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GLOSSARY
OF TERMS IN ILLINOIS DIVORCE,
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While counseling is often past focused coaching is very present and future oriented. Coaching is focused on accomplishing the tasks needed to get you to where you want to be. Techniques can include education, scripting, role playing, and more.
Obviously an essential focus of collaborative divorce coaching is helping the client get through the legal process in a healthier manner. But different clients bring other issues they also wish to address, including parenting and co-parenting, changes in lifestyle, taking on new responsibilities, and future relationships. All are approached in the same forward focused, highly directed way. A coach will help refine your goals. With your permission the coach may also communicate with your lawyer to provide you with an integrated team approach that looks after your interests broadly and effectively.
Coaches can also be used outside of the collaborative law process to help a client present their "highest and best self" during a divorce case. For Collaborative Law Institute of Illinois discussion of the value of the divorce coach, click here.
COBRA
The Consolidated Omnibus Budget Reconciliation Act (COBRA) is a federal
law providing covered dependents the right to continue group health coverage
on a self-paid basis if eligibility for employer-sponsored group medical
and dental insurance is lost through loss of employment or through divorce.
COBRA eligibility is usually for 18 or 36 months after the event. Compare
COBRA coverage to Illinois continuing insurance coverage laws:
Illinois Continuation Law and Illinois
Spousal Continuation. For
a pdf of the actual Spousal Insurance Coverage Illinois law, click here.
Collaborative
Practice (Collaborative Law or Collaborative Divorce)
Ideally, collaborative practice allows the attorneys for both of the parties
to assist the parties to resolve conflict using cooperative strategies
rather than adversarial techniques and litigation. Collaborative law create
a different paradigm in which the lawyers have a financial interest in
resolving disputes without litigation rather than earning fees in part
based upon the degree to which a case is litigated. In collaborative law
cases, the parties and the lawyers sign an agreement which provides that
if there is to be a contested motion or issue, both parties' attorneys
must withdraw from the representation. I have found that the process works
well depending upon the number of quality lawyers who handle collaborative
law cases. See: The Gitlin Law Firm's Q&A regarding collaborative
law in divorce cases: www.gitlinlawfirm.com/qa/collab1.htm
Collaborative divorce is a term used to describe the interdisciplinary model of handling collaborative law cases. More specifically, the collaborative divorce model is based on a team approach involving at a minimum two lawyers, a coach and the parties. The other members of the team will often include a child specialist and a financial specialist who are not aligned with either party but work to further the collaborative divorce process.
Common
Law Marriage
A marriage without license or ceremony recognized by the law in the state
it was created. Illinois does not recognize common law marriages.
Consulting
Expert (Consultant)
A consultant is an individual who “has been retained or specially
employed in anticipation of litigation or preparation for trial but who
is not to be called at trial.” Illinois law provides that, “The
identity, opinions, and work product of a consultant are discoverable
only upon a showing of exceptional circumstances under which it is impracticable
for the party seeking discovery to obtain facts or opinions on the same
subject matter by other means.” See Illinois
Supreme Court Rule 201 Re Consulting Experts.
Contribution
Award (Petition for Contribution to Fees and Costs Incurred)
An order requiring one party to pay the other party's attorney's fees
which is entered at the conclusion of the case. A complicating factor
in Illinois law regarding fee awards is the timing of such petitions.
The statute provides, “After proofs have closed in the final hearing
on all other issues between the parties (or in conjunction with the final
hearing, if all parties so stipulate) and before judgment is entered,
a party's petition for contribution to fees and costs incurred in the
proceeding shall be heard and decided.” To over-simplify matters,
an interim fee award is sought while the case is pending and the contribution
award is sought at the conclusion of a case. See Gunnar J. Gitlin's outline
regarding the Leveling the Playing Field statute regarding attorney fee
awards in Illinois. See also The
Gitlin Law Firm's Q&A re Attorney's Fees in Divorce and Paternity
Cases.
Contempt
of Court
Failure to comply with a court order by a person who is able to comply.
It also includes conduct in court which obstructs a court in the administration
of justice. Illinois law divides contempt into civil contempt and criminal
contempt. In civil contempt, an individual is said to have the keys to
his own cell. This means that the goal in civil contempt is to coerce
an individual to comply with a court order (and he or she must have the
means to do so.) In criminal contempt, the goal is to punish an individual
for his or her past-misconduct.
Counseling
(Court's Authority to Order)
Amendments to Section 608 of the Illinois Marriage and Dissolution of
Marriage Act now provide for the authority of the court to order counseling.
The legislation also provides for the confidentiality of communications
within counseling sessions. It provides in part:
(c) The court may order individual counseling for the child, family counseling for one or more of the parties and the child, or parental education for one or more of the parties, when it finds one or more of the following: ***
(2) the court finds that the child's physical health is endangered or his or her emotional development is impaired including, but not limited to, a finding of visitation abuse as defined by Section 607.1; or
(3) the court finds that one or both of the parties have violated the joint parenting agreement with regard to conduct affecting or in the presence of the child.(d) If the court finds that one or more of the parties has violated an order of the court with regards to custody, visitation, or joint parenting, the court shall assess the costs of counseling against the violating party or parties. Otherwise, the court may apportion the costs between the parties as appropriate.
