois divorces since 1978. See www.davisfriedman.com for a more detailed biography.
Our third source was Floyd Nadler, a partner at Beermann Pritikin Mirabelli Swerdlove LLP with 52(!) years of experience handling Illinois family law cases. He has been a Fellow of the American Academy of Matrimonial Lawyers since 1965 and has served as its National Secretary. Nadler has also served as the President of the Illinois Chapter of the American Academy of Matrimonial Lawyers. See http://www.beermannlaw.com/attorneys/floyd-n-nadler.aspx for more.
Arthur Berman rounded out our chapter with his more than 40 years of experience. He is a partner at Grund & Leavitt and has been President of the American Academy of Matrimonial Lawyers. Berman represents a 50/50 mixture of male and female clients in cases where "A great majority of the time it is a female plaintiff. I wonder if chivalry still exists." He handles two or three "final trials" every year but "evidentiary hearings almost on a daily basis." See http://www.grundlaw.com/profile.php?att_id=25 for more.
In Massachusetts and some other states, cases are won or lost at the "temporary order" stage based on "attorney representation". The plaintiff's attorney says, "My client is great; the person she sued is bad. In fact, my client is afraid of the person whom she sued. So she should get the house, kids, and cash between now and the trial." The defendant's attorney says, "My client is great. The person who sued him is not so special. So everything should be shared 50/50 between now and the trial." In this "non-evidentiary hearing" no witnesses take the stand. Nobody can be cross-examined. The attorneys can say whatever they want as long as they believe it to be true. If the judge finds the plaintiff's attorneys statements more compelling, the house, kids, and money all flow to the plaintiff. How can this be due process? In theory this is just a temporary order and a final determination will be made at a trial with all of the Perry Mason trappings: witnesses, cross-examinations, etc. In practice, however, the trial may not come for 2-3 years and, when it does come, an argument can be made that "The kids have been with the plaintiff for 2.5 years now and they are doing great so why upset the status quo?" This gives rise to the adage that "Nothing is more permanent than a temporary order."
Illinois considers this to be a violation of due process. There can be a complete trial, albeit a short one, at any stage of a divorce and "it is common to have a mini-trial with evidence on any issue when there are questions of fact," according to Schiller. Moreover, even though it was decided after hearing evidence, the outcome of a temporary order is not supposed to have any effect at a "final trial": "The judge is not supposed to be prejudiced by the temporary orders. The judge is supposed to consider all evidence at the final trial without regard to temporary orders even if temporary order hearings were evidentiary," says Schiller.
Current Illinois law makes the stakes very high in a divorce with children. By convention judges will award "custody" to just one parent. Unless parties agree, Illinois does not have the conventional separation of "legal" and "physical" custody. The winner parent gets all of the decision-making power regarding the child, including for medical, education, and religious issues. The loser parent or "visitor" has essentially the same rights as a babysitter, except with a negative rate of pay and the right to keep working. Schiller notes that there is a bill in the 2014 legislative session that would substantially change custody and child support laws. The word "custody" would be replaced with "parenting rights" and "responsibilities" while child support would change to an income shares system.
As in most other states, child support can no longer be collected in Illinois after a child turns 18, extendible to 19 if the child has not graduated from high school. Unusually, however, Illinois courts order a parent to pay educational expenses for a child without any statutory limit on the child's age or the cost of those expenses. Schiller says that "certainly, after considering the party's lifestyle, if a parent has the ability to pay, this could include the full room, board, and tuition at our nation's most expensive colleges." Who sues for these expenses, the adult child or the parent who most likely originally filed the divorce or child support lawsuit? "The parent files the lawsuit to require the other to contribute or pay," explains Schiller. [Dorene Marcus adds that the court's power is limited to undergraduate costs; a court cannot order a child support defendant to pay for graduate school.]
Child support guidelines are a straight percentage rake taken from the loser parent's income, regardless of the winner parent's income. In theory, as in New York, nothing stops a finance industry executive earning $5 million from collecting half of a $50,000 per year working slob's income. In practice Schiller notes that "the Court may deviate from the guidelines after making findings why it should do so." The percentages are set by statute:
Note that due to the simplicity of the formula it is easy to see that obtaining custody of three children with three different co-parents is almost exactly twice as lucrative as obtaining custody of three children with the same co-parent (20 percent times three defendants versus 32 percent times one defendant). Suppose that A sues B, a person with $300,000 per year in net income, for support of three children. The guidelines provide for 32 percent of $300,000, which is $96,000 per year in tax-free payments ($1.73 million over 18 years). If, on the other hand, A has a child with B1, B2, and B3, each of whom earns $300,000 per year, A can collect $60,000 per year from each one under the guidelines. That works out to $180,000 per year or $3.24 million over 18 years.
Note further that collecting child support from a parent with a moderate income is much less lucrative than in New York: 20 percent of after-tax income in Illinois compared to 17 percent of pre-tax income in New York. However, New York caps the amount of income that can be considered in computing child support whereas Illinois has no cap. In theory, suing an investment banker who takes home $10 million per year will yield $2 million per year in child support. In practice, Schiller says "The Court may make findings that the guideline amount is not in the best interests of children. When handling upper bracket cases with people with very high incomes, I see deviations from the guidelines pretty regularly. If you're dealing with high-asset people that live in a more middle class lifestyle then you'd certainly deviate downward. The court can't force people to spend money that they don't normally spend." As a practical matter, what's an amount of child support that is easily obtained from a high-income parent? Schiller replied, "I have represented a number of athletes, or the corresponding mothers, in unmarried parenting cases [i.e., the child resulted from a one-night encounter] where as much as $10,000 per month was awarded."
