Contact: 847-447-6133 or ONLINE

How Does Infidelity Impact My Divorce?

Many people are shocked to learn that infidelity has little impact on how assets are divided and/or how parenting arrangements are allocated in a divorce.

Illinois is a no-fault divorce state, meaning that neither party needs to alleged that the other party is at fault in order to obtain a divorce. However, the filing party must still assert that irreconcilable differences have cause the irretrievable breakdown of the marriage. Anything can cause the irretrievable breakdown of the marriage, and none of the details of why the marriage fell apart need to be included in the divorce petition. Infidelity is just one of those reasons.

The fact that your partner has a relationship outside the marriage will not:

  1. Preclude him or her from seeking sole allocation of the children or sharing joint allocation.
  2. Prevent him or her from sharing 50/50 parenting time.
  3. Prevent him or her from involving the new person in the life of the children, should they choose to do so.
  4. Result in the non-cheating spouse getting a larger portion of the marital assets simply because of the infidelity.

In fact, the only time infidelity is relevant is when there is dissipation. Dissipation means using marital money for a non-marital purpose. If your spouse is spending money on someone outside of the marriage, buying them gifts, taking them to dinners, or giving them cash, the amounts that you can prove may be added back into the marital estate.

When should you pursue a claim of dissipation? When the amounts claimed exceed the amount of legal expenses you would expend trying to add them back into the marital estate. A few dinners and gifts probably isn’t worth pursuing. If your spouse is renting an apartment, or paying someone else’s bills on a consistent basis, then it might be worth pursuing.

The bottom line is that it makes sense to walk away with money in your pocket rather than paying attorneys to fight over your hurt pride.

If you have a cheating spouse and you want to come out of your divorce with $$, you need an efficient and ethical attorney. Contact Stuart Law Office at 847-447-6133

Child Allocation and Parenting Time Emergencies: The Basics

Many people are confused as to what constitutes a child allocation or parenting time emergency.  What is a child allocation or parenting time emergency?

You send your child for parenting time and the other person refuses to return the child.  They claim the child has been abused or neglected, or any other reason, and they are filing an emergency motion for a change of residency, and asking the court to restrict your parenting time?  Should you panic?

The first thing you should do is contact an attorney.  Even though you believe there is no merit to the allegations, you want to make sure that you properly address the allegations.  Going to court alone will more than likely make things worse, especially if the other parents has an attorney.  Many people have the erroneous idea that if they just go in and tell the judge their side of the story, the judge will see how ridiculous the other parent is being, and just throw out the whole case.  However, real judges, unlike television judges, have to actually follow the law.

The first thing the court has to determine is if this is an actual emergency. “Emergency” has a very specific meaning in family law, and the courts do not like it when parties file pleadings that actually are not emergencies just to harass the other party.  However, the court also has a duty to make sure that children are protected.  To determine if the matter is an actual emergency, the court will look at the allegations and the evidence of those allegations.  If your spouse alleges that the child came to visitation covered in bruises and that you spanked the child with a belt because he failed to do his homework, that might be considered an emergency.  If your spouses alleges that you refuse to allow your child to try out for cheerleading and that she really, really, wants to do it, and try-outs are two days away, the courts typically would not find this to be an emergency.

The court may feel that it needs additional information, in which case it might send the parties to  emergency intervention, or appoint an attorney for the child or a child’s representative.  If the allegations are serious enough and the court find sufficient evidence, the possession of the children may be given to the other parent on a temporary basis, pending a full hearing in the matter.

If you receive an emergency motion, it should be taken seriously.  Contact my office for the assistance you need.

 

Spousal Maintenance Duration Changes Coming to Illinois in 2018

Earlier this year, the Illinois General Assembly passed House Bill 2537, which will change spousal maintenance payments in Illinois and will come into effect in 2018.

There are a number of statutory guidelines which affect how maintenance is calculated for divorcing couples. Currently, the statutory guidelines apply to any couples where the combined income of the spouses is $250,000 or less. In 2018, this number will be raised to $500,000. This means that any couple with a combined income of $500,000 or less will be subject to the statutory guidelines for maintenance calculation.

If the combined income is higher than $500,000 then the court does not have to adhere to the statutory guidelines and may award maintenance according to its discretion, taking into account a number of factors such as the parties’ earning potential and standard of living.

Duration of Maintenance

The statutory duration for maintenance in 2018 will likely decrease for many divorcing couples. The statutory length of a maintenance obligation equals the length of the marriage multiplied by spousal maintenance multiplier. The multiplier works by ensuring that maintenance is shorter for shorter marriages and longer for longer marriages. The chart below describes the current multiplier

 

Length of MarriageMultiplier
Less than 5 Years.20
5-9 Years.40
10-14 Years.60
15-19 Years.80
20 or More YearsMaintenance Duration Equal to Length of Marriage or Permanent (Court’s Discretion)

 

For example, the duration of maintenance for a marriage lasting 4 years is 4*.20=0.8 years and a marriage lasting 16 years is 16*.8=12.8 years.

