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When a marriage is collapsing, people are often gripped by a paralyzing fear.
An uncertain future looms. You imagine the worst: You won’t have enough
to live on. You are overwhelmed by financial responsibility. You won’t be
able to live within your means. You’ll make a dire investing mistake.
If any of those fears is plaguing you, take a deep breath. Take two. And read
on. By beginning a process one might call discovery and safeguard, you’ll
become informed about what you have and then be better able to safeguard
your financial status as much as possible. In doing so, you will tame fears of
being intimidated, being taken advantage of, or being left poverty-stricken
after the separation.
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The hour is late and you have just completed a difficult hearing. Everything seemed to go well. Proper notice of the proceeding was given to parties and your pleadings were appropriate. You were successful and now it is time to prepare the Order for the Judge’s signature. You did not prepare the Order in advance - after all, how could you know the outcome. You are tired and opposing counsel is pressuring you to “get on with it”. You are determined to complete the Order as quickly as possible so you can leave the courtroom and attend to the myriad of other things that require your attention. You labor at counsel table drafting the Order. You scribble a few of the essentials that were accomplished and claim your victory. Your one-pager is finally complete. Satisfied that the Order is sufficiently vague, your opponent gives approval. The Order is given to the Clerk of Court and in turn the Judge signs off without reading the Order - after all, its your Order, you should have to live with it! Sound familiar?
The sad truth is that too frequently the Order or Judgment presented to the court fails to sufficiently represent or memorialize that which occurred at the hearing. This is especially significant where no court reporter or transcribing device was available to record the event, although, the principles applicable to the preparation of a proper Order should apply regardless of whether the proceeding was transcribed or not.
Before presenting the Order to the Court, the attorney should read it with a critical eye. Does it memorialize all that occurred at the hearing in sufficient detail that satisfies the, who, what, where, when and why with the specificity necessary to enforce the rights of parties? Does the Order recite the necessary statutory language? Keep in mind, the document you present to the Court is the Court’s Order and reflects upon that Judge as well as the attorney preparing it. The Judge has the right to insist that it be appropriate in form and content before signing it.
The downside to a poorly drafted order is that its terms may be so ambiguous or nonexistent that clarification may be required to inform the parties of rights and obligations. This may, in turn, require one or more court appearances and many hours of otherwise unnecessary time to correct. When that occurs, there is the inevitable question of, “Who pays?” That question may be answered by the dissatisfied client which, in turn, may lead to a dismissal of the attorney, an excuse for the client to refuse to pay fees and even possibly a complaint filed with ARDC.
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IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
DUPAGE COUNTY, NEW YOK
IN RE THE MARRIAGE OF:
JOE JONES
Petitioner,
AND
JENNY JONES
Respondent.
JUDGMENT OF DISSOLUTION OF MARRIAGE
This cause came before the court by the parties Stipulation and Request to Hear Uncontested cause on the Petitioner’s Petition for Dissolution of Marriage. The Petitioner, JOE JONES, appeared in open court in person and by his attorney, DAVID M. SIEGEL. The court heard the evidence, a transcript of which will be duly filed. The court, being fully advised of the premises finds:
1. This court has jurisdiction over the Petitioner:
(a) The Petitioner was a resident of New Yok at the time the action was commenced, and has maintained that residence for at least ninety (90) days next preceding the making of this finding.
2. This court has jurisdiction over the Respondent, JENNY JONES.
3. This court has jurisdiction over the subject matter.
4. The parties were married on March 27, 1987, and their marriage was registered in Waukegan, Lake County, New Yok.
5. That certain irreconcilable differences have occurred between the said parties hereto which could not be resolved, and as a result thereof the same has caused an irretrievable breakdown of their marriage; that it is not in the best interest of the parties to attempt reconciliation, any such attempts would be fruitless.
6. That one child (Little Jenny Jones, age 18, born 2-29-84, an emancipated adult) was born to the parties; no children were adopted by the parties; and that Respondent is not now pregnant.
WHEREFORE, IT IS ORDERED THAT:
A. The Petition for Dissolution of Marriage is granted. The bonds of matrimony between JOE JONES AND JENNY JONES are hereby dissolved and the parties are awarded a Judgment of Dissolution of Marriage.
B. The parties shall execute, carry out, and perform all of the terms of this Judgment.
C. This Court shall, and it does, retain jurisdiction of the subject matter of this cause and of the parties for the purpose of enforcing the terms of this Judgment.
D. That the Marital Settlement Agreement dated___________, 2010 shall be incorporated into said Judgment as well as the Joint Parenting Agreement.
E. That the Respondent shall have the right to regain the use of her maiden name, JENNY SMITH.
APPROVED:
___________________________
JOE JONES
___________________________
JENNY JONES
ENTER:
______________________________
DATED:
DAVID M. SIEGEL
Attorney for Petitioner
790 Chaddick Drive
Wheeling, IL 60090
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Where petitioner had sufficient resources for which to pay her attorney and there was no indication that such payment would strip the petitioner of her means of support or undermine her financial stability, the trial court did not abuse its discretion by requiring each party to pay its own attorney’s fees.
