One common form of ART is In-Vitro Fertilization (IVF), which often requires the creation of embryos (or the use of donated embryos). While people don’t typically foresee their divorce or a breakdown of their relationship while they are actively trying to build a family, the reality is that many couples who undergo IVF (and other forms of ART) and who create or otherwise utilize embryos ultimately do end up going their separate ways.

The disposition of embryos in Illinois has not been addressed by the legislature. If a couple does not properly enter into a contract regarding embryo disposition in the event of their divorce or separation, the fate of those embryos will be left to the courts. In August of 2022, the Second District Appellate Court made a decision in the case of Marriage of Katsap and analyzed the three different common law approaches the courts have employed in resolving disputes over frozen embryos, specifically:

1. The “contractual approach,” in which the courts will enforce the parties’ unambiguous agreement in anticipation of divorce;

2. The “contemporaneous mutual consent approach,” in which the Courts will not enforce earlier agreements between the parties if one or both of them have subsequently changed their minds; and

3. The “balancing approach,” where in the absence of an enforceable agreement (option 1 above), the courts balance each party’s interest in seeking or avoiding procreation.

Most courts agree that having an agreement between the parties is the preferred method of disposition, though that approach is not perfect, for reasons set forth in more detail below. The second option, contemporaneous mutual consent, which basically means “do nothing until the parties eventually agree,” isn’t efficient. In the Katsap case, however, the courts utilized the balancing approach.

In doing so, they weighed the parties’ individual interests. The Katsap court noted that historically, when courts have utilized the balancing approach, the cases started with the premise that the party who was seeking to avoid procreation should prevail if the other party (who is seeking to utilize the embryos) has a reasonable possibility of achieving genetic parenthood by means other than the use of the embryos at issue.[4] In Katsap, however, the Wife was unable to produce any more eggs and was otherwise unable to carry a child to term.  The embryos at issue were her only means to potentially have a biological child. Therefore, in employing the balancing approach, the Court found that the Wife’s inability to otherwise have a genetic child outweighed the Husband’s interest of avoiding procreation, and awarded the embryos to Wife.

So what’s the problem? Child Support.

In Illinois, there are at least 3 different statutes that address the issue of parentage and child support in this context. The Illinois Gestational Surrogacy Act, the Illinois Parentage Act, and the Illinois Uniform Premarital Agreement Act.

In Katsap, child support was not an issue. The Appellate Court found that pursuant to the Illinois Gestational Surrogacy Act, the Husband is a “donor” and not the “intended parent” of a potential child resulting from the embryos at issue.  Therefore, he would not have any duty to financially support the child.

According to the Illinois Gestational Surrogacy Act, a “donor” is an individual who contributes a gamete (sperm or egg) for purposes of IVF or implantation in another. An “intended parent” is a person who enters into a gestational surrogacy contract with a gestational surrogate pursuant to which he or he will be the legal parent of the resulting child. However, the Illinois Gestational Surrogacy Act is only applicable if 1) the parties employ a surrogate and 2) the parties enter into a Gestational Surrogacy Agreement, as was the case in Katsap.

What happens if surrogacy is not a factor, as is the case with many ART procedures?

According to the Illinois Parentage Act, a donor is an individual who participates in an ART arrangement by providing gametes and relinquishes all rights and responsibilities to the gametes so that another individual may become the legal parent or parents of any resulting child. Pursuant to Section 702 of the Illinois Parentage Act, a donor is not a parent of a child conceived by means of assisted reproduction.   However, the definition of a “donor” does not include a spouse in an ART arrangement in which his or her spouse will parent any resulting child.

What if at the time these embryos are created, the person donating a gamete is not a donor? What if he or she is an active, willing participant in creating the embryos in the hopes of creating a child.  This begs the question, if the parties were married (or otherwise in a dating relationship) when the embryos were created, but are not married (or in a relationship) when the embryos are used, is the ex-spouse/partner a donor? Arguably not. If there exists a question of whether a party is a donor, then there exists the question of whether a party is a parent under the Illinois Parentage Act. And if someone is deemed to be a legal parent, that person also has the responsibility to financially support the child.

With all of these uncertainties, there are advantages to spelling out the parties’ rights and obligations with regard to embryos in a written contract before participating in an ART arrangement.  Even that, however, has its limitations.  The Illinois Uniform Premarital Agreement Act specifically sets forth that the right of a child to support may not be adversely affected by a premarital agreement.  In other words, if the parties address their embryos (or perhaps provide for the possibility of future embryos) in a premarital agreement, they cannot contract away the obligation to pay child support. So, while a premarital agreement may make it clear what the parties’ intentions are for purposes of potential embryo disposition, any terms regarding child support would be unenforceable in the courts.

Ultimately, the law here seems half-baked. Illinois has clear case law on how to decide embryo disposition, but has not yet dealt with the consequences with regard to child support. As it stands, absent the use of a gestational surrogate with a written contract, it is not at all clear whether the party who did not want to procreate will be considered a donor or a parent, and whether that party will have a legal obligation to support any resulting child from the embryos using their gametes.

For more information, contact us.

When alcohol abuse has been proven and the court finds that a child has been endangered as a result, Illinois courts will frequently require some form of breathalyzer testing before and during parenting time, to confirm that the parent who previously endangered the child is sober.  A well-drafted court order should specify the time and manner of breathalyzer testing, as well as the consequences for a missed test or a failed test.

Two of the leading products and services in breathalyzer testing are provided by Soberlink and BACTrack, and they are remarkably similar.  Each of the companies sells smartphone compatible breathalyzer devices.  Each of the companies offers multiple subscription plans for testing and reporting.  Each of the companies enjoys a good reputation with the family court judges and with family court attorneys, who regularly order parents to utilize one service or the other.