Counter-Petition
A pleading filed by the Defendant also asking for a divorce (dissolution
of marriage) or other relief filed in response to a Petition. A reason
for filing a counter-petition is that the person who brings the divorce
case has the right to voluntarily non-suit (dismiss the proceedings) at
virtually any time prior to trial. However, a party cannot cause the entire
case to be dismissed if the other side has filed a counter-petition for
dissolution of marriage.
Cross-Examination
Asking questions of a witness who was put on the stand by the other lawyer.
Cross-examination is usually intended to discredit the witness or weaken
the effect of the testimony.
Custody
Usually refers to the parent's right to (1) have a child live with that
parent and (2) make decisions concerning the child. See Q&A by Gunnar
Gitlin regarding custody issues in Illinois family law proceedings: http://www.gitlinlawfirm.com/qa/custody.htm
Custody
Evaluation
In Illinois, before litigating custody issues, there is generally a court
ordered custody evaluation. Custody evaluations are allowed according
to three provisions of Illinois law:
- Court's Witness under Section 604(b);
- Evaluation of Child's Best Interest under 604.5; and
- Investigation and Report under §605.
See: 750 ILCS 5/604(b), 750 ILCS 5/604.5 and 750 ILCS 5/605. The custody evaluator is generally a mental health professional and generally either a psychologist or a licensed clinical social worker (although other mental health professionals will be assigned to render reports.) The testing process will generally include mental health testing and interviews with the parents and the child(ren). It will conclude with a written report.
Department
of Children and Family Services (DCFS)
The department in Illinois responsible for reporting of child abuse or
neglect. The DCFS initially determines in cases of suspected abuse or
neglect whether a report is “indicated” or “unfounded.”
An indicated report is one in which there is “credible evidence of
the alleged abuse of neglect.” If DCFS determines "that no credible
evidence of abuse or neglect exists," the report is deemed "unfounded."
325 ILCS 5/3. However, the credible evidence standard was determined to
be unconstitutional. If there is an “indicated” report, an individual
has a right to a hearing to determine if by a preponderance of the evidence
it is likely that abuse or neglect occurred. See IRMO Cavarretta,
277 Ill.App.3d 16, 214 Ill.Dec. 59, 660 N.E.2d 250 (2d Dist. 1996), which
held that, “After weighing all of the relevant factors, we determine
that the "credible evidence" standard deprives a subject of due process.
(Citation omitted.) Because an "indicated" on the State register may deprive
one of his right to work in his chosen profession and cause great damage
to his reputation, DCFS should at least be required to prove its case
by a preponderance of the evidence.”
Default
Failure to do something or to do it on time.
Defendant
The husband or wife who is sued for divorce. Cook County, Illinois requires
the use of the word Respondent rather than Defendant. However, this can
be confusing at times because lawyers often speak of the Respondent as
the person who is responding to a given pleading (instead of merely being
the respondent to the underlying petition for dissolution of marriage.)
Defined
Benefit Plan
A type of qualified annuity: It is often called a pension plan and the
employee will receive an annuity at retirement, that is, as a general
rule he will receive monthly payments for the duration
of his life although there may be several other payment options.
Such payment options may include a 10 year certain option. Generally,
there are no account balances for defined benefit plans. There may be,
however, a lump-sum often with a number of defined benefit plans. See:
The Gitlin Law Firm's Q&A re distribution
of pension plans in divorce cases.
Defined
Contribution Plan
A WYSWYG (What You See is What You Get) type plan. In a defined contribution
plan there is an individual account for each employee. The value of the
retirement benefit is the account balance. See: The
Gitlin Law Firm's Q&A re distribution of pension plans in divorce
cases.
Delinquency
in Child Support
A delinquency in support is defined by the Illinois Income Withholding
for Support Act as the, "any payment, including a payment of interest,
under an order for support which becomes due and remains unpaid after
entry of the order for support." Accordingly, a delinquency
is simply the amount not paid while an arrearage refers to the court's
determination. Compare this to a "Arrearage."
Deposition
Testimony under oath taken before a court reporter but not in court. Generally,
this is a discovery method. However, in certain cases Illinois law allows
the use of what is called an “evidence deposition.” Generally,
depositions in Illinois can be no more than three hours in length.
Direct
Examination
Asking questions of a witness by the lawyer who called the witness.
Discovery
Procedures used to learn facts necessary to settle a case or prepare it
for trial. The usual discovery vehicles are: 1) notices to produce (directed
to a party); 2) subpoenas for deposition or production of records (directed
to a non-party); 3) party depositions; and 4) interrogatories (usually
directed to a party). See: Interrogatories; Request for Production; Deposition,
Subpoena.
