Illinois Family Law

A caller to my office went off on a rant the other day.  He is paying child support and is doing so happily.  He loves his kids and wants to take care of them.

What set him off though is the fact that there are all sorts of laws out there that regulate how much you have to pay, when you have to pay, interest, etc., and if he’s late on his payments he can go lose his driver’s license or go to jail.  But nothing regulates what the parent who gets the child support does with the money.  In this case, the mother was using it for drugs and a vacation.  The kid was going without clothes, food, books for school and other necessities like shampoo and soap.

When he complained to his attorney, the caller was told that nothing can be done.  That is partly true and partly false.

It’s pathetic, but Illinois law doesn’t require the recipient to do anything with child support.  If you spend it on drugs or rent or a party or tickets to a ball game that is your prerogative.  A lot of parents, usually Dads, come to me hoping to get out of child support because they take care of all of the basic needs for their kids.  That is admirable, but doesn’t take away the obligation to pay a specific dollar amount too.

What is partly false though is the fact that if the person receiving support is really acting this way and the child is being hurt as a result, you can petition the Judge to change custody (which would make it so you receive support) based on the best interests of the child.  If their grades are slipping or they are suffering health wise, you may have a good case.

The last thing the caller said to me was “the system is broken.”  I totally agree and wish as attorneys that there was more that we could do about it.  The truth is though that any change will have to be made by our legislature.  They make the laws and we deal with them.  It’s probably a pipe dream to think that anything can happen to better the system because so many other things are broken in Illinois.  And it’s a shame too because with technology you could easily document what you are using support for and we can ensure that kids are actually being taken care of.  At the end of the day that is the whole point of why we even pay in the first place.

There are probably no perfect solutions, but that doesn’t mean that the process can’t get better.  So if you have any specific concerns, your best bet is to try and meet with your state rep or state senator to see if they will propose legislation that will match how life actually works and will look out for kids.  Until then, it truly is a free for all and if your only concern is that you don’t like what your ex does with the money then you are going to have a hard time getting results.

If your attorney has mentioned using a forensic accountant, or if your spouse is using one, you’re probably wondering if it’s as serious as it sounds. For cases that involve a lot of assets, or a business, or if one person believes that the other person is hiding money, it might be a good idea to work with this specialized type of accountant.

In a divorce, the court’s job is to make sure property is divided fairly. A common sticking point is which property is subject to division and which property is to remain separate. Illinois law says that only “marital property” gets divided upon divorce. Marital property is what the spouses have acquired during the marriage, and it includes money that one spouse has acquired in their own career. If one spouse starts a business during the marriage, it’s considered joint property. The same is true of retirement plans.

Sometimes, one spouse is hiding property that should be split. Other times, all the property is known and on the table, yet it’s difficult to place a value on that property. For example, if a business is owned, it’s not likely that the court will literally split it in two. Instead, it must be valued so that one spouse can buy the other out. A forensic accountant can be useful in a situation like this.

Forensic accountants can be used in an Illinois child support calculation, as well. The amount of child support owed is based on the paying spouse’s income. This can be complicated if your spouse does not earn a typical type of salary, or if you think they’re hiding something.

Forensic accountants charge a fee that is separate from your attorney fees, so it’s generally only worth it if there are a lot of assets. Your family law attorney can help you decide if it’s necessary. It helps to have an attorney who has handled similar cases in the past, and one who works with and has relationships with experienced forensic accountants.

It’s difficult, and sometimes impossible, to go back and change a child support order. And property division is usually considered final in Illinois, meaning you can’t go back and alter your agreement or the court’s judgment. So it’s important to do it right the first time.
Written by Michael Helfand

You can’t control everything in life, but when it comes to facing the inevitable, some preparation can give you a sense of control. At the very least, it can ease some of the stress that comes with caring for aging parents. Here are some common legal documents you may have heard about…

 Power of attorney. This gives you (or whomever your parent chooses) the authority to handle your parent’s financial affairs. A power of attorney can go into effect the moment it’s signed, or it can be put on hold and go into effect when a person is “incapacitated,” which means they’re no longer mentally or physically competent. If you choose the latter, you may need to have a doctor to certify that your parent is incapacitated before you can have control over their finances. Powers of attorney are only valid during life, but they are useful if you find yourself having to pay bills, manage investments or even make calls requesting information from a bank, for example.

