In international family law, the Hague Convention helps navigate the course

In international family law, the Hague Convention helps navigate the course

Staci Balbirer
Illinois Fellow
American Academy of Matrimonial Lawyers
September 2022
2 people pulling on a rope

I practice family law in Illinois. So why would a potential client call me from Ecuador?

He phoned because his wife had fled from Quito with their two children in the middle of the night and, after paying off guards at the Ecuador-Colombia border, smuggled them into Chicago.

It's hardly a situation that family law practitioners handle on a regular basis. But when we do receive a frantic international call, we need to know the right questions to ask when advising a prospective client, starting with: Is this a Hague Convention1 case?

The Hague Convention ensures the prompt return of a child who has been wrongfully removed from a contracting state and dictates that rights of custody be exercised between all participating nations. It is part of the Hague Conference on Private International Law (HCCH). As of 2022, the HCCH counted 90 countries among its signees, as well as another 65 "connected parties" that operate in agreement with HCCH practices.

To determine if the Hague Convention comes into play, ask: Was the child removed from one of the Hague Convention's signatory countries?

If not, the conversation ends there; the Hague Convention would not apply. In this case, Ecuador had signed the Convention.

Then, continue with:

Were the children wrongfully removed? To determine that, we need to know what constitutes a wrongful removal under the Convention.2

Ecuadorian law requires either the consent of both parents or a Court order before the removal of minor children. The children for my case had both Ecuadorian passports—held by their father, an Ecuadorian citizen—and U.S. passports—;held by their mother, a U.S. citizen now living in Ecuador.

But because the mother had failed to get her children's U.S. passports stamped when they crossed the border from Ecuador into Colombia, we could argue that the children's mother had indeed wrongfully removed them.

We also provided the court with text messages showing that when the father asked to speak with their children, the mother refused, falsely claiming they were sick. When the father finally went to check on his two children, they and his wife were gone.

Having determined that the Hague Convention applies, we can drill down further: Does the potential client have visitation rights or actual custodial rights?3 And are the children "habitual residents" of the nations from which they were taken?4

So far, so good. The father indeed had custody rights under the Convention; and the children only had resided in Ecuador, confirmed by their school attendance records and doctors' appointments there. They unquestionably were "habitual residents" of Ecuador; and both were under 16, a further requirement for the Hague Convention to come into play.

One final consideration remained: How long have the wrongfully removed children resided in Illinois?

In this case, we filed for the children's return within three months of their removal from Ecuado—well within the one-year limit set by the Convention.5

In the U.S., Hague Convention cases can be filed in state or federal court; the choice usually comes down to docket traffic and deadlines. With all our ducks in a row, we made the decision to file in federal court, which redirected us to Illinois state court. Faced with lengthy delays there and in the best interests of the children, all parties chose to resolve the case out of court.

The father chose to move to the U.S. and enjoys co-parenting time with his kids. His decision was based on his belief that the children needed to have both parents nearby—complicated by the fact his wife's actions in wrongfully removing the children could subject her to criminal charges, and would deter her from ever travelling to Ecuador. Although he had a strong case to bring the children back to Ecuador, the father instead opted to serve the best interests of his offspring.

While this case did not go to trial, it provides a primer on how the Hague Convention works. In Illinois, family law practitioners' clients can extend significantly beyond the state line—or even the U.S. borders. As it turns out, future clients can live anywhere, even internationally. But you do have to know to ask the right questions.

For more information about Hague Convention provisions
1 In 1980, the HCCH enacted the Hague Convention on the Civil Aspects of International Child Abduction, commonly known as the Hague Convention.
2 Article 3 of the Hague Convention states that wrongful removal (or retention) of a child occurs when (a) it constitutes a breach of custody rights as recognized by the country where the child resided; and (b) when the applicant—the father, in this case—was actually exercising those rights at the time the child was removed (or would have exercised those rights "but for the removal or retention").
3 The Convention notes that "rights of access" include taking children from their home for a limited period of time (visitation rights); and "rights of custody" relate to an adult's care of the children—and particularly the right to determine their residence. In this case, the father was exercising his custody rights; if not, he would have no claim to bring his children home. (The definition of "rights of custody" varies among nations, making it essential to dive into the specific laws involved.)
4 The Convention does not define this term, but the U.S. Supreme Court has held that a child's habitual residence depends on a full understanding of the specific circumstances, as opposed to any actual agreement between parents on where to raise their child.
5 Article 12 of the Convention specifies that cases be filed within one year of the wrongful removal (although the article makes exceptions designed to prevent the "grave risk" of physical or psychological harm to the children).