There are, however, some key differences between the products, as both companies are eager to highlight on their websites and in their promotional materials.  As far as the non-technical differences go, BACTrack advertises that its breathalyzer devices are physically smaller than Soberlink’s and therefore easier to carry.  BACTrack also extensively advertises its lower costs and 14-day free trial period.  In our firm’s experience, the lower cost of BACTrack has been its key selling point in the cases where a judge ordered it to be used instead of Soberlink.

There are also many technical differences between the products and services.   One of the main differences pertains to how to confirm the right person is blowing in the breathalyzer device.  Soberlink uses facial recognition technology, while BACTrack records video of the person taking the test.  Over the course of several litigated cases, our firm has had the opportunity to see how each approach works.  Soberlink will automatically reject results from someone whose facial features differ from those of the person who is supposed to be taking the test.  In the event of a dispute, Soberlink will email the facial recognition photos for each test to any subscriber or any authorized user (such as an attorney or guardian ad litem on the case).  In our experience, we have found that Soberlink’s system works very well.

The same cannot be said for BACTrack’s video recordings.  In order for the video feature to work properly, the person taking the test must have the device connected to his or her smartphone, and must have a sufficiently strong Wi-Fi or data connection for the video file to be uploaded.  Without a strong W-Fi or data connection, the video may fail to upload and BACTrack will send a report of a failed or missed test.

Our firm had one case in particular where this presented a frequent problem.  In that case, the parent who was subject to a court order requiring regularly scheduled BACtrack testing suffered the consequences of frequent “false alarms” resulting from the failure of the video file to properly upload.   When we contacted BACtrack’s customer service department, we were told that the only way to adequately address the problem was to make sure tests were taken in locations with a “solid internet connection,” whatever that means.  For a parent who may have taken a child camping, to a sporting event, or any other location without a “solid internet connection,” that can create real problems.  In that particular case, we recommended getting a Soberlink device and subscription as a backup, and it proved to be reliable.

Another difference we have found between the two services is that Soberlink will send immediate, real-time notifications whenever a result is received, whether the test was passed or failed.  In contrast, BACtrack apparently only sends notifications for failed tests (and missed tests, discussed below).  In other words, for the BACtrack subscriber, no news is good news.  In our experience, not having a confirmation of a passed test can sometimes cause a little anxiety for the parent required to submit to BACtrack testing.

As far as missed tests are concerned, the companies handle the issue differently.  When setting up a BACtrack account, the authorized users set up a schedule for when breathalyzer tests are supposed to be taken.  If the parent required to submit to testing fails to blow in the breathalyzer at the scheduled time, BACtrack sends out a missed test notification.  Soberlink does not provide for scheduled tests.  Instead, because Soberlink sends out notifications for passed tests and failed tests, no notification at all implies that no test was taken.  That means that it’s up to the parent monitoring the Soberlink testing to keep track of the testing schedule to make sure tests are being taken on time.

A big difference between the services that neither seems to mention on their websites is that BACTrack provides GPS location data for where each test is taken, Soberlink does not.  This could be either a pro or a con, depending on one’s point of view.  In one case in which we represented the parent who had to submit to BACtrack testing, our client was not happy about his ex knowing exactly where he was each time he had to blow in the breathalyzer.  In contrast, our client’s ex thought the GPS location data was a wonderful feature of the BACtrack system.

In our firm’s experience, Soberlink seems to be the more reliable product, and the one we recommend to our clients.  BACtrack’s products and services do offer cost and convenience advantages, and for some people, that is a good reason to choose them.  We have had several clients who have nothing but good things to say about BACtrack.  However, we found the lack of reliability with respect to the video uploads to be a major drawback, which caused both parties an inordinate amount of stress, confusion, and litigation over what were ultimately determined to be false positives.  When the issue of parenting time is being litigated, getting the facts right is of paramount importance.

For more information regarding restrictions on parenting time due to alcohol abuse, contact us.

The good news is, unless you have to be in court first thing in the morning, you probably have a little bit of time to be deliberate in the selection process.  Many attorneys offer free consultations, which will allow you to speak with multiple attorneys and pick the one you believe is best for your case.

Taking a little bit of time to find the best attorney at the beginning of the process can make a big difference in how you think, feel, and react throughout the process. The right attorney will listen to you, understand your goals, and develop a strategy for how to best achieve them.  The right attorney will be honest with you if your goals are unrealistically high, and will tell you if you are selling yourself short.  The right attorney will advise you, show empathy, and fight for your rights while providing top-notch legal representation.  But most importantly, the right attorney will “feel” like the right choice, and connect with you on a professional level.

The first step in the process is to take a look at the basic factors for evaluating potential lawyers.  Here are a few things to consider as you research potential lawyers.

Ask around.  If you have friends or relatives who have dealt with a similar situation, who did they use?  Were they happy with the way the lawyer handled the case?  If they were unhappy, scratch that lawyer off the list from the start.  There’s no sense in rewarding one poorly done job with another one.  On the other hand, if someone you know really liked a particular lawyer, that’s a great starting point.

Family Law Experience.  Check their websites to see if their practice includes the type of case that you have.  It’s called “the practice of law” for a reason.  Experience matters, and it matters a lot. An attorney’s expertise should speak for itself.  Family law has many nuances that are often overlooked by attorneys who do not regularly handle family law cases. Therefore, you should look for an attorney whose practice is primarily focused on family law.

Litigation Experience.  Moreover, the attorney should also be comfortable handling cases in and out of court. That means they should be well-practiced in settlement negotiations, and have the ability to competently litigate a case in front of a judge when settlement negotiations break down. A well-rounded attorney has experience and expertise in both.

