If I Were King – Part I

Over the years I have mused on how I would improve both substantive and procedural rules in Illinois family law. The new “If I Were King,” blog posts shares a few of those thoughts. This is the first in that occasional series. If I were king, I would change the Illinois law requiring divorcing spouses to live together unless one spouse seriously endangers the other. Under the current policy, the court cannot exclude one of the parties from the marital residence unless there is a showing of serious physical or emotional harm by one towards the other or toward the children. This never made any sense to me. Because of this rule, people use the Domestic Violence Act to get expedited hearings, exaggerating general meanness to domestic violence to in order to force their spouse out of the house. And who can blame them? Living together during the divorce is disconcerting to all members of the family. But that is not a good solution. When the Domestic Violence Act is applied for this purpose, courts then have to hear these matters when very real and urgent domestic violence issues may have to wait. Also, when less serious claims are brought before the court, the judges may grow a bit immune to the outrage of domestic violence. I would change the law to provide the court the discretion, considering the totality of the circumstances, to order one of the parties to move from the house. If the parties have the economic resources, a second home, or some other reasonable opportunity to separate, the court should have the power to order it without a showing of serious endangerment.

The Risks of Recording: Why Eavesdropping Won’t Help Your Divorce Case

By Guest Blogger: G.M. In a day and age when communications can be easily intercepted or recorded, it is important to be aware that doing so could expose you to criminal and/or civil liability. The Illinois eavesdropping laws, 720 ILCS 5/14-1 et. seq., prohibit a person from intentionally using any device to hear, record, intercept, retain or transcribe, oral or electronic communication. Generally, the only exception is if it is done with the consent of all parties involved in the communication. There are other exceptions to this general rule, but they usually don’t apply to most communications between spouses and/or their kids. The Federal eavesdropping laws, 18 U.S.C. § 2510 et. seq., generally prohibit the same conduct and have similar exceptions. Sometimes a spouse will consider recording information as a way to help his or her case. This is a bad idea. Under both Illinois and Federal eavesdropping laws a spouse cannot: 1) record a telephone conversation with the other spouse or conversation between the other spouse and a child; 2) record in-person communication with the other spouse or communication between the other spouse and a child; 3) use key logging software to obtain passwords in order to check emails or obtain the content of emails; 4) use software to take computer screen captures of emails, or 5) use software to intercept emails, among other things. A first violation of the Illinois eavesdropping laws is a class 4 felony and the second violation is a class 3 felony. In addition, the eavesdropping laws create a separate civil cause of action for injunctive relief and damages, including punitive damages, and any information obtained in violation of the eavesdropping laws is generally not admissible anyway. The Federal eavesdropping laws provide similar criminal and civil penalties. An attorney who uses information obtained in violation of those statutes could also be subject to the same penalties. During a divorce, you may think that recording conversations with your spouse or between your spouse and child will provide helpful evidence for your case. Recording conversations without your spouse’s knowledge, however, is considered illegal eavesdropping and the penalties for doing so greatly outweigh the benefits, if any exist in the first place. After all, evidence obtained through improper recording cannot even be used. Even though it may be easy to acquire recording devices or software, resist the temptation. If you do not have express consent, don’t record conversations and don’t improperly obtain copies of your spouse’s emails.

Take some time out of your day

By Guest Blogger: V.K. While working on a case recently, I went up to the law library at the courthouse to use one of their computers to make corrections to a settlement agreement I had been working on. During my time in the library, I noticed a gentleman with his two children sitting at a nearby table reviewing documents and looking very confused. He looked up every so often trying to make eye contact with someone – preferably an attorney. After I paid the law librarian for making some copies I walked by the gentlemen as I was curious to see why he was so confused. When he saw me he immediately asked if I had a moment. As it turns out, this individual was a pro se litigant having trouble filling out a basic hardship affidavit in order to waive his filing fees. I sat down and we quickly worked through the documents. I then took him to a courtroom to get the documents signed by a judge and entered with the court. The gentleman was very grateful and thanked me several times. One of the harsh realities of our current economic times is that, like the gentleman above, a great number of people don’t have the money or resources for legal representation. As a result, these individuals have taken on the difficult and unenviable task of representing themselves. As lawyers we often take many of the smallest tasks in our profession for granted. We perform legal research, draft pleadings and motions, prepare notices and conduct hearings as second nature. Unfortunately, the pro se litigant has to attempt to do these same tasks on their own without any legal training. The legal arena, particularly the courtroom can be an intimidating place – even for attorneys. How much more intimidating it must be for someone who does not have any legal education or background. The law can be a demanding and rigorous field. Attorneys are constantly under pressure to perform. Nevertheless, we should still be mindful of trying to help others whenever possible, especially pro se litigants. Answering a question does not always mean that you’re giving legal advice! So the next time it looks like someone needs some help, don’t shy away from taking a couple of minutes from your busy schedule to lend a hand. A simple gesture can often make a big difference in someone else’s day.