Dorene Marcus confirmed that the cash value of a child depends heavily on the luck of which judge is drawn, and that a child support award could easily vary by a factor of 3X. "One judge generally has a cap of $375,000 per year in net income [yielding $75,000 per year in tax-free child support revenue]. Judges have a lot of discretion. The final amount is going to be fact-dependent and judge-dependent," says Marcus.
Will a court also order a payor to fund day care on top of the guidelines child support amount? "It is up to the judge," says Schiller. "If the day care is to enable the mother to work, a lot of times it is shared."
The statutory guidelines call for figuring net income by subtracting, in addition to taxes, "Prior obligations of support or maintenance actually paid pursuant to a court order or administrative order". Thus, multiple children of the same parent will have different cash values, e.g., the first co-parent to sue a person earning $100,000 per year after taxes will get $20,000 per year while the second co-parent to sue the same person will get 20 percent of the remaining $80,000, i.e., $16,000, and the third co-parent to sue will get only $12,800.
There is no statutory age at which a child's preferences regarding where to live will be taken into account by a court. Schiller says "It depends on maturity of the child. If the court thinks the child is mature enough to express a reasonable preference, I've seen judges consider a child 8 or 9 years old." Does a child come into the courtroom and speak? "The child may talk to a 'child representative' ["Guardian ad litem" in other states] or to the judge in chambers." Schiller points out that "You can't just change custody just because a child wants to live with the other parent. Maybe that's because the child thinks it would be more fun. The proposed change has to be found by the court to be in the best interests of the child."
A "walk-away" prenuptial agreement, in which neither party can profit from property division and alimony via a marriage, is valid in Illinois. "Fundamentally we're the opposite of Massachusetts," notes Schiller. "Since around 1990, we have had the Uniform Premarital Agreement Act [also in 26 other states and the District of Columbia]. Thus these agreements are more strictly enforced than formerly. The pendulum has swung. Illinois was like Massachusetts for many years where every prenuptial agreement was challengeable. The Act has substantially cut back on litigation but there are still creative arguments to be made. There is an escape on the maintenance (alimony) side of things if it creates an unforeseeable financial hardship."
Is there a practical right of appeal in Illinois? "Depends what the issues are," says Schiller. "We have a full dedicated appeals department in my firm even though we do nothing but family law. Custody is very hard to get an appellate court to change, but a court finding that something is separate versus marital property is more likely reversible." Dorene Marcus said the same thing but in more colorful language: "One day I researched appeals courts decisions with an electronic search for phrases such as 'court abused its discretion'. There were hardly any cases in all of family law in which the appeals court found that the trial judge had gone too far [in a matter of custody, child support, or alimony]. Trial judges know that they can do whatever they want."
The average hourly wage in Illinois is $22.68 per hour. A person who goes to college at Illinois State University will spend approximately $88,360 over four years to earn a bachelor's degree. Census 2014 data show that median income for a 2236-year-old college-educated woman who works full time is $40,000 per year in Illinois or $30,846 after taxes. For a corresponding man it is $50,000 per year or $37,581 after taxes. Illinois is below average in terms of efficiency, collecting 11 percent of residents' income to run state and local government (compare to a national average of 9.9 percent; source: Tax Foundation). Illinois has one of the worst public employee pension deficits in the U.S., with at most 58 percent of future obligations currently funded.
The average annual cost of child care is $12,199 for an infant and $8,996 for a four-year-old. The total cost of child care from age 0 through 12 is about $63,528 in commercial settings or $44,025 in a family care setting.
For a man who goes to college and then works for 14 years, his total after-tax spending power would be approximately $437,774 (14 years of average earnings minus college outlays). For a woman who goes to college and then works for 14 years, the comparable number is $343,484.
The USDA-estimated actual cost of providing for a child in a single-parent household is between $8,000 and $10,000 per year (average of $9,000 times 18 years of childhood = $162,000). Thus for a man, collecting child support for a single child is more profitable than working when child support payments over 18 years exceed $2,777/month and for a woman it would be $2,340/month. Child support for a single child yields a higher personal spending power than college/work if the defendant earns more than about $140,400 per year after taxes (female plaintiff) or $166,620 per year (male plaintiff).
If there are two children from two different defendants, collecting child support is more lucrative than going to college and working when revenue exceeds $1,545/month per child (female plaintiff) or $1765/month per child (male plaintiff). This can be obtained by suing co-parents earning $92,700/year and $105,900 per year, respectively.
Foster children in Illinois are not as lucrative as one's own biological children. The state pays foster parents roughly $5,000 per year to take care of a foster child.
Of Illinois residents collecting child support, Census data show that 94 percent are women.
A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.
Schiller predicts that the female plaintiff here wins custody and an entitlement to 20 percent of her ex-husband's income as child support. What about the fact that this guy hasn't made a profit from his photography business during the marriage? "Certainly at least minimum wage income would be imputed to him," says Schiller. "The amount of imputed income is at the discretion of the judge. The judge would make him keep a job diary and report to court every so often about job applications."
