Making Child Support Arrangements Post-Divorce

 Posted on May 29, 2014 in Child Support

NOTE: A new law defining how child support is calculated in Illinois goes into effect in July 2017. For more information, please visit our Child Support page.

When a couple divorces, there are many legal arrangements to be made: how to divide marital property, whether one spouse will pay alimony, and re-writing wills and other legal documents that named a former spouse as a beneficiary, among others. Arguably, however, the most difficult decisions arise when there are children involved. Will one parent have sole custody or will the parents share custody jointly? And if awarded joint custody, which parent will have residential custody?

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Number of Couples Opting for Prenups on the Rise

 Posted on May 27, 2014 in Prenuptial & Postnuptial Agreements

The number of couples entering into prenuptial agreements is trending upward in the United States. That trend correlates with consistently high divorce rates and a growing societal acceptance of such agreements. A 2010 poll revealed that 44 percent of single and 49 percent of divorced Americans believe in prenuptial agreements (colloquially known as prenups). Moreover, among the divorced, 15 percent regret not having one.

Acceptance of prenuptial agreements is spreading across cultures. For example, while prenups are not formally recognized in England or Wales, that might soon change. Divorce lawyers in those countries have reported that their clients are increasingly expressing interest in prenups. Furthermore, a government adviser recently recommended introducing a marital agreement form as part of a divorce system overhaul.

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Combatting Domestic Violence in Illinois

 Posted on May 21, 2014 in Order of Protection

Every nine seconds a woman in the United States is assaulted or beaten. In fact, the leading cause of injury to women is not car accidents, muggings, or rape. It is domestic violence. The abuse begins at a heartbreakingly young age: one in four girls and one in six boys will be sexually assaulted by age 18. Internationally, one in three women has been beaten, coerced into sex, or somehow abused.

These are sobering statistics, and too often victims of domestic abuse do not seek help. Illinois takes the prosecution of these heinous crimes seriously. In nearby Cook County, for example, State Attorney Anita Alvarez recently announced the creation of a Sexual Assault and Domestic Violence Division, which will focus exclusively on these sensitive and often complex cases.

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Post-Marital Agreements: An Alternative to Premarital Agreements

 Posted on May 14, 2014 in Divorce

Marriage is an integral part of American culture. This is evidenced not only by the romanticized image of marriage, but also by the extent to which individuals’ access to and exclusion from this institution has become a pivotal and polarizing issue in our country’s sociopolitical landscape.

Nevertheless, marriage is neither perfect nor foolproof. According to a national study performed by the Centers for Disease Control and Prevention, of the 6.8 marriages per 1,000 U.S. residents in 2011, 3.6 of those marriages per 1,000 U.S. residents concluded in divorce.

Statistics in the State of Illinois did not bode much better for the same period: with a marriage rate of 5.6 per 1,000 residents, this state boasts a divorce rate of 2.6 for said population. Knowing the risk of separation, how does one legally protect his or herself in the event of divorce?

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Benefits & Consequences: Having a Child without Getting Married

 Posted on May 12, 2014 in Family Law

Women of today have more options than women of earlier generations. It used to be that women who became pregnant out of wedlock had no choice but to marry, or else confront lives of poverty and social isolation. While that unfortunate scenario is the reality for some women, others have found that single motherhood affords more stability than marriage.

Lily’s story is one example. She broke up with her boyfriend Carl while pregnant because she feared he would make caring for their child more difficult. Carl had trouble holding down a job, and Lily decided she could not depend on him. Furthermore, because Lily and Carl were not married when she gave birth, and because his name is not on the birth certificate, he has no legal parenting rights. For Lily, that was the desired outcome. But is that what Carl wanted? What if Carl decides he wants to claim paternity? What rights would Carl, or any putative father, have under Illinois law?

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Three Common Mistakes Divorcing Couples Make

 Posted on May 07, 2014 in Divorce

Couples typically do not enter into a marriage wanting to get divorced. Unfortunately, however, divorce happens. If you do not have a prenuptial agreement in place then you may be in for a long, arduous, and emotional process. (Even with a prenuptial agreement, you might be in for a long, arduous, and emotional process.) You can simplify this process by avoiding the mistakes that some divorcing couples make.

First it is important to understand the difference between marital property and non-marital property. Generally, the law presumes that all property acquired by either spouse during the marriage is marital property. There are exceptions, including property acquired by gift, legacy, or descent. Once property is classified as marital, a court will determine how to divide it equitably. Note that “equitable” does not necessarily mean “equal.” A court will consider various factors when dividing the property, including, but not limited to:

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Preventing Child Abuse and Neglect

 Posted on May 05, 2014 in Child Custody

During the month of April, National Child Abuse Prevention is recognized. And while we should always be sensitive to the needs of young Americans, special recognition of child abuse and neglect gives those needs a renewed focus, both nationally and here in Illinois.