Dissipation
The use of marital property or funds for the benefit of one spouse for
a purpose unrelated to the marriage at a time that the marriage is undergoing
an irreconcilable breakdown. In Illinois if there is a claim of dissipation,
generally the spouse who is charged with dissipation has to show how he
or she spent such funds, that is, demonstrate that the funds were spent
for a marital purpose. A key limitation is that dissipation can only be
reimbursed to the marital estate if it is at a time frame when the marriage
is undergoing an irreconcilable breakdown. This time frame is not necessarily
the time when one party files for a divorce. See: The
Gitlin Law Firm's Q&A re property distribution in divorce cases as
well as the specific Q&A regarding dissipation.
Dissolution
of Marriage
Divorce. The legal process of ending a marriage. Most states, including
Illinois, no longer use the word divorce. However, lawyers and clients
still use the term divorce because it is simpler than the longer term
“dissolution of marriage.”
Domestic
Violence
Conduct against another member of a family which can include beatings,
threats, stalking or other forms of intimidation, harassment, neglect,
and physical, emotional, and sexual abuse. May include any act by one
member of a family that causes one of its members physical or emotional
harm. See
Illinois Domestic Violence Act of 1986
See also See: The Gitlin Law Firm's Q&A re domestic violence.
Eavesdropping
A criminal act both according to Illinois and Federal law. The Illinois
anti-eavesdropping statute is at 720 ILCS 5/14-1. The Illinois statute
provides in pertinent part that "[A] person commits eavesdropping when
he . . . [u]ses an eavesdropping device to hear or record all or any part
of any conversation unless he does so . . . with the consent of all of
the parties to such conversation." 720
ILCS 5/14-2(a)(1). Eavesdropping in Illinois is a Class 4 felony.
In Illinois the legislation in this regard was amended in 1994 adding
720 ILCS 5/14--1(d). This statute defines "conversation"
as "any oral communication between two or more persons regardless
of whether one or more of the parties intended their communication to
be of a private nature under circumstances justifying that expectation."
Therefore, a party's expectation of privacy in Illinois is not generally
relevant. As to the issue of whether there is a conversation, see
IRMO
Almquist.
An expansive case regarding eavesdropping was the Washington Supreme Court case of State v. Christensen, (2004). In this case the mother secretly used the speakerphone feature of the base unit of a cordless telephone to listen to her daughter's conversation with a robbery suspect. The high court ruled that the mother improperly used a device "designed to record and/or transmit" to intercept a "private communication." Washington's law required the consent of all the parties to a conversation and does not allow an exception for parents' monitoring their minor children's conversations. While this was a criminal case its potential impact in non-criminal settings is significant.
The Federal counterpart is based upon the wiretapping provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sections 2510-22. The Federal law prohibits "any person" from making recordings of private conversations in which no party consents and authorizes any person whose conversations are recorded to recover damages. Case law including Simpson v. Simpson, 490 F. 2d 803 (5th Cir. 1974) had held that the statute did not apply if the "any persons" were spouses of each other, the conversations that are covertly recorded occur over the telephone in the marital residence and the recording was accomplished without the assistance of an outside party. However, a majority of the cases which have addressed this issue have disagreed with Simpson. For case reflective of the majority viewpoint and discussing this Federal law see, Glazner v. Glazner, 321 F3d 1336 (11th Cir. 2003).
Equitable
Distribution (Division)
A system of dividing property owned by parties to a divorce. Illinois
is an equitable distribution state. Under Illinois law an equal division
of property is not required. Equitable may be equal but more often the
assets are weighed in favor of the party who has given up career opportunities
for the sake of the marriage, who has raised the children, or who has
a lesser career potential as compared to her (or his) spouse. See: The
Gitlin Law Firm's Q&A regarding property distribution in divorce cases:
www.gitlinlawfirm.com/qa/distribution.htm
Evidence
Proof presented at a hearing, including testimony, documents or objects.
Exclusive
Possession of the Marital Residence
Illinois law provides that a party can seek exclusive possession of the
marital residence. The standard is that such orders are to be entered
“only in cases where the physical or mental well being of either
spouse or their children is jeopardized by occupancy of the marital residence
by both spouses.” See
750 ILCS 5/701.
Exhibits
Tangible things presented at trial as evidence.
Ex-Parte
Any application to a court for relief made when only one side is present
and in certain instances without formal notice.
Fees
A lawyer's charges paid by a client for legal services rendered to the
client. See: The Gitlin Law Firm's Q&A re attorney's fees in divorce
and paternity cases: www.gitlinlawfirm.com/qa/fees.htm
Although many different fee arrangements are possible, the following represent the most common types of fees:
1.
Hourly fee: A fee based on
the time expended and an hourly rate.
2.
Retainer:
Money paid by the client to the lawyer to obtain a commitment from the
lawyer to handle the client's case. In divorce cases, a retainer is generally
a deposit against which the lawyer charges fees as they are earned. According
to legislation that was called the “Leveling the Playing Field”
statute, a lawyer's fee contract cannot require a non-refundable retainer
fee. The lawyer must remit back any overpayment at the end of the representation.