How large are the stakes here? What if this guy could somehow manage to win custody? "She would pay 20 percent of her net income to him. The law for a long time provided for no distinction between men and women but a gender-neutral application of the law by judges took a long time to arrive. So it is theoretically possible that she would have to pay him." [Based on her income and using the ADP paycheck calculator to compute after-tax income, she would pay about $38,700 per year or $658,000 over the 17 years remaining until this child turns 18. She'd also lose about $20,000 in tax deductions if she lost the child, which, combined with whatever child support can be extracted from this father, means winning will be worth more than $700,000 to the plaintiff mother (compared to the $153,000 in actual costs that the USDA estimates a single parent would incur for having a child around the house full time).]
That seems like a big enough financial prize to fuel litigation. How is this guy going to pay for his defense, given that he has no income? "Illinois has a 'even the playing field' legislation," says Schiller, "that might require her to pay his fees. But then you get into the question of should he be able to pay his own fees by working? There can be an argument about the fact that he chooses not to work." Is there any limit to how much he can spend on a lawyer and charge to the plaintiff? "He would be unlikely to get more money than what she is paying her lawyer," says Schiller.
How much could the legal fees be? Schiller charges $740 per hour for his work, $790 per hour when in court. He estimates that handling a case through trial would "certainly cost in the hundreds of thousands" and he has also seen cases that consumed millions of dollars in legal fees on each side.
Would a prenuptial agreement provision that each side pay his or her own fees trump the "even playing field" law? "Fees for litigation related to custody, visitation, or child support cannot be waived," says Schiller.
Is Illinois like Massachusetts where even a short-term marriage could, in theory, yield a lucrative division of the wife's savings? "Under no circumstances can he get her pre-owned property," says Schiller. "We are a marital property state and recognize the concept of non-marital property (acquired before marriage, or during the marriage by gift or by inheritance). Even if the marriage lasted 40 years he couldn't get that." How about alimony? "We call it maintenance here," says Schiller, "and at best he could get rehabilitative maintenance for an adjustment period of 3-6 months." Is that 3-6 months from when he got sued or 3-6 months from the final judgment in the case, which could be three years down the road? "He definitely could get interim maintenance during the pendency of the case," says Schiller, "though if he doesn't make any effort to get a job he might not get any post-resolution maintenance."
Dorene Marcus's perspective on this case was consistent with Schiller's, but she thought that there was a better chance of the defendant finding a judge who would support his bid for 50/50 parenting. "It is common for fathers to start paying more attention to the kid after they get sued," Marcus noted. "It is not for any negative reason. They just wake up because they think 'I don't want to be cut out of my child's life.'" Can a plaintiff argue, as she would be able to in Massachusetts, that this is simply "posturing" and the judge should impose the pre-lawsuit parenting division of labor until the child is an adult? Marcus said this wouldn't work in Illinois, though "If he keeps ignoring the kid, the wife will get custody."
Marcus confirmed Schiller's expectation that the father would be required to keep a job diary. What about the stay-at-home mothers in these scenarios? Would they similarly be expected to try to work? "It is judge-dependent as to whether to apply this standard in a gender-neutral fashion," says Marcus. "A traditional male judge would be much more likely to think the mom should stay home than would a female judge who has worked and raised children and been divorced." [In other words, the random selection of a judge could mean the difference between a lifetime of leisure and one of dreary toil!]
Floyd Nadler predicts that the post-divorce court-ordered situation will be custody to the mother and visitation with the father. Nadler says that the extent to which the father is pushed to get a job and pay additional child support depends on the plaintiff: "Despite her vastly higher income, he would contribute to child support. He has an obligation. The court is not going to let him go. If she wants to push it as a practical matter the court is going to make him do a whole lot of things. The court can make him file periodic statements as to what he has earned, attempts to find work, etc. and really put the screws to him."
For the father to have any chance at 50/50 parenting, Nadler foresees an uphill battle: "For shared parenting would have to show that the child needs him. He would have to use all of his visitation." In that event would he begin collecting the child support from the high-income mother at the level suggested by the guidelines? "She would have to come up with some money for the period of time that the child was with the father. It would not be a full 20 percent contribution and would be discretionary with the judge. The judge might not award anything, but because of the risk the wife would hold off on agreeing to shared parenting to avoid the potential of paying the defendant." What if the genders were reversed, with the mother as a stay-at-home hands-off parent letting the nanny do the heavy lifting? "A judge would be much more lenient toward a stay-at-home mom," predicts Nadler.
A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year. They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.
Schiller expects that, in the event of a judicial resolution of this dispute (as opposed to a settlement), custody of all four children would be awarded to one parent and that it would likely be the mother. "When you're dealing with young children you have to look at the roles that the parents have played," says Schiller. "Most often mothers have an advantage because they were the ones to arrange pediatric visits, for example."
Given the relative equality of parenting effort historically, what kind of visitation schedule would Schiller expect? "Maybe a 55/45 percent time split."
Combining Schiller's insight with Illinois law, there are then three possible outcomes:
Schiller says that Outcome 2, equal parenting, is essentially unobtainable from a judge in Illinois, though it could be accomplished via agreement. Due to the fact that the judge will not award shared parenting unless the parties can cooperate, a parent who expects to win custody can ensure the exclusion of the shared parenting option, and obtain a 50% increase in after-tax income, simply by refusing to cooperate.