Beginning in 2018, instead of the multiple changing by .20 every 5 years the multiplier will increase by .04 from the 5th year of the marriage until the 20th year of the marriage. The chart below explains the multiplier changes:

Length of MarriageMultiplier
Less than 5 Years.20
6 Years.28
7 Years.32
8 Years.36
9 Years.40
10 Years.44
11 Years.48
12 Years.52
13 Years.56
14 Years.60
15 Years.64
16 Years.68
17 Years.72
18 Years.76
19 Years.80
20 Years or MoreMaintenance Duration Equal to Length of Marriage or for an Indefinite Term (Court’s Discretion)

 

Under the new system the duration of maintenance for a marriage of 4 years remains 0.8 years. But consider our 16 year marriage described above. Under the new law, the duration of maintenance for a 16 year marriage is 16*.68=10.88 years. This is nearly 2 years less of maintenance than the current laws would award a recipient spouse.

 

This new law adds some precision to maintenance duration, where a divorcing couple will no longer expect a significantly higher multiplier from one year to the next. When it comes to staying aware of the constantly shifting environment of divorce law, there is no substitute for intelligent and efficient legal counsel.

Illinois Child Support Now Includes Income Sharing

On July 1, 2017, Illinois underwent a major overhaul of it’s child support laws. Before July 1, child support involved taking a certain percentage of the payor’s net income for each supported child, specifically 20% for one, 28% for two, 32% for three, and 40% for four or more. Although the new system appears difficult to understand, the new laws actually help to create a fairer outcome than the previous laws allowed. The new laws help to make sure each parent pays the fair share of raising a child.

Now, both parents’ incomes determine the total amount of child support. Essentially, the new law tries to make sure the child can enjoy the same quality of life he or she would have experienced if both parents remained together in an intact household. The step-by-step process is as follows:

  1. Use the Gross to Net Income Conversion Table to figure out each parent’s net income. For example, using the table, a supporting parent with a gross monthly income of $5,000 has a net income of $3,759. A residential parent with $2000 gross monthly income and one child with the supporting parent has a net income of $1,705.
  2. Combine the net income of the two parents. In the above example the combined monthly net income is $5,464.
  3. Calculate what percentage of the combined monthly net income comes from each parent. In the above example, the supporting parent’s net income of $3,759 constituted 69% of the combined monthly net income, and the residential parent’s income amounted to 31%.
  4. Use the Income Shares Chart to determine the total child support obligation. In our example, a combined monthly net income of $5,464 incurs a child support obligation of $1,001.
  5. Multiply the percentage we determined in Step 3 with the child support obligation we found in Step 4. In our example, the supporting parent is responsible for 69% of the obligation, or $690.69. The residential parent is responsible for $310.31.
  6. The residential parent’s obligation is considered paid, making the supporting parent’s total child support obligation to the child $690.69 per month.

With this new system, a residential parent with considerably higher income than the supporting parent will expect to see a smaller obligation from the supporting parent, and a residential parent with considerably lower income than the supporting parent will expect to see a much larger obligation from the supporting parent.

The Illinois Department of Healthcare and Family Services provides a Free Child Support Estimator for parents to get a ballpark idea of their total child support obligations. The estimator is a useful tool but is no replacement for a competent attorney to explain your rights and obligations.

 

Divorcing a Missing Spouse

Sometimes people have been separated for many years and have never gotten divorced.  They may figure that they have no children, they own no real property,  they have no marital property, or they never plan to remarry, so what’s the big deal? If you have been separated for many years, in the eyes of the court you might as well still be living together because your rights and responsibilities are still the same.  Anything that you have purchased is marital property, even if purchased in your own name.  Your spouse is still entitled to a portion of your pension benefits, and if you die without a will, your spouse will still be able to get a spouse’s share of the intestate estate. The only way to separate your finances from a spouse is through a legal separation, which is a court proceeding, or a divorce. [continue reading…]

Other Parent Doesn’t Pay Support. Do I Have to Let Him or Her See the Kids?

The short answer is:  more than likely.

If you are no longer with the other parent of your children, the court entered either a visitation schedule via a parenting agreement, or a parenting plan via an allocation judgment.  This schedule should cover weekly visitation, as well as breaks, birthdays and holidays.  What happens when the parent who has a child support obligation fails to pay?  Can you just revoke that parents’ time with the children?

What does the law say?