Local Experience.  Check to see if the lawyer handles cases in your particular county on a regular basis.  Most people who aren’t involved in the legal profession have no idea just how local the practice is.  It’s one thing for a lawyer to have a good reputation in general.  It’s another thing altogether for a lawyer to have a good reputation with the judge who will be deciding your case.

Online Reviews.  Stay away from any lawyer with a lot of bad reviews, especially if those reviews follow a theme like “he ignored my case and didn’t return my calls.”  Having said that, every experienced lawyer has had some bad experiences, and good lawyers get some bad reviews sometimes.  Be wary of an attorney who has no negative reviews at all, as that might be evidence of “reputation management” rather than reality.

Disciplinary History.  Check to see if the attorney has ever had issues with their law license? Look up the attorney on the website for the Illinois Attorney Registration & Disciplinary Commission, and if they’ve been in trouble for unprofessional conduct, pick someone else.

Cost.  Talk about money up front.  Working with an attorney can get very expensive very quickly.  It’s important to get the money conversation out of the way right from the beginning. This can give perspective on what’s in your budget and help decide if the attorney is outside of your price range. A good family law attorney should be completely forthcoming about the hourly rates charged and the retainer required.  While it is often impossible to estimate what the entire case may cost, be wary of any attorney who isn’t willing to have an open conversation about what to expect and how much it may cost.  The last thing you want to do is sign on with an attorney and have no idea of what’s coming.

Personal Responsibility.  Ask who you will be working with.  While the attorney may work within a law firm, it should be clear you will be working with that attorney on your case. The goal is to have a strong relationship with the attorney – not pass you off to someone else in the firm. The staff of your attorney should also be welcoming and knowledgeable enough to provide updates when they are not available.

Routine tasks are usually handled by a paralegal or assistant that understands the logistics of your case. When you’re interviewing, ask about their process to ensure your case is handled by the attorney you have become comfortable with in court, in responses, and in other appearances. If not, this is not the attorney for you.

Vibe.  Most importantly, vibe matters.  The wrong vibe can disrupt your entire case. You want to work with an attorney that not only has your best interest at heart but one that believes in you and has a disposition that does not make you uncomfortable. If your personalities don’t mesh from the beginning, this may not be the right attorney to work with.

If a lawyer is disorganized in how they handle things, is not very responsive in communications, is  distracted or inattentive, or is abrasive when conversing with you, choose a different lawyer. While attorneys are often busy with other cases for other clients, they should never be too busy for you. It’s important that you feel confident in every move your attorney makes and they should be actively involved from the moment you hire them.

For a free 30-minute consultation, contact us.

Under Illinois law, a parenting coordinator is a qualified third party who is appointed by the judge to address and resolve parenting conflicts on an out-of-court basis.  The idea is to create a mechanism for the resolution of parenting disputes in high-conflict cases more quickly and inexpensively than going through the court system.  Specifically, they are required to make recommendations within 14 days, and the cost is typically split between the parties by court order, though the court can may one party responsible for the entire cost. One way to think of a parenting coordinator is as a referee to address parenting disputes on an expedited basis.

What is parenting coordination?  Supreme Court Rule 909 defines the term as:

• a child-focused alternative dispute resolution process
• conducted by either a licensed mental health or a family law professional
• which combines assessment, education, case management, conflict management, dispute resolution, and decision-making functions.

Which licensed mental health or family law professionals are qualified to be parenting coordinators?  Each circuit court is allowed to decide that issue for itself.  However, the Supreme Court suggested that the minimum qualifications should include:

• a juris doctor (i.e., law degree) or a master’s degree in social work, psychology, or counseling or higher, or an equivalent degree in a related field;
• at least five years of experience in law, mental health, or a related field;
• completion of an approved course on domestic violence; and
• attendance at least four hours per year of continuing education programs, which shall address, at a minimum, psychological issues, the needs of children in cases of family separation, and family dynamics.

While all of this is very new at the state level, Cook County has been using parenting coordinators for several years, and has its own set of rules.  Cook County’s rules regarding qualifications are similar to the ones set forth by the Supreme Court, but not exactly the same.  In Cook County, the qualifications for a parenting coordinator are set forth in Rule 13.4, which provides that the parenting coordinator must:

• possess a master’s degree in social work, psychology, counseling, or a juris doctorate degree or an equivalent in a related field;
• have at least 5 years’ experience in mediation, mental health or a related field;
• attend a 40-hour approved mediation training course which shall cover conflict resolution and mediation process and techniques; and
• attend continuing education programs as determined by the Director of Family Mediation Services which shall include, at a minimum, psychological issues and needs of children in cases of separation as well as family dynamics.

Who is this for?  Supreme Court Rule 909 specifies that parenting coordination is for parents who are unable or unwilling to:

• cooperate in making parenting decisions;
• communicate effectively with regard to issues involving their children;
• implement and comply with parenting agreements and orders; or
• shield their children from the impact of parental conflict

In other words, a parenting coordinator is for parents who simply cannot follow the rules or cannot work together, to the detriment of their children.  The parenting coordinator’s job is to:

• assist parents to understand and comply with court orders;
• help parents reduce communicate and collaborate better;
• educate parents about their children’s needs in order to make timely and appropriate decisions; and
• resolve conflicts swiftly in order to reduce the amount of damaging conflict between parents to which children are exposed.

How does one go about getting a court order for parenting coordinator?  In Cook County, Rule 13.10 sets forth the rules and procedures for obtaining a parenting coordinator.  In Cook County, the court may appoint a parenting coordinator when it finds:

• the parties failed to adequately cooperate and communicate with regard to issues involving the children or have been unable to implement a parenting plan or parenting schedule;
• mediation has not been successful, or has been determined by the judge to be inappropriate; or
• the appointment of a parenting coordinator is in the best interest of the children.

