Illinois Family Law

My grandmother was a wonderful woman who as she got older tended to repeat herself a lot. That was alright with me because she was adorable and mostly repeated things that made her laugh. Often this involved sayings that included her favorite, “It takes two to tango!”

I think of her and this saying every time someone calls me and wants a divorce lawyer referral to someone that knows about the mediation process or simply wants to do a collaborative divorce where they figure things out with the help of a mediator.

I’m a big fan of the mediation process and in fact I used to be a licensed mediator. Whenever my kids are acting up I try to use mediation tactics to diffuse the situation.

But my grandma was right, it does take two to tango. If you want to mediate and your spouse does not or is not giving it a good faith effort, then mediation is a waste of time.  It only works well when two people want to use mediation to come to a resolution or at least try to.  I did a ton of mediations back in the day where it was obvious that one party didn’t want to be there (often a Judge made them) and like a child throwing a tantrum, nothing I could say would turn around their behavior.

On the flip side, if you both can mediate in good faith it can save you a lot of money on lawyer fees.  That said, you’d be crazy not to have a lawyer in your corner either at the mediation or at least before and after to make sure of two things: 1. That you are talking about every issue that needs to be talked about.  You don’t want to settle a case and then end up back in court because you didn’t agree on what religion a child would be raised for example or because you didn’t divide up a pension. 2. That you aren’t screwing yourself over by agreeing to things that would never happen if you went to court such as not getting any child support if you are the primary custodian of the kids or having your parental rights terminated.

Those things can happen if you really want them to, but most attorneys would never advise it.  Getting a lawyer involved is about educating yourself and covering your backside. If you make a mistake it will cost way more in the long run if you have to go to court to try and fix it.

In general though while divorce sucks and nobody likes the process, if it can be amicable, that’s the best way to do it.  But there’s a big difference between “we both want to get divorced” and “we can work together to solve EVERY issue that needs to be solved.”  It’s great if you can use a mediator, but there’s no shame if you can’t.

When it comes to awarding custody in an Illinois child custody case, the number one factor is the best interests of the child. This sounds obvious, but these exact words are written into Illinois law. The best interest of the child is always the main concern of the judge. In some cases this means physical safety, where one parent may be abusive, but in many cases it’s deciding which environment would provide the best and most stable home for the child.  It’s assumed by many that the mother will get the kids and the Dad will get almost nothing and that does happen, but it’s not the law.

Instead a Judge looks at the best interests of the child.

So how does the court know what’s in a child’s best interest? The law includes several factors for the court to consider. No one factor is considered most or least important; all will be applied to determine the best interests of the child. The judge has an important job in this respect – each case is different and the factors may have different weight depending on the circumstances. For this very reason, it’s extremely important to have an attorney on your side who knows how these cases usually go, what judges tend to care most about, and how to prove that you are the best person to have custody.

Here is the list of factors that can be taken into consideration by the court in an Illinois child custody case:

1. the wishes of the child’s parent or parents as to his or her custody
2. the wishes of the child as to his or her custody
3. the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest
4. the child’s adjustment to his home, school and community
5. the mental and physical health of all individuals involved
6. the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person
7. the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person
8. the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child

If, when examining these criteria, none of the factors clearly point to one parent or the other, the court usually will look to the parent who can provide the most stable environment for the child. If this is how your case will be decided, you will want to make the best argument possible. We believe having the right attorney can make a big difference.  Often the Judge will appoint a Guardian Ad Litem (GAL) to help them make the decision.  Hiring an attorney who knows the GAL’s well can be the difference between winning and losing.

If you have any questions about Illinois child custody and family law, or if would like a referral to a family law attorney, please do not hesitate to contact us. All calls and emails are free and confidential.

See also: Chicago Father’s Rights Attorneys

Parents have a financial obligation to support their children when they are minors. Court-ordered child support almost always continues until the age of 18. However, there are some circumstances in which a child might need continued support beyond the age of majority.

