Gitlin Law Blog

Frozen Preembryos Properly Awarded to Divorcing Wife in Property Distribution

A divorce was pending.  The wife had been rendered sterile by cancer treatments.  Implantation of preembryos, created from her egg and her husband's sperm, appeared to be her only chance to have a child.  Before the marital problems the couple, through in vitro fertilization (IVF), created embryos which were frozen.  In the divorce they argued about ownership of the embryos.

Three types of analyses have been applied in these situations:  contractual, balancing and contemporaneous mutual consent.  The court in the below Pennsylvania case applied the balancing approach because neither party signed the portion of the consent form related to the disposition of the preembryos in the event of divorce or death.  (Reber v. Reiss, Pa. Super. Ct., No. 1351 EDA 2011 (J.A. 01044/12, 4/11/12).

For more information on divorce and division of property, visit Gitlin, Busche & Stetler, Woodstock, Illinois lawyers website, www.gitlin.com.

 

Divorce Plans Interrupted

Divorce lawyers learned almost from the beginning of time that couples, or at least one of them, do not want to start divorce proceedings shortly before or during the Christmas season.  But you might check for more internal financial circumstances which might delay the divorce, such as proms, birthdays, graduations etc.

H. Joseph Gitlin

For more information on divorce and starting proceedings, visit Gitlin, Busche & Stetler, Woodstock, Illinois lawyers website, www.gitlin.com.

 

Tax Refunds to Finance Divorce?

USA Today recently reported that more than 200,000 taxpayers will use their tax refunds this year to pay for fees and costs for a bankruptcy.  The tax refund could be used to apply for a divorce.

H. Joseph Gitlin

For more information on divorce and starting proceedings, visit Gitlin, Busche & Stetler, Woodstock, Illinois lawyers website, www.gitlin.com.

 

Premarital Agreements

Q: In the event of a divorce, can I protect myself against a claim for maintenance (alimony) with a premarital agreement?

A: Yes.  You can either limit, or eliminate the claim for maintenance by a premarital agreement.  The likelihood, however, is that if you are divorced within ten years and your spouse is in good health, there would not be an award of maintenance.

Q: What is the short of it?
A: 1.   If you are careful to keep assets, such as real estate, stocks, bonds, etc. in your own name you do not need a premarital agreement.

 2.  If you have non-marital income, such as investments before the marriage, or gifts or inheritances you receive during the second marriage, you should keep them strictly in your own name and not put them into a joint account. 

 3.  If you are satisfied with the way the law will distribute your assets upon your death, with or without a will, you do not need a premarital agreement. 

 4.  If you feel that after about ten years of marriage your spouse may be entitled to maintenance you do not need a premarital agreement -- unless you wish to control the amount and duration of maintenance.

For more information on maintenance (alimony) and division of property, visit Gitlin, Busche & Stetler, Woodstock, Illinois lawyers website.

H. Joseph Gitlin covers the practice of family law in Illinois.  Mr. Gitlin is the author of Gitlin on Divorce Reports, which summarize current Illinois opinions.  Click here for Gitlin on Divorce Reports information or contact the office at (815) 338-0021.   Mr. Gitlin's book, Gitlin on Divorce, A Guide to Illinois Matrimonial Law is a necessary tool for lawyers and legal assistants involved in family law and for judges hearing matrimonial cases. 

Bankruptcy, Part III

Q: My marital settlement agreement/divorce judgment requires my ex-spouse to pay certain debts incurred during the marriage.  Can he avoid liability for these debts by filing bankruptcy and will I become liable for these debts?
A: Obligations assumed in a divorce are not dischargeable under Chapter 7.  Therefore the debtor cannot avoid liability for these debts.  These debts, however, may be discharged under Chapter 13 if the debtor complies with the payment plan and has paid all support obligations in full.  Therefore, you may become liable for these debts despite the marital settlement agreement and the divorce.

Q: My marital settlement agreement/divorce judgment requires my ex-spouse to make payments to me as part of the property distribution.  How will these payments be affected if he files for bankruptcy?
A: These obligations are treated the same as the assumption of debts in a divorce.  Under Chapter 7, your former spouse cannot avoid these obligations, but may be able to avoid the obligations under Chapter 13 bankruptcy.

Bankruptcy Part II

Q: What are the different types of bankruptcy and what is the relevance to divorce cases?
A: Individuals can file for bankruptcy under Chapter 7 or Chapter 13.  Chapter 7 is a total discharge of debts whereas Chapter 13 is a repayment plan allowing the debtor to make payments over the course of time (5 years in many cases) and then have remaining debts discharged.  The type of bankruptcy (7 or 13) affects which debts can be discharged, if and when debts will be discharged, and the contents of the bankruptcy estate.  In relation to divorce, one difference is that property settlements contained in a divorce judgment (Marital Settlement Agreement) are no longer dischargeable under Chapter 7, but are dischargeable if certain conditions are met under Chapter 13.

Q: My ex-spouse just filed for bankruptcy.  Will this affect his obligation to pay child support and maintenance?
A: No.  In fact, child support and maintenance (referred to as domestic support obligations in the bankruptcy statute) receive priority treatment.  Therefore, under Chapter 7 property is first distributed to fulfill the support obligation, and under Chapter 13 the support obligation must be paid in full during the bankruptcy proceedings.  Under the new bankruptcy law, failure to pay current support obligations in full can result in denial of a discharge under Chapter 13.

Q: When my ex-husband filed for bankruptcy, he owed a substantial amount of child support.  How and when can I collect the past-due child support?
A: Support obligations, such as child support, are not dischargeable under Chapter 7 or Chapter 13.  The bankruptcy will not affect your ability to collect past-due support, but the automatic stay may prevent you from attempting to collect pre-bankruptcy-petition past-due child support from property in the bankruptcy estate, and a debtor’s income is part of the bankruptcy estate in a Chapter 13 bankruptcy.

 

Divorce & Bankruptcy Part I

Q: If I am contemplating filing for both divorce and bankruptcy, should I file one or the other first?
A: If you and your spouse have substantial debts, it may make sense to complete a joint bankruptcy before completing a divorce.  By discharging debts before completing the divorce, you can simplify the division and distribution of the marital property and avoid problems of possible future liability from debts assigned to your spouse in the event of his or her bankruptcy.  However, the decision is not necessarily an either-or choice.

Q: I’m in the middle of divorce proceedings and my spouse just filed for bankruptcy.  How will this affect the divorce proceedings?
A: When a party files for bankruptcy, an automatic stay becomes effective.  A bankruptcy estate is also created.  The estate includes all non-exempt property of the party petitioning for bankruptcy.  The automatic stay does not affect custody and visitation disputes or divorces except to the extent that division of bankruptcy estate property is at issue.  The divorce court does not have authority to divide property in the bankruptcy estate.  The divorce court retains authority to determine custody, visitation, child support and maintenance.  Therefore, bankruptcy proceedings can stall or delay the division of property in divorce proceedings.

Q:  How long does the automatic stay last?
A: Generally the automatic stay remains in place until the debtor receives a discharge in the bankruptcy case.  However, there are other significant limitations on the automatic stay which a debtor, or anyone seeking to avoid the automatic stay, should discuss with a bankruptcy attorney. 

For more information visit Gitlin, Busche & Stetler, Woodstock, Illinois lawyers website.

H. Joseph Gitlin covers the practice of family law in Illinois.  Mr. Gitlin is the author of Gitlin on Divorce Reports, which summarize current Illinois opinions.  Click here for Gitlin on Divorce Reports information or contact the office at (815) 338-0021.   Mr. Gitlin's book, Gitlin on Divorce, A Guide to Illinois Matrimonial Law is a necessary tool for lawyers and legal assistants involved in family law and for judges hearing matrimonial cases

Modification of Judgments

Q: Can maintenance be increased merely on the basis that the obligor is making more money now?
A: No.  In theory the original maintenance award was made in order to allow the receiving spouse to enjoy the same economic lifestyle after the divorce as she had during the marriage.  She is not entitled to a maintenance increase to live beyond that level merely because her former husband is now enjoying a higher lifestyle.

Q: If I can prove that it would now be in the best interest of my children for the judge to transfer custody to me will the judge do so?
A: No, not based on what is in the best interest of the child.  The best interest of the child is the standard by which the court awards an original grant of custody.  But for a modification (transfer) of custody, as in child support modification, you must first prove a change occurred in the circumstances of the child, or the custodian and that those changes have had an adverse effect on the child, plus thereafter proving that it would be in the best interest of the child to transfer custody.  In addition, during the first two years after the divorce judgment is entered, you must establish that the “child’s present environment may endanger seriously his physical, mental, emotional health.”  This is very difficult to establish.

What is Surrogacy?

In traditional surrogacy the egg of the surrogate is fertilized by the intended father’s sperm through artificial insemination.  In gestational surrogacy the egg of the surrogate is not involved.  She is merely the gestator for the embryo (fertilized egg) which has been transferred into her uterus.  The egg and sperm are fertilized in vitro, the so called test tube.  The positions of most states, as detailed below, are not friendly to surrogacy.

For more information on surrogacy, visit Gitlin, Busche & Stetler, Woodstock, Illinois lawyers website.

H. Joseph Gitlin covers the practice of family law in Illinois.  Mr. Gitlin is the author of Gitlin on Divorce Reports, which summarize current Illinois opinions.  Click here for Gitlin on Divorce Reports information or contact the office at (815) 338-0021.   Mr. Gitlin's book, Gitlin on Divorce, A Guide to Illinois Matrimonial Law is a necessary tool for lawyers and legal assistants involved in family law and for judges hearing matrimonial cases. 

Can I Reduce Child Support in a Bad Economy?

In the present recessionary economy people who are obligated to pay child support and/or maintenance may suffer a restriction of income, or even job loss.  Typically what happens is that the person obligated to pay child support and/or maintenance merely stops paying, or pays reduced amounts and takes no court action to reduce the court ordered payments.  The former spouse then files a contempt petition.  Now he wants his child support reduced retroactively.

A CHILD SUPPORT AND/OR MAINTENANCE OBLIGATION CANNOT BE REDUCED RETROACTIVELY, except to the date of filing of a petition for reduction and serving notice of that petition on the other party.  If you are out of work or your income has been reduced substantially you should contact a lawyer immediately.

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