According to the law, child support and time with the parent are completely unrelated.  If your children’s other parent is under an obligation to pay support, and has not paid, you cannot withhold the children from visits in retaliation.  In fact, doing so might subject you to a charge of visitation interference.  Visitation interference is a criminal offense in Illinois.  A person committing unlawful visitation or parenting time interference is guilty of a petty offense. Any person violating this Section after 2 prior convictions of unlawful visitation interference or unlawful visitation or parenting time interference, however, is guilty of a Class A misdemeanor. 

So what do I do?

You send the children regularly for visits and deal with support through the proper channels with the court.  If a parent is not paying support, you can seek help collecting from the States’ Attorney via the IV-D program.  The advantage to the IV-D program is that it’s practically free.  The disadvantage is that it takes significantly longer to get your case to a hearing than if you hire a private attorney.

If you choose to use a private attorney, you will have to pay a retainer up front, but the attorney can seek to have the other parent, who is violating the support order, reimburse you for your legal fees.  The amount that is reimbursed is up to the judge, so it may not be the full amount of what you’ve had to spend to enforce your child support order.

If the other parents has failed to pay due to unemployment, the court can force that parent to keep a job diary, where that person comes to court and reports on job seeking efforts, usually on a weekly basis.

What if, after all this effort, the other parent still hasn’t paid?

When a parent has violated a court order to pay support, the person who is owed support can filed a pleading that asks the court to order the other parent to pay and get caught up.  After a hearing, the court will set the amount owed, and will set a date by which that amount should be paid.  This is called a purge.  If a person has not paid the purge by the date set by the court, the judge can incarcerate the delinquent parent until he or she pays the purge.

Do you need assistance with modifying a visitation schedule or with collecting support?  I practice in Cook, Lake and DuPage counties, and can help you.  Give me a call at (708) 466-6912.

 

Uncontested Divorce – The Basics

First we will start with what’s not an uncontested divorce.  If you don’t know how to contact your spouse, you cannot get an uncontested divorce.  You will be able to get a divorce by default, but even still, that it not as easy as it sounds.  I will address a divorce by default in another article.

An uncontested divorce is one where the parties have agreed on how they will divide their assets and liability, who the children will live with, who will make decisions for the children, and how much support and/or maintenance will be paid.

What Are the Advantages of an Uncontested Divorce?

The main advantages to an uncontested divorce are:

  • Cost – It’s usual done for a flat fee.  You know up front how much the entire divorce of going be.  If you are looking for a cheap divorce, it’s your best option.
  • Control – You determine the outcome.  When people fight, usually no one is happy with the outcome.
  • Efficiency – You can be divorced much faster if it’s by agreement…usually within 30 days from the date of filing.

Assets and Liabilities

Under Illinois law, everything that is purchased after the date of marriage, and every debt that is accrued after the date of marriage, is marital in nature.  People are frequently surprised to learn that even though they purchased cars, property, and accrued credit card debt in their separate names, in the eyes of the law, these are marital assets or liability.  The only way to make property non-marital after the date of the marriage is to draft a post-nuptial agreement.  Of course, the agreement must comport with Illinois law.  Attempting to such a document on your own, or via something you found on the internet, could leave you in a much worse position.

On the other hand, if you owned property prior to the marriage, that property may be non-marital in nature.  I use the caveat that it may be non-marital because non-marital property can become marital property depending on how it’s handled during the marriage.

Other assets include retirement benefits.  Since all income earned during the marriage is marital money, it follows that all retirement benefits accrued during the marriage are a marital assets.  In the context of an uncontested divorce, you must decide how these benefits will be divided.  You should also keep in mind that a separate order called a Qualified Domestic Relations Order or QDRO is needed to divest the benefits from the retirement plan.  This would not be included in the cost for an uncontested divorce.

In the context of an uncontested divorce, the parties should have discussed all these issues and reached a resolution as to what party will be taking what assets and what party will be taking what liabilities.  They should also make note of any property that they consider to be non-marital in nature.

Allocation of Parental Responsibility

Illinois no longer has custody.  As of January of 2016, the new statutory framework is allocation of parental responsibility.  The four areas are healthcare, education, religion and extracurricular activity.  Both parents can be responsible for making decisions in all four areas, or there can be some combination of the above.

The parents also have to decide on parenting time for the children and which address will be the primary address.  The purpose of the primary address is mainly for registering the children for school.  It does not give one parent any superior rights over the other parent.  The rights are governed by the terms of the allocation agreement.

Next Steps

If you think that you might be a candidate for an uncontested divorce, please give me a call.  My office is conveniently located in Skokie, and I can be reached at (708) 466-6912.  I handle uncontested cases in Cook, Lake, Dupage and Kane counties.

