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.

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 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.

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 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.

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 Posted on December 00, 0000 in Main

During a divorce in which children are involved, one of the main issues may be determining visitation. Whether the parents have joint custody or one parent has sole custody, visitation may still be an issue. Visitation in Illinois is considered more for the benefit of the child, and a parent who is not awarded primary custody is entitled to reasonable visitation, unless a court determines that visitation is not in the best interest of the child. However, Illinois law requires that before a judge may restrict or limit visitation, a hearing must be held to determine whether awarding a parent visitation would seriously endanger the child's physical, mental, moral or emotional health.

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 Posted on December 00, 0000 in Main

Having children is one of life's major decisions. Whether a couple decides to have a child before or after marriage, there are issues that can arise if the couple decides to later separate. These issues usually revolve around visitation, child custody and child support. Generally, these issues are handled the same as a couple going through divorce. However, there may be some complications in resolving these issues when it comes to unwed parents, depending on the couple's relationship.

Establishing Paternity

The first step to dealing with custody and visitation of children born to an unwed couple is to determine paternity of the child. There are three ways in which paternity can be established in Illinois. Some of these ways may include a DNA test. Paternity can be established by:

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 Posted on December 00, 0000 in Main

Until recently, the calculation of spousal support in Illinois was based on a judge's discretion after the consideration of several factors found in the Illinois Marriage and Dissolution of Marriage Act (the law). There was previously no set formula to calculate how much money the court had to award, if any, in spousal support. The factors assisted judges in determining spousal support by taking into account, for example, the income and property available to each spouse, future income, standard of living during marriage, and the length of the marriage.

The new revisions to the law, which take effect in January 2015, provide a formula for determining the amount of support based on a percentage of the spouses' income. These changes mainly apply to couples with a combined gross income of less than $250,000 and without a multiple family situation. There is also a formula for determining the length of time spousal support will be paid. While the factors the judges previously relied on to determine the amount of support to award, are still relevant, they are no longer the sole basis for the award of a certain amount in support. The factors will be used to mainly determine if spousal support or maintenance is appropriate in a certain case. However, because use of the formula is not mandatory, a judge may still use the factors to determine the amount of support. If a judge decides to not use the set formula, and rely mainly on the factors, he or she has to give a detailed reasoning for doing so.

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 Posted on December 00, 0000 in Main

When child support is ordered in Illinois, the order for support must be complied with until modified or the child support obligation terminates. However, not every parent who is ordered to pay child support complies. As a result, the parent will owe back child support, known as child support arrearages. Under Illinois law, mandatory interest is charged on unpaid child support arrearages. Due to the mandatory interest, when a parent is unable to keep up with the payments, it is important to seek a modification of the original child support order. A petition seeking a modification allows a judge the discretion to recalculate the amount of support the parent is obligated to pay retroactive to the date of filing the motion. However, if a support paying parent does not seek a modification, the child support payments are still owed and the balances will draw interest.

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 Posted on December 00, 0000 in Main

Recently, the Illinois law governing child custody and visitation was changed to provide parents in a joint custody arrangement with an opportunity to spend more time with their child. Prior to the amendment, unless otherwise agreed, a parent who had to arrange for childcare during his or her custodial parenting time had no obligation to notify the other parent of the opportunity to care for the child. However, this change to the law now requires a parent, who needs childcare for a significant period of time during his or her arranged parenting time, to first contact the other parent to see if he or she is able to take the child at that time.

Right of First Refusal

The right of first refusal, as the new provision is called, may be granted to one or both parents in a joint custody arrangement by a judge in his or her discretion. As with most other issues surrounding child custody and visitation, a judge arrives at the decision to grant or deny the right of first refusal by considering the best interests of the child. The law recognizes that it is in the best interest of the child to spend as much time as possible with a parent, instead of a child care provider. The only exception to this right being triggered is in cases of emergency. However, when one parent has advanced notice of needing childcare, he or she has to inform the other parent first.

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 Posted on December 00, 0000 in Main

When a parent goes through a divorce and later remarries, he or she may have concerns about how the new family will impact support obligations to the old family and vice versa. Questions may arise regarding whether new children will affect earlier child support orders and if a new spouse's income will be used to increase child support payments. The attorneys at MKFM Law can help answer these questions.

Child Support Modifications in Illinois

In Illinois a parent can be ordered to pay child support with a minimum payment amount calculated according to guidelines set by law. Illinois judges must follow the guidelines, unless circumstances exist which would allow the court to deviate from the guidelines to award greater or lesser amounts in child support. Two factors judges may consider when deviating from the guidelines are the financial resources and needs of both the custodial and non-custodial parents.

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 Posted on December 00, 0000 in Main

When married couples split on bad terms, one or both spouses may try to gain an upper hand by taking money from the couple's bank accounts for their own purpose. While this may feel satisfying for a while, a court will factor the taking of funds in this manner when later dividing the marital assets.

Dissipation of Marital Assets

The taking of marital funds or other marital assets by one spouse for his or her, own personal use, unrelated to the marriage, during a divorce or legal separation, is referred to as dissipation of marital assets. For example, if a spouse is spending marital funds to support a paramour, this would be considered dissipation of marital assets.

Under Illinois law, when a court is dividing marital assets, the judge cannot consider any marital misconduct. It can, however, consider a spouse's dissipation of marital funds. When a spouse is accused of dissipation, he or she has the burden of proof to show how the funds were used. To meet this burden, the spouse accused of dissipation needs to have very detailed records of how the money was spent and must show that the expenses were incurred for the benefit of or related to the marriage.

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