This is a fee that is sometimes charged by a lawyer for the agreement to take your case and to commit to being available for your case. Normally, an engagement fee is in addition to charges on an hourly rate basis.
Contingency
Fee: A percentage of the recovery. Contingent fees are forbidden
in divorce cases, but, in Illinois a lawyer is permitted to enter into
a contingent fee to enforce a judgment, that is, for collection purposes.
4.
Bonus Fee: A fee based upon
factors in addition to the hourly fee. Also called a premium or final
fee.
5.
Flat Fee: A fee in a fixed
amount for handling an entire case or a certain part of it. In divorce
cases, there can be flat-fees for a pre-agreed divorce, that is, simple
non-contested divorce. Otherwise, flat fees are rare.
File
In Illinois, generally the act of filing a petition, motion, etc., with
the clerk of the court. Term also used as the act of starting a case.
The financial specialist is a neutral financial professional whose services are often used in a collaborative divorce. If used as part of the collaborative practice team, the neutral financial specialist then meets with the divorcing couple and helps them begin their dialogue around financial issues, while assisting them in gathering all the necessary financial information. The financial specialist works closely with the couple and their respective lawyers in understanding both present and future financial consequences of various possible settlement options. Often this information is presented in a five-way meeting with the financial specialist, the two collaborative lawyers, and the couple where the options are discussed. Then the couple, along with their attorneys, crafts their financial settlement. For Collaborative Law Institute of Illinois discussion of the role of the financial specialist, click here.
Garnish
To take money from wages or from an account to satisfy an unpaid court
order for the payment of money.
Goodwill
Illinois divides the goodwill of a business into two types: enterprise
goodwill and personal goodwill. For a detailed discussion of business
valuation topics and the distinction Illinois follows as to enterprise
versus personal goodwill see a chapter I co-authored for IICLE on business
valuation. If we over-simplify matters, however, personal goodwill cannot
be valued in Illinois divorces. Personal goodwill is the portion of goodwill
which is based upon the personal efforts of the spouse who owns the business.
Enterprise goodwill can be valued. It is the value of business itself,
assuming that you could replace the business owner with another person
and pay him or her a reasonable salary.
Grounds
The conduct or circumstances which must be proved to entitle a person
to a divorce. The Gitlin Law Firm's Q&A re grounds for divorce http://www.gitlinlawfirm.com/qa/grounds.htm
Guardian-ad-Litem
A person appointed by a judge to prosecute or defend a case for a person
legally unable to do so, such as a minor child. In Illinois there are
three types of individuals who may be appointed with respect to minor
children. In addition to a guardian ad litem,
they are an attorney for the child and a child representative. See child
representative and attorney for the child. The 2005 amendments to
Section 506 of the IMDMA provides, "The guardian ad litem
may be called as a witness for purposes of cross-examination regarding
the guardian ad litem's report or recommendations. The guardian ad
litem shall investigate the facts of the case and interview the child
and the parties."
Hague
Convention on the Civil Aspects of Child Abduction
The Hague
Convention on the Civil Aspects of Child Abduction in family law circles
is commonly referred to as the Hague Convention although there are many
Hague Conventions.
Click here for the status of countries (referred to as states) which have ratified the Convention. For an easier to read list of countries ratifying the Convention see the U.S. Dept. of State's web site. By definition the Convention is in force in all "states" that have ratified it. In short, the Convention provides a remedy for expedited return of a child or children who has been wrongfully removed or retained from a country which has ratified (or in some cases acceded to) the Convention.
Hearing
Any proceeding before a judicial officer.
Hearsay
The standard definition lawyers use for hearsay is an out of court statement
asked to be introduced into evidence for the truth of the thing that is
asserted. A non-legal definition of hearsay is testimony based upon rumor
— what someone else says who is not in court — when you are
asking the court to consider the rumor testimony based upon its truth.
The most common exception to the hearsay rule is an admission of a party
opponent. Generally, what the other party says is admissible as an exception
to the hearsay rule. The second most common exception to the hearsay rule
is the business record exception but even this exception requires certain
background (foundation). Not all business records are admissible. Only
those records where you can show that they were made in the regular course
of the business and where the the person who is testifying at least has
knowledge of the record keeping system. See evidentiary outline regarding
Illinois law.
Income
Withholding Notice / Order
An income withholding notice differs from an income withholding order
in that a notice provides for withholding of income to secure payment
of child support / maintenance or certain other expenses such as payment
of health care premiums. An order for income withholding is entered by
the court. In Illinois if there is an income withholding notice, generally
payments are made through the State Disbursement Unit.
In
Chambers (In Camera) Interview with the Child
If there is testimony by a minor child, Illinois custody law provides
that this is not accomplished in open court but in the judges office (chambers).
Illinois law provides, “The court may interview the child in chambers
to ascertain the child's wishes as to his custodian and as to visitation.
