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FAMILY LAW
HOW THE PANDEMIC HAS SHAPED COURT CASES AND DOMESTIC DIFFICULTIES Navigating family law issues can often be challenging, and since 2020, that’s been even truer as families, attorneys and judges contend with differing medical opinions, safety precautions and an increased use of technology. Three Chicago-area family law attorneys share their insights on these issues and more with Crain’s Content Studio. 1. With the easing of COVID restrictions, are courts now fully open again? Are some appearances and depositions still happening by video call? Jonathan Merel: While courtrooms are slowly opening again, the impact of COVID on the court system will be felt perhaps forever. While counties such as DuPage and Will County seem to be back in full swing, Cook County has been a bit slower to open the doors of its courtrooms, taking more of a judge-by-judge approach. However, nearly all counties now offer a Zoom component to their daily court calls, often giving lawyers and litigants the option for a virtual court appearance, depending on the type of proceeding. While many judges will insist on in-person court appearances for hearings or trials, routine court dates will likely continue to be via Zoom if the litigants or attorneys prefer to appear remotely. James Quigley: Depending upon the county, there continues to be a range of full-open courthouses and others with very restricted in-person activity. To some degree, the
while some judges will only allow in-person matters if both parties agree. Depositions largely continue to be via Zoom, as courts have been reluctant to compel people to appear in person. 2. When conducting appearances and depositions by video, how do you as an attorney change how you approach and prepare to present your cases? Quigley: The first and most critical part of preparation is the efficient use of technology. Knowing how to quickly pull up evidentiary documents and being able to highlight on screen relevant portions of documents quickly and efficiently, is critical to a smooth trial. Surprisingly, many attorneys have not been able to make the adjustment from hardcopy exhibits to digital exhibits, and as a result, their examination is disjointed and loses its flow and cadence. I have seen countless witness examinations interrupted because of dropped internet connections or other technical glitches. Aside from the technical aspects, preparing for trial over Zoom is no different than preparing for an in-person trial — know your case inside and out, prepare your
“ILLINOIS COURTS NO LONGER NEED TO WASTE THEIR TIME ASSESSING WHY THE MARRIAGE FAILED AND WHO WAS AT FAULT IN THE DIVORCE. INSTEAD COURTS ARE BETTER SERVED ASSESSING THE FINANCIAL CIRCUMSTANCES OF THE PARTIES AND EQUITABLY DIVIDING THE MARITAL ESTATE.”
JONATHAN MEREL
JAMES QUIGLEY
Founder & Managing Principal Law Offices of Jonathan Merel jmerel@merelfamilylaw.com 312-408-7000
JONATHAN STANDEFORD
Divorce and Family Law Equity Partner Beermann LLP jmquigley@beermannlaw.com 312-621-1225
document to everyone involved in the matter, without confusion about what the document being presented represents. This does change the approach for preparing as it requires attorneys to be aware of the functions of Zoom, how to
screen share, and how to do it in an effective manner to not disrupt the flow of the argument in court or questioning in the deposition. 3. How has the pandemic and COVID concerns
Associate Attorney Birnbaum Gelfman Sharma & Arnoux LLC j.standeford@bgsafamlaw.com 312-863-2800
changed interactions with clients during and following representation? Quigley: For a period of time, the COVID restrictions literally resulted in me representing
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— JONATHAN MEREL, LAW OFFICES OF JONATHAN MEREL population density within any given jurisdiction, and perhaps cynically, the politics of that particular jurisdiction largely drive the decision as to which courthouses are open for business. Most courthouses have at least begun to hear some in-person matters, typically contested trials,
witness examinations and know how to properly admit critical documents into evidence. Jonathan Standeford: With the ability to review documents in real time through video calling, this allows for a seamless presentation of the same
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FAMILY LAW people I never met from the start of a divorce until its conclusion. Divorce is such an emotional and personal process and not being able to work with people inperson made it difficult at times to convey the importance of certain aspects of the process or simply to be able to express concern, care, and empathy for my clients the way that you can in person. Standeford: Prior to COVID, attorneys were able to have more in-person interactions between being in court, meetings at offices, at various stages of the litigation such as depositions. Now with COVID, there are fewer in person interactions, but thankfully the face time has not diminished as we have access to video calling. 4. Can you talk about how the pandemic has impacted divorces? Have you seen the cause of divorce change in recent years? Merel: At the outset of the pandemic, it was clear the quarantine created anxiety and high-tension environments for families which led to difficulties in many marriages. Whether it was the uncertainty of the economy, the impact on jobs or
the increased risk for domestic violence, COVID created an unprecedented environment that created obstacles that tested the traditional family structure. As the pandemic progressed, couples also found themselves on different sides of the fence in regard to vaccinating their children, sending children to school in-person and the use of masks on themselves and their children. Differing views on these issues between parents led to more stress in many homes and unfortunately led to the failure of many relationships.
