Show and Tell: Pulling Back the Curtain Part Two
After we stabilize the family through temporary agreements or court orders, we work to develop an action plan to move forward.
Child Custody Issues
Before tackling the financial issues, we must first determine whether there are any contested issues involving the children. Courts require parents to try to develop a joint parenting plan. The parenting plan reflects the parenting arrangements to be implemented after the judge approves the parenting plan during the divorce. Most parenting plans include(s):
- a parenting schedule for ordinary and holiday time
- the division of responsibility for decision making for the children and
- other terms of how the parents intend to co-parent after the divorce
Where parents can cooperate, we urge our clients to discuss the issues with their spouses directly and see what they can agree on. Other times, we suggest using mediation to try to resolve disputes. Sometimes, we schedule a meeting with both parties and the lawyers to parse through the issues. Our approach here depends on the personalities, the level of conflict, whether there is any domestic violence, and other factors impacting the case.
Mediation is mandatory if the parties do not have an agreement early on. In mediation, the parties meet with a trained “neutral” who helps them explore options and negotiate with each other. Sometimes, although rarely, the attorneys participate. The mediator is usually a family law attorney with specialized mediation training. The mediator does not decide disputed issues; rather, the mediator helps the parents resolve their issues by agreement. If mediation results in an agreement, the mediator will draft a memorandum summarizing the agreement, and the attorneys will collaborate on a mutual parenting plan. Once that is approved by the judge, that aspect of the case is concluded.
Where no agreement can be reached, we meet to evaluate options. For example, we discuss the appointment of a guardian ad litem. We explore this option considering the nature of the disputed issues, costs, and other variables. A guardian ad litem is a specially trained lawyer who serves the dual role of court investigator and legal advocate for the children. As another option, we sometimes consult with a psychologist to help us strategize and analyze the issues. Occasionally the judge will appoint an independent psychological evaluator if the issues or the family dynamics warrant it.
What we do: We discuss your options and help you decide the best direction to take. For example, we explain the costs and benefits of going to trial on parenting issues versus accepting an offer to settle the case. We develop strategies and plans to help you achieve your goals. We clearly analyze the strengths and weaknesses of the case to help you make better decisions. We consider our role as an adviser and counselor to help you make the best choices considering the circumstances of the case. Sometimes people make questionable choices because of their grief. We suggest appropriate therapy and counseling, so decisions are made based on the interests of the children rather than for the wrong reasons.
Financial Issues
Within 30 days of the case starting, both parties are to exchange financial affidavits. These affidavits are forms created by the Illinois Supreme Court. The form summarizes the parties’ respective income, expenses, assets (and opinions of value), and debts.
Once these documents are exchanged, we meet with our client and plan. At this planning meeting, we discuss the issues, concerns with the other’s financial disclosure (incompleteness, e.g.), the client’s observations about the disclosure, the client’s goals, and any additional information affecting the case. We move forward based on several factors, including:
- the client’s goals
- the client’s level of knowledge about family finances
- the nature of the property
- the issues involved (e.g., maintenance or support)
- any agreements on asset values
- the personalities and level of conflict
- whether either party is self-employed or own a business
- concerns with the honesty of the opposing party
When our client has little information regarding family finances, we investigate the accuracy of the financial representations of the other spouse. We employ a Certified Public Accountant (CPA) on our team, who, along with the lawyers, reviews financial documents to assess both income and the possible undisclosed assets. We actively seek out financial information through formal requests to the other party, issuing subpoenas to third parties (e.g., banks and accountants) and do any additional necessary investigation to ensure we are fully aware of the financial information involved.
Determining the actual income of a party is challenging if the spouse is self-employed. In that event, we investigate all money that flows to the spouse, not just payroll. We review distributions from the business and loans paid to the owner. We also investigate the personal expenses that the business pays for the owner. Spending is often a good indicator of income; where the amount of paid expenses exceeds the declared amount of income, it’s a clue that the income representations are deflated.
Sometimes money is unaccounted for or misspent shortly before or during a divorce. One of our tasks is to make sure everything is accounted for and properly considered. Again, we use the discovery process to gather information to assess this issue.
To divide property in a divorce, we must first identify it. Where there are potentially hidden assets (e.g., offshore bank accounts), the process is more involved and requires extensive labor. Where the property is disclosed, we need to classify it as marital or nonmarital property and then value it. Business interests require a business valuation expert to assess value.
What we do: Much of our labor is just gathering the necessary information to verify the income and assets. Once we have the necessary information to weigh options concerning a settlement, we discuss with our clients our opinions of the case. As lawyers, we gauge our settlement options, in part, on what we believe the judge would do if the case were tried rather than settled. We discuss the options and then develop an action plan on how to resolve the case.
In the third and final installment of pulling back the curtain, we will discuss how we negotiate to achieve a settlement and, if necessary, prepare for a trial of your case.