How is a parenting coordinator different from a mediator?  Simply put, they are different because the parenting coordinator’s recommendations must be followed.  Parents do have the ability to challenge a parenting coordinator’s decision by filing a motion with the court.  However, if neither party challenges the decision in court, the decision stands and must be obeyed.

What types of disputes can a parenting coordinator address?  The following is a non-exhaustive list of some of the issues a parenting coordinator is authorized to deal with:

• disputes regarding the time, place, and manner for the pickup or drop-off of the children;
• disputes regarding the children’s participation in educational and extracurricular activities, including who pays for the related expenses;
• disputes regarding minor alterations of parenting time to accommodate changes in schedule or availability of the child or a coparent, including make-up time if permitted by prior court order;
• disputes regarding holiday scheduling;
• disputes regarding discipline and problematic behavior issues; and
• disputes regarding health and personal care

In order to accomplish these goals, the parenting coordinator is authorized by law to:

• monitor parental behaviors, including whether they are compliant with court orders;
• mediate disputes upon request of a parent or request of the judge;
• make recommendations for outside resources, such as counseling or therapy;
• make guidelines or rules for communication between the parents;
• document allegations of noncompliance for the court; and
• make recommendations to the court upon proper notice and

Issues that a parenting coordinator may not address.   While parenting coordinators do have broad powers, they are not without limits.  Supreme Court Rule 909 imposes the following specific limitations on their authority.  They may not make recommendations on:

• allocation of parental responsibilities for decision making;
• initial allocation of parenting time;
• any allocation of parenting time beside minor alternations described above;
• relocation;
• establishing visitation by a nonparent (i.e., a grandparent or step-parent);
• child support;
• spousal maintenance; or
• allocation of property or debt in a divorce.

Recommendations.  The parenting coordinator is required to provide recommendations in writing to the parents within 14 days of the receipt of all information necessary to make a recommendation. The parents may then submit the recommendations to the court for entry as an agreed order.

Challenges.  In order to challenge a parenting coordinator’s recommendations, either parent may file a motion with the court for review.  The court will then make a decision, either affirming or rejecting the parenting coordinator’s recommendations.  The court also has the authority to make the parent challenging the recommendations pay if the court affirms the recommendations.

Summary.  If you find yourself in a high-conflict case involving parenting disputes, courts are increasingly likely to appoint a parenting coordinator to address the issues on an out of court basis.  In such cases, it is crucially important that you have an attorney who understands the process, understands what is at stake, and adequately prepares you for what is to come.

For more information, please contact us for a free 30-minute consultation.

A Doctor of Clinical Psychology may have the answers to these questions, and the Court may seek that doctor’s opinion to get to the bottom of these questions before the case goes to trial.  Section 604.10(b) of the Illinois Marriage and Dissolution of Marriage Act governs the processes of interviewing, evaluating, and investigating children as well as parents and other collateral witnesses in cases that demand special attention due to the overwhelming prevalence of confrontation. Known as the “court’s professional,” otherwise referred to as a “604.10(b) evaluator,” this clinical psychologist is specifically tasked with offering an opinion as to the legal outcome which would be in the best interests of a child.  The evaluator’s opinion is above and beyond the recommendations of a guardian ad litem, who is typically appointed prior to the retention of the evaluator.  The guardian ad litem often provides the Court with an opinion as to whether to appoint an evaluator to provide a further opinion on the issues that may seem unresolvable.

In their evaluation, the evaluator is ordered to provide advice to the court in writing.  The evaluator is also subject to cross-examination. Accordingly, the evaluator’s report must include, at a minimum, (1) a description of the procedures employed during the evaluation; (2) a report of the data collected; (3) all test results; (4) any conclusions of the professional relating to the allocation of parental responsibilities under Sections 602.5 and 602.7; (5) any recommendations of the professional concerning the allocation of parental responsibilities or the child’s relocation; and an explanation of any limitations in the evaluation or any reservations of the professional regarding the resulting recommendations.

In comparing the court’s professional, appointed pursuant to Section 604.10(b), to the guardian ad litem, appointed pursuant to Section 506(a)(2), many question the rationality behind the appointment of an evaluator when they compare the applicable language of each statute. Both are seemingly tasked with testifying subject to cross-examination in court.  The guardian ad litem can be ordered to provide a written report, not unlike the evaluator.  Both are to provide the Court with recommendations regarding the best interests of the children after investigating the facts of the case and interviewing the child(ren) and the parties.

The difference is rooted in the weight of the words of a guardian ad litem, who is typically an experienced family law attorney, and the words of a Doctor in Clinical Psychology. the court may give more weight to the recommendations of the evaluator than to those of the guardian ad litem, especially if the parents’ or children’s mental health is at issue.

That is not to say that all hope is lost if you are on the unfortunate end of an unfavorable evaluation and report. The appointment of the evaluator and the submission of the written report are merely phases in the pretrial process.  They are intended to build evidence in support of an outcome that ultimately will be decided by the judge at the end of your case, then affirmed or reversed thereafter on appeal, if further challenged.

The evaluator is not above the possibility of being contradicted either. The evaluator and his or her report are subject to scrutiny and opposition during the cross-examination process of your trial proceeding.  Additionally, should you find yourself in a position to disagree with the evaluation and its results, Section 604.10 also grants a party the ability to rebut or provide more supporting evidence for their position via the appointment of a separate evaluator, otherwise known as the “party’s retained professional.”

The statute allows either party, upon notice and motion made within a reasonable time before trial (think far in excess of 60 days before trial), the opportunity to request such an evaluation to assist the court in determining the child’s best interests.  the court may reject such a request if it finds that an evaluation is untimely or not in the best interests of the child(ren). The party’s retained professional will be treated as a controlled expert at the time of trial, and will be subject to the same cross-examination and impeachment process as the court’s professional.