The trial court did not abuse its discretion in requiring defendant to pay a portion of plaintiff’s attorney fees incurred in connection with several post-decree proceedings.
The trial court did not abuse its discretion in awarding attorney fees to plaintiff, since plaintiff was not required to exhaust her estate to protect her rights in the marital litigation, and where she was financially unable to pay the fees but defendant was able to do so.
A plaintiff’s contention that the court abused its discretion by ordering him to pay the defendant’s attorney’s fees of $5,000 within 90 days of the entry of the supplemental judgment for divorce was without merit since additional time was not required to make the payment.
In light of former husband’s ability to absorb some of the legal costs of divorce, the trial court did not abuse its discretion in awarding former wife $2,000 in attorney fees.
Where custodial modification appeared to have been sought primarily for the convenience of the parties rather than as a means of properly presenting the needs of the children to the court, the court did not abuse its discretion in denying plaintiff’s petition for attorney fees.
The well-established principle that the amount of attorney fees rests in the sound discretion of the trial judge, and will not be interfered with unless abused, applies to support awards.
The allowance of attorney fees in a divorce proceeding is not automatic, but depends on a showing that one spouse is financially unable to pay the fees, while the other is able to do so.
The decisions whether to grant periodic alimony, attorney fees, and suit money rest in the sound discretion of the circuit court.
The matter of fixing attorney fees is one of the few areas in which a trial judge may rely on the pleadings, affidavits on file and on his own experience.
Former section 15 of the Divorce Act authorized the trial court to order the payment of such attorney fees as may seem equitable, regardless of the disposition of the case.
The awarding of attorney fees rests in the sound discretion of the trial court and will not be interfered with unless such discretion is clearly abused.
Ability to Pay
In General
The trial court did not err in requiring ex-wife to pay a majority of her attorney fees.
For purposes of determining an award of attorney fees, financial inability exists where the forced payment of available funds would strip a person of his or her means of support and undermine his or her economic stability.
The party seeking attorney fees must show an inability to pay, and the ability of the other spouse to pay fees.
Before one spouse may recover attorney fees from the other, the spouse seeking fees must demonstrate that he or she is financially unable to pay and that the other spouse has the ability to pay; a mere showing that the other spouse has a greater ability to pay attorney fees is not sufficient to justify an award of fees under this section.
Under subdivision (a)(5) a court need not determine the ability or inability of a party to pay the requested fees.
Trial court did not abuse its discretion in determining that reasonable fees for representation in post-dissolution proceedings were $445 where petitioner admitted that the nature of the controversy was relatively simple, that the case presented no novel or difficult question, and that there was no important family law issue involved.
Considering the respective financial resources of the parties, the trial court did not abuse its discretion in requiring respondent to pay $10,000 for petitioner’s attorney fees.
Where a wife’s $9,000 in attorney fees amounted to approximately double her annual gross earnings, where she did not own any income-producing assets, and where her husband’s ability to pay attorney fees was considerably greater than that of the wife’s, the award of attorney fees to the wife was not an abuse of discretion.
There was no abuse of discretion in requiring that respondent pay $1,200 towards petitioner’s reasonable attorney fees where petitioner’s income and assets were minimal while those of respondent were substantial.
Where petitioner was unable on a relative basis to pay all of her own attorney fees without depleting her capital assets, the trial court’s conclusion that respondent should pay $3,500 of petitioner’s attorney fees was not an abuse of discretion.
After considering the financial resources of the parties, the court did not abuse its discretion in denying their motion to award attorney fees.
Trial court did not abuse its discretion in denying attorney fees to wife on the basis that there was no evidence of husband’s assets, his past income, or his current income, other than his testimony that wile recovering from an operation he was only receiving income of $475 per month from a partnership.
Where the parties’ income was substantially unequal, but the wife received more marital property capable of producing income in the near future, and the husband was required to pay a substantial part of the wife’s fees, the trial court did not abuse its discretion in failing to award wife attorney fees.
One spouse’s earlier part-time employment and probationary employment at the time of hearing did not provide a sufficient basis upon which to find equality in earning power with that of her husband, a college graduate employed by the same company since 1967 with steady increases in compensation, such that the trial court’s award of attorney fees was not an abuse of discretion.
Trial court did not abuse its discretion by requiring husband to pay a portion of wife’s attorney fees where it could have reasonably concluded that the husband had the ability to pay and that the respondent wife did not have the ability to pay that portion of the fees.
Award of attorney fees to former wife was consistent with the weight of the evidence and not an abuse of the court’s discretion.
In view of respondent’s income and his obligations under the property division, the trial court’s award of $500 in attorney fees was not an abuse of discretion.
The circuit court’s order that respondent pay two-thirds of petitioner’s attorney fees was not an abuse of discretion, even though petitioner had the ability to pay the entire amount of her fees out of her bank accounts and stock.
Trial court’s determination that the plaintiff was unable to pay all of her attorneys’ fees was not palpably erroneous or an abuse of discretion.
Where each party had approximately $100 left after the payment of its monthly expenses, and where petitioner’s obligations were comparably greater and included, in addition to his own attorney fees, payment of the child’s attorney fees, the trial court’s denial of attorney fees to respondent was not an abuse of discretion.