Staci Balbirer

Reach her at sbalbirer@agdglaw.com or 312-755-3145.

Language, Language! In Family Law, It Can Make The Case

Language, Language! In Family Law, It Can Make the Case

Steve Rakowski
Illinois Fellow
American Academy of Matrimonial Lawyers
August 2022
Illustration: 2 people yelling at each other through megaphones

Walking the walk is one thing. But can you talk the talk?

Attorneys, who serve ethnic communities, soon learn a vital lesson: their clients, when choosing a lawyer, prioritize language. Specifically, they want a lawyer who can communicate in the client's native tongue. This question takes precedent over a C.V. listing years of experience, multiple law-journal articles or even five-star Google ratings.

The most important question for anyone seeking legal advice is if an attorney can fully convey the nuances of the law—especially in domestic cases, where emotions run high—and then provide clear advice on next steps. When the client and attorney literally speak different languages, the process gets significantly more complicated. This is especially true when parents enlist their children—who may be directly impacted by the case—as translators.

This goes beyond the words alone. Language is the threshold to culture, and culture encompasses deeply ingrained ways of thinking. A client's culture may foster an outlook different from that of an opposing lawyer, or even from that of the judge. That's when the attorney must find a way to translate not only the words, but also the concepts on which the case rests.

I am Polish—fifth generation. Yet despite 32 years in practice, I still do not understand the thought processes of my first- and second-generation Polish clients. My family lost the language in the 1950s, when the anti-communism campaign conducted by Sen. Eugene McCarthy led my grandparents to ban the speaking of Polish both in and outside the house. As proud Americans, they wanted to assimilate fully, and also wanted to ensure that their kids got a fair shake when applying for schools and jobs.

But assimilation is no longer the goal of every immigrant. Ethnic communities now maintain their native culture. They buy goods and services from those who speak the same language, usually because it facilitates trust. Because I cannot talk to my Polish clients in the language they find most comfortable, I do not presume to know exactly what or how they may think, even though we share the same ethnicity.

For example, I have one Polish client who speaks passable English but prefers Polish, and when we discuss her case, we always end up quarreling. Her responses and questions convey a mistrust I cannot assuage; the harder I try to reason with her, the more arduous our conversations become. In frustration, I asked my Polish-fluent paralegal—my wife, Joanna Zagozdon—to handle these communications. This simple change elicited a remarkable change in the client's demeanor, from suspicious to cooperative—even grateful. I collaborated closely with Joanna and directed the messaging, so I know this transformation went beyond the choice of words.

I have seen a similar dynamic at play in court, when non-English-speaking pro se litigants use interpreters to translate exchanges between the judge and both attorneys. Such third-person communication, taking place in the crucible of a court appearance, is not conducive to making informed decisions, no matter what the interpreter's level of legal knowledge. In my experience, the lack of cultural understanding in the courtroom can lead to acrimony and defiance.

Miscommunication is all but guaranteed if an attorney does not speak the client's native language. The best solution? Always have someone on staff who is fluent in clients' language—Polish, in the case of my practice. A native speaker with legal experience can put the client at ease, while clarifying the sensitive details of family law and, of course, maintaining confidentiality.

As a second option, in the absence of a bilingual staffer, use a client's family member or friend as a go-between. This arrangement entails reminding the client of the confidentiality challenges posed by third parties. The downside? Family members may be so emotionally invested in a divorce or custody case that, in translation, they inadvertently corrupt legal advice, through inflection or adlibbed commentary.

Some might see the use of free online translation apps as a third option. But this is really no option at all, given the contextual nuances of the law as it applies to each case. You get what you pay for.

Beyond its cultural implications, language also influences perception, to a degree best explained by neuroscientists who have identified a critical link between language and emotion. Such research posits that the use of “emotion words” to label facial expressions may help concretize otherwise ambiguous facial expressions. Other neuroimaging studies show that brain regions involved in perception and experience also become active when one weighs semantic judgments. This evidence helps explain why language, rather than merely describing emotions, may play an integral role in shaping that emotion in the first place.

vAnd in our business, emotion is prevalent. As divorce attorneys we strive to separate ourselves from a client's emotions. But most clients see the situation differently. They relish their emotion; it is their currency. In such instances, our ability to relate directly to that mind-set may determine whether the client retains an attorney at all, and then how the case will proceed.

Its well worth the time and energy needed to see things from the client's perspective: it often leads to a better relationship with a more appreciative client who can better navigate the pitfalls of the case. And besides, we all could use a few more five-star Google ratings.

Steve Rakowski gratefully acknowledges the patient guidance of Polish attorney Joanna Zagozdon in developing the content of this article.