Why hire someone to do a completely new evaluation? Well, nobody’s perfect, let alone the court’s professional, or the guardian ad litem for that matter. A party’s retained professional is an opportunity to paint the whole picture of a case, in which nuanced issues and intricate facts might have been missed by the court-appointed expert(s). The law allows you to present your best case at trial.

If you wish to discuss this article, or its subject matter, please do not hesitate to contact the professionals at Kollias, P.C. for a free consultation!

It may be helpful to start by defining what a contribution claim is not.  It is not an assertion that an asset is the non-marital property of one spouse or the other.  Rather, a contribution claim begins with the undisputed common understanding that marital property and non-marital property have been commingled together, and we need to figure out who is entitled to what.

Marital and non-marital property are defined by statute under 750 ILCS 5/503(a).  A contribution claim is essentially a claim for reimbursement.  The statute sets forth the rules as follows:

“Commingled marital and non-marital property shall be treated in the following manner, unless otherwise agreed by the spouses:

(1)(A) If marital and non-marital property are commingled by one estate being contributed into the other, the following shall apply:

(i) If the contributed property loses its identity, the contributed property transmutes to the estate receiving the property, subject to the provisions of paragraph (2) of this subsection (c).

(ii) If the contributed property retains its identity, it does not transmute and remains property of the contributing estate.

(B) If marital and non-marital property are commingled into newly acquired property resulting in a loss of identity of the contributing estates, the commingled property shall be deemed transmuted to marital property, subject to the provisions of paragraph (2) of this subsection (c).

(2)(A) When one estate of property makes a contribution to another estate of property, the contributing estate shall be reimbursed from the estate receiving the contribution notwithstanding any transmutation. No such reimbursement shall be made with respect to a contribution that is not traceable by clear and convincing evidence or that was a gift. The court may provide for reimbursement out of the marital property to be divided or by imposing a lien against the non-marital property that received the contribution.”

For ease of understanding what all of that means, let’s use bank accounts as an example.  Let’s assume that a husband and wife have a joint bank account that they’ve been depositing their paychecks in during the marriage.  It’s also the account that they use to pay their monthly living expenses from.  That account would clearly be considered marital property.

Let’s further assume that during the marriage, the wife inherits some money when her aunt passes away.  Under Illinois law, inherited money is considered non-marital money.  However, rather than keeping it in a separate bank account in which it could be easily identified as non-marital inheritance, let’s assume that the wife deposits the inheritance into the joint bank account.   Thereafter, the husband and wife continue to deposit their paychecks into that account, and pay their bills from the account.

Since money is fungible, once some of it is spent, there would be no way of knowing at that point which dollars were spent from the inheritance, and which dollars were spent from the paychecks.  This is the scenario the law speaks of when it speaks of marital and non-marital property being commingled, resulting in a loss of identity of the contributing estates.  Illinois law clearly states that the money in that account, including the non-marital inheritance, becomes transmuted into marital property.

In this hypothetical, however, the wife is not totally out of luck.  She can make a claim for reimbursement, commonly called a contribution claim.  Under the law, in order to be successful, she would have to trace the funds remaining in the account to the inheritance, and she would have to do so by clear and convincing evidence – a higher burden of proof than is normally required.

How might that be done?  Well, one way to do it would be if the inheritance increased the balance of the joint account by far more than the parties ever maintained in it.  For example, if on a monthly basis the parties maintained between say $5,000 and $15,000 in the joint account, and the inheritance was $200,000, and afterwards the account balance fluctuated between $205,000 and $215,000, the wife could argue that the $200,000 had never been touched.  She could argue that the funds were traceable and still on deposit in the account, and may have a legitimate claim for reimbursement.  Would she be successful?  That would be up to the judge.

That, however, would not be the end of the analysis.  The wife would also have to prove that she did not intend the funds to be a gift to the marriage.  So, for example, if she deposited the $200,000 inheritance in the joint account and sent her husband an email saying that she wanted to use the money put an addition on the marital home, then that would be evidence the husband could cite to show that she intended the funds to be a gift.  Whether the funds were traceable to her inheritance or not, if the money was a gift to the marriage, she would have no right to be reimbursed for the money in a divorce case.  Would a single email be enough to decide the case one way or the other?  That, too, would be up to the judge.

There are numerous situations where commingling and transmutation may or may not give rise to a contribution claim.  The legal analysis is extremely fact-intensive, and it’s important to hire an experienced attorney who is well-versed in the law.  For more information, contact us.

• 86% of Americans had heard “at least a little” about cryptocurrencies,
• 24% claimed to know “a lot” about them, and
• 16% had personally invested or traded in them

Among those who had invested or traded cryptocurrencies, the largest cohort was men between the ages of 18 and 29, of whom 31% had personal experience.  All of those statistics were significantly larger than what Pew found in its study that was done back in 2015.

If you or your spouse own crypto assets (or if you suspect your spouse does, but you aren’t sure), what should you do in the event of a divorce?  How do you go about finding the assets, valuing them, and dividing them?

The first thing you should do is hire an attorney who has personal, first-hand experience investing or trading in cryptocurrency.  As the Pew Research Poll cited above shows, while a large majority of people have heard a little about Bitcoin, Ethereum, Solana, NFT’s (non-fungible tokens) and others, only a small minority of those people have actually dealt with them.  The concepts, terminology, and mechanisms for buying, selling, and trading are completely foreign to most Americans, and that includes most divorce lawyers.  At Kollias, P.C., we have not only handled numerous cases involving crypto assets, but our firm has also accepted payment in Bitcoin and other cryptocurrencies since 2019.

