Many people are confused as to what constitutes a child allocation or parenting time emergency. What is a child allocation or parenting time emergency?Continue reading “Child Allocation and Parenting Time Emergencies: The Basics”
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.Continue reading “Spousal Maintenance Duration Changes Coming to Illinois in 2018”
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.Continue reading “Illinois Child Support Now Includes Income Sharing”
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 “Divorcing a Missing Spouse”
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.
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.
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.
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:
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.
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.
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].
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:
- the wishes of each parent seeking parenting time;
- the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time;
- 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;
- any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child;
- 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;
- the child’s adjustment to his or her home, school,and community;
- the mental and physical health of all individual involved;
- the child’s needs;
- 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;
- whether a restriction on parenting time is appropriate;
- 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;
- the willingness and ability of each parent to place the needs of the child ahead of his or her own needs;
- the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
- the occurrence of abuse against the child or other member of the child’s household;
- 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
- 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
- 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.
Starting January 1, 2015, a new law determining spousal maintenance is in effect for divorcing couples. Maintenance is also known as alimony (particularly by the IRS) or spousal support. The new law, P.A. 98-0961, affects couples whose combined gross income is less than $250,000. The new law was put into place to fix inconsistencies in the way different courts awarded maintenance across Illinois. As this is a new law with complex mathematical computations, it is strongly advised that you consult an attorney before agreeing to any divorce settlement that includes a maintenance award. Continue reading “Illinois Has a New Maintenance (Alimony) Law. What Do You Need to Know?”