Counsel shall be present at the interview unless otherwise agreed upon
by the parties. The court shall cause a court reporter to be present who
shall make a complete record of the interview instantaneously to be part
of the record in the case.”
Injunction
A court order which requires a party to do some act or prohibits a party
from doing some act. Injunctions can be entered on an emergency basis
(sometimes without notice). In order to obtain injunctive relief, Illinois
law requires that there be a clearly ascertainable right in need of protection,
that there be an irreparable injury or loss; that there is no adequate
remedy at law; that there be a likelihood of success on the merits and
that bond be waived (in appropriate cases). Injunctions can be mutual
but mutual injunctions are usually entered by agreement of the parties.
Interim
Fee Petition
A petition in which one spouse seeks a court order for the other spouse
to pay attorney's fees on a temporary basis (while the case is pending).
The goal of Illinois law regarding interim (temporary) attorney's fees
is “to achieve substantial parity in parties' access to funds for
litigation costs.” 750 ILCS 5/102(5). Hearings on interim fee awards
are generally supposed to be based upon the affidavits of the parties.
The key provision of Illinois law in this regard states that the court,
“shall assess an interim award against an opposing party in an amount
necessary to enable the petitioning party to participate adequately in
the litigation, upon findings that the party from whom attorney's fees
and costs are sought has the financial ability to pay reasonable amounts
and that the party seeking attorney's fees and costs lacks sufficient
access to assets or income to pay reasonable amounts... Except for good
cause shown, an interim award shall not be less than payments made or
reasonably expected to be made to the counsel for the other party.”
Interrogatories
Written questions served on the other party who is required to serve sworn
written answers within a specified time. A type of discovery. Illinois
has standard interrogatories to be used in initial dissolution of marriage
proceedings. These interrogatories were changed effective July 2002. See
standard family law interrogatories in Illinois.
Joint
Custody
Illinois law does not provide that joint custody means that there is any
given time sharing arrangement with the child or children. Illinois statutory
law defines joint custody simply as custody “determined pursuant
to a Joint Parenting Agreement or a Joint Parenting Order.” A Joint
Parenting Agreement is merely an agreement which, “shall specify
each parent's powers, rights and responsibilities for the personal care
of the child and for major decisions such as education, health care, and
religious training.” The only other requirement of a joint parenting
agreement is that it must, “further specify a procedure by which
proposed changes, disputes and alleged breaches may be mediated or otherwise
resolved and shall provide for a periodic review of its terms by the parents.”
The last procedure is usually done through requiring mediation in the
event of disputes of the terms and by requiring an annual “review”
of the joint parenting agreement. Illinois statutory law also provides
that if the parents “fail to produce a Joint Parenting Agreement,
the court may enter an appropriate Joint Parenting Order ... which shall
specify and contain the same elements as a Joint Parenting Agreement,
or it may award sole custody.” See,
750 ILCS 5/602.1 Also see The Gitlin Law Firm's Q&A on joint custody,
http://www.gitlinlawfirm.com/qa/jointcustody.htm
Judgment
The decision of a court. A type of order. Also called a decree.
Jurisdiction
The power of a court to decide a particular matter.
Legal
Separation
A court order or, in some jurisdictions, a written agreement between the
parties, arranging the terms under which the parties will live apart after
separating. While signifying the separation of the parties, it does not
formally dissolve the marriage or permit the parties legally to marry
other persons.
Leveling
the Playing Field Amendments
Illinois law regarding attorney's fees contains a group of statutory provisions
which have been collectively referred to as the “Leveling of the
Playing Field Amendments” to the statutory law. See my Q&A regarding
Attorney's Fees in Illinois Divorce Cases: http://www.gitlinlawfirm.com/qa/fees.htm
See also my outline of my most recent seminar on the Leveling the Playing Field legislation in Illinois family law cases:
Litigation
All of the proceedings that take place in the course of a lawsuit.
Maintenance
Payments made to support a current or former spouse. In Illinois, alimony
is called Maintenance. In other states, it is often called spousal support.
See 750 ILCS 5/504. See
Gunnar Gitlin's outline regarding maintenance trends in Illinois.
Also see The Gitlin Law Firm's Q&A on Maintenance, http://www.gitlinlawfirm.com/qa/Maintenance.htm
Marital
Property
Interests in property acquired by the spouses during the marriage which
is to be divided between the parties at divorce. See Non-Marital Property,
Equitable Distribution. See 750 ILCS
5/503.
Also see The Gitlin Law Firm's Q&A on distribution of property in a divorce, http://www.gitlinlawfirm.com/qa/distribution.htm
Marital
Settlement Agreement
The written agreement made between the parties settling the issues in
a divorce. Divorce lawyers in Illinois often refer to the Marital Settlement
Agreement as the “MSA.”
