uncooperative, untrustworthy or ab- usive spouse.

‘‘’’

Donald C. Schiller was named the #1 Family Lawyer by Leading Lawyers Network, and one of the overall Top 10 Lawyers in Illinois.

IN THIS ISSUE

2 Protect your child’s college savings

3 Why pay my spouse’s fees?

In the news4

L E G A L LY S P E A K I N GL E G A L LY S P E A K I N GCHICAGO

LAKE FOREST

WHEATON

W I N T E R N EW S L ET T E R 2 0 1 0

DONALD C. SCHILLERNAMED TOP FAMILY LAWYER

by Leading Lawyers Network

By Celia G. Gamrath

By Jay P. Dahlin

�e two most common questions a client asks me in an initial interview are: “How long will it take before I am divorced?” and “How much will I pay in attorney fees?” �ose are the two most difficult questions to answer or predict because the length and cost of the process are driven by many factors, including the choice of process. Many clients believe the divorce process has to proceed through court; however, that is not the only option. As an attorney experienced in litigation, mediation and collabora-tive law, I educate my client of the following options:

MANY CLIENTS BELIEVE THE DIVORCE PROCESS HAS TO PROCEED THROUGH COURT; HOWEVER, THAT IS NOT THE ONLY OPTION.

MEDIATION �e client meets with his or her spouse and an independent trained divorce mediator to discuss and

TOP 10FAMILY LAWYERS

use the litigation process only as a last resort.

�e client’s best choice of process will depend upon many factors, including

HYBRID Often times, these processes can be com- bined with one another, or modified, to fit the client’s needs. For example, a client may want to independently mediate parenting issues, but prefer to engage his lawyer to negotiate financial terms, through meetings or the court process. �e lawyer can also attempt to work the case through a collaborative method, with- out entering into a formal collaborative agreement, and

the personalities of the spouses, their attorneys, the issues, the level of trust and communication between the spouses and their ability to remain cooperative and civil despite the divorce.

Because the choice of process can have a signifi-

cant impact on length and fees—and best outcome—I take the time to discuss the choices, pros and cons, with each client. With this advice, the client is able to select the best process for his or her individual needs.

DIVORCE: MAXIMIZING YOUR RESULTSand MINIMIZING YOUR FEES AND TIME

develop settlement. Media-tion can save the client significant time and attorney fees. It also offers the advan-tage of keeping negotiations private and allows the client to develop his own settle- ment terms.

COLLABORATIVE LAW �e collaborative law process is a way to divorce without going through the courtsystem. �e collaborative process is well-suited for a client who wants privacy, trusts his spouse and wants to partici-pate in the settlement negotiations with the involvement of attorneys. Because the spouses devote themselves to staying out of court and proceeding through cooperative meetings, the length and cost of the process can be more easily controlled and minimized.

LITIGATION Typically known for being the most traditional method to obtain a divorce, litigation can also be the most expen-sive and time-consuming route, if not effectively managed. Although litigation can be arduous at times, in certain circumstances, it can be the most effective process, achieving the best result. �e litigation process offers advantages to a client who has an

TANYA J. STANISH

Partnertstanish@sd�aw.com Mr. Schiller was also listed again this year in

Lawdragon 500, which sets the national standard for the best of the legal profession.

CARLTON R. MARCYAN

TOP 50WOMEN LAWYERS

KAREN PINKERT-LIEB

MORE TOP LAWYERSby Leading Lawyers Network

PROTECT YOUR CHILD’S COLLEGE SAVINGS

In a contested divorce there are precious few matters to which everyone can agree. Yet even the most contentious litigants can usually agree that the children’s college funds – usually kept in an IRS §529 Quali�ed Tuition Program - should be set aside for the children’s bene�t.

Protecting a child’s �nancial interests and future education is a smart and admirable course of action to which all parents should strive. But spouses in contested �nancial litigation need to understand that just because money is sequestered in a 529 educational savings account, it could still be considered a marital asset subject to distribution andis, therefore, not out ofreach of the account holder.

JAY P. DAHLIN

Partnerjdahlin@sd�aw.com

10% penalty for distributions not used for educational expenses.

Nonetheless, a 529 educational savings account is accessible by the account owner for use at his or her discretion; and because the proceeds of these accounts are the property of account owner, and not the child bene�ciary, those proceeds are subject

to the Section 503 factors of the Illinois Marriage and Dissolution of Marriage Act for allocation as marital or non-marital assets. �ese funds may be a part of the marital estate and subject to the court’s jurisdiction to divide and allocate between parties or utilized to pay debts such as credit cards or attorney fees.

