helps clients to resolve a great variety of issues that fall within the Family Law scope of practice including adoptions, pre-nuptial agreements, parenting responsibilities and parenting time, child support and other financial issues related to children, maintenance which has changed dramatically under the new law, and property issues.
She has many years of experience focused on a family law practice and has handled the great variety of issues in varied circumstances multiple times.
Typically, parties who are divorcing must come to an agreement or have a court make the determinations in four general areas of divorce issues:Grounds:
Fault based grounds are gone now. Irreconcilable differences will be the grounds for divorce in all cases.Child Issues:
The area has many complicated details to consider when assessing the several issues that involve children of divorcing parents. There are two general areas - parenting issues which include parenting responsibilities and parenting time and then child financial issues which involve child support, childcare, health insurance and uncovered health expenses, activities and school expenses. Maintenance-
Maintenance, also called alimony, is money that is paid from one spouse to the other spouse for his or her support. Formerly, maintenance was very much up to the discretion of the Judge in the case. Our new law attempts to take away much of that discretion.Property-
Property issues involve a lot of complicated detail including characterizing property as marital or non-marital, valuing property, determining debt as it affects property, and allocation.
Divorcing parties may come to agreement on all of the issues in a divorce, or they may dispute one or all of them. When there are disputes, Marsha Cellucci provides her clients with options for resolution and the likely outcome of those options. If all issues are settled through negotiation, a divorce may be handled with a martial settlement agreement that is incorporated into a court decree, eliminating the need for contentious and emotionally draining court hearing and trials. Not all cases can be resolved through negotiation however, and, when necessary, she will use her experience and knowledge to conduct the litigation.
Prenuptial Agreements are written contracts
that parties enter
that may change the normal operation
of the law.
They are able to actually
change how estate law and divorce law would normally work in cases without such an agreement.
For example, without a prenuptial agreement stating otherwise, Illinois law provides that a spouse
to take a statutory one third share of his or her spouse's estate even if he or she is not
named in the Will. A prenuptial agreement can effectively waive that provision.
Another example has to do with the statutory provision that all property acquired during a marriage is marital property
between the parties in a divorce.
A prenuptial agreement
can identify specific properties that shall not be considered marital property
such as accumulations in retirement accounts
during a marriage.
While there are other possibilities for change, Marsha Cellucci can discuss what your assets and debt currently are and what your goals are. Prenuptial agreements can be a very touchy and sensitive subject to discuss especially when both spouses do not have similar assets to protect.
As of January 1, 2016, the grounds for divorce in Illinois are irreconcilable differences. This is a no fault ground and with this change Illinois is now in line with many other States in the country who have abolished fault based grounds. The grounds of irreconcilable differences will be presumed if (1) the parties have lived separately continuously for the 6 months preceding the divorce and (2) past efforts at reconciliation have failed and (3) the parties believe that future efforts at reconciliation would be impracticable and not in the best interests of the family. If any one of those 3 factors is not present, then the petitioner would have to give testimony to convince the court of irreconcilable differences; i.e.it could not be presumed. Most of the time people just wait and or do the things required to proceed on the presumption.
Determining how to fairly divide marital property and debts can be the most contentious and complex issues in a divorce. When parties cannot agree, our laws require that the Judge divide property and debt equitably
between the parties. Equitably does not mean equally. And property and debt means all types of property including real estate, retirement accounts, bank and investment accounts, and personal property. Marsha Cellucci's goal is to ensure that the clients' property and debt is divided equitably under the law via an agreement and then, within that context, in the manner best suited to the client's situation.
The general rule is: All property and debt acquired during a marriage by either party, regardless of whose name is on the title, is marital property subject to allocation in divorce proceedings with certain exceptions including (1) existing property that was acquired before the marriage and kept separate, (2) existing income growth on property acquired before the marriage and kept separate, (3) existing property acquired as a gift and kept separate and (4) existing property acquired through an inheritance and kept separate.
Property and debt have to be characterized as either marital, non-marital or perhaps a combination of both as, for example, many retirement accounts accumulated both before and after marriage. Then marital property has to be valued and there are necessarily different approaches to valuing different types of property. For example, appraisals or realtor market analyses may be needed to value real estate as opposed to bank accounts or investment accounts which, for the most part, can be valued by looking at statements. Marsha Cellucci can assist in determining values, evaluating tax consequences and obtaining professional assistance if necessary. Then, decisions have to be made as to the best way to allocate the property and debt between the parties. Each item does not have to be physically divided. Instead, the values for property or debt are placed in a column for either the husband or wife taking into consideration the easiest and most sensible approach. For example, the amount of a credit card balance that is in husband's name alone makes the most sense to be placed in the column for husband's liability and that could be offset by a debt that is in wife' s name alone placed in her column.
Finally, there is often follow-up work after the divorce is final needed to actually transfer the property according to the agreement or Judgment or implement support orders. So, often the divorce process is not over after the court appearance when the Judgment for Dissolution of Marriage is entered.
Maintenance or spousal support has changed significantly under the law that was effective January 1, 2015. Even though it has been in place more than a year, judges and attorneys are still working through the varied nuances that come up in the actual fact situations and there have not yet been many appellate court cases testing parts or all of the law.
The maintenance law essentially provides a calculation for the amount and a table for the duration to be applied in most cases even though there is still a requirement that the court first make a finding on the threshold question of whether maintenance is appropriate in the case. If the finding is affirmative; i.e. that maintenance is appropriate in the circumstances, then the Judges move to the next step, the calculation and determination of duration. As a practical matter, the Judges will rely on the calculation most of the time. There are some situations, though, where it is easy to see that maintenance is not appropriate at the outset such as a situation where the lower income earner has a million dollar non marital inheritance, unless perhaps the higher income earner makes more than a million dollars a year!
The calculation is: for cases where the combined gross family annual income is $250,000 or less, take 30% of the higher income earner's annual gross and subtract from it 20% of the lower income earner's annual gross. That gives you an annual amount for maintenance except that the annual maintenance amount when added to the lower income earner’s annual income may not exceed 40% of the total combined income. If it does exceed 40%, then the maintenance amount should be reduced by the amount over 40%. Simple, right! For cases where the combined family annual income is over $250,000 the judge has discretion to determine the maintenance without regard to the calculation but would probably work out the math just to have a starting reference point.
The new maintenance law also provides a table for the duration of maintenance based on how long a marriage is, once it is determined to be appropriate and calculated. Typically a person is married until they are divorced, but there is a correction law coming that will provide, for purposes of calculating the duration of maintenance, the marriage will be deemed to have lasted only until a party files his or her Petition for Dissolution of Marriage. For marriages of 0 to 5 years, the duration should be 20% of the length of the marriage; for over 5 up to 10 years- 40%; for over 10 up to 15 years- 60%; for over 15 years up to 20 years - 80% and for over 20 years- indefinite.
Maintenance still terminates when either party dies and when the recipient remarries or begins to live on a conjugal basis with another person; however, now that is clearly automatic and the law specifies a reimbursement for over payment retroactive to the remarriage or beginning date of a conjugal relationship.
This is just an overview of the most important points needed for a basic understanding of the maintenance laws. There are many more details that would need to be considered that Marsha Cellucci would discuss with her client in an office conference in order to be able to give a pretty good estimate of his or her entitlement or obligation regarding maintenance.
The new law, effective January 1, 2016, contains many changes relating to children.
However, the most important core values of our system relating to children have not changed; i.e. We still always consider what is in the best interests of the child or children first. The words have changed significantly and have been expanded to clarify both new and old concepts. We may no longer refer to sole custody, joint custody or visitation for example. Instead we now have the parent whose residence is tied to the children's school district, allocation of parental responsibilities and allocation of parenting time. In ways it seems a huge change and in other ways not so much because the structure remains essentially the same.