Illinois law allows a court to order parents to support their children past the age of 18. A parent seeking this type of support – called non-minor support – can petition the court and make a formal request. Child support that is extended or awarded beyond age 18 is decided on a case-by-case basis, but the law mentions a few specific scenarios.

The first is when a child turns 18 while still in high school. If this is the case, the law allows support to continue until graduation or until the child turns 19. Even though the child is technically not a minor, he or she is likely living the same life they were at 17 and is in need of the same support from his or her parents until graduation. Don’t assume, however, that your child support order covers this post-majority time period unless specifically stated.

A second justification for non-minor support is for a physically or mentally disabled child. In these cases, support can continue indefinitely. This is for children who are not emancipated. If you want support for a non-minor disabled child, you can petition the court any time, even after their 18^th birthday.

And finally, a very common basis for non-minor support is educational expenses to pay for college. When a child is headed to college (or professional or other training), a judge can order both parents, and the child, to share the costs of continued education. The court generally cannot order payment of educational expenses beyond a bachelor’s degree, however.

Illinois judges are given discretion when deciding who pays and how much, but an order for shared expenses is likely unless one party is facing extreme financial hardship. A judge will consider a range of relevant factors, including the financial resources of both parents, the standard of living the child would have enjoyed had the parents not divorced, as well as the financial resources of the child and the child’s academic performance. A judge may consider additional factors that are deemed relevant.

The shared educational expenses can include tuition, room and board, books and supplies, fees, transportation, health insurance and other reasonable college expenses. The support order can include a requirement that the child remain in good standing as a full-time student in order for the support to continue. Support payments can be made to either parent, to the student or directly to the school.

Keep in mind that non-minor support is not automatic and it’s not required by law. Oral promises and informal plans, even when well intended, are bound to change as the years go by. The relationship between the parents might be amicable at the time of divorce, when decisions about child support are being made, but that can change by the time college comes around.

You can go to court to request non-minor support before your child turns 18. If you and the other parent can agree to the continued support, including how much and for which expenses, then it makes things easier. If not, the judge will decide.

Is this confusing?  It can be.  Contact us if you’d like to speak to one of our attorneys for free and in confidence for legal guidance and/or a child support attorney referral.

Married couples share a lot of things without thinking much about it. You probably have some property that you think of as your own, some you think of as your spouse’s, and much that you acquired together and think of as shared. However, when it comes to dividing property in divorce, state law often steps in and defines these categories for you. And it might not be what you expect.

In Illinois, the law distinguishes “marital property,” which belongs to both spouses, from “non-marital property,” which is a spouse’s separate property. The distinction is important because courts have the power to divide marital property in a divorce. While courts often divide marital property 50-50, it’s not always the case. You could end up with less than half. Non-marital property, on the other hand, will not be divided.

The basic rule is that anything earned or acquired during the marriage is considered marital property. This includes each spouse’s 401k. It also includes bank accounts, investments, houses, cars, etc. A few things are considered non-marital property, including property owned prior to the marriage, gifts and inheritances.

So, an inheritance is non-marital property, even if it was inherited during the marriage. It’s a good start, but there’s a big catch. If you aren’t careful, you could unintentionally alter the status of your inheritance and transform it into marital property. The court is likely to assume that property is marital unless you can prove otherwise.

The key is keeping your inheritance separate. When non-marital property is co-mingled with marital property, you risk losing it as your own. Illinois law can consider it a gift to the marriage and therefore marital property. Don’t combine your inheritance with your marital property or your spouse’s property. If it’s cash or securities, keep it in a separate account. If it’s a house or a piece of land, make sure the title remains in your name, and be wary of using marital property (money) to improve the property.

In addition to keeping your inheritance separate, consider signing a prenuptial or postnuptial agreement. You can use a document like this to define the ownership of property. If you and your spouse sign something saying that your inherited money or property goes to you in the event of divorce, then you have extra assurance that it will end up that way.