Litigants should be conscious of a spouse harboring money in a 529 educational savings account which was agreeably set outside

A 529 educational account is an asset of the account owner (usually a parent) and is established for the bene�t of a named bene�ciary (usually the child). �e child bene�ciary has no present interest in the account or its proceeds. According to IRS Reg. Sec. 1.529-1(c), the account owner is entitled to “select

2

Partners Andrea K. Muchin (top right) and Karen Pinkert-Lieb (bottom right) hosted a CLE seminar and luncheon for Shalva's Legal Liaison Program on October 29, 2009, on the topic of "Why is �is Case Different from All Other Cases? Identifying Domestic Abuse." Shalva is a domestic violence organization that focuses on domestic abuse in Jewish homes.

Shalva's Clinical Director Barbara Siege, LCPC and �erapist Kim Schapps, LCSW, J.D. spoke on how to identify domestic abuse and red flags in domes-tic abuse cases. �e Director of Shalva’s Legal Liaison Program, Rachel Heyman, J.D. discussed useful ways attorneys can help victims of domestic abuse, and trends in recent cases involving custody and visitation, religious issues and finances.

language into their judgments creating a �duciary duty between the parent/ac- count owner and the child/bene�ciary, such that the parent is enjoined from utilizing the 529 educational savings account a�er the divorce for any purpose other than the child’s educa-tional costs. Quarterly or annual statements on the account should also be directed to the non-account holding parent in order to verify the proper maintenance and usage of those funds.

At the end of the day, if the funds are held and utilized properly, everyone can rest assured knowing the child’s educa-tion is at least partially paid for; and if the funds are misappropriated by the account owner, then the non-account holding parent retains the remedy of contempt charges for breach of the court order or �duciary duty.

or change the designated bene�ciary of the account, to designate the funds to any person beside the designated bene�-ciary, or to just receive funds fromthe account.”

�ere are quali�ed purposes for use of distributed 529 funds. �ose quali�edpurposes vary from state to state and plan to plan, but generally include the payment of tuition, room and board (with limitations), books, fees and equipment for enrollment or attendance at an eligible post-secondary school. However, 529 funds are not required by law to be utilized for quali�ed purposes. An account owner may also distribute funds for any non-quali�ed purpose. �ere are adverse tax consequences for withdraw-ing funds for a non-quali�ed purpose. All gains on the account are taxable as gross income, and there is an additional

the marital estate, only to have that spouse liquidate the account for his or her personal bene�t a�er the divorce proceedings are concluded. In order to protect against this contingency, parties to a divorce seeking to set aside funds for their child’s education should consider building protective

‘‘’’

Because money is sequestered in a 529 educational savings account, it could still be considered a marital asset subject to distribution.

3

WHY PAY MY SPOUSE’S FEES?

basis. �is is problematic in cases where no marital estate exists yet one of the parties is ordered to pay the other side’s fees. �is concern

client. Fourth, the new law resolves a conflict among appellate districts by clarify-ing the deadline for filing fee petitions at the end of a case. In pre-decree cases, a

contribution petition for final fees must be filed no later than 30 days after the close of proofs and shall be heard and decided before final judgment. In all other cases (post-decree, parent-age and appeals), a contribution petition must be filed within 30 days after the date on which the judgment is entered.

�e new fee legislation does not make sweeping changes to the old law, but helps remedy the unintended consequences of the

prompted new legislation effective January 1 , requir-ing courts to more closely monitor and scrutinize interim fees in post-decree and parentage cases.

�e new law makes four major changes to the current law on fees in domestic relations cases. First, it limits the presumption of summary hearings to pre-decree cases. Second, it expands the award of attorney fees for all hearings conducted or precipitated for an improper purpose, such as harassment or abuse. �ird, it eliminates the need for attorneys to spread billing statements into the public record when entering into a consent judgment with a

twelve-year-old “leveling of the playing field legislation.” Ask your attorney to provide you with answers to more specific questions you may have about fees and paying your spouse’s attorney fees during and/or at the end of the case.

�ere is a presumption that attorney fees will be paid as an advance from the parties’ marital estate, with the caveat that, if you are the sole income-earner of the family and have a greater potential for acquisition of income and property in the future, it is likely the court will order you to pay a greater share of the overall fees. Where both spouses are equally wealthy or have the ability to pay their lawyers, each will be required to pay his/her own fees.