Steve Rakowski

Reach him at steve@lsrfamilylaw.com or at 847-412-9950

The Impact of Inflation on the Division of Assets for Small Business Owners

The Impact of Inflation on the Division of Assets for Small Business Owners

Jennifer Fletchall
Illinois Fellow
American Academy of Matrimonial Lawyers
April 2022
Division of Assets in a small business

The United States has hit the heights. That's not a good thing.

In 2022, the annual inflation rate in the U.S. accelerated to 7.9%— the highest since February of 1982. (Keep in mind that in developed countries, including the U.S., anything above 4% is considered "high.") And inflation is predicted to increase in coming months as we start to feel the impact of the war in Ukraine and the world's sanctions against Russia.

Inflation is the rate at which the value of the dollar falls at the same time that the price of goods and services is rising. This reduces purchasing power. The math is pretty straightforward. Higher costs for businesses lead to increased prices, which raise the cost of living. This in turn may lead to demand for higher wages, which results in worker shortages if employees leave for better pay from a competitor. These shortages can force businesses to offer higher wages to entice workers to return—which means higher costs. And the cycle begins again.

From a macro-economic standpoint, as prices rise, the value of a country's currency begins to decrease. But inflation also can quickly filter down to individual households, where the largest assets are the marital residence, retirement accounts and businesses—all of which must be properly valuated during a divorce settlement.

To gauge the impact of inflation on a personal level, just check your retirement account balance; if it's lower than it was three months ago, inflation is most likely the cause. Inflation also can reduce the value of the marital estate; the future cost of consumer spending; the value of spousal maintenance; and especially the value of the small business that has supported the home and purchases over the years. (All of these factor into the division of assets.)

For a small business, inflation's effects may not immediately be obvious.

  • Inventory Costs. Inflation causes businesses to pay more for inventory as well as materials. If these costs cannot be met, it can lead to an inventory shortage.
  • Employee Wages. When the price of goods increase, employees will want a higher wage. If a company is unwilling or unable to increase wages, talented employees may leave.
  • Consumer Purchasing. Another consequence of rising prices: the number of consumers buying those goods decrease.
  • Investment. To correct inflation, the Federal Reserve hiked interest rates in mid-March, for the first time in three years. Higher interest rates often deter business owners from borrowing money for investments in equipment and facilities.

To achieve an equitable appraisal, business owners should strongly consider employing a business valuation expert, who will typically choose one of three methods: the Asset Approach, the Market Approach or the Income Approach. Most of these experts, when valuating a small business for a divorce settlement, will choose the Income Approach. It includes an analysis of the business’s cash flow over the last five years, as well as projections of future cash flow. Notably, the business valuation expert also will determine the impact of inflation, along with other factors, on that cash flow.

Inflation impacts the value of a business primarily in three areas.

  1. It can alter the risk-free rate, which is used in calculating the cost of equity. As the name suggests, the risk-free rate is the rate of return an investor would expect on an investment that has no risk. It is determined by using the interest rate on a Treasury Bill, a very safe investment since these are backed by the government. As interest rates rise, the risk-free rate will also rise—which, all other things being equal, would decrease the value of the business.
  2. Inflation may also affect the after-tax cash flow of a business. If a business incurs additional costs due to inflation—and if revenue does not rise accordingly—a business’s after-tax cash flow will decrease. Again, all other things being equal, this can decrease the value of the business.
  3. Finally, inflation can change the effective tax rate paid by a company. Take the example of a company that deducts depreciation expenses related to newly purchased equipment. If decreased cash flow (or lack of funds) prevents the business from making such purchases, it will have no new assets to depreciate; the company then loses the opportunity for pre-tax depreciation. Inflation is the root cause, and this too will reduce the business’s value.

Inflation not only afflicts individual consumers faced with higher prices at the grocery store, the gas pump and the mall. It also affects small businesses that already are walking the tightrope between increased costs and maintaining profitability. If the business owner is in the process of obtaining a divorce, inflation must be considered in calculating the value of the business—and, correspondingly, the value of the marital estate—to arrive at a fair and equitable conclusion.

Jennifer Fletchall

Co-Parenting in the age of COVID-19

Co-Parenting in the age of COVID-19

Tiffany Alexander
Illinois Fellow
American Academy of Matrimonial Lawyers
March 2022
COVID Divorce

Judging from tabloid television and social-media memes, the subject of divorce holds the same fascination as a highway accident: many people know it’s bad but can’t look away. And in the last two years, that gapers’ block has turned into a 24-mile traffic jam.

During lockdowns, many couples quickly realized they didn’t want to spend that much time together. The worldwide disruptions caused by COVID-19 have only amplified the usual reasons to initiate a divorce. But a substantial portion of legal disputes arose from unexpected changes in the family dynamic due to the global pandemic.