We recognize that many people don’t worry about keeping their separate property separate because they do not intend to divorce. This could be a mistake. Tackling these issues doesn’t have to be personal, and it doesn’t have to be an insult to your marriage. It’s just good common sense to plan ahead and protect an inheritance that was left to you.

This can be complex. If you have questions or need to be pointed in the right direction, please contact us at any time.

See also: Courts In Illinois Are Closed, But You Have Options

Illinois already has a formula, or guideline amounts, for determining child support. These are written into the law. But there is no similar guideline for spousal support, which has led to a lot of discrepancy in what gets awarded. At the beginning of next year, however, a new Illinois law goes into effect, and it will set a formula for determining spousal support.

Illinois technically calls it spousal “maintenance.” It’s the same thing as spousal support or alimony – an amount paid by one spouse to the other, during and/or after divorce. A typical situation involves a spouse who stayed home with children, or for other reasons benefiting the family, instead of pursuing a career. One purpose of maintenance is to support that spouse while they get back into the workforce

Up until now, the amount of maintenance awarded to a spouse has varied considerably. Sometimes, the divorcing couple would agree to an amount. Other times, it was argued in court and the judge would decide. Judges have had a set of legal factors to guide them, but there was no formula and therefore the results varied widely. Now, beginning January 1, 2015, judges will have something more concrete to follow.

The new maintenance law is based on the gross income of the parties and the length of the marriage. The gross income determines the amount of the support owed after the marriage is dissolved, and the length of the marriage determines the duration of the payments. The law only applies to couples whose gross combined income is less than $250,000, although judges could presumably apply it to couples with higher income if they found it appropriate.

Amount

The amount of maintenance is 30% of the payor’s gross income minus 20% of the payee’s gross income. So if Spouse A makes $100,000 and Spouse B makes $20,000, then the maintenance amount paid to Spouse B would be $26,000 (30% of $100,000 minus 20% of $20,000).

There is a limit. The amount you get from the above formula, when added to the gross income of the payee, can’t exceed 40% of the couple’s combined gross income. So in this example, the maintenance of $26,000 plus payee’s income of $20,000 comes to a total of $46,000. This is less than 40% of their combined gross income of $120,000, which is $48,000, so no adjustments would need to be made.

The law would come up with a maintenance amount of $26,000 in this case. The general goal, in less technical terms, is that the bigger the income gap, the higher the payment to the spouse who earns less.

Duration

The amount of maintenance determined above is per year. In order to know how long payments will go on, you take the length of the marriage and multiply it by a factor, according to the following schedule:

0-5 years = .20

5-10 years = .40

10-15 years = .60

15-20 years = .80

If the marriage is for more than 20 years, the court may order permanent maintenance or maintenance for a time equal to the length of the marriage.

This formula isn’t automatically used in every divorce case. First, the court must determine whether maintenance is even appropriate in a given case. Then, they can apply the formula. It’s important to know that the law gives judges the option of not using the formula, but they have to give a reason why they didn’t. In other words, judges still have discretion.

A major benefit of set guidelines is predictability and consistency. It helps attorneys advise their clients about likely outcomes. It can save legal fees by making the support amount fairly certain rather than a wide-open issue, which takes more time for lawyers and judges. On the other hand, a strict guideline can’t possibly make sense in every case. It will be interesting to see how and when judges use their discretion once the new guidelines become law.

No one wants an expensive divorce. We get a lot of calls from people looking for low-cost options. Many wonder if they even need an attorney at all.

Illinois has something called a Joint Simplified Divorce. If you have a fairly simple situation and meet the financial requirement, you might qualify. You can get a Joint Simplified Divorce if you have been married for less than 8 years, you have no children or real estate, and you make less than $35,000/year combined. You also have to agree on everything, such as how your personal property will be divided.

Court costs include a filing fee and the cost of serving your spouse with the divorce papers. You may be able to have fees waived if you can show that you have limited financial resources.