 Power of attorney for healthcare. This is also known as a medical power of attorney. It authorizes a specific person to make health care decisions for your parent when they no longer can. Without it, the “next of kin” would likely be called upon to make those decisions, but your parent might not want that. This gives them the ability to choose exactly who will make medical decisions for them. If you have siblings, it’s not always easy to make a decision as a group. It depends on the dynamic of the family. In some cases, it’s simpler to have one person hold this power.

 Living will. This is a very specific document that is pretty much limited to stating your wishes about life-sustaining measures – resuscitation, feeding tubes, breathing tubes, etc. If your parent doesn’t want these things, he or she can sign this simple document that tells doctors what to do, or not to do, when it comes to prolonging their life. In general, a hospital is probably going to take these measures unless your parent specifically tells them not to.

Some other things to consider are a medical release of information form and adding your name on bank accounts. The release would allow you to talk to the doctor about your parent’s medical care. And if you are an authorized co-signor on your parents’ financial accounts, you can pay their bills and for them while they’re in the hospital, for example. Most of these suggestions take a certain level of trust and comfort. Your parents may or may not be willing to have you in control – or potential control – of their money during their lifetime.

 Your parents’ attorney will likely suggest additional documents, certainly a will and perhaps a trust. Every situation is different. The most important thing is to simply start the conversation.

Written by Michael Helfand

The law does not give grandparents any inherent right to see their grandchildren. The reason behind this is that it would interfere with parental rights, which the law tends to strongly support. Judges, however, can make an exception if the grandparents can prove their case.

The law gives parents the priority when it comes to making decisions for their children, but grandparents do have the right to petition the court, which is a formal request asking the judge to hear a case and make a decision.

Some specific things need to be proven in order for a grandparent to win court-ordered visitation. First, the grandparent needs to prove that visitation is being wrongfully withheld. This means that the parents are wrongfully withholding visitation and that the withholding is harmful to the child’s mental, physical or emotional health. The fact that a child may not be allowed to get to know their grandparent is not enough. It’s not an easy thing to prove, and an expert – such as a mental health professional – may be necessary to testify about any harm that it could cause the child.

Second, the grandparent has to prove to the court that either (1) the child’s unrelated parent is deceased, (2) the parents are divorced and at least one parent does not object, (3) a parent is incarcerated or (4) a parent is incompetent.

The judge will hear the arguments as to why grandparent visitation should be ordered, including the nature of any existing relationship between the child and grandparent, the motives of each party and whether each side is acting in good faith (and not out of revenge). The physical and mental health of both the grandparents and the child may be considered as well.

These cases aren’t always easy, but when the best interests of the child would be well served by grandparent visitation, it can be an important thing to fight for.

Written by Michael Helfand

A common call for us to receive is from someone who has custody of a child and is married to someone who is not the parent of the child by blood, but is a parent in the fact that they love them, take care of them, provide for them, etc. So the birth parent wants their spouse to adopt their child. The question is, how do you make that happen?

For purposes of this post, let’s assume that it’s a woman who called me and is the mother of the child, wanting her husband to adopt the child. To make that happen, she will first have to terminate the rights of the birth father.

Terminating the parental rights of someone is not taken lightly by the courts because once it happens, it’s not reversible. So even if the Dad has been an absent parent, they will be given the opportunity to come to court and state why their rights shouldn’t be terminated. Of course, if they are agreeable then it’s a slam dunk, but in most cases the Judge will give them the wake up call that they need or in others people come to their senses when they realize the finality of losing their rights.

To get a termination order approved when it’s contested, you need to show how little the other parent has been involved in the child’s life and also that it’s in the best interests of the child for this to happen. Sometimes the other parent isn’t involved, but there family is so everything will be looked at.

Once you get that order approved, it’s final. At that point you can go about petitioning for your new spouse to adopt your child. That is usually a smooth, easy process because nobody can contest it and everyone involved is on the same side. And of course it’s a smart thing to do because if you were to die and your spouse hadn’t adopted your child(ren), then they may have no rights to them after you pass away.

Written by Michael Helfand

Actually, it is as easy as it sounds, if you qualify. The hard part is that it only applies to a small number of cases and it has to be approved by a judge.