Schiller says that in Outcomes 1 and 3 he would "expect to see a downward deviation from the full 40 percent to at least get the paying parent above the poverty line."
Due to the equality of income there would not be alimony and any marital property would be split 50/50, with the exception of the equity in the marital home, which would likely be used, rent-free, by the parent who obtained custody of the children for at least a period of years.
Dorene Marcus says "I'm in the middle of a trial right now with four kids. He's paying 40% of his net income plus some maintenance to the wife. He makes most of his money from commissions, so some months he might have enough to pay her. The total amount should be 55% of his income." Did she think our hypothetical couple would also go to trial? "Maybe if they both go to legal assistance and don't have to spend money on lawyers. Then they could fight for 10 years. Most likely they'll be forced to come to an agreement because they can't afford to fight." Marcus pointed out that a judge could use his or her discretion to create outcomes other than the three listed above. A judge could award 45/55 parenting time and less than the guidelines amount of child support. If the father asked for 50/50 parenting and the mother asked for sole custody, Marcus thought that a judge could use discretion to award 50/50 parenting while pointing out at the same time that the mother could bolster her case by creating conflict with the father. Marcus pointed out that a judge would also have the discretion to award free use of the marital home to a successful custody plaintiff, though she would not expect the typical judge to provide free housing, in addition to guideline child support, for 15 years (until the 3-year-old in our scenario turns 18).
Floyd Nadler says that while this "Would be an ideal situation for joint parenting, the fact that they cannot get along with each other would preclude joint parenting. She can block shared parenting by just refusing to do it." How often has he seen shared parenting by two working parents in which neither paid child support to the other? "Never in my 54 years of practice."
Arnold Berman says that the very existence of a contested hearing will be evidence that joint custody should not be awarded, i.e., that if a defendant actually does mount a defense to a custody lawsuit then the outcome is very unlikely to be shared parenting. "There is a trend away from joint custody," says Berman. Aside from the child support, what other incentives would the mother have to refuse shared parenting? "She can absolutely get the marital home until the 3-year-old turns 18," says Berman. Was Berman troubled by the fact that one parent would end up with the house and most of the joint income while the other would be trying to care for four children in what might be a pretty small apartment? "For the kids it is like going to camp," responded Berman. "They love it. Maybe they'll sleep on the floor or in bunk beds. Maybe the dad will sleep on the floor."
An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.
Unlike the stay-at-home/slacker father in Scenario 1, Schiller predicts that a judge would not encourage this stay-at-home mother to seek employment. "Illinois would try to keep her maintained in the same lifestyle to the extent that she needed the support and he could provide it. It could be at least through both kids being in school, which would be 5 years of maintenance and then a review." Can she get lifetime alimony? "Potentially, but it would be more common to see lifetime alimony with a 15-year-plus marriage." Does it end at retirement age, as with the Massachusetts statute? "It would be reviewable when payor reaches retirement age but does not automatically terminate."
Schiller predicts a slam-dunk custody victory for this mother. To win 50/50 or sole custody "The father would have to show some good reason for why the status quo couldn't continue." The child support flow yielded by winning custody would be 28 percent of the doctor's $176,771 per year after-tax income (ADP Paycheck Calculator) or $49,496 per year, tax-free. As noted above, the plaintiff would also receive maintenance "but the aggregate would not be more than 50% of the defendant's income," says Schiller, i.e., $88,386 would be the after-tax limit.
What would be the visitation schedule? "Illinois encourages parenting time and visitation. So if he really can do it he could take care of the children 40 percent time or more." How about the doctrine in some states that the payor parent has to keep working as hard as possible, rather than spending time with the kids, so that the support recipient and the children have a maximized material lifestyle? "Illinois doesn't have a doctrine like that," says Schiller. "If his income falls he can seek a modification for his support. On the other hand, if you reduce your income in bad faith that won't reduce child support." [i.e., this is a subject for more litigation!]
Are there any standards for a summer schedule? "That's all over the map," says Schiller. "Some people would split the summer. Others just have some extended vacations with the kids." How long a vacation could the two-year-old take with her father? "There is no agreement among psychologists," says Schiller. "Some would say that it couldn't be more than one week. Others would say that longer is okay." Schiller did not think there was enough information in our scenario to predict the outcome with a judge regarding a summer schedule dispute.
What did Schiller think of Texas codifying a schedule by statute? "Guidelines are helpful and they cut down on litigation." Dorene Marcus agreed with Schiller: "One thing that researchers agree on is that the fight is damaging. Whatever interrupts the fighting is good for kids. No matter how many times you tell that to people they can't absorb it. There was a sign outside the courthouse 'when you shoot an arrow at your spouse it goes directly through the heart of your child.'" Could parents be reasonably expected to heed that sign when the statutes and court were offering them the potential either to pay or collect millions of dollars in tax-free child support? Marcus responded "maybe not."
Dorene Marcus was more optimistic regarding the father's chance for a significant parenting role: "There is a really strong tendency now to give dads their share of the time. Kids do well with two participating parents. Assuming no abuse and no evidence of bad parenting., the court will generally lean toward giving 50/50. We rarely get an every-other-weekend schedule now unless that's all that someone can handle." What would be an example of "bad parenting"? Could it be the kind of vague criticism that would allow a judge to justify sole custody in a New England state? "Substance abuse, psychiatric disorder, workaholism, something pretty serious that would affect the child" responded Marcus. "I used to feel differently about it, but now I think that every kid has the right to two parents even if one isn't quite as good as the other." What about the loss of child support revenue for the mother in a shared parenting situation? "Judges have the flexibility to leave the child support award unchanged while making the parenting time equal," said Marcus.