and is, oftentimes, contentious. Having interpersonal relationships with other lawyers, and even with judges, there’s a personal accountability and even camaraderie that all but disappeared during the pandemic. I attribute that in large part to the lack of in-person interaction between lawyers and judges, but also layered with added levels of stress everyone
set support? Merel: Not only can fault not be considered by the court adjudicating the divorce, but testimony or evidence regarding the actions of either party as it relates to the breakdown of the marriage (such as infidelity) will often be deemed irrelevant by a court at trial, unless the evidence is relevant to a financial issue
and medical decision-making. Each of these areas of significant decision-making require the parent to look beyond simply registration, scheduling and what is necessary for the child to attend. Now, they must also consider the COVID procedures put forth by various governing bodies of extracurriculars, educational requirements for vaccinations and masking, and
“THE NUMBER ONE PANDEMIC DISPUTE HAS BEEN OVER THE ISSUE OF VACCINATING CHILDREN. WITH THE PUSH TO VACCINATE CHILDREN UNDER THE AGE OF FIVE, THIS DISPUTE WILL CONTINUE TO BE AT THE FOREFRONT OF LITIGANTS.”
Standeford: The pandemic has been hard on many people and may have caused a slight uptick in the amount of dissolution proceedings. The reasons for many divorces, though, have remained the same despite the pandemic. As an example, money concerns and issues may be the cause for the divorce which may have been brought on by the furloughs and layoffs as a result of the pandemic, but the issue which has brought the parties to divorce was the money issues.
was going through such as having to deal with isolation or new child-related issues because kids could not be in daycare or in school. Many of my colleagues enjoyed not having to commute to and from an office, however my team returned to the office very early on. This made for a much more tolerable practice, exchange of ideas, and teamwork.
such as dissipation (spending marital money for a non-marital purpose). Illinois courts no longer need to waste their time assessing why the marriage failed and who was at fault in the divorce. Instead courts are better served assessing the financial circumstances of the parties and equitably dividing the marital estate.
Quigley: The pandemic impacted the divorce process in a profoundly negative way. Divorce is always filled with emotion
5. Can the court consider the reason the marriage failed when determining how to divide assets and
Standeford: Judges are not supposed to consider the basis for the divorce other than irreconcilable differences. However, it is not lost on attorneys or the litigants that the events which caused the dissolution of marriage, or how each party conducts themselves prior to and during the litigation, will impact how a judge will consider dividing assets and set support. In Illinois, there are guidelines for child support and maintenance (formerly known as alimony) which help remove any influence the judge may have on events surrounding the divorce in setting support. However, a court may look at other factors they deem necessary to potentially deviate from the guidelines, so long as the necessary findings and determinations are met.
— JAMES M. QUIGLEY, BEERMANN LLP
6. How has the pandemic changed how much litigants are concerned about things such as children participating in extracurriculars and education? What about medical decision making? Standeford: The pandemic has in part shifted some litigant’s focus to request final or sole decision-making in the areas of extracurriculars, education
ultimately, whether or not to get the COVID vaccination. Quigley: The number one pandemic dispute has been over the issue of vaccinating children. With the push to vaccinate children under the age of five, this dispute will continue to be at the forefront of litigants. It became critical to understand the practices of certain judges and even individuals who represent children in divorce, such as guardians ad litem or child representatives, in order to be able to advise clients about their options and whether there is any real likelihood of success in their position. 7. How have positive COVID tests or concerns over potential exposure changed how parenting time is approached or considered in writing an allocation judgment? Standeford: Much of how this is handled is based on the litigants, the vaccination status of everyone involved, the age of the children, and whether make-up parenting time can be scheduled for the parent who has received a positive test or exposure. For example, if everyone is vaccinated, and the parents are amicable and understanding about the circumstances, many times we can modify parenting time by agreement to avoid unnecessary exposure until a negative test is achieved and schedule make-up parenting time. However, there are instances where the litigation is more contentious, and this is not as easily achieved. Quigley: Positive COVID tests, and the reality of them moving forward into the foreseeable