During the last two years, we have seen a flood of new issues involving alimony and modifications of child support; relocation of children; changes in parenting time to accommodate high-risk family members and essential workers; and enrollment of children in remote-learning versus in-person classes.

The level of conflict has escalated since 2020, with even more issues stemming from our “new normal.” This altered landscape also has intensified the role of divorce attorneys, who often find themselves acting as mediators and parenting coordinators for families unable to move forward after so many months in gridlock.

In so many situations, people’s respect for the opinions of others has greatly diminished, as you can see by spending five minutes on social media. The list of taboo subjects now includes masks and vaccines for children. Sadly, in the absence of parental cooperation, the legal system is forced to render decisions on these divisive issues, which almost always results in further conflict.

Here are several cases to illustrate particular problems that have arisen during the pandemic and continue to affect separated families. While hypothetical, they all are drawn from my own experience with couples who had entered into joint parenting agreements before the pandemic. These families had spent years working through their differences and effectively co-parenting, even after they had remarried and established new households in suburban Chicago.

  • In July 2020, Susan and David disagreed on schooling. Susan, a teacher, adamantly supported their children’s return to classroom learning, in line with her own decision to teach in person. David, whose employment allowed him to work at home, remained concerned about infection in a school setting. He filed a motion to prevent his children from attending classes in person.

    A guardian ad litem (GAL) was asked to make a recommendation, which the judge used in ordering a program of hybrid learning where the children spent the remote portion of their school day at their father’s house. This solution mitigated but failed to alleviate David’s concern. By leaving it up to the court, he essentially conceded his responsibility to jointly decide the best course of action for their children.

  • Pre-pandemic, George’s work schedule required his former wife Betty to act as their children’s primary care provider. When George began working from home in 2020, he was able to take a larger role. So, in April 2021, and with his second wife also home full-time, George petitioned the Court to evenly split their parenting time. George argued that the children were thriving thanks to his increased attention.

    After a GAL was appointed to investigate, George filed an emergency motion to restrict Betty’s parenting time, on grounds that Betty and her new spouse were not vaccinated, and that they traveled to Wisconsin with no concern about exposing the children to COVID-19. George grew concerned that their carelessness might result in the children spreading the virus to his newly pregnant wife. Refusing to acknowledge and negotiate changes in their home lives, the couple essentially asked the court to validate one parent’s life choices over the other, using the children as a wedge. The emergency motion languished, but the filing spurred more animosity in subsequent motions over co-parenting.

  • Last June, Sean wanted his teenaged son to get vaccinated. Sean’s ex Liz objected, claiming that because the boy had already contracted the virus he was likely immune. The son told both parents that he wanted the vaccine in order to hang out, unmasked, with his friends. Noting the son’s preference, the GAL recommended vaccination, to Liz’s chagrin. When vaccine eligibility was extended to younger children, Sean—wishing to avoid another Court dispute—scheduled their 8-year-old daughter for the shot without seeking Liz’s approval. He then asked the child to keep her vaccination status secret, dragging her into their fight and jeopardizing her trust in both parents.

In each of these cases, the ability of parents to cooperate eroded under the weight of the pandemic, leading them to cede important family decisions to a guardian ad litem and an unfamiliar judge. Ongoing litigation feeds further animosity; parents channel unprecedented stresses into mutual distrust. They fail to hear their children’s voices. And the kids are not all right. They have been left to advocate for themselves, through a GAL, when what they need is support and assurance from both parents.

In the same way that a series of adrenaline rushes can physically fatigue the body, the steady drumbeat of virus-created stressors has fatigued the spirit, crippling these parents’ capacity for compassion and cooperation in addressing solvable issues.

Similarly, the onslaught of novel crises during the pandemic—with no valleys of calm in between—has deepened the cracks in the family legal system. COVID-19-fueled disputes have added to the caseload: one dispute after another, fewer periods of reflection, more fighting, more GAL appointments. As a result, co-parenting arrangements now must include new discussion of remote learning, masks, travel, vaccines and more. This global pandemic has irrevocably changed family court proceedings, as the court faces an increase in the newly contentious issues that have been added to its docket since 2020.

Tiffany Alexander

The Modern Prenup

The Modern Prenup

Shana L. Vitek
Illinois Fellow
American Academy of Matrimonial Lawyers
February 2022
Prenup cartoon

On a recent episode of “Shark Tank,” two entrepreneurs pitched an investment in their online business called “HelloPrenup.” Engaged couples can create their own agreement “together” on this cheerfully designed website. They complete a questionnaire; pay about $600 to obtain the completed contract; and can then make their agreement official by signing it without consulting an attorney.