Dorene Marcus notes that "The maintenance [alimony] statute is about to change. The bill is on governor's desk right now. Previously there were no maintenance guidelines. Now there will be guidelines up to a gross income of $250,000 with restrictions on both time and amount. The new statute would give her only 3 or 4 years of alimony" For a defendant who earns more than $250,000, as in this scenario, Marcus notes that the former system of a judge considering multiple factors will continue to prevail.
[Note that as of January 1, 2015 Illinois did adopt new spousal maintenance guidelines. We followed up with a phone call to Schiller. "The guidelines apply to combined incomes of less than $250,000," he noted, "but they aren't mandatory. On the other hand, if a judge doesn't follow the guidelines he or she has to make detailed findings as to why the guidelines are not being applied." The amount of maintenance will be 30 percent of the payor's gross income minus 20 percent of the payee's gross income, e.g., $25,000 per year if the payor makes $150,000 per year and the payee earns $100,000. The length of alimony is by formula as well, 20 percent of the length of the marriage for marriages of 0-5 years, 40 percent for marriages lasting 5-10 years, 60 percent for marriages of 10-15 years, and 80 percent for marriages of 15-20. Note that this is much less generous than the Massachusetts formula for short-term marriages, where the starting point is 50 percent of the marriage length for 0-5 years. Unlike in Massachusetts, the new guidelines don't encourage termination of alimony when the payor reaches retirement age. One big change is that, for marriages of less than 10 years, a judge is now allowed to order a non-reviewable length of alimony. "This is a significant protection for men who are paying maintenance after short-term marriages," noted Schiller. "Previously a woman could go in after four and a half years asking that a 5-year alimony award be extended." What is the "length of the marriage" for alimony purposes? Schiller explains that any time spent litigating is included, right up through the final divorce. Wouldn't the percentage cliffs at 5 years, 10 years, etc., then give a person seeking alimony an incentive to drag out the litigation? "The dependent party has a lot of incentives to drag out a case in Illinois," says Schiller. "Remember that marital property also accumulates during the time that a divorce is pending. If the husband makes a few million dollars during two or three years of litigation that gets divided too." Given that the guidelines top out at $250,000, are they actually relevant? Can people in that income age actually afford to litigate? "The new guidelines won't change my business," says Schiller, "but there is a lot of litigation in smaller cases because they're fighting over food, rent, and survival."]
Nadler agrees with Schiller and Berman that this a slam-dunk custody winner for the mother. He expects that "She will get good hunk of that $200,000, possibly more than 50 percent due to the 'time served'. She would get reviewable maintenance through the youngest child entering high school. At that point he could petition the court to ask that she get a job. A judge would be empowered to let her stay in the house through children turning age 18. This would be the kind of situation where he would want an unallocated order where everything was taxable to her. He would give her 40% of his income." When would the children see their father? "A typical visitation schedule is EOW (every other weekend) from Friday night to Monday morning. Off weeks he takes them to dinner one night or maybe every week. Then he can ask for as much as half of summer vacation." Given that the mother has a mostly paid-for house and 40 percent of the father's earnings, will she have to pay for all of the children's expenses? "Daddy will get sucked into paying for extracurricular activities that he approves of," says Nadler, "and medical is covered by him too." What if the father takes an academic job and begins to earn less but has more of the summer free so that he can spend time with the children? "He would not be able to reduce his income so that he could pay less maintenance," says Nadler.
Berman essentially agreed with Nadler but thought that a court might try to get the mother to start working as early as when the youngest child entered first grade. He thought that the father might be ordered to pay for day care, in addition to child support and alimony, so that the mother could get vocational training, e.g., a different college degree, and then for day care once in the workforce.
A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.
Schiller predicts another slam-dunk custody victory for the plaintiff mother. Whatever the father might say to justify custody or a 50/50 arrangement, the mother's attorney would simply counter with "You voluntarily let her take care of this child during the marriage so she can't be that bad." The mother will collect $35,354 per year in child support based on the doctor's salary, more than $600,000 over the 17 years until this child turns 18. That's roughly a $26,000 per year profit on top of the USDA-estimated cost for a single parent to care for a child (about $450,000 in profit through the child's 18th birthday).
For how many years following this 1.75-year marriage could the plaintiff get alimony in addition to child support? "She could get maintenance at least through the child going into school [i.e., 6 years]," says Schiller. "The Court looks at what does it cost for the mother and child to maintain the marital lifestyle. That is what it would be except that it won't be more than half of his income in aggregate." In a lot of states, especially in the West, judges would expect the mother to go back to work rather than collect alimony. Why not in Illinois? "Despite the short marriage, with the father's income the Court may believe the child is entitled to continue to have a stay-at-home parent."