 

What Happens to My House in a Divorce

As more and more people get married at a later age, many already own real estate.  How real estate is treated in a divorce is treated in the divorce depends on many factors, including the course of conduct before and during marriage.  I will illustrate with a few examples:

Example 1

Adam and Brenda both own condos before the marriage.  They want to sell their condos and purchase a home once they are married.  Brenda nets $100,000 from the sell of her condo, and Adam nets $40,000.  They use the full $140,000 as a down payment on the marital home, which they buy after the marriage, and place in joint tenancy.  Five years later they get divorce.  The property has gained no equity, but the initial investment of $140,000 is intact.  Brenda wants her $100,000 back when the house is sold, as she believes this is her non-marital property.  Is Brenda entitled to her full $100,000 towards the down payment?

The answer is:  NO.

When Brenda took her non-marital money and placed it in a marital asset, she made a marital gift to Adam.  Therefore, each is now entitled to 1/2 of the equity in the home.  Brenda loses $30,000, while Adam gains $30,000.

Example 2

Larry marries Jane and they move into his home.  It is clear that this is his non-marital home, and Larry had never done anything to put Jane’s name on the title or the mortgage and note.  When Jane lived in the home, she contributed towards the mortgage and helped with household expenses, not including upkeep of the house.  After a few years of marriage, Jane moves out.  She lives on her own for two years before filing for divorce.  After she moved out, Larry lost his job and struggled financially.  His home went into foreclosure.  Now that they are getting divorced, he claims that Jane should be responsible for any deficiency that results from the foreclosure because she abandoned him.   Is Jane responsible for any of the debt related to Larry’s house?

The answer is:  NO.

This is Larry’s non-marital property.  Jane is not on the mortgage or the note.  In Illinois one can own non-marital property free and clear of any interest in the other, and this is what the parties did.  The fact that Jane left and Larry fell on hard times does not turn Larry’s debt into a marital debt.

Are you contemplating divorce and wonder how property will  be divided?  Give me a call.  I practice in Cook, Lake and Dupage counties and can be reached at (708) 466-6912.

Three Tips for a Successful Mediation

Ad a divorce mediator in Chicago and elsewhere in Illinois, Many people ask me about the pros and cons of meditation, and some of them have been addressed in my prior article.  However, once you have decided you want to try mediation, it can help to keep in mind the following three tips for successful divorce mediation. If you are interested in divorce mediation, you can contact me or check out a mediation website I’m a part of [click here].

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New Changes to Illinois Child Custody Laws Coming in 2016

Forget everything you thought you knew about custody in Illinois, or what your divorced friends have told you about custody in Illinois.   Come January 1, 2016, custody in Illinois ends as we know it.

Bye-bye Sole Custody, Joint Custody and Visitation

Are you seeking sole custody or joint custody with visitation?  After January 1, 2016, those terms will no longer exist.  The new framework is allocation of parental responsibilities with parenting time.  Parental responsibility is broken down into categories, such as health, education, religion, extra-curricular activities, etc.  One or both parents is given sole or joint responsibility for these categories.  No one knows how the new law will play out in court, but the purpose was to level the playing field.  Under the current scheme, to defeat joint custody, the parent seeking sole custody usually argued that the parties don’t get along and that joint custody would be burdensome.  Under the new framework, both parents are equal stakeholders with the purpose of the law being to maximize the time the child spends with both parents and to encourage cooperation, rather than adversity, in child rearing.

Child’s Best Interest for Allocation of Parenting Time

The current statutory framework is amended as follows: In determining the child’s best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:

  1.  the wishes of each parent seeking parenting time;
  2. the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time;
  3. the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child’s birth;
  4. any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child;
  5. the interaction and interrelationship of the child with his or her parents and siblings and with any other person who may significantly affect the child’s best interests;
  6. the child’s adjustment to his or her home, school,and community;
  7.  the mental and physical health of all individual involved;
  8.  the child’s needs;
  9.  the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement;
  10.  whether a restriction on parenting time is appropriate;
  11.  the physical violence or threat of physical violence by the child’s parent directed against the child or other member of the child’s household;
  12. the willingness and ability of each parent to place the needs of the child ahead of his or her own needs;
  13. the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
  14.  the occurrence of abuse against the child or other member of the child’s household;
  15.  whether one of the parents is a convicted sex offender or lives with a convicted sex offender and, if so, the exact nature of the offense and what if any treatment the offender has successfully participated in; the parties are entitled to a hearing on the issues raised in this paragraph
  16.  the terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed; and
  17.  any other factor that the court expressly finds to be relevant.

What Does this Mean for Divorces with Children?

It means that parenting agreements will necessarily be much more complex, making it imperative that you hire a competent attorney who is well versed in the new law.  Many of my cases are complicated custody cases, and child representatives have already started implementing the changes, as have the judges that I’ve been before in anticipation of the new law.  This means that come January 1, 2016, I will be ahead of the curve.

What do I do next?

To schedule an appointment, please call Rhonda Stuart at (708) 466-6912.