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Publications

Protect Your Devices… Privilege in a Divorce Setting

Published in Chicago Lawyer Magazine, April 2021
By Daniel Stefani

The 3rd District Appellate Court recently rendered an opinion of In re Marriage of Stinauer — a case where the parties divorced in late 2018 and the husband was ordered to pay his wife $125,000 in maintenance each year and nominal child support.

The award was based on the husband’s imputed income of $330,000 per year given that, in part, his gross annual income fluctuated historically. About a year later, the wife filed a petition to vacate the judgment and support order based on an allegation he misrepresented his 2017 income during the dissolution proceedings. Read More

COVID’s impact on divorce minimal so far

Published in Chicago Lawyer Magazine, December 2020
By Daniel Stefani

Cook County shows major drop in fillings since March

How many articles and segments on television have you seen about the COVID-19 quarantine causing a huge uptick in family discord and divorces? I thought I would test the claim.

Now that we have several months of data, the predicted uptick in divorces is not occurring, at least in Cook County. Between March 1 and June 30, the number of divorce filings and paternity cases total are down almost 40% from the same period in 2019.

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What’s my Rate of ROI? Relevant Information in Setting Support

Published in Chicago Lawyer Magazine, April 2020
By Daniel Stefani

Illinois now has divorce guidelines for both child support and maintenance which are true income-sharing models. As such, the payee’s income from all sources is now more relevant to the calculation of any maintenance and/or child support obligation.

The payee’s income can be from several sources including, but not limited to, actual employment or income can be imputed by the court based upon a finding as to the payee’s ability to find employment. The court also considers any assets the payee controls that could generate income. Read More

Lifetime Help Obligation? Questions When Signing an Affidavit of Support

Published in Chicago Lawyer Magazine, February 2020
By Daniel Stefani

Whenever a U.S. citizen marries a foreign national, there always is the question of how to ensure the foreign national becomes a lawful permanent resident of the U.S. The marriage ceremony in and of itself does not elevate the foreign national’s status to a lawful permanent resident.

In such a situation, the citizen must sponsor his or her spouse as a condition precedent to immigration and thus becoming a lawful permanent resident. As part of this process, the citizen must execute a support affidavit  as a requirement for sponsoring his or her spouse pursuant to the Immigration and Nationality Act.

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No Easy Answer… When is a Cut in Child Support Appropriate?

Published in Chicago Lawyer Magazine, December 2019
By Daniel Stefani

In August 2017, Robert, the ex-husband and payor, petitioned the trial court to reduce his $6,500 per month child support obligation based on three alleged substantial changes in circumstances. The parties had been divorced for nine years and the ex-wife, Kris, was unemployed at the time of the judgment.

Specifically, Robert alleged he increased his parenting time with the parties’ youngest child from 15% to 45%. Second, Kris had experienced an increase in wealth and new income from employment and, third, Robert retired and was no longer earning an income from employment. The trial court rejected all three reasons and found there was no substantial change in circumstances to merit a change in child support. The trial court stated that Robert’s increased parenting time was too remote, having occurred five years after the original judgment, but four years before he filed his petition. Also, Kris’ increase in wealth was anticipated at the time of the original judgment and, therefore, not a change. Finally, Robert’s retirement was entirely voluntary. Read More

Service Prior to Marriage… is it Marital Property?

Published in Chicago Lawyer Magazine, October 2019
By Daniel Stefani

In a 2-1 decision, the 3rd District Illinois Appellate Court  resolved, at least temporarily, a unique issue relating to the division and classification of pension benefits. On Feb. 20, the court issued its opinion of In re Marriage of Zamudio, 2019 IL App (3d) 160537.

The parties  married in January 2000 and the wife, Louise, filed for divorce in May 2014. Her husband, Frank, worked for the Illinois State Police for 11 years before the marriage and retired in 2011 while the parties were married. At that time, Frank began receiving his pension. During the marriage, he used marital assets to purchase 48 months of permissive military service credit to enhance his pension at a total cost during the marriage of $9,626.40. He could buy the enhancement because of his active military service which occurred more than 20 years before the marriage. Read More

Alimony & Taxes: After 2018, maintenance payments won’t be tax deductible

Published in Chicago Lawyer Magazine, October 2018
By Daniel Stefani

One aspect of President Donald Trump’s changes to the federal tax code affects alimony (also known as maintenance in Illinois). Specifically, payment of maintenance pursuant to a dissolution of marriage judgment entered after Dec. 31 will no longer be tax deductible by the payor and tax includable to the payee. This represents a major change in federal tax law which will affect all state law which governs dissolutions of marriage and more specifically the payment of maintenance. Maintenance is spousal support which is different than child support. Child support was never tax deductible by the payor.
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Tapping Damages: Damages for Pain and Suffering Can be Tapped for Child Support

Published in Chicago Lawyer Magazine, August 2018
By Daniel Stefani

The Fourth District Appellate Court rendered a recent Opinion of In Re Marriage of Plowman v. Lawson (2018 IL App.4th 170665).  In Plowman, the trial court set a child support order using a small portion of a personal-injury settlement as income available for child support.  The portion of the settlement was only the amount attributable to lost earnings. The appellate court reversed and on remand directed the trial court to consider the entirety of the net proceeds from the payee’s personal-injury settlement as income for child support purposes.  This opinion furthers the inconsistency between the appellate court districts in Illinois as to the portion of any lawsuit settlement that can be considered income for child support purposes.
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What is Cohabitation?

Published in Chicago Lawyer Magazine, June 2018
by Daniel R. Stefani

If a spouse receiving maintenance cohabits with another person on a resident, continuing conjugal basis in accordance with Section 510(c) of the Illinois Marriage and Dissolution of Marriage Act, maintenance terminates retroactive to the date the Court finds that the payee spouse or ex-spouse has cohabited. As a result, the payee spouse then must refund any maintenance paid after the date the Court finds cohabitation. A payor spouse who seeks termination of their maintenance obligation has the burden of establishing that the payee spouse is cohabiting on a resident, continuing conjugal basis. It is the payor spouse’s burden to make a “substantial showing that the former spouse is involved in a de facto husband and wife relationship with a third party”.
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What’s in a Name?

Published in Chicago Lawyer Magazine, April 2018
by Daniel R. Stefani

It is very rare in a pending divorce where the litigants have a dispute over the children’s surname, so when I came across the case of In Re Marriage of Piegari, 2016 Ill.App.2d 160594, it was worth a look. In 2016, during the pendency of their divorce proceedings, Karen Piegari filed a petition seeking a Court order to change the children’s surnames pursuant to Section 21-101 of the Illinois Code of Civil Procedure. Earlier in the proceedings, the Court entered an agreed parenting plan which allocated to Karen a majority of the parenting time but granted both parties equal decision making responsibilities for the children. At the time of filing, the parties’ dissolution case was still pending in the Trial Court.
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