Divorcing parents must reach agreement or have the court determine where the children will reside, which parent will have responsibility for making major decisions about doctors, treatment options, education and school choices from preschool through college, extracurricular, other organized activities and religion. And they must determine a schedule for parenting time which is the time that the children will spend with each parent.
The new law has some new concepts; for example rules for relocation, and new language expanding and clarifying several other concepts. Marsha Cellucci can examine your situation with you, outline your best options and give you her opinion but, in the end, you will make the final decisions on how you want to proceed.
Some financial issues relating to children have also changed. Child support changed dramatically as of July 1, 2017. Child support is no longer simply a percentage of the net income of the parent with less than a majority of parenting time. The new law requires an income shares calculation. The Illinois Department of Healthcare and Family Services [HFS] came up with a chart that defines how much a family should or will spend on a child or children according the parent's combined net income and that amount is allocated between the two parents based the percentage that each parent's respective net income is of the parents combined net income. HFS has also published a chart that should be used to determine a standardized net income calculation. However, the parties can elect to use a personalized net income approach when the standardized result is way off actual for various reasons. The income shares calculation includes an allocation of the costs of the healthcare attributable to the child or children and it also discounts the support when one of the parents has 146 or more overnights of parenting time during a year. In any event, we now have a system of charts and a complicated calculation. HFS has provided an online calculator for parents to be able to assess their obligation. In cases where we used to separate the child support into two pieces; i.e. regular monthly child support and additional child support on bonuses or annual income that was not guaranteed, the courts are preferring to base the income shares support on the most recent known actual total income and then do a true up annually. That means that every year the parents will look at total gross income, calculate their net incomes and use the chart to come up with a new child support amount.
The income shares child support results in significantly lower child support payments for higher income families than the previous calculation for child support. The charts do not go above a combined net income of $360,288 a year and at that level of income the chart dictates that child support for one child is about 7% of net income - considerably less than the 20% of net our former statute dictated. We believe that the new approach is intended to bring Illinois more in line with the rest of the
country. Statistically, Illinois courts
had the highest child support awards in the country.
Child support in all new cases filed after July 1, 2017 will be calculated using the income shares calculations. New cases and post decree cases which were filed earlier and were still pending on July 1, 2017 are also being decided using the new statute in most counties although delinquencies for periods prior to July 1st have to be calculated according to the prior statute.
Besides child support, the judge has discretion to order parents to share child care expenses, health expenses that are not paid by insurance, school fees, activity fees and costs. The law allows the judge to order parents to carry life insurance for the benefit of the children during the children's minority and health insurance.
Even though the law is new, Marsha Cellucci has dealt with all of the underlying concepts in her years of experience and she can help you make sense of the many details and nuances that have to be considered when deciding how to address all of the children issues.
Post Decree Enforcement
Often, the conclusion of a divorce or other family law proceeding does not mean the end of the need for court action. As people's lives change, the court Orders put in place at the conclusion of their family law matter may need to be modified. If the other party fails to follow the Orders, an enforcement action may be needed.
Modification actions may be governed by certain requirements outlined in the statutes. For example, an action to change the residential parent or parenting responsibilities may not be able to be brought unless the petitioner can show that there has been a substantial change in circumstances. Marsha Cellucci will be able to discuss the requirements for modification actions and help the client determine the best option.
Enforcement actions also have at least two options - whether to proceed in a manner intended to have the defaulting party held in contempt of court or whether to proceed in a manner to simply achieve compliance. Again, the options and best course of action can be explored in discussion with Marsha Cellucci.
Marsha Cellucci can help families in adoption proceedings. There are two basic types of adoption procedures; related adoptions and agency adoptions. Related adoptions occur when a stepparent wants to adopt a stepchild. Agency adoptions are when people adopt a child who has been given up by the birth parents. In all cases, the court will appoint a guardian ad litem (GAL) who is an attorney to investigate on behalf of the court and report back to the Judge whether or not the situation is appropriate. All adoptions are governed by statute and the requirements of the law have to be met before a Judge will approve an adoption. It is important to consult with Marsha Cellucci to learn about the necessary procedures and statutory requirements.