When you file for divorce, one of the first steps is notifying your spouse by serving them a copy of the divorce papers. If a spouse can’t be found or is hiding, you can notify them by publishing notice in the newspaper, if the Judge is petitioned to approve this and does so. This is called service by publication. If your spouse doesn’t come forward, you win by default, and this is called divorce by publication.

If you know where your spouse lives, or know how to find them, then you have to actually have them served and do things the long way.

Notice is published in a local newspaper. It tells your spouse there’s a divorce proceeding against them. The idea is that they’ll see it or someone they know will tell them about it. But it’s also possible they won’t actually find out and that’s ok. The fact that you published it – if done in the right way – fulfills your obligation.

You may have seen the legal notice sections in your newspaper. This is where your divorce notice will be published. It has to run for a certain number of days in a paper that is circulated in the county where you filed for divorce. If your spouse doesn’t respond, the case moves divorce.

Divorce by publication is only for cases where a spouse disappears and you have no idea where to find them. The law isn’t going to force you to stay married to this person forever, so divorce by publication is a compromise. You will have to show the Judge that you tried to locate them, by contacting relatives, employers, friends, landlords, the post office, etc. You are required to make a good faith effort, and you’ll have to submit an affidavit (a sworn statement) that you have done so and that your spouse still cannot be located.

If the Judge approves of your efforts and your spouse does not come forward, your divorce will be granted by default. In this type of divorce, the judge has limited power. They may award custody but can’t rule on child support, maintenance or property division.  But at least you’ll be divorced.

The other day I had a woman call me who was looking for full custody of her kids with the right to make all of the parenting decisions.  Usually when I get a request like this it comes from a very involved parent whose ex is not around or is abusive to the kids.  In this case though, she admitted that the Dad spent a ton of time with the kids and while he was a good Dad, he apparently is a real jerk to her.

In Illinois, to get the full custody she wants, she would have to show that it’s in the best interests of her kids.  I asked her what the argument would be that this would be best for her kids and the only thing that she could come up with was, “it would make their mom less crazy to not have to deal with him anymore.”

Most divorced people don’t like being around their ex, but that’s not a reason to end someone’s parental rights.  I told her that if we found a lawyer for her and they filed the case, the attorney would be stealing money from her.  I can’t in good conscience make a recommendation because it’s not the right thing to do.

This didn’t set well with her and she unfortunately started to cry.  But it’s my job to be honest with people that call me, even if that means I tell you the opposite of what you want to hear.  There are many lawyers that will say whatever the client wants them to.  That does nobody any good.  And if you are looking for that type of attorney you should look elsewhere.  We don’t promise results, but we do promise to always tell it like it is.

Guardianship, when we’re talking about an adult, is usually set up in cases of age or illness. You might want guardianship over an elderly parent who suffers from dementia, for example. Guardianship isn’t a quick solution. You will have to go to court and ask a judge, who will want to hear from doctors, as well as any family members who object. Here are some answers to a few questions I often get on this topic:

How do I know when it’s time for guardianship?

If a person can no longer handle their financial affairs or make sound decisions about their care, it might be time to seek guardianship. (If they are still of sound mind, consider talking to them about establishing powers of attorney.) There are two types of guardianship, and you can ask the court to grant you one or both. There is guardianship of the estate, which allows the guardian to handle the ward’s finances, and there is guardianship of the person, which is for things like health care and living arrangements.

Do I have to go to court?

Yes. You have to file documents with the court, including a petition requesting guardianship. There are a lot of steps, which include time for an object from the person you’re seeking guardianship over (called the ward), as well as objections from family members. The judge will want the opinion of an expert (doctor, psychiatrist, etc.) and will consider all facts before making a decision in the best interest of the ward. Because guardianship takes away significant legal rights, the court does not award it without good reason.

Do I need to hire an attorney?

We usually recommend it, because there are a lot of hoops to jump through. An attorney can be especially useful if the ward objects or if family members disagree about who should be named guardian. It’s not impossible to handle on your own, but it can get messy.

Is there any way to set this up ahead of time?

Most attorneys would recommend having powers of attorney in place before a person becomes incapacitated or mentally incompetent. A person must be well, mentally speaking, when signing a power of attorney. If done properly, they automatically put someone else in charge of financial affairs and health care (two separate documents). There is no need to go to court when the time comes to take over that person’s affairs. The main thing to be aware of with a power of attorney is that it has to be someone you trust. And a power of attorney signed under intimidation or force will not be valid.