The Illinois approach to marital property would prevent this plaintiff from tapping into the $2 million in pre-marital savings. However, she will get 20 percent of whatever after-tax income that $2 million produces. In the current low-inflation and therefore low-yield investment environment that might be as little as $10,000 per year in additional tax-free revenue for the plaintiff. A rise in inflation, however, could result in a rise in the nominal return to this $2 million and a doubling or trebling of child support owed as a consequence, despite the fact that the return in real dollars does not change. If the defendant has the assets in a no-yield investment, such as artwork or antiques, could the plaintiff ask a judge to impute a 5 or 10 percent rate of return to the $2 million, thus potentially adding $40,000 per year to her child support profits? "The presumption is that the income for child support is the actual income from all sources," says Schiller. "If he has had these separate assets from the beginning in an investment that doesn't produce current income, a judge probably would not demand that he sell those assets and buy something else. Maybe if he were not working." How would this question be litigated? "There would be expert witnesses on both sides," predicts Schiller.
As with Scenario 3, Dorene Marcus was more optimistic regarding the father's chances to obtain shared parenting, though she cautioned that it was almost entirely dependent on the judge. Unlike in New England, Marcus thinks that the mother cannot use the "I was the primary caregiver during infancy" argument to justify sole custody until the child reaches adulthood.
Floyd Nadler predicted a "mother wins everything" outcome and, unless the father could show that there was a good reason to upset the apple cart, no trend toward 50/50 parenting as the child gets older.
Arthur Berman predicted a "mother wins everything" outcome, with no overnights for the child with the father: "You want security for the child, which means sleeping in the same bed every night." Berman did not think it would be possible to impute income to the $2 million in savings as long as the father was earning $275,000 per year or more, but points out that "any actual interest or dividends would be included in child support calculations." Berman was horrified by the prospect of Alaska-style or European-style 50/50 custody for a child this young.
An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.
"I represent a lot of professional athletes and some of the mothers getting child support from them," says Schiller. "These cases are not uncommon. My advice is to make sure you have a DNA test. Also the father has to make a decision as to whether he wants to be involved in the child's life."
Can the father ask for 50/50 custody of a newborn, as in Alaska? "If it is a new baby that she is giving birth to, he would have a hard time showing why it would be in the best interests of the child for him to have custody," says Schiller. [And if she informs/sues the father a year or two after giving birth, she has established a pattern of caretaking and could take advantage of the Illinois preference for preserving the "status quo", plus collect a year or two of back child support.]
What kind of visitation schedule has Schiller seen fathers obtain with an infant? "It could be several days per week, a few hours at a time, if the father wants it. Overnights would start maybe at age 2 or 3."
What kind of revenue could this mother collect from her custody of the child? Schiller says that she has the same entitlement as if she had custody of a child from a marriage, so her after-tax revenue would begin at $35,354 per year based on the doctor's salary and be augmented by 20 percent of any income that he obtains from investments and savings.
What if the mother gets married at 25 to a man earning $100,000 per year? The mother has dual protections in this situation, one from the fact that the $100,000 per year is not her income and the second is that Illinois is not an "income shares" state. "She could get married to a man earning $10 million per year and she would still have the same presumed entitlement," notes Schiller.
Dorene Marcus handles these cases "with a fair amount of frequency." She notes that the awards have gotten much larger today compared to what was typical 12 or more years ago. Why the change? "Hollywood. California. Celebrities. It has just affected everything," says Marcus. Does she think it is bad public policy for a one-night sexual encounter to be potentially more lucrative than going to college and working for a lifetime? "I could be representing one of the women," says Marcus. "If the Legislature and the courts want to do this, who am I to say that it is wrong? It is probably not good for the kid based on my values."
Floyd Nadler notes that, if the mother wants to go to college and then take a job, "she can submit a program to the judge and get the father ordered to pay for day care in addition to the 20 percent of income for child support." Nadler notes that if the father makes $10 million per year and the guidelines therefore kick out a $2 million annual child support number, the father can try to get a judge to deviate downward from the guideline number. "Without a marriage the judge can't look at what the child would have had if the marriage had continued," says Nader, "Representing the payor you argue about what the child really needs. The father has the burden of proof to ask for a deviation from the guidelines." What if the mother's new husband is a commodity trader earning $10 million per year? "The 'first family doctrine' is applied. The father's primary obligation is to the 'first family,' which in this case is the child born at the music festival, so he still has to pay 20 percent of his income even if the mother is in a household with $10 million in income." [Note that "first family" really means "first to file a lawsuit"; a woman married to the doctor in this hypothetical scenario, and children of the marriage born prior to the unwed pregnancy, would have inferior rights to his income relative to a child support plaintiff.]
Arthur Berman concurs with the other attorneys on this scenario.
Perhaps due to the fact that it is so easy for a plaintiff who can show that she was the historical primary caregiver to obtain custody, Schiller says that fabricated tales of abuse, child molestation, etc. are not part of the stock-in-trade of divorce litigation in Illinois as they are in some New England states. "Oftentimes there are exaggerations," says Schiller, "but outright fabrication is uncommon." Does he agree with the attorney in the movie Divorce Corp. who says that every divorce trial has the same story: there is a victim, a victimizer, and a rescuer, which is sometimes an attorney and sometimes a judge? "I think that is the case in every litigation, not just in family law," says Schiller.
How easy is it for a parent to move out of state with a child? Schiller says that the Legislature intended that the determination be made strictly in the best interests of the child. However, case law "has been evolving to be more liberal to allow removal. Now the court looks at what is in the best interest of custodial parent as being a factor in determining the best interests of the child (i.e., the theory is 'happy parent = happy child')." [Note that this makes Illinois similar to Massachusetts and North Dakota.]
Schiller notes that it would be harder to obtain removal if the parents have a 50/50 custody arrangement.