Second, it is clear that divorcing spouses are required to disclose ownership of crypto assets on their financial affidavits, whether as a “cash equivalent,” “investment,” a “collectible,” or “other personal property valued in excess of $500.”  Having said that, these assets wouldn’t be called “crypto” if people didn’t assume that they could be easily hidden, and to a certain extent they can be.  However, crypto assets purchased with cash can be tracked and found.  An attorney experienced in dealing with cryptocurrencies will know where to look and how to find them.

If you suspect your spouse has been investing in cryptocurrency, you attorney should issue discovery requests bluntly asking for disclosure all relevant information.  An knowledgeable attorney will know the right questions to ask, and how to ask them.

If your spouse is less than forthcoming in his or her responses to the discovery requests, the first place to begin looking for evidence of crypto assets is in their bank and credit card statements.  Cryptocurrency can be purchased on any of a number of exchanges, such as Binance, Coinbase, Kraken, Gemini, FTX, or eToro.  Additionally, it can be purchased through Pay Pal, Venmo, Cash App, and Robinhood.  Your spouse’s bank or credit card statements would show transactions indicating cash going to or from one of those exchanges or applications.  Each of them is subject to the subpoena power of the Illinois courts, and will disclose account information if properly served.  That information will show what was bought, what was sold, and what was transferred.

With regard to cryptocurrency transferred, it can be a little more challenging to find out where the “money” went.  Transfer ledgers will only show the recipient’s wallet address, not the name of the transferee.  Those addresses are long strings of letters and numbers, often several dozen characters long.  Finding out who that wallet address belongs to will tell you whether your spouse transferred the assets to a third party, or just to a different wallet that he or she controls.  There are websites that track all transactions to and from a particular address, such as etherscan.io for Ethereum and solanabeach.io for Solana.  There are also services that will track transactions for a fee.

Things get a little trickier if the assets have been transferred from an exchange account (referred to as a “hot wallet,” meaning it’s online) to a “cold wallet.”  A cold wallet is a storage device, such as Ledger Nano or Trezor Model T, which is about the size of a flash drive and connects to a computer through a USB port. When tracking assets, a knowledgeable attorney will know the correct procedure to require your spouse to produce the cold wallet for inspection, and know the right questions to ask in order to access the information contained on it.

From a cold wallet, there are countless decentralized exchanges which can be accessed, often containing the word “swap” in their name, such as UniSwap, SushiSwap, ParaSwap, PancakeSwap, etc.  There are others like Marinade and Orca, which defy the naming convention.  Transactions that take place on a decentralized exchange may very well be impossible to track.  The good news, however, is that it may not be necessary to track them.  For purposes of a divorce case, it is often times sufficient to show that your spouse transferred a specific quantity of crypto assets to an unknown address on a specific date and time, and shift the burden to them to show where the money went, as part of a dissipation claim or otherwise.  As long as there are sufficient marital assets to offset the value of the crypto transfer, you may be able to make a persuasive case that you are entitled to a larger share of those to offset the value of the “missing” cryptocurrency.  If there aren’t, then you may be able to ask for a money judgment and an order for payment.

Valuing cryptocurrency is often as simple as looking up the current price on any of the exchanges listed above.  They do fluctuate wildly, so setting a value for court purposes can be like trying to hit a moving target.  Dividing the assets in kind is a good technique to eliminate the valuation question, as one half (or whatever the particulars of the division may be) of the currencies can simply be transferred from the wallet of one spouse to the wallet of the other.

If you have questions about cryptocurrency in your divorce case, please contact us for a free 30-minute consultation.

The Illinois Pension Code contains very specific instructions as to what information a QILDRO must contain in order for the IMRF to comply with the court’s order to divide pension benefits.  In fact, the Illinois Pension Code even includes a sample fill-in-the-blanks form containing pre-printed language and boxes to check.  The IMRF uses the form as specified in the pension code.

Because a QILDRO is a fill-in-the-blanks form, it does not allow many options for the parties to customize the way they divide pension benefits in a divorce case.  Thus, it is possible for there to be a conflict between the terms of a judgment for dissolution of marriage and the terms of the QILDRO that the IMRF must process.  In the event of such a conflict, which terms would control?

That is the question that was recently put to the Second District Illinois Appellate Court in the case of Marriage of Wehr.  In that case, the husband had worked for the Chicago suburb of Lisle, and had accrued a few years’ worth of IMRF pension benefits prior to the parties’ marriage.  After the wedding, he continued to work there for a few more years, and continued to accrue pension benefits while he did.  Then, he left that job and ceased accruing IMRF pension benefits while working other jobs for the next 10 years.  Finally, he returned to the same job he originally had with the Village of Lisle, and resumed the accrual of IMRF pension benefits until he retired.

Thereafter, the parties got divorced and negotiated a settlement agreement.  The settlement agreement, which was attached to the court’s judgment for dissolution of marriage, awarded the wife (the “alternate payee”) a percentage of the husband’s (the “plan participant’s) benefits, according as follows:

“This order assigns to the Alternate Payee an amount equal to the actuarial equivalent of 50% of the marital portion of the Participant’s accrued benefit under the plan as of the Participant’s Benefit Commencement Date, or the Alternate Payee’s Benefit Commencement Date, if earlier. The marital portion shall be determined by multiplying the Participant’s accrued benefit as of the date of entry of the Judgment of Dissolution of Marriage in this case by a fraction (less than 1.0) the numerator of which is the number of months married while a plan participant (October 13, 2000 to the date of entry of Judgment for Dissolution of Marriage) and the denominator of which is the total number of months of service accredited to the Participant.” (emphasis added)

The fill-in-the-blanks QILDRO form used by the IMRF contained different terms.  It provided that the Alternate Payee’s share of the pension benefits was equal to 50% of the number of months of service that the husband (the “member”) accumulated during the marriage, divided by the total number of months of service the member accumulated in total.  Because there was a 10-year period in which the parties were married but the husband was not accumulating service credit, the terms of the marital settlement agreement and the QILDRO form order were in conflict.