The federal government first extended legislative protection to abused and neglected children in 1974. That law, the Child Abuse Prevention and Treatment Act (CAPTA), created a national focal point for combating child maltreatment and supporting states’ efforts to prevent child abuse and neglect.

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Dividing Property in Dissolution of Marriage

 Posted on April 25, 2014 in Divorce

Whether you have been married 50 years or 50 days, you and your spouse likely have commingled property that used to be exclusively yours. Money from your individual savings accounts can be commingled; money or property you received from a relative through inheritance can be commingled; and even a home or farm that you owned individually could have become commingled during your marriage.

Commingling occurs when money or assets from the estate of one entity gets transferred into the estate of another. A common occurrence of commingling is when an individual owns a business and the money in personal accounts and business accounts gets moved back and forth to the point that it becomes no longer separate. In a marriage, at least in the context of divorce, all of the property of the spouses is classified as either marital property or non-marital property. In a close relationship, the property of two separate people can easily become commingled. Can Commingled Property Be Recovered in Dissolution? In order to answer that question, the property in dispute must first be classified, either as marital or non-marital. Non-marital property is anything a spouse owned before the marriage or that was given to them alone during the marriage, which could include a truck given to him by his father, or an inheritance from a great aunt. Marital property is everything else, including all property that was acquired during the marriage, even the separate income of the spouses. In a divorce, the person wishing to recover property that used to be his or hers individually claims that something that is now considered marital property was and should still be considered non-marital property. It is an argument for reimbursement, as perhaps what was contributed to the marital estate was significant, and it would simply be fairer to credit it back to the contributor. Thus, reimbursement is a possibility, but it requires good record keeping and the right circumstances. The general rule is that a contribution from one estate into another (i.e. non-marital into marital) becomes classified as property of the recipient. However, in the following circumstances, a spouse may be reimbursed for certain contributions:

• Traceable property - a contribution that can be clearly traced from the marital estate to the non-marital estate, such as a car that was bought with money directly received from an inheritance;

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Types of Custody Arrangements in Illinois

 Posted on April 22, 2014 in Divorce

Often, the most difficult aspect of a divorce is determining who will care for the children and who will make decisions regarding their welfare. Illinois courts will use a “best interests of the child” standard when awarding custody. In applying that standard courts have flexibility to settle on many different types of custody arrangements.

Types of Custody in Illinois According to Illinois law, there are several different types of custody arrangements available to divorcing couples. Temporary Custody - A limited custody pending a full custody hearing. Temporary custody is determined based on the best interests of the child. Filing for temporary custom is often the first step to formalizing custody. Sole Custody - When a single parent has both legal custody (e.g., the right to make long-term decisions for the child) and physical custody (e.g., the right to have the child live with the single parent). Under sole custody, the child has only one primary residence, and the parent with sole custody makes decisions for the child, including decisions regarding education, discipline, religion, or other matters of significance. Joint Legal Custody - A situation in which both parents share responsibilities for the care and control of the child, but the child lives with just one of the parents (e.g., has only one primary residence). Under joint legal custody, the both parents work together to make significant decisions for the child. Joint Physical Custody - Custody in which child spends significant time living with both parents (e.g., where the child has two residences). In a joint physical custody arrangement, the child does not need to spend an equal amount of time with each parent. Additionally, one parent may have sole legal custody, even though both parents share physical custody. Split Custody - Includes a situation in which there are two children and each parent is granted physical custody over one child. Joint Custody Agreements Parents may make their own custody agreements that include any combination of physical and legal custody. However, courts will examine such agreements in light of the best interests of the child. If parents have a history of fighting over matters of child rearing--such as decisions regarding the child’s education, religion, socialization, or the like--courts will be less likely to award joint legal custody. Additionally, Illinois courts may examine other factors when considering joint custody arrangements, such as:

• Willingness of the parents to share custody;

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Preventing Disputes When Dividing Property

 Posted on April 17, 2014 in Divorce

One of the hardest parts of divorce is finding a fair way to divide assets that have been shared and intertwined over the years. Many assume that when couples get divorced, property is simply divided 50/50. But now most states, including Illinois, use a process called equitable distribution, where a number of factors are considered when dividing assets.

If one spouse has significantly higher earning potential or significantly worse health than the other spouse, property might be divided to support the spouse with more needs. There are a number of other factors considered in equitable distribution, but first the court must classify all of the property to be considered, as either marital property or non-marital property.

Marital vs. Non-marital Property Non-marital property is easier to determine. Under Illinois law, it consists of property acquired by one spouse before a marriage, or property acquired after a legal separation. Also included are gifts intended for only one spouse, inheritance of one spouse, or items or other property that was purchased with any of the above funds. Marital property sounds simple; it basically consists of all the property acquired by either spouse during the marriage… with the above non-marital property exceptions. However, also included in marital property may be property that was originally non-marital property, but that was at some point contributed to the marital residence or a co-owned business. It can also include the time and labor (sweat equity) that was put into a residence or business. This transmutation of non-marital to marital property is called commingling.

Preventing Costly Disputes

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