Suppose that a successful child support plaintiff, earning $50,000 per year or more, moves to a state with a child support cap, such as Nevada? Can the defendant then get the child support order modified down to $13,000 per year, in accordance with Nevada law? "Under UIFSA, the Illinois court retains jurisdiction as long as one parent remains," explains Schiller. "Illinois would give up jurisdiction automatically if the non-custodial parent also moves out of state. So if the father remains in Illinois, she would take the Illinois order to Nevada and get it 'domesticated' as a Nevada order and get it enforced there."
Suppose that a person with a child support and custody order from another state moves into Illinois. "Under UIFSA the court in the other state would retain jurisdiction and the child support amount would continue to be fixed by that other state's court." What if the non-custodial parent also came to Illinois? "Illinois would enforce the order that she has," says Schiller. "To get an Illinois court to modify the order, he would have to allege that there was a change in circumstances, e.g., that he can't afford the amount anymore, things are more expensive in Chicago, etc. Modification would be discretionary with the court; it wouldn't be an automatic adjustment to accord with the Illinois guidelines. Changing parenting time would be decided under a 'best interests of the child' standard."
Given the potentially unlimited amount of child support available in Illinois, do plaintiffs move to Chicago to maximize their profits from litigation? "Absolutely," says Schiller and related a recent case that he had handled. "They had no previous connection to Illinois, but moved up here with the child that had resulted from an unmarried encounter. She waited for the father to come into Illinois for an event, filed for parentage, and had him served to create an Illinois case. This enabled her to take advantage of our guidelines rather than be subject to the $20,000 annual limit in the payor's home state (Texas)."
Dorene Marcus pointed out that a plaintiff shouldn't wait for 18 years before finding a way to sue her co-parent. "There is a statute of limitations for obtaining back child support, though there is no statute for collecting arrearages plus 9% statutory interest. Once an order is in place it is possible to collect back child support even after a child has become an adult." [Our research found that Illinois requires "that paternity be established within two years of the age of majority," i.e., before a child turns 16. Arthur Berman points out that it might not be possible to collect child support prior to paternity being established.] Dorene Marcus confirmed that the Illinois courts would not have jurisdiction over a defendant unless that person could be served in Illinois: "Oftentimes the father is served when he comes to Illinois to visit the child. Keep in mind that you can serve someone if they are flying over the state. Just send a process server on the same flight."
Arthur Berman points out that a high-income Nevada father who comes to Illinois regularly to visit with the child of an one-night encounter would be hit with a multi-million dollar financial penalty. Had he stayed in Nevada he could likely avoid the jurisdiction of the Illinois courts and his exposure to child support would be limited to $13,000 per year. If he comes to Illinois to contribute his time and effort as a parent he will become subject to Illinois courts and Illinois law, potentially paying an extra $2 million or more until the child reaches adulthood.
As in other states, a child support or alimony plaintiff has superior rights and security to those of a married person, with the potential for a court order to insulate a plaintiff from any financial loss in the event of a defendant's death.
Dorene Marcus said that a court would order a defendant to purchase life insurance to secure a plaintiff's entitlement to either child support (through the kids turning 18) or alimony. What if the defendant is old and in poor health such that life insurance was not obtainable at a reasonable cost? "It would be an abuse of discretion to order him to buy life insurance that was insanely expensive," Marcus noted. "The court may look for another way to secure the payments, such as requiring a bequest in his will."
For situations in which it is a child support obligation being insured, if the defendant dies, does the plaintiff get the money immediately and have the same freedom to spend the money that is available with child support revenue from a living defendant? I.e., can the money be spent on designer clothing and a luxury SUV for the adult plaintiff? "Typically the life insurance would be paid to the child via trust," Marcus says. "And the trustee would be a third party. So there is much less flexibility regarding spending compared to standard child support."
Schiller expects that alternative dispute resolution, including mediation and collaborative law, will become more popular. He believes that bills to implement shared parenting and an "income shares" approach to calculating child support will be passed by the Legislature.'
Arthur Berman is concerned that a shared parenting bill, promoting 50/50 parenting time and mandating splits no more extreme than 35/65, will pass the Legislature. "If this bill passes, you'll have to take Illinois off the list of states that are somewhat reasonable. Nobody knows how it is going to work. How do you calculate the 35 percent? Do you include sleeping hours? It is just a horrible thing." How did he feel about the new law that would limit judges' discretion in making alimony awards (and also limit attorneys' ability to argue in front of judges on the subject)? "The alimony guidelines are also ridiculous."
What has Dorene Marcus learned in her 35+ years? As mentioned above, her personal thinking has shifted from believing that sole custody is best for many children to a belief that shared (50/50) parenting is best for typical children with parents whose flaws are at most ordinary ("Every kid has the right to two parents even if one isn't quite as good as the other"). Marcus supports an Alaska-style presumption of 50/50 parenting due to the fact that the current system of judicial determination of who is the superior parent is "so botched" and "so broken." Regarding lawyers and judges: "We are just groping in the dark." Do the psychologists and psychiatrists who make their living in divorce courtrooms add a helpful perspective? "They have no reliable research. They have no long-term research. There is no proof that psychology and psychiatric professionals are any better predictors of parenting than lay judges. [divorce psychology/custody/GAL work] is a wildly expensive industry that has grown up based mostly on hocus pocus. 'Best interest of the child' is a legal term, not a psychological term yet we are turning to psychologists to tell the court what is best for a child." Aside from the fact that they can cite no published research, what evidence does Marcus have that the psychologists are not working in a scientific fashion? "The results vary from one psychologist to another so much," notes Marcus, "and then eventually some of these experts [based on whose words many children's and parents’ lives were disposed of] get completely discredited."
