Posted on December 00, 0000 in Main

There are two “dueling” bills currently pending in the Illinois legislature that relate to divorce and parenting time (otherwise known as visitation). The passage of one of the bills, House Bill 1452, would introduce sweeping changes to the Illinois divorce laws. The other bill, House Bill 5425, focuses only on setting new standards and presumptions for parenting time for non-custodial parents.

Although there is not one single “standard” visitation schedule for non-custodial parents, a common default arrangement gives a non-custodial parent visitation every other weekend and one or two evenings for dinner during the week. Many in the family law profession believe this default schedule needs to change. In 2008, the Family Law Study Committee was formed to address proposed changes to Illinois divorce law. Members of that committee included family advocates, attorneys, and members of the legislature. Their recommendation was that giving both parents equal parenting time is often in the best interest of the children and, therefore, Illinois law should reflect that idea.

Continue Reading ››

 Posted on December 00, 0000 in Main

Trusts are created for a wide number of reasons; for example, they can be utilized to provide for loved ones, hold property, and pass down wealth to future generations. Supplemental needs trusts are one way that family members can help provide for disabled members of their family, while also allowing those individuals to retain their State and public assistance. This can be particularly helpful for divorcing parents with special needs children.

In Illinois, there are two types of supplemental needs trusts that can be created: third party supplemental needs trusts and supplemental needs payback trusts. Both of these trusts give the child beneficiary the means to enhance his or her quality of life by providing goods or services that are not offered by government assistance programs. A third party supplemental needs trust, also known as a 15.1 trust in Illinois, allows an individual to provide for a disabled child without interrupting or otherwise interfering with the child's Medicaid expenditures. Usually, third party supplemental needs trusts are set up by the special needs child's parents.

Continue Reading ››

 Posted on December 00, 0000 in Main

Enforcing child support is often difficult, even when the person paying support resides in the same state as the child. Enforcing child support becomes increasingly more difficult, however, when the parties reside in different states. Not only is it often difficult to find the person who is supposed to pay, but the process of enforcing the support order is also no easy feat in itself and requires the assistance of a skilled attorney to ensure that the order is issued to the proper court.

Historically, when a non-custodial parent moved out of state, the custodial parent had very limited means by which they could recover or maintain the child support payments. In 1920, the United States Supreme Court even determined that support orders were not enforceable under the United States Constitution's Full Faith and Credit Clause. At that time, to enforce an existing custody order, the custodial parent had to establish a new custody order in the new state, requiring him or her to travel to that state and initiate proceedings there. This was a time-consuming, costly, and inefficient endeavor.

Continue Reading ››

 Posted on December 00, 0000 in Main

Divorce can be a difficult and emotional process. Property is separated, child custody is decided, and the two spouses go their separate ways.

Some states' divorce statutes require a party to plead grounds for a divorce (in other words, a basis for the court to grant a divorce), such as mental or physical cruelty, attempted murder, adultery, desertion or abandonment, drug addiction, or habitual drunkenness. However, in many other states, including Illinois, a party is allowed to ask the court for a divorce without providing a substantial basis for it. This is known as proceeding under the grounds of “irreconcilable differences,” and is commonly referred to as a no-fault divorce. Using irreconcilable differences as a means to be granted a divorce, however, is more complex than simply asking for a no-fault divorce.

Requirements of a No Fault Divorce

Illinois statute 750 ILCS 5-401(2) states that in order to get a no-fault divorce, at least one spouse must be a resident of the State of Illinois for at least 90 days, and the spouses must be separated (though not necessarily physically) from each other for at least two years. The statute does provide, however, that if both parties agree, in writing to the divorce, then they need only be separated for a period of six months (though it should be noted this is not a stringent standard, assuming both parties agree). Further, the parties must state that they have made efforts to work out their problems and reconcile, but that their efforts have failed and further efforts to reconcile would be ineffective. If the parties agree to the divorce, neither must describe any specific behavior of the other spouse to “prove” irreconcilable differences; if one spouse does not agree to the divorce, however, there may need to be testimony as to the breakdown of the marriage or the bad actions of that spouse.

Continue Reading ››

 Posted on December 00, 0000 in Main

In the United States, the number of unmarried parents is on the rise. As single parenting becomes more commonplace in modern society, the stigma that it used to carry has begun to fade, and more unmarried parents are asserting their rights. This increase in the rate of single parenting makes the issue of paternity all the more important.

Paternity is the state of being a father; in Illinois, this is also known as having a father-child relationship. For some children, paternity is never legally established. Even if the child of the father is known, his name may never be listed on the birth certificate, there may never be a court determination of paternity, and the father may never play a role in the child's life. Legal paternity is the finding of a father-child relationship by a court.