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future, has not resulted in any real dramatic shift in the language we use in an allocation judgment. Early on, we saw litigants weaponizing COVID testing, for example, by trying to keep the other parent from having parenting time. Generally speaking, we treated a positive COVID test legally between parents the way we would any other medical issue where parents have joint decisionmaking. Most litigants we worked with understood that if their child had symptoms, bouncing back-and-forth from one parent to the other wasn’t a good idea. 8. How is the amount of child support impacted by who the children reside with and when? Will a court ever set a cap on child support or spousal support once the payor’s income reaches a certain level? Quigley: Illinois law uses a formula to calculate child support, which does take into consideration the respective incomes of both parents, as well as the number of overnight visits each parent has throughout the course of the year. Even if a parent has a 50-50 schedule, one parent could still be legally obligated to pay child support to the other. Conversely, a parent who, historically, might have sought less parenting time, is now incentivized to seek more overnight parenting time to trigger the reduction in support, based upon the formula. Fighting for the proverbial 50-50 has become much more
reduction in child support is not beneficial to the child. Standeford: The guidelines in Illinois provide child support modifies most significantly when there is a party who either has fewer than 146 overnights annually of parenting time versus a party who has or is in excess of 146 overnights annually. If the litigant has fewer than 146 overnights annually, the child support will be an increased amount, however, if that parent receives 146 overnights or more annually either as a result of a parenting order or a modification to a parenting order, then child support will be a decreased amount. The courts in any child support proceeding continue to have the authority to deviate from the guidelines. As for a cap on child support or spousal support, it can be agreed to for a cap to be set on maintenance, but child support should not have a cap. The guidelines only apply to litigants whose incomes are less than $500,000. Once the litigant’s combined income increases beyond that amount, the guidelines for child support and maintenance become suggestions rather than mandates to prevent a windfall for a litigant. Merel: In Illinois, child support is generally calculated pursuant to an “income sharing” formula that considers the incomes of both parents and the parenting schedule (how many overnights the child spends with each parent). In essence, the closer the incomes
“PRIOR TO COVID, ATTORNEYS WERE ABLE TO HAVE MORE IN-PERSON INTERACTIONS BETWEEN BEING IN COURT, MEETINGS AT OFFICES, AT VARIOUS STAGES OF THE LITIGATION SUCH AS DEPOSITIONS. NOW WITH COVID, THERE ARE FEWER IN PERSON INTERACTIONS, BUT THANKFULLY THE FACE TIME HAS NOT DIMINISHED AS WE HAVE ACCESS TO VIDEO CALLING.” — JONATHAN STANDEFORD, BIRNBAUM GELFMAN SHARMA & ARNOUX LLC prevalent since the statutory changes. This is good in some instances where both parents are looking to step up and be more present for the children, but in other instances, it is actually harmful to children. Having parents that aren’t really focused on parenting, but rather on a
of the parents and the closer to a 50/50 parenting schedule, the less child support. However, when the primary breadwinner earns a substantial income, courts will exercise discretion in determining the amount of child support and will not be required to apply the income-
ABOUT THE PANELISTS JONATHAN MEREL is founder and managing principal of the Law Offices of Jonathan Merel, a divorce and family law firm with offices in Chicago, Highland Park and Skokie. He enjoys helping high-conflict couples find the right path to a productive future. He has experience representing clients in contested child custody suits, high-networth divorces and suits involving multimillion-dollar marital estates. Merel takes a modern-family approach to divorce, seeking long-term solutions to a happier family, not just quick legal fixes.
JAMES M. QUIGLEY is a divorce and family law equity partner at Beermann LLP. He is the 2021-2022 president of the American Academy of Matrimonial Lawyers, Illinois Chapter and is board certified by the National Board of Trial Advocacy. Quigley, who has represented many high-profile clients in his near 30-year career, is a regular lecturer for the Lake County Bar Association and the Illinois Institute for Continuing Legal Education. He also provides legal commentary for many local and national media outlets.
JONATHAN STANDEFORD is an associate attorney at the family law firm of Birnbaum Gelfman Sharma & Arnoux LLC based in Chicago. Prior to joining the firm, Standeford practiced family law and served as 711 Licensed StudentAttorney with the UIC Family Law and Domestic Violence Clinic where he learned the intricacies of representing victims of domestic violence. Standeford’s broad experience and knowledge includes court orders of protection, maintenance, child support, allocations for parental responsibilities and even adjudicated pet custody.
sharing formula. Attorneys representing individuals with high incomes will often seek the imposition of “cap” on the income of the client for purposes of determining child support
to provide some limitation on the support obligation. Additionally, individuals with a support obligation who are set to experience a windfall financial event (i.e. the sale
of a business) will often try to limit the support obligation by preemptively seeking a support cap.