Mediation
A dispute resolution process in which a disinterested third party, the
mediator, assists the parties in reaching an agreement. Except for very
limited exceptions, the mediation process is confidential. The 2006 Supreme
Court rules (effective July 1, 2006) have a provision for mandatory mediation
of custody and visitation disputes (but not of financial matters ancillary
to the parenting issues). See Gunnar Gitlin's Q&A regarding mediation
of custody issues in Illinois family law cases, http://www.gitlinlawfirm.com/qa/mediation.htm
Mental
Cruelty
A ground for dissolution of marriage in Illinois. Technically, the full
name of the ground is “without cause or justification ... Respondent
... has been guilty of extreme and repeated physical or mental cruelty.”
In cases where the parties have not lived separately for the required
period, often grounds will be alleged alternatively as irreconcilable
differences or mental cruelty.
Motion
An application to the court for an order. Generally, motions are written
but occasionally there are oral motions.
Modification
A change in the judgment or order, generally based on a substantial change
of circumstances. The standard petitions for modification are those brought
to modify custody and to modify either child support or maintenance. See
the Gitlin Law Firms's Q&A's regarding modification of custody, http://www.gitlinlawfirm.com/qa/custodymodification.htm,
modification of child support, http://www.gitlinlawfirm.com/qa/supportmodification.htm,
and termination of maintenance, http://www.gitlinlawfirm.com/qa/termination.htm
No-Fault
Divorce
Also called “irreconcilable differences.” A divorce granted
without proving that one party is guilty of misconduct. Illinois is not
a “pure” no fault state. This is because in Illinois there is
a waiting period. The waiting period is six months if there is an agreement
(stipulation) to be divorced using no fault as a grounds. If there is
no agreement, the waiting period under Illinois law is two years. Apart
from the period of separation, the legal standards for no fault divorce
is that “irreconcilable differences have caused the irretrievable
breakdown of the marriage and the court determines that efforts at reconciliation
have failed or that future attempts at reconciliation would be impracticable
and not in the best interests of the family.” See, 750 ILCS 5/401.
See The Gitlin Law Firm Q&A on grounds for divorce, http://www.gitlinlawfirm.com/qa/grounds.htm
Non-Marital
Property
Property which is not marital in character. To clarify this circular definition,
Illinois divorce law defines marital property as all property acquired
during the marriage with certain exceptions. Non-marital property is defined
as:
(1) property acquired by gift, legacy or descent;
(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent;
(3) property acquired by a spouse after a judgment of legal separation;
(4) property excluded by valid agreement of the parties;
(5) any judgment or property obtained by judgment awarded to a spouse from the other spouse;
(6) property acquired before the marriage;
(7) the increase in value of property acquired by a method listed in paragraphs (1) through (6) of this subsection, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and
(8) income from property acquired by a method listed in paragraphs (1) through (7) of this subsection if the income is not attributable to the personal effort of a spouse.
See, 750 ILCS 5/503.
Orders
of Protection
An order entered under the Illinois Domestic Violence Act. There are generally
three types of orders of protection: emergency (not longer than 21 days);
interim (not longer than 30 days) and plenary (often throughout the duration
of the divorce proceedings). See Gitlin Law Firm's Q&A re domestic
violence: http://www.gitlinlawfirm.com/qa/violence.htm
Parentage
(Paternity)
Illinois uses the term parentage rather than the term paternity. However,
most Illinois family lawyers still use the term paternity. Illinois paternity
proceedings are regulated by the Illinois
Parentage Act of 1984. See also Gitlin Law Firms Q&A regarding
paternity cases in Illinois: http://www.gitlinlawfirm.com/qa/paternity.htm
Parenting
Education
A term defined in the 2006 Illinois Supreme Court Rules. The rules
require each circuit court to create or approve a parenting education
program at least four hours long covering the subjects of visitation and
custody and their impact on children. Except for good cause shown
attendance is mandatory as soon as possible , but not later than 60 days
after an initial case management conference. The Supreme Court Rules
provide: "The court shall not excuse attendance unless the
reason is documented in the record and a finding is made that excusing
one or both parents from attendance is in the best interests of the child."
Parenting
Time
The term used in many joint parenting agreements used to refer to the
“visitation” rights of the non-custodial parent. Many people
do not look on the term “visitation” favorably. The thought
is that parents do not “visit” with their children. The non-residential
parent may spend less time with his or her children but that time should
not be thought of as “visiting” time. For this reason, many
joint parenting agreements prefer the use of the term “parenting
time.”
Perjury
The crime of lying under oath. It includes lying during a trial, at a
deposition, or in a written affidavit. It can be punishable by imprisonment,
although divorce lawyers know that perjury is generally difficult to prove
in many issues involving divorce proceedings. Divorce lawyers refer to
this as the “he said -she said” problem.
Petition
for Dissolution of Marriage
Also referred to as a petition for divorce. This is the initial filing
in divorce proceedings. A summons for dissolution of marriage will generally
accompany the petition for dissolution when the petition is being formally
served. In many cases, the petition for divorce is not formally served
but a copy will be mailed to the Defendant's retained counsel who will
then voluntarily file an appearance — thereby eliminating the necessity
of formal service of petition for dissolution of marriage.