�e judge has discretion in awarding fees during the case and/or at the end of the case, and can award a spouse fees even without conducting a hearing. In fact, interim fees are awarded routinely in all types of matrimonial cases (including post-decree and paternity cases), histori-cally on a summary, non-evidentiary

Leading Lawyers NetworkNames Twenty-Two

Schiller DuCanto & Fleck LLP

Partners as“2010 Leading Lawyers”

Deborah A. CarderTimothy M. DawJoseph N. DuCantoCharles J. FleckJames R. GalvinCelia G. GamrathMeighan A. HarmonBurton S. Hochberg * 2010

Eric L. SchulmanSarane C. SiewerthTanya J. StanishArnold B. Stein *Anita M. VentrelliMario R. VentrelliJane D. Waller

David H. HopkinsJennifer Dillon KotzBenjamin S. Macko�Carlton R. Marcyan *Andrea K. MuchinKaren Pinkert-LiebDonald C. Schiller *

In divorce litigation, the payment of divorce fees is presumably to come from the marital estate; however, often the wealthier spouse is ordered to pay his/her spouse’s fees in accordance with the Illinois attorney fees statute. �e law was enacted in 1997 to “level the playing field” between spouses so that a needy husband/wife can seek fees against the other spouse and obtain appropriate legal representation.

Partnercgamrath@sd�aw.com

CELIA G. GAMRATH

st

* Overall Top 100 Consumer Lawyers

�e materials contained in this Newsletter are intended for general informational purposes only and not to be construed as legal advice or opinion.Some of the materials were printed originally in other outside publications.

Celia G. Gamrath, Editor David Young, Layout/Design

I N T H E N EW S

Michael R. Galasso and Andrea K. Muchin participated as volunteer judges in the National Moot Court Competition hosted by the Appellate Lawyers Association.

James R. Galvin and Jason N. Sposeep organized a seminar and spoke on the topic of “Collaborative Law as an Alternative to Litigation” through �e Collaborative Law Institute of Illinois (“CLII”) and the CLII Chicago Loop Practice Group. Mr. Sposeep also spoke on a panel addressing "�e Rewards and Challenges of a Practice in Family Law” at Chicago Kent College of Law and lectured at Loyola Law School on the topic of "Custody and Visitation."

Celia G. Gamrath judged the Annual ISBA Lincoln Award Legal Writing Contest. Ms. Gamrath is a five-time award recipient in the contest herself.

Michelle A. Lawless and Andrew G. Vaughn recently spoke at seminars at the Chicago Bar Association on divorce-related litigation topics.

Benjamin S. Mackoff testified at the invitation of the Federal/State Anti-Terrorism Advisory Council about his family's adventures and perils in the Mumbai, India attacks in November 2008. He explained how they endured the siege and what they did to stay alive.

Claire R. McKenzie spoke about tax aspects of divorce at the ABA Tax and Estate & Trust Joint Meeting at the Hyatt Regency in Chicago.

Meghan E. Nemeth published an article in the CBA Record titled "Is the Burden for Exclusive Possession of the Home in Divorce too High?"

Eric L. Schulman published an article in �e Matrimonial Strategist titled "Protecting Your Client's Maintenance Rights."

Mario R. Ventrelli presented "Hot Topics in Family Law" and "Machia-vellian Negotiation and Mediation Tactics" at the American Institute of CPA's National Forensic Accounting Conference in Orlando, Florida. Mr. Ventrelli and his wife and law partner Anita M. Ventrelli were featured in the 2010 Leading Lawyers Network Magazine Consumer Edition for their legal talents and personal and professional lives.

200 North LaSalle Street30th FloorChicago, IL 60601-1089

(312) 641-5560 Phone(312) 641-6361 Fax

225 East Deerpath RoadSuite 270Lake Forest, IL 60045-1973

(847) 615-8300 Phone(847) 615-8284 Fax

311 South County Farm RoadSuite GWheaton, IL 60187-2477

(630) 665-5800 Phone(630) 665-6082 Fax

CHICAGO

LAKE FOREST

WHEATON

sdflaw.com

Michelle A. Lawless has been elected partner a�er disting- uishing herself as an associate since 2002. Prior to joining the �rm, Ms. Lawless was a judicial law clerk to the Presiding Judge

MICHELLE LAWLESSBECOMES PARTNER

WE WELCOME ERIC PFANENSTIEL& EVAN WHITFIELD AS NEW

ASSOCIATES OF THE FIRM

ERIC R. PFANENSTIEL EVAN D. WHITFIELD

of the Domestic Relations Division, Honorable Moshe Jacobius.

WOULD YOU LIKE TO RECEIVEOUR NEWSLETTER BY EMAIL?

Sign up at sdf law.com