[Our research has tended to confirm Marcus's perspective. There are huge variations in the standards used in the 50 states to determine custody. Psychologists whose paychecks depend on revenue from litigation in a particular jurisdiction will confidently base their findings on the prevailing legal standards in that jurisdiction, thus leading to a completely different answer than what a psychologist just across a state line would say.]
Arthur Berman agreed with Marcus regarding the use of mental health potentials in custody litigation: "Psychologists are not adding value." Do they have a better perspective on parenting than a judge would get from hearing a neighbor testify? "No. We recently had a custody symposium with judges from three main counties and experts from around the country. The trend is not to use psychologists and psychiatrists. One judge said, 'I'm tired of all of the money that these psychologists are running up. I can appoint a GAL for $150 who can have a report to me in 18 hours.' They very seldom allow custody evaluations in California. If they do, there are strict criteria for who is qualified to do the job. There are no criteria here in Illinois. It has become a cottage industry being a divorce litigation psychologist. I just saw a 60-page report that cost $50,000."
Donald Schiller was more neutral regarding the Illinois system.
Floyd Nadler thought that there was little room for improvement in Illinois: "The system is archaic and it makes lawyers a lot of money but it makes sense. I think that there should be one parent in charge day-to-day but the other parent has to have a voice that is listened to." [Note that the Illinois practice of granting sole legal custody means that the winning parent listening to the loser parent is purely optional.] Nadler was critical of fathers who sought joint custody because they were often "not sincere" and they should "let their kids grow up and help them rather than trying to get joint parenting.”
On the other hand, Nadler thought that "The whole contested practice is going bye-bye. In the long run it is going to be a California-style thing where the couple fills out a few forms and they're divorced without ever talking to an attorney."
Arthur Berman was similarly a fan of the Illinois system. He thought that the Alaska system of 50/50 custody, divorce trials heard in standard courtrooms, and limited potential profit obtainable from child support was "absolutely ridiculous." In contrast to Alaskans, whose divorce judge may have heard a contract dispute case the week before or presided over a criminal trial, Berman said "We are very fortunate in Cook County to have judges who do nothing but family law." Berman was supportive of the focus on trying to figure out who did most of the child care prior to the divorce lawsuit: "what happened in the past is usually predictive of what will happen in the future, so it makes sense to keep the kids with their primary caregiver and then allow liberal visitation, such as 2-3 weeks in the summer." Berman did not want to see a Texas-style statutory visitation schedule for the child whose custody had been awarded to a single parent: "I have trouble conceiving how it is going to work. It may work. Those of us who have years of experience wouldn't expect it to work. It shouldn't be focussed on the parents. It should be focussed on the child."
Illinois is an outlier in its propensity to award decision-making authority to one parent. What other states call "sole legal custody" and infrequently grant is commonly granted in Illinois, at least as of July 2014 when we conducted these interviews. One of the biological parents thus has the authority going forward to make all decisions regarding the child's life, including for health care, education, and religion. The winner parent can have the child tattooed or authorize one of her kidneys to be donated. The other biological parent is reduced to a babysitter who earns negative 20 percent of whatever the rest of his or her jobs pay.
Illinois rewards pre-lawsuit planning more than some other states. A spouse who is planning to sue an unwary partner can spend a year laying the groundwork by taking over as much of the child care as possible. This positions the spouse to take advantage of the Illinois courts' "preserve the status quo" methodology and secure custody of the children as well as the child support profits that come with them. Asked for an example of pre-lawsuit planning, Dorene Marcus mentioned "an ongoing case where I represent a man who signed a prenup that carves out premarital property and keeps income separate. The wife had two children very quickly. She went into the joint accounts and moved half of the money to her personal account. While feigning continued affection for her husband she persuaded him to sign a deed to sign the $2 million house into joint tenancy. She planned it out beautifully." How well did it work? The plaintiff made millions of dollars from her pre-lawsuit activities and obtained, under the prenup, "a substantial sum for every month they were married." Marcus was unsuccessful in persuading a court to undo any of the pre-lawsuit transactions.
Illinois rewards a parent who generates conflict during litigation by foreclosing the possibility of shared custody, and its potential for reduced child support profits, if the court finds "conflict" between parents where one has sued the other. "I have a case like that right now," says Dorene Marcus. "My client is a difficult person to deal with. The wife uses it. She has created a situation where they can't have joint custody."
Illinois penalizes a parent who seeks shared custody and mounts a legal defense to a sole custody lawsuit. As noted above, an Illinois court can use the very fact that a defendant showed up to a hearing to deny the defendant's request for shared parenting. This tips the scales in favor of custody plaintiffs.
With its guideline formula for potentially unlimited tax-free child support, Illinois encourages one-night encounters with high-income individuals as well as unwed mothers moving to Illinois prior to initiating litigation, assuming that the defendant can somehow be served in Illinois. The baby that might be worth only $250,000 in Las Vegas or $2 million in Manhattan could be worth, at least with a judge who follows the guidelines strictly, $20 million in Chicago.