The Two Faces of Child Support

November 23rd, 2015 at 2:49 pm

child support, divorced parents, Illinois family lawyerUnder Illinois law, all parents, married or single, have a duty to financially support their children. In the case of married parents, the law assumes, rightly or wrongly, that this financial support takes place. Divorced parents, and those who were never married, must often pay child support. These financial provisions are among the very few that are commonplace in almost all divorce decrees.

Failure to pay child support might mean the suspension of a driver’s license or professional license, a lien placed on certain property, and, if one Illinois legislator has his way, the inability to participