Just a Lawyer in Lincoln's Hometown

November 23, 2010

Thanksgiving and Visitation

Filed under: Family Law — Chuck @ 1:00 am
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You remember Henry and Samantha. They’re divorcing and trying very hard to being good parents to their children, Ken, age 8, and Jenna, age 6. They have worked out a temporary agreement on custody and visitation for Henry’s regular visitation. But although they had consulted lawyers, they went against advice and agreed to “alternate holidays.”

As every experienced divorce lawyer would have told them, this kind of language in a visitation schedule can lead to horrible complications. Even well-meaning people, like Samantha and Henry, can have a hard time deciphering what this means, and remembering who had what holiday.

Does alternating holidays mean that Samantha has Thanksgiving and Christmas this year and Henry has both next year? Does having Thanksgiving mean the day only, or from Wednesday after school until the end of the weekend. What if the tradition has been to go to Henry’s parents’ house, in town and only requiring a trip of twenty minutes, one year and to Samantha’s parent’s the next year, 500 miles away and requiring a couple of days?

To add to the confusion, what is a holiday? Samantha celebrate Thanksgiving, the first Sunday of Advent and then Christmas, while Henry only celebrates Thanksgiving and Christmas. What does this mismatch do to the “every other” language?

Again, because they are both trying to be good parents while, henry and Samantha talked about Thanksgiving before it came up, and remembered that both of their lawyers had said that what looked simple, wasn’t. Between them, the two attorneys came up with a schedule of holiday visitation that set out the hours and days that each parent had holiday visitation. For example, this year, an “even” year, Henry has the children from Wednesday after school, until Friday at 5:00 PM when Samantha gets them for the weekend (even if it would normally be Henry’s). The next year, and “odd” year, the schedule is reversed. The schedule sets out who gets what in odd and even years.

Now that the schedule is written down, in all its complicated detail, all Samantha and Henry need do is consult the schedule to know exactly who gets what holiday and what that means.

Chuck from Watson Law, LLC

November 19, 2010

Dating and Divorcing

Filed under: Family Law — Chuck @ 1:00 am
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Divorcing is always an emotional time in a person’s life. Even short-term marriages started off with a commitment to stay together. Even though a lawyer will try to introduce some unemotional advice into the equation – emotions run high. Calming those emotions is often very important to settlement.

But that same divorce induced stress makes it important to have and develop emotional support. Moving on with life is important, and finding new love may give enough support to allow a divorcing spouse move on. But it can cause problems as well.

Spending excessive money in your dating life may well be looked upon as dissipation of marital assets that could lead to a change in the allocation of marital assets.

Flaunting your new boyfriend in front of your divorcing husband will NOT dampen emotions. In some circumstances it will guarantee going to trial.

Introducing your new girlfriend to your children before they are ready may generate negative emotions that may tilt the custody equation against you.

Some judges may consider your dating relationship to be infidelity, and technically, if you are engaged in sexual relations, you are committing adultery. If your judge takes a dislike to you, you may not get the good side of any discretionary rulings.

There are many good reasons to not date while divorcing. But the emotional support may be important. So if you do date, you need to be discrete. Flaunting the relationship carries too many negatives. Don’t go showing off your new love in all of your old haunts. If you do, you may regret the decision. Be smart and be discrete!

Chuck from Watson Law, LLC

November 16, 2010

George, Doris & Mikey: Support?

Filed under: Family Law — Chuck @ 1:00 am
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George and Doris were married years ago, and had Mikey. After their divorce, Mikey lived with Doris, and George paid child support. For years George worked a series of low wage jobs. He wanted to be a decent father and he always paid child support, but it was never very much. The judge set George’s child support at 20% of his net income, which worked out to $230 per month.  Even though she resents the amount of support, Doris has never sought an increase. Until Now.

George is driving a Mercedes. Doris is upset. If George can afford a Mercedes, even if it is used, he can afford to pay more than $230 a month! She takes George back to court for more support. After discovery, subpoenas, and a hearing (that her lawyer advised against), and $2000.00 in attorneys fees, she got an increase: $270 per month. George is only making $9.00 per hour and 20% of his net, according to the court, is but $270 per month. Because Mikey is a senior in high school, and support will end soon, she will lose money on the transaction!

Very upset, Doris demands to know how George can drive a fancy, expensive car, and only have to pay $270.00? Her lawyer reminds her of why her advised against the hearing: although George is living large, he still only makes, $9.00 an hour. He lives with Diana, a wealthy widow (times 3!), who bought the car for George. Because Illinois looks to the income of the non-custodial parent, and very rarely anything else, all the court looked at was that $9.00 per hour!

Chuck from Watson Law, LLC

November 14, 2010

College – Who pays?

Filed under: Family Law — Chuck @ 1:00 am
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It’s that time of year again. Divorced parents are getting together – in court – over who is paying for college for their 12th grade children.

In the absence of a divorce the state has no authority to force a parent to pay, or help pay, for a child’s college career. Most parents want their children to go further than they, and will willingly put themselves in hock to help a child get a college degree. But divorce changes that equation. A non-custodial parent my become estranged from their child, and feel no urge to help. A single parent may simply need help. Or the parents may have become so bitter about each other that it gets in the way of rational decisions about the child. Whatever the case, the Illinois legislature has provided a way to sort the issue out – IMDMA Sec. 513. (Illinois is in the distinct minority of states – most states do not have a similar statute.)

Section 513 of the Illinois Marriage and Dissolution of Marriage Act, provides for the support of adult children who have become emancipated (become considered an adult before the law) due to age – but who are actually still dependent on their parent(s). College support comes from this.

Assuming the parties cannot agree – always the best choice – and at any time, but usually after the child has narrowed his or her college choices, the FAFSA (using the income figures, etc of the “custodial” parent) has been completed and the actual out-of-pocket cost of going to college is becoming clear, the either parent (but usually the “custodial” parent) may bring an action to require the other parent to contribute to the college cost.

The court will generally require each of the “parties” – the mother, the father and the child – to contribute to the cost of the child’s education. Some courts start with each paying a third, others are not so formulaic. Generally each parent will contribute roughly in accordance with their available resources. And while the child is usually expected to contribute toward her education, the she is not generally required to run up a debt.

You might notice that I indicated that the parties contribute in accord with their resources and not their income. The court is supposed to look past income and into the total resources available to the party. For example, if one party has a small income, but access to huge investments, that person may be required to contribute all out of proportion to his income.

If a child has access to scholarships, that may be the child’s contribution. This is especially true if continuing access requires a certain grade level. The statute now also makes the child’s academic performance a factor in allocating (or not) the cost of college.

Government grants fill the same function as scholarships, but generally only require the child to maintain adequate progress toward a degree. So the argument that they should be considered the child’s contribution is problematic. They are often simply taken off the cost of education and the remainder is split.

Sometimes one or more of the parents and/or the child do not agree on where the child should attend. The courts are loath to interfere in this decision, but will most often when the question is one of public vs. private school. If after the application of grants and scholarships, the cost of private school far exceeds the cost of public education the court will sometimes limit the contribution of the non-custodial parent to a contribution based on the public school cost. This may make the decision for the parents.

You may have noticed that there are few, if any, absolute statements in the discourse above. That’s because there are few, if any, hard and absolute rules. If a parent want absolutes, an agreement must be reached. With the help of competent counsel the parties who have the best interests of their child at heart should be able to reach agreement.

Chuck from Watson Law, LLC

November 11, 2010

Oh Man! It aint right!

Filed under: Employment Law — Chuck @ 1:00 am
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Oh man! It aint right! All I did was tell the truth. And this lawyer says I can’t do anything. I oughta be able to sue the b_st_rd. He fired me for no good reason.

The newbie manager came to my line, and said that I had to change what I was doing. He said that if I ratcheted the framistat to the left instead of the right my plastic wrap machine would work twice as good. Well he was wrong. I’ve been working my machine for a whole month now, ever since I dropped out of school. Just because he’s a manager doesn’t mean he knows what he’s doing.

And I told him. After all, I’ve got a right to free speech, don’t I! Its in the constitution!

I told him idea was stupid. This newbie wasn’t going to tell me what to do. I told him his idea was stupid, wouldn’t work, and I wasn’t gonna do it. And you know what he did? He canned me!!

Well I know my rights, so I went to this lawyer. But he said I don’t have the right to tell my boss that he is stupid and I wasn’t going to do what he told me. He said that was insubordination and the boss could fire me if he wanted.

It ain’t right!

FromChuck from Watson Law, LLC

November 9, 2010

Samantha & Henry: Visitation with Children

Filed under: Family Law — Chuck @ 1:00 am
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Samantha and Henry have decided that they are going to get a divorce. They simply cannot live together anymore. About five months ago Henry moved out and is living in an apartment near the house where Samantha and the children, Ken, age 8, and Jenna, age 6, live.

Both Samantha and Henry have tried to cooperate with each other over visitation with the children. They have decided that Samantha will have the children living with her, and Henry will have visitation. They have tried to arrange visitation, but there have been problems.

Being wiser than many, Samantha and Henry decided to mediate the issue. They recognized that they needed some knowledgeable help. A mediator helped them come to an agreement that met their needs. But both worried that the agreement that worked for them today might not in the future. So before they inked the deal, Samantha went to her lawyer.

The lawyer was impressed with the efforts both parties went to and the agreement itself. But he had one criticism: the agreement did not have a provision requiring periodic review. He felt that if the parties got together and reviewed how the agreement was working, they could possibly prevent minor irritations from growing into litigation producing complaints. The lawyer recommended that they get together every other one or two years.

The lawyer also told Samantha that she and Henry could informally agree to vary the agreement. He explained that the agreement represented what each of the parties could enforce against each other. But as long as they both agreed to change visitation, one time or for a long time, there was no problem. He noted however, that if the two of them wanted to make a long-term or permanent change to the visitation schedule, they probably should put the change down on paper. This helps avoid misunderstandings.

Henry and Samantha, although getting divorced, are being good parents. They understand that minimizing the effect on the children is one of their primary concerns.

We will visit Henry and Samantha again as they go through this process.

Chuck from Watson Law, LLC

November 4, 2010

Henry & Samantha: Can we get divorced?

Filed under: Family Law — Chuck @ 6:48 pm
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Henry and Samantha have been married for 10 years. They don’t fight. They have been faithful to each other. They certainly haven’t been physically abusive toward each other. But hey don’t get along. They have no mutual interests. They aren’t interested in each other and they are getting just plain irritated with each other. They both agree that they do not want to be married anymore. They agree that they want to be divorced.

Can they?

Well, of course say their friends. Even though the traditional grounds aren’t there, they can get a no fault divorce. Everybody knows that. So Samantha trots off to a divorce lawyer and says she wants a no fault divorce.

Like any good lawyer, hers asks lots of questions and at the end of the interview tells her that no, she can’t get a divorce. Or at least not yet.

The lawyer explains that Samantha’s friends are right – and wrong. While there is such a thing as a no fault divorce (in Illinois more properly called an irreconcilable differences divorce), but that is not enough. In Illinois, a couple has to live separate and apart for two years before that can get divorced on those grounds. If both parties agree, they can waive the two-year period, but they still must have lived separate and apart for a full six months before the divorce can be finalized.

So let the waiting begin!

Chuck from Watson Law, LLC

November 1, 2010

Hammerhead – About to get hammered

Filed under: Employment Law — Chuck @ 1:00 am
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Sam Hammer just started Hammerhead construction. He used to work for another small construction company and then became independent contractor with HugeCo, a manufacturing company. A wonderful carpenter, great guy, good buddy, and too cheap to hire a lawyer before he started the business. He decided to do things just like HugeCo.

So when Hammerhead got its first good job, Sam brought on Allen, Alice, and Albert to help. He brought them onto the job as independent contractors, the same as he was when he was working for HugeCo. Allen was the lead carpenter, and Alice and Albert took their instructions from him or Sam. Alice and Albert were new to the carpentry business. Neither of them had their own business. Neither of them advertised their services.

Although Allen, Alice and Albert brought their own hand tools with them to work, Hammerhead Construction provided all the other tools. Hammerhead provided the plans. Sam and Allen told Alice and Albert what needed to be done, in what order the work needed to be done and how it was to be done.

Sam felt that he needed to develop a reputation as a good contractor, so he worked long hours. He worked Allen, Alice and Albert long hours as well. They all worked 70 hours that first week. Sam was paying Alice and Albert $10/hour, and at the end of the first week, he gave them both a check for $700 even.

Alice and Albert both said, “Where’s our overtime?!” Stunned, Sam replies, “But you are independent contractors, you don’t get overtime.”

“Sam,” says Alice, “my brother is a lawyer, and he said we aren’t independent contractors. We are employees, and employees who work overtime get paid time and a half for anything over 40 hours a workweek. You owe us both another $150 bucks!”

Sam calls a lawyer, explains the situation and asks, “Are they right?”

“Yes they are. You give most all of the tools they use, you tell them where to work, when to work, and how to work. You didn’t hire their businesses, they don’t have any. They don’t hold themselves out as being available to do any other jobs. They do the same thing you do, but under your direct supervision.”

“Alice and Albert both look like any other employee. The fact that you said they were independent contractors doesn’t make them contractors. It is what is actually happening that matters here. If it walks like a duck, looks like a duck and quacks like a duck, it is a duck. Alice and Allen are employees, and you’ve got to pay them overtime.”

“Why didn’t you call me before bringing them on board?”

Chuck from Watson Law, LLC

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