Continue Reading ››

 Posted on December 00, 0000 in Main

Going through a divorce is usually emotionally difficult for all parties involved. There are many different reasons why people choose to file for divorce, but it is generally never an easy decision to make. Some couples may mutually recognize that their relationship is crumbling, that communication is strained, and that each would be better on their own. In other cases, one spouse may file for divorce without any knowledge or anticipation by the other spouse. Regardless of why a divorce is filed, there is almost always a good reason why that decision was made.

When determining whether or how to proceed with dissolution of your marriage, it is helpful to enlist the help of a trained legal professional who can help you decide what the best process is for you and your family. A family law attorney can also help explain the best grounds to proceed on in a divorce. Grounds for divorce are the legal bases courts use to allow a divorce to proceed, and there are several different approaches and grounds possible.

Continue Reading ››

 Posted on December 00, 0000 in Main

No couple enters marriage with the expectation of getting a divorce; however, life has a way of offering the unexpected. Although determining the exact national divorce rate is difficult, a large number of marriages will come to an end. One particular hot button issue is how to divide the property owned by both spouses.

The Agreement

Spouses who agree about how the marital property should be divided may enter into what's known as a “Marital Settlement Agreement (MSA).” The MSA must be in writing. It is wise to use an attorney to draft the MSA, especially in instances involving complex financial issues. If a couple cannot agree, a court will decide how the marital property is to be divided.

Marital or Non-Marital Property?

The court will classify all property owned by the spouses as either marital or non-marital property. Spouses will usually keep their non-marital property, while the court will equitably divide the marital property.

Continue Reading ››

 Posted on December 00, 0000 in Main

Going through a divorce is one of life's most difficult challenges. In addition to the emotional pain and anxiety divorcing spouses' experience, they must also confront the challenges associated with dividing marital assets(property acquired during the marriage). Often the biggest piece of marital property is the family home, which could have been purchased after the marriage or right beforehand, in “contemplation” of the marriage. Not only does the family home often represent the largest single asset, but divorcing spouses often also have an emotional connection to the property. Thus, determining what will happen to the home after a divorce can be a major source of contention for the spouses involved.

In dividing any property in a divorce, Illinois courts use a system known as “equitable distribution,” which means property will be divided in a manner the Court determines is fair (which is not always 50/50 between the parties). However a Court decides to divide property, it becomes particularly tricky when dealing with a piece of property, which can be “divided” in one of two ways. The house can be put up for sale and the profit or liability split between the parties, or one spouse can stay in the home and give a corresponding offset in value to the other spouse.

Continue Reading ››

 Posted on December 00, 0000 in Main

It is generally expected that the parent who has residential, primary or sole custody of the children in a divorce will receive child support from the other parent. However, what is not often realized or applied is that the parent who has custody of the children may have to pay the other parent child support. Recently, the Illinois Supreme Court decided a case in which the Court held that nothing in Illinois' law on child support restricts a court from ordering a custodial parent to pay child support to a non-custodial parent.

Recent Case in Illinois

The case, In re Marriage of Iris Turk, highlights the Illinois legislature's paramount goal of protecting the child's best interest in child custody and support cases. In Turk, the mother had originally been awarded custody of the children, and the father ordered to pay unallocated maintenance and child support. After the parents kept going back to court for modifications on the original order, the father ended up being awarded temporary custody. The court eventually awarded the father custody and the mother weekly visits with the children. On holidays, spring breaks, and summer vacations, the parents were to have equal time with the children. Nevertheless, the Court also ordered the father to continue paying child support to the mother for the upkeep of the children.

Continue Reading ››

 Posted on December 00, 0000 in Main

In a divorce proceeding, a court can sometimes award one spouse maintenance. This is a monetary award usually paid monthly by one divorcing spouse, which is supposed to help support the other divorcing spouse. Spousal support can be awarded to either spouse, and is based on the facts of a case and a judge's consideration of certain factors provided by the law. Divorcing parties can also come together and agree to the amount of support to be paid based on negotiations, or on a prior document such as a prenuptial agreement. Spousal maintenance is not awarded based on which spouse was at fault for the demise of the marriage.

Modification May Be Necessary

Sometimes, the spouse ordered to pay support may find that for one reason or another, they are not able to keep up with the maintenance payments. According to Illinois law, 750 ILCS 5/502(f), whether or not a spousal maintenance order is modifiable depends on whether or not the order was stated to be non-modifiable. For example, if the award was as a result of an agreement between the spouses, they could have agreed to have spousal maintenance in place for a specific period of time, and made the award non-modifiable.

Continue Reading ››