Even if you don’t qualify for a Joint Simplified Divorce, your divorce will be more simple, and less expensive, if you and your spouse agree on everything. Don’t forget to consider child support, custody and visitation; property division; division of all assets and debts; retirement plans; and spousal maintenance (alimony). If you and your spouse don’t agree on getting a divorce in the first place, or disagree about any of the issues listed above, your divorce is considered a contested divorce. A contested divorce will take more time, and as a result, it will be more expensive.

We almost always recommend hiring a divorce attorney, especially if your spouse has an attorney. The final agreement you come to can have a significant effect on your future, not to mention the future of your children if you have any. In other words, the stakes can be high and having a lawyer gives you a better chance at a good outcome. Be especially careful – and don’t skip getting legal advice – if your situation involves significant assets, such as a retirement account (yours or your spouse’s), if you have children, if you need financial support from your spouse or if you own a business.

I would never call myself a “fathers’ rights lawyer” or “mothers’ rights lawyer.”  I believe the firms that do that are really just trying to scare you in to hiring them.  A lawyer either fights for you or they don’t.  Tricking somebody in to thinking you have a passion for your work isn’t the way to do things.

But I do call it like I see it.  Sometimes that means telling a client that they are wrong even though it’s not what they want to hear.  Other times it involves pointing out a law that is incredibly unfair, even if it makes me sound like I’m just stumping for fathers.

That said, the law in Illinois with respect to voluntary acknowledgement of paternity is terrible and needs to be changed.  If a man signs the birth certificate of a child and acknowledges that he is the father, he has 60 days in which he can rescind that.  So if you’ve been dating a girl for two years and she gets pregnant, if you sign assuming you are the father, that means that you are legally the father.  This is true if (as happened to a caller to my office) five years later you have a paternity test done and learn that you aren’t really the biological Dad.  So you can end up paying child support for a child that isn’t yours.

Once sixty days has passed, the only way to vacate signing is to file a 2-1401 petition on the limited grounds of fraud, duress, or material mistake of fact.  That’s a lot harder than it sounds and it must be filed within two years from the date you originally signed.  Duress would be something like a gun was placed to your head.  Fraud could be a faked paternity test.

The safest thing to do is never sign in the first place without a paternity test.  That doesn’t sound very romantic, but sometimes the smart thing isn’t romantic or even easy.

Beyond this all though, the law needs to be changed.  Why should you have to support a child that isn’t yours?  It literally makes no sense and I can’t think of one argument in favor of it.  I have no problem not letting the mistaken Dad recoup the money he’s laid out over the years by mistake.  As I said, you should get a paternity test so that’s on him.  But once you do learn the truth, you should be off the hook.

In the worst examples I’ve seen some men have to support a child that isn’t theirs while the real father lives with the kid and doesn’t contribute hardly anything.  It’s just wrong and needs to stop.  We should have the ability to take laws that make no sense and change them.  This one needs to be at the top of the list.

The best-case scenario is when you already have a court order in place. We’re talking about a court order for child support, which is a court document that tells one parent what they must pay the other parent for the support of their child or children. If you have one of these, then you have a head start and you can go after the other parent for past-due payments.

You can bring the other parent back to court to force payments. Wage garnishment and other tactics can be used if they continue to refuse to pay. The good news is that it’s really never too late if you have a court order. There isn’t a deadline in Illinois for collecting unpaid child support. Interest on unpaid support should be included, as well.

If you don’t have a court order, you’ll be asking for retroactive child support, which is harder to get. If your child is still a minor, you can get an order for current and future child support, however. Get the help of a child support lawyer in order to give yourself and advantage. Good legal advice also ensures that you avoid pitfalls.

Adult children often wonder if they can collect past-due child support that their parent never paid. Unfortunately, the child themselves cannot collect this, even as an adult. It’s ordered to be paid to the parent, so that parent must be the one who goes after it. It might not be too late to collect, but we tell these individuals that they have to convince their parent to get involved.