Naturally, each party had their own opinion as to which document should control.  Following the terms of the marital settlement agreement would provide the wife with a larger slice of the husband’s pension.    Following the terms of the QILDRO form, on the other hand, would result in a more favorable financial outcome for the husband.

On appeal, there were several good arguments for why the terms of the marital settlement agreement should control.  First and foremost, the Section 119(n) of Illinois Pension Code itself states that the purpose of a QILDRO is to conform to the parties’ marital settlement agreement, not the other way around. Additionally, the rules of contract construction in Illinois state that the primary objective is to effectuate the intent of the parties, and when the terms of the agreement are unambiguous, the intent of the parties is determined solely from the language of the agreement. In re Marriage of Hall.

In this case, the marital settlement agreement defined the wife’s share as a percentage of the number of months while married, not the number of months of service credit earned while married. The agreement even spelled out the relevant dates to make counting the months easier.  Also, the term “plan participant” is used in the settlement agreement, but not the QILDRO.  The wife argued that the husband never stopped being a “plan participant” in the IMRF, because he maintained his benefits during the 10 years he was working for non-IMRF employers, and never cashed out.

Ultimately, the Second District Appellate Court held that the terms of the fill-in-the-blanks QILDRO form, not the marital settlement agreement, actually reflected the agreement of the parties.  What is noteworthy, however, is the contorted nature of the Court’s reasoning. Rather than analyzing the language of the settlement agreement itself, the Court stated:

“We note that the formula used in the [settlement agreement] was essentially the ‘Hunt formula.’ Under that formula, the amount of the pension interest included as marital property is the present value of the  interest multiplied by a fraction whose numerator is the number of years (or months) of marriage ‘during which benefits were being accumulated,’ and whose denominator is the total number of    years (or months) during which benefits were accumulated before the dissolution. (Emphasis added.) In re Marriage of Hunt [citation omitted]. The Hunt formula is codified in the model QILDRO form supplied in section 1-119(n) of the Code [citation omitted]. In re Marriage of Culp [citation omitted]. The model directs that the calculation be made using ‘the number of months of *** service that the member accumulated in  the Retirement System from the date of marriage *** to the date of divorce.’ [citation omitted]. The QILDRO entered here not only specifically incorporated section  1-119 but reproduced the foregoing language verbatim. The phrase “months of *** service” refers to months that Paul earned service credits and contributed to the fund.”

In other words, the Appellate Court found that even though the parties’ settlement agreement said one thing, it really meant another.

In response to the wife’s point that the settlement agreement spelled out the months to be counted, the Appellate Court stated:

“the parenthetical insertion of the dates of the marriage does not unambiguously show  an intent to depart from the calculation specified in section 1-119(n) of the Code and the QILDRO. The dates can just as easily be viewed as a simple reference for ascertaining which months of service occurred during the marriage and which did not.”

In other words, the Appellate Court can come up with all sorts of fanciful ways of making meaningful words superfluous when those words conflict with the standard form QILDRO for IMRF pensions.

A more cynical way of interpreting the Appellate Court’s decision is to consider the fact that there are literally thousands of divorced municipal employees in the state, each of whom have QILDRO’s that have been entered by divorce courts and submitted to the IMRF for processing.  If each and every one of those QILDRO’s had to be analyzed case-by-case against the language of individual, custom-drafted divorce settlement agreements, the IMRF’s attorneys would have an enormous amount of work to do.  That work would likely cost the pension fund, the participating municipalities, and the state of Illinois oodles of money.  Moreover, in the event conflicts were discovered and cases had to be reopened, the Appellate Court itself would have more work to do.  By taking the position that, in the event of a conflict of terms between a settlement agreement and a QILDRO form, the QILDRO form wins, the Appellate Court solved a potentially messy problem, legal precedent be damned.

Every settlement negotiation involves give and take and presents some opportunities to be creative.  The lesson here may very well be to not get too creative when dividing pension benefits.  For more information regarding the division of IMRF pension benefits in a divorce, please contact us.

There any number of child related issues that may arise in a divorce or parentage matter. Frequently, the most intractable issue are those which pertain to the mental or physical fitness on the part of a party to the case.  Illinois Supreme Court Rule 215 permits opposing parties and even the trial court may seek to discover relevant facts about the condition of an adverse party by requiring them to participate in an evaluation with an impartial medical professional.  The evaluator may conclude and report to the court whether the party is either mentally and physically fit to function around their children without adversely affecting the children’s mental, moral, physical, or emotion well-being, or even their best interests.

If you are subject to a Rule 215 evaluation you may ask yourself, are there any limitations to evaluations if your case has concluded? Can a court abuse its discretion by ordering an evaluation? The answer, maybe a surprising, “yes.”

As the Supreme Court noted in the case of the Estate of Stevenson, Rule 215 provides, in pertinent part, that, “In any action in which the physical or mental condition of a party or of a person in his custody or legal control is in controversy, the court upon notice and for good cause shown on motion made within a reasonable time before the trial, may order the party to submit to a physical or mental examination by a physician.”

Rule 215 is, at its core, a rule of discovery, the purpose of which is to uncover facts which will assist the trier of fact to reach a correct determination of the issues before it. This rule does not permit unlimited and indiscriminate mental and physical examinations of persons, but by its terms, gives a trial court discretion to order such examinations only when certain requirements are met.  The person sought to be examined must first be a party (or a person in his custody or legal control); second, the physical or mental condition of that person must be in controversy; and, third, good cause must be shown for the examination. Then, and only then, is discovery of that person’s physical or mental condition authorized by Rule 215.