My anxiety escalated just at the thought of couples who rely on preprogrammed questions—without legal advice—to create legally binding prenups. I waited for the Sharks to start pointing out all the problems I saw with this process. To my surprise, not one but two Sharks ultimately invested in the business.

Approximately 2.7 million marriages will take place in the United States in 2022. Of those, an estimated 5% of couples will have executed a premarital agreement before walking down the aisle—a surprisingly low percentage considering the U.S. divorce rate consistently drifts between 40% and 50%. Many lawyers see a specific uptick in the number of millennial couples requesting a prenuptial agreement. One factor is that the average age of those in first marriages has risen, which means that each spouse has had more years to work and build wealth they wish to protect.

The website “HelloPrenup” promises a “frictionless prenup for modern couples.” But who are these “modern couples?” If they are two healthy individuals with similar incomes, who do not plan to have kids, I could envision this “frictionless” prenup working. But this is not the typical prenup client. More commonly, one spouse has (or expects to have) substantially more wealth than the other. And the other spouse signs the agreement — without due diligence or understanding what is being surrendered—to prove it’s not about the money.

Consider the following scenario: Jack and Jill plan to get married. In their early 30s, both have good jobs and retirement accounts with similar balances. As a “modern couple,” they decide to create an online prenup. Because they earn similar incomes, each agrees to waive maintenance. They agree to keep their own retirement accounts and any other accounts in their sole names. They agree that any joint assets should be split 50/50. Easy, right?

Now jump ahead 13 years or so. Jill stopped making retirement account contributions since quitting her job four years into the marriage to care for their three children— one with special needs. Conversely, Jack now earns five times more than when they married; has received a large inheritance; and has a million-dollar retirement account.

Many would say that due to these changed circumstances, enforcing the terms of this prenup would be unfair: a court would never uphold that prenup. They would be wrong. In fact, the court will most likely find the agreement fully enforceable.

Premarital agreements should not be taken lightly. They are powerful contracts that can effectively and efficiently protect both spouses in the event of divorce. That’s why both parties need their own attorney to review the agreement prior to signing it. Just as no two divorces are exactly the same, no two marriages are exactly the same—and no two prenups should be the same.

Lawyers can ensure the terms are legally fair for both spouses. And keep in mind that as circumstances change, your prenup can be supplemented, modified or voided by agreement during the marriage. Knowledge is power.

There are several reasons for each party to hire an attorney to review and advise you about a prenup:

  1. Divorce laws vary from state to state. If you don’t know what the law entitles you to have, you won’t know what you are giving up.
  2. Devastating outcomes can result from poorly drafted prenups, and not just for the spouse with less money. A spouse who is wealthy on wedding day may have agreed to pay a lump sum to the other in the event of divorce, but later experiences a financial catastrophe. That spouse may still be required to pay that substantial lump sum.
  3. A prenup is nearly impossible to invalidate, and many include clauses that penalize a spouse for challenging the validity of the prenup. For example, if someone challenges the prenup and loses, they could be ordered to pay the other’s attorney fees in addition to their own.
  4. Plans change. Couples who don’t plan to have kids change their minds. People change careers. What might have seemed fair at the time of the marriage may be completely inequitable 10 years later.
  5. Having lawyers review a prenup provides an added layer of validity. The presence of attorneys makes it much harder for someone to claim they didn’t know what they were signing.

Over the years, many divorce clients have told me they wish they had entered into a premarital agreement before tying the knot. But that desire was ultimately outweighed by the fear of offending their partner or creating conflict during this joyous time in their lives. So, what is the best way to broach the topic with your future spouse without derailing the entire engagement?

Negotiating a prenup is not something you should do the week before the wedding. Raise the idea of a prenup as soon as possible, even though you may be uncomfortable doing so. If diving right into the topic is intimidating, start a conversation about how you would like to handle finances during your marriage. Do you know what assets and debts your spouse has? Will either’s home become the marital residence, and if so, how will the expenses be paid? Will bank accounts be kept separate?

As these conversations unfold, you can easily pivot toward the possibility of a prenup. And if you agree to create one, schedule a time to consult with attorneys to understand the process.

People don’t get divorced without an attorney, so why would they create a prenup—which will dictate what happens in a divorce—without an attorney? The divorce rate approaches 50%. If you booked a vacation and knew there was a 50% chance you would have to cancel, wouldn’t you pay for travel insurance? You can apply the same risk management principle here.

Shana Vitek

©2022 Illinois Chapter of the American Academy of Matrimonial Lawyers