Potential obstacles include a parent who has disappeared, or a parent who is unemployed and/or claims to have no income or assets. If the parent who should be paying child support is claiming that they can’t afford it, and you suspect that they are lying, an experienced attorney can help you find out the truth.

Don’t put your ability to collect child support at risk by making private agreements for payment with your ex. And don’t let them off the hook if they haven’t paid. You need to protect your interest – which is really your child’s interest – and maintain your leverage.

Alimony, spousal support and maintenance all mean pretty much the same thing, which is the money that one spouse regularly pays to another after a divorce. The reasons, amount, and length of time vary, however.

Why?
The idea behind spousal support is that many times the spouse who earns less, or who doesn’t work at all, does so by choice for the benefit of the household. A classic example is a stay-at-home parent. They are out of the workforce and maybe have been for some time. They simply don’t have the same earning potential (at least in the immediate future) as their spouse. The married couple likely made this choice about how to balance the needs of their family. It was this decision that led the stay-at-home parent to forgo a career, and possibly at the same time, allow the working parent to succeed and move up in his or her job. The concept of spousal support recognizes this common situation. The spouse with no job and less earning potential could find it difficult to meet their basic needs without it.

How much?
The amount of spousal support the court orders is based on the needs of the spouse receiving the support as well as the means of the spouse paying. There is no set amount. The parties can agree on how much the support payments will be, or the court can decide. It’s not a good idea to agree to pay (or receive) a set amount without talking with an experienced divorce attorney. You need to know if the other side is taking advantage of you. Sometimes, temporary spousal support is ordered while a divorce is in progress.

How long?
Spousal support can go on for a couple of years, or forever. It depends on the spouses’ ages, needs, health, ability to work, and the length of the marriage. Spousal support always ends, however, if the spouse receiving payments gets remarried. The length of spousal support can be negotiated. Don’t trust your spouse’s attorney to give you any advice. It’s not their job, and in fact it’s unethical for them to advise you while having your spouse as their client. Hire your own attorney – someone you can trust to work hard for your best interests.

Is this confusing? It can be. If you would like a free consultation with one of our experienced attorneys, fill out the form on the right side of the page or call us at (312) 346-5320.

QDRO stands for Qualified Domestic Relations Order. It has to do with splitting up retirement assets in a divorce. The law in Illinois says that retirement plans are the joint property of both spouses, at least the portion that was earned or acquired during the marriage.

Retirement plans are marital assets, and in a divorce, all marital property is to be divided equitably. If the spouses can’t agree, then the judge will decide how to divide things. In general, it doesn’t matter whose name is on marital property. Real estate, retirement plans, pensions, bank accounts – if it was earned or acquired during the marriage, then it’s marital property. On the other hand, some stuff can be a spouse’s separate property, but it has to have been earned or acquired before marriage. Certain gifts, as well as inheritances, also remain a spouse’s separate property in most cases.

Retirement plans, including 401ks, IRAs and pensions, are difficult to divide, since they aren’t like cash. Their current value might be unclear. They’re also complicated by the fact that they might be partially separate property (the part earned before the marriage) and partially marital property (the part earned since the marriage). This is where the QDRO comes in.

Experts and accountants are often used to research the value of a retirement plan, especially something like a pension that pays out a certain amount at a set time in the future. It’s not easy to put a current value on it without an expert. Once it’s decided how the assets will be divided, the QDRO is an order from the court telling the retirement account administrator exactly how to divide the account, usually by creating separate accounts in each spouse’s name.

There are other options. If spouses have fairly equal retirement plans, then they might decide to each take their own. Even if they aren’t equal, they can agree to this if they wish. If you don’t want to split the retirement plan, then other property can be divided in a way that offsets the value of the retirement plan – Spouse A keeps his or her retirement plan, and Spouse B gets the house, for example.