Petitioner
(Plaintiff)
See Plaintiff. Cook County requires the use of the terminology “Petitioner”
for the Plaintiff.
Plaintiff
The party who filed the Petition for Dissolution of
Marriage. See Petitioner.
Pleading
A document filed with the court which asks for something or responds to
a pleading filed by the other party.
Praecipe
Summons Procedure
Illinois law allows a party to initiate divorce proceedings under what
is called a praecipe summons procedure. Under Illinois law a praecipe
for summons can be filed without a divorce petition. The reason this tool
is used by some Illinois divorce lawyers (including me)
is in cases where it is important to commence a divorce case quickly which
is often done in order to establish venue where there are two places where
the divorce case may be brought. Another reason this tool is used is to
avoid having to allege grounds which may be contentious in cases where
there are not grounds for no-fault divorce (that is, the parties have
not lived separately for at least six months.)
Premarital
Agreements
An agreement signed in contemplation of marriage, which will address rights
as to either dissolution of marriage and/or rights to the estate of the
other person. With regard to the enforceability of premarital agreements,
Illinois has adopted the Illinois
Uniform Premarital Agreement Act.
It provides for broad enforceability of such agreements so long as there
is fair and reasonable disclosure of the property or financial obligations
of each party, the agreement is executed voluntarily and the agreement
was not unconscionable when executed. Such agreements addressing divorce
often limit a party's ability to seek maintenance (alimony) from her or
his spouse. Such agreements addressing estate issues often prevent a party
from being ability to renounce a will and take a statutory third of the
other party's estate.
Present
Valuation
A financial concept. It refers to the time value of money and goes along
with the saying that a bird in the hand is worth more than two in the
bush. In determining the present value, if a future stream of payments,
the future payment stream is discounted back to a present value using
a discount rate. This concept is important in divorce cases both in valuing
businesses and in determining the value is a defined benefit plan (if
there is to be other marital assets awarded in lieu of an interest in
the plan) — a swap which lawyers call an offsetting property settlement
award.
Privileges
A client's right to refuse to disclose confidential communications between
the client and certain persons in a professional relationship with the
client. In Illinois the usual privileges are, such as lawyers, doctors,
mental health care professionals. Illinois law regarding mental health
privileges is one of the broadest in the nation. See 740 ILCS 110/10 (Mental
Health and Developmental Disabilities Act.) Other privileges are:
Physician
Patient Privilege: 735
ILCS 5/8-802; Also the Illinois Code of Civil Procedure here
describers other privileges such as husband and wife privilege, clergy
privilege and certain other limited privileges.
Public
Accountant's Privilege: 225
ILCS 450/27; "A public accountant shall not be required
by any court to divulge information or evidence which has been obtained
by him in his confidential capacity as a public accountant."
Reporter's
Privilege: 735
ILCS 5/8-901-909;
Social
Worker Privilege: 225
ILCS 20/16
Abused
and Neglected Child Reporting Act: 325
ILCS 5/1 et seq.
A privilege applicable to family law cases is the mediators privilege under the Uniform Mediation Act.
Pro
Se
A party who is representing him or herself in a lawsuit. A party has the
right to represent himself or herself in divorce proceedings. On the other
hand, it is said that the lawyer who represents himself has a fool for
a client. I tell clients that I even hire my own lawyer to handle my real
estate transactions.
Prove-up
The final court appearance where the parties “prove-up” their
marital settlement agreement. The actual court time for the prove-up is
generally short, that is, the time before the judge is generally less
than 10 minutes.
Qualified
Domestic Relations Order (QDRO)
This acronym is pronounced “QUADRO” or “Q-DRO.” An
order of the divorce case (that is, a domestic relations order) that is
determined to be qualified. The “qualified” part of this term
generally refers to the approval of the QDRO by the plan administrator.
Qualified
Illinois Domestic Relations Orders (QILDROs)
It is a gross overstatement to state that under current law QILDROs are
QDROs that are applicable to plans covered under the Illinois Pension
Code. This is because there remain numerous limitations for what can be
contained in a QILDRO. I had promoted the passage of legislation making
QILDROs substantially more similar to QDROs in Illinois. The 2006 legislation
which was passed is complex because it requires a multiple step process
to divide retirement benefits covered under the Illinois pension code
where there is a percentage order for the division of a defined benefit
plan. See: The Gitlin Law Firm's Q&A
re distribution of pension plans in divorce cases.
QILDRO
Calculation Court Order
The sort of court order to use if a QILDRO provides that the alternate
payee (recipient) is to receive a percentage of any retirement system
benefit. Section (n-5) of the amended QILDRO legislation provides
the form to be used. This form is entered not at the time of the
divorce but years later -- before the pension holding spouse goes into
pay status.
Reimbursement
A concept under Illinois law created to address situations in which one
estate — often the marital estate — has made substantial contributions
toward the other estate — often one person's non-marital property.
For example, a party may own a residence prior to the marriage and keep
title to this residence in his or her own name during the marriage. As
such, generally, the property is determined to be non-marital subject
to a right for reimbursement for the marital contributions toward the
non-marital property. There are times when there is a claim for marital
energies spent on a non-marital business or enterprise. Illinois courts
generally focus on whether the marital estate was reasonably compensated
for the non-marital energies in such cases.
Removal
(Relocation)
The ability of the custodial parent to move from the State of Illinois
to another state. Illinois lawyers refer to this as "removal"
while lawyers in other states often refer to this as "relocation."
Whether you call it removal or relocation, it is regulated by Illinois
law which provides, “The court may grant leave, before or after judgment,
to any party having custody of any minor child or children to remove such
child or children from Illinois whenever such approval is in the best
interests of such child or children. The burden of proving that such removal
is in the best interests of such child or children is on the party seeking
the removal. When such removal is permitted, the court may require the
party removing such child or children from Illinois to give reasonable
security guaranteeing the return of such children.” See 750 ILCS
5/609. See The Gitlin
Law Firm Q&A on removal of children from Illinois. See
also, updated article by Gunnar J. Gitlin on removal.
Request
for Production
(Also known as a Notice to Produce). A written request by one party to
the other asking the other party to turn over tangible objects, usually
documents. Illinois law requires a party to seasonably update discovery
responses. Illinois law also requires discovery to be properly organized
(usually, this means organized as broken down according to the paragraphs
of the notice to produce.)
Respondent
(Defendant)
The party defending against a Petition for Dissolution of Marriage (Divorce
Petition).
Response
A document used to answer or respond to the petition for dissolution of
marriage or other pleading. Answers or responses usually admit or deny
specific allegations or claims in the document being answered. In Illinois
those allegations not specifically denied are therefore admitted. It is
therefore only necessary to state the allegations which are denied.
Restraining
Order
See Injunction
Retainer
See Fees.
Separate
Property
See non-marital property.
Service
(of Process)
The delivery of official papers by a means prescribed by law. Usually
this is accomplished either through a private process server or a sheriff's
officer. In Cook County there is the need for the appointment of
a special process server. However, in the collar counties including
Lake, McHenry, Kane, Boone and Winnebago there is no need for a special
process server in divorce cases.
Settlement
The resolution of disputed issues by agreement between the parties. Most
lawyers use the statistics that 95% of cases are settled rather than tried.
Social
Security Spousal Benefits
A divorce spouse can get social security benefits based upon her (or his)
spouse's benefits if the marriage lasted at least 10 years. The
divorced spouse must be 62 or older and be unmarried. If the spouse
that generally did not work outside the home were the woman, then the
benefits she would receive has no effect on her former husband's benefits.
See Spousal Benefits
under Social Security's web site. The spousal benefits are 50
percent of the eligible worker’s full benefit unless the spouse begins
collecting benefits before full retirement age. In that case, the amount
of Social Security Spouse Benefit is permanently reduced by a percentage
based on the number of months before he/she reaches full retirement age.
Stipulation
An agreement between the parties or their lawyers about issues in the
lawsuit. Common stipulations in Illinois divorce cases are: 1) stipulation
regarding irreconcilable differences (waiving the two year separation
requirement); and 2) stipulation for non-contested divorce (usually based
upon a signed marital settlement agreement where one party does not appear
for the last court appearance, called a prove-up).
Subpoena
A document served on a party or a witness commanding appearance at a certain
time and place. A Records only Subpoena is sometimes referred to as a
Subpoena Duces Tecum. It is a requirement to produce documents,
papers, or other things listed in the subpoena in lieu of a personal deposition.
Summons
The written notification of the lawsuit that is served upon the Defendant.
Temporary
Orders
Orders granting relief between the filing of the lawsuit and the judgment.
Trial
The final hearing in court to decide the issues in the case.
Uncontested
Divorce
A divorce in which there is no dispute as to how any of the issues will
be resolved.
Venue
The place where a case will be heard. For example, if the place a case
is heard is McHenry County a lawyer might say that the venue is in McHenry
County. There are cases where venue is transferred to one county to another,
often due to a motion to transfer venue. When there is a transfer
from one county to another county it is called a motion to transfer due
to forum non conveniens.
Visitation
The right of a parent who does not have primary custody of the child to
spend time with the child. See, Parenting
Time.
The Gitlin Law Firm, P.C. provides the above glossary as a service to potential and current clients. A person's accessing the information contained in this web site, is not considered as retaining The Gitlin Law Firm, P.C., for any case nor is it considered as providing legal advice. The Gitlin Law Firm cannot guarantee the outcome of any case.
The Gitlin Law
Firm, P.C.
Practice Limited to Family Law
663 East Calhoun Street
Woodstock, IL 60098
815/338-9401
Last Updated: April 12, 2010
www.gitlinlawfirm.com
Gitlin Law Firm, P.C.