Timing though becomes important by both the petitioning party and the trial court.  As the Appellate Court noted in the case of In re the Custody of Scott, the trial court itself can order the examination “at any time during the trial.” This means that by its own decision, the judge may order a party to complete a Rule 215 evaluation before the conclusion of trial. In the case of In re Custody of Scott, the appealing party contended that because the order for the Rule 215 evaluation occurred after all of the evidence had been heard by the trial court and after the closing arguments of the attorneys, the trial was concluded and thus the trial court was without power to order the examination.

According to Black’s Law Dictionary, the term “trial” is defined as “[a] judicial examination, in accordance with law of the land, of a cause, either civil or criminal, of the issues between the parties, whether of law or fact, before a court that has jurisdiction over it.”   According to the Scott case, the decision of the court rendering a final judgment on the law and evidence, is the conclusion of the trial. If a trial court has not entered a judgment on the question of child related issues, the trial is not deemed to have concluded.  However, if the judgment has been entered, the trial court has no authority to order a Rule 215 examination.

Regardless of dictionary definitions, the principles of the Supreme Court Rules matter. The purpose of Rule 215 is to serve as a method of discovering certain aspect pertaining to someone’s mental or physical condition in preparation of trial, so that the trial court has the sufficient information that it needs to conclude issues pertaining to children after finding that a particular mother or father’s physical or mental condition, custody or legal control is in controversy.  Ordering an examination after the conclusion of the trial does not serve that purpose.  As the court explained in Custody of Scott, a trial court abuses its discretion when it orders a Rule 215 evaluation after discovery has closed and after trial has ended. While the trial court has extensive discretion in ordering evaluations take place, it should not be unchained or limitless.

If you believe that a trial court has potentially abused its discretion in ordering a Rule 215 evaluation or if you believe that you may be ordered to complete an evaluation in the future, please do not hesitate to contact the attorneys at Kollias, P.C. to discuss your rights with respect to the same.

On January 2, 2020, David Ostrom, 40, of Paola, Kansas, filed a motion for trial by combat with the Iowa District Court in Shelby County alleging, in part, that his ex-wife, Bridgette Ostrom, 38, “destroyed (him) legally.” Such legal destruction being resolved by the possibility of death would seem hardly reasonable to the common layman. However, “to this day, trial by combat has never been explicitly banned or restricted as a right in these United States,” Mr. Ostrom would go on to say that trial by combat was used “as recently as 1818 in British Court.” Not surprisingly, shortly after filing his motion, Mr. Ostrom was quickly faced Ms. Ostrom’s Motion to Suspend Visitation and Motion for Psychological Evaluation.

However, apparently, this wasn’t the first request for trial by combat that someone has made throughout the 21^st century, as Mr. Ostrom was aware of and which formed the basis of his intent. In 2015, a New York based attorney demanded a fight to the death, or, in the alternative, his client’s case dismissed after allegations of misconduct on his part surfaced in a case involving the misappropriation of certain funds.

“The allegations made by plaintiffs, aided and abetted by their counsel, border upon the criminal. As such, the undersigned (attorney) respectfully requests that the court permit the undersigned to dispatch plaintiffs and their counsel to the Divine Providence of the Maker for Him to exact His divine judgment once the undersigned has released the souls of the plaintiffs and their counsel from their corporeal bodies, personally and or by way of a champion.” Giving some merit to the attorney’s argument, a New York Supreme Court Justice Philip Minardo apparently acknowledged that duels, specifically, had not been abolished in the state or in the county.

Ultimately, a response was necessary to file against Mr. Ostrom’s motion, the basis of which was clear from Ms. Ostrom’s counsel’s perspective, life is more favorable than death, and so Ms. Ostrom’s counsel argued that because a duel could end in death, such ramifications probably outweigh those of the custody issues that were pending before the court.  “It should be noted that just because the U.S. and Iowa constitutions do not specifically prohibit battling another person with a deadly katana sword [referencing Mr. Ostrom preferred weapon of choice], it does prohibit a court sitting in equity from ordering same,” Ms. Ostrom’s counsel argued.  The court eventually ordered the parties to mediation, seemingly a less formidable way of dealing with their disputes that was most likely not going to end in death.

Here at Kollias, P.C., we do not advocate that parties file motions for trial by combat to settle child related disputes. While we acknowledge the fact that trial by combat is apparently not prohibited from our constitutions, we believe that this type of motion will surely be unsuccessful due to a number of different legal reasons, not the least of which is that we live in a very different culture than that of Great Britain circa 1818.

First, in any divorce or parentage matter that requires the setting or modification of a parenting time schedule or allocation of parental responsibility, the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”), states, in pertinent part that a court shall conduct a trial or hearing to determine a plan which maximizes the child’s relationship and access to both parents and shall ensure that the access and the overall plan are in the best interests of the child. This interpretation of the plain language of this statute would lead any reasonable person to believe that the court must consider maximizing access between the parties and their children while also assessing the best interest of said children. Ordering the death of a parent via trial by combat surely fails to follow the intentions of the statute and our legislature.

Second, in accordance with the IMDMA, the court shall allocate parenting time and shall presume both parents are fit to have parenting time.  Only when a court finds that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health, will the court restrict parenting time.  Death by combat is not enumerated among the statutory remedies, nor would one expect a court to consider trial by combat as a way to ensure a child’s safety or welfare.

If you are dealing with a partner threatening deadly action via trial by combat or otherwise, please contact the attorneys at Kollias. P.C. for further information on how to protect yourself and your children.