The main thing to remember is that you shouldn’t rely on an informal or partially-formed agreement when it comes to getting your half or share of a retirement plan or pension. And don’t fall into the trap of putting off the QDRO until after the divorce. At that point, there isn’t as much or an incentive to resolve things and you might have to go back to court to make it happen.

If you are dealing with this issue or any other Illinois legal issue, we are happy to help you at any time.

Yes, if you can show that things have changed since the last visitation order was issued and that the changes warrant a new visitation order. In other words, you usually have to show that things aren’t working the way they are.

If one parent moves farther away, the current visitation schedule might not be practical or even possible to maintain. You can ask the judge to issue a new order that takes the new living situation into account. Similarly, work hours might change. If your schedule changes at work and you no longer are able to see your child during the set visitation times, then you can ask the judge for a new order with a new visitation schedule. Another reason a parent seeks a change is if the visiting parent has chosen not to see the child at the set times, or at all.

The need for a change in a visitation schedule might seem obvious but that doesn’t mean it’s automatic. In Illinois, the judge decides based on the “best interests” of the child – the standard that the courts must follow in most custody-related issues. These “best interests” include looking at the wishes of the parents and child, the relationship the child has with the parents and the ability for those relationships to continue, the child’s home, school and community, as well as the mental and physical health of all of those involved.

If you are trying to keep your child away from his or her other parent, you will have to have a good reason to do so. The courts will give reasonable visitation to non-custodial parents in most cases. In order to prevent that, you’ll have to prove that visitation with the other parent is dangerous for your child’s physical or mental health. Unless you are protecting the child from an imminent threat of harm, you should get the court order modified before taking matters into your own hands. If you interfere with a visitation order, you could be held in contempt of court.

Hopefully, you and the other parent can reach an agreement on the changes you want made to the visitation order. This will make the process much easier and quicker. To get started, you will have to file a petition with the court and properly notify the other side that you have done so. It’s a good idea to get the advice of an Illinois custody attorney.  If you like our advice or a referral to an attorney, please call us.

There’s a common myth that kids can simply pick which parent they want to live with after a divorce.  The reality is that it’s up to the parents, if they can agree, or the judge if they can’t. Until a child is 18, they don’t get to choose. If kids were in charge of the decision, you can imagine what their reasons would be. A 6-year-old would choose the parent with the most lenient video game rules, and a 15-year-old would choose the parent who doesn’t enforce curfews.

While it’s not entirely up to the kids, they do get to have their opinions. And depending on their age, the judge might let them express these opinions. There’s no set age, but if the judge believes they are mature enough to weigh in, he or she is allowed to take their wishes into consideration. It’s not the main factor, but rather one of the many factors, that goes into a final custody decision.

If the parents can’t agree, the judge’s main consideration will be the best interests of the child. It’s a somewhat subjective test, but it’s the law. The judge can take many factors into account in making his or her decision, including the wishes of the mother and father, the child’s relationship with each parent and any siblings, the child’s current community – school, home, support system, etc., as well as the child’s safety (any history of abuse will be an important factor), to name a few.

If you want to change a custody arrangement later on, you’ll have to go back to court and ask for what’s called a modification. In general, you have to wait two years from the custody decision to ask for modification in a contested case. It’s a tough road and modification is usually only allowed where there had been a substantial change in circumstances that directly affects the child or the current custodian has been shown to be unfit to retain custody. If both parents agree to a modification, however, they may be able to ask the judge sooner for a change in custody.

The key to getting a good outcome in any custody case is having an experienced custody attorney. It’s not just about the laws on the books, but about knowing the judge and how he or she generally rules on a particular issue. It’s about knowing the other attorneys and having a good reputation in the local legal community. It’s risky to handle a contested custody case on your own, especially if the other parent has an attorney fighting for their interests. Generally speaking, courts favor the current custody arrangement and are hesitant to keep making changes, so if you make a mistake you can’t just turn around and try again.