It was not an abuse of discretion to not require the husband to contribute to the wife’s attorney fees as the wife failed to show an inability to pay her own attorney fees.
Trial court did not abuse its discretion in declining to award the wife payment for her attorney fees, despite allegations that the vast majority of her expenses were caused by the husband’s lack of cooperation, where the wife’s earned income was greater than the husband’s, the husband’s financial circumstances were not so mush better than the wife’s that he should have been required to pay the wife’s attorneys fees, and the expenses were unreasonable considering the nature of the proceedings and the limited monetary resources of the parties.
Where the trial court properly considered all of the attendant facts and acted reasonably under the circumstances, the award of attorney fees was not erroneous.
The trial court did not abuse its discretion by requiring each party to pay its own attorney fees, based on the parties’ financial circumstances and the parties’ unwillingness to compromise.
Where petitioner’s job paid only $14,000 a year with no benefits, she estimated that it would cost $1,700 a month to care for herself and her child, and conversely, respondent earned $47,000 a year and in addition had his own business which had generated as much as $15,000 a year, it was not an abuse of discretion to order respondent to pay petitioner’s attorney fees.
Trial court did not abuse its discretion in ruling that attorney fees for matters unrelated to the dissolution proceedings were recoverable under subsection (a) it would be an extreme waste of judicial time to require an attorney seeking the payment of fees to file a separate action requesting payment for those services, especially given his testimony that some of his time reflected conferences involving the material, partially marital, and nonmarital property.
Where the evidence presented showed that wife’s attorney fees were in excess of $20,000 and that husband had the ability to absorb the fees in view of the significant disparity in incomes between the parties led to a holding that the trial court’s award of attorney fees to the wife was not an abuse of discretion.
The trial court did not abuse its discretion in ordering wife to pay $2,000 out of $4,082 of husband’s attorney fees where husband’s expenses exceeded his income, where his present liquid assets were likely to be used to offset the difference, and where the record clearly demonstrated that the wife possessed the ability to pay the $2,000 attorney fee award.
Trial court’s order directing husband to pay attorney fees was not an abuse of discretion where the evidence indicated that requiring the wife to pay the attorney fees would undermine her economic stability and where the record indicated that the husband was able to pay the fees.
The court did not abuse its discretion where it awarded attorney fees to wife, even though the cause of action was unsuccessful.
Where, prior to hearing on fees, wife and other persons in her behalf paid attorney $5,725, of which $2,000 apparently was for post-judgment matters relating to the case but not a part of the billings reflected by the evidence, there was evidence that she had the ability to pay her fees, and therefore the trial court did not abuse its discretion in denying attorney fees.
Where the record lacked any evidentiary support for a final award of fees, and where neither the amount of attorney fees nor the reasonableness of charges was submitted for the trial court’s consideration, there was no abuse of the trial court’s denial of fees.
Just who is the better custodial parent? Most parents would think that he or she is clearly the better custodial parent. But who does the court consider to be the best? Well, that all depends upon the interest of the child and not the interest of the parents. But just what is the interest of the child and how is it determined? Although the formula and guidelines exist, it is up to each individual judge to make that ultimate decision. To see a list of factors that the court will look at when determining custody and to determine the court’s view of the Best Interest of Child, visit the informative article at http://www.divorce-lawyers-newyork.com/best_interest_of_child_doc.php
Although a complete termination of alimony to the plaintiff was an abuse of the trial court’s discretion, the continued payment of $16,000 a year to a woman of the plaintiff’s means, after her brief marriage to the defendant, was not justified. Borowitz v. Borowitz
The trial court did not err in its judgment that plaintiff, by using the $1,000 in additional payments awarded to her as a condition to termination of alimony, could make herself employable either by undergoing surgery on her feet or by obtaining additional education, and that defendant’s remarriage, and the birth of a child from the new marriage, constituted substantial change of circumstances justifying termination of alimony. Tan v. Tan
Similar prior provision allowing the court to make reasonable and proper alterations in its alimony requirement also vested the court with ample power to declare the termination of all alimony upon the occurrence of facts reasonable justifying such a declaration. Lennahan v. O’Keefe
Absent unequivocal language that the court intended a spouse’s heirs to be bound by its alimony obligation terminated at paying spouse’s death. Lennahan v. O’Keefe
ELIZABETH, N.J. - With no sign of a settlement in the highly public divorce of New Jersey’s gay ex-governor, onlookers can expect more dirt to be kicked up in the week ahead.
Jim and Dina Matos McGreevey are each expected to take a turn on the witness stand this week as a judge tries to figure out how much the governor-turned-seminary-student should pay in alimony and child support.
The Garden State’s infamous former first couple has already done a thorough job of dragging each other through the mud as they decouple.
Following his famed “I am a gay American” resignation speech, which propelled the McGreeveys onto a national stage in 2004, the pair has been engaged in a lengthy public humiliation battle that seems unlikely to end soon.
It was unnecessary for the court to make any findings as to matters on the economic circumstances of the parties since the date the judgment of dissolution was entered where the record reflected that following the remand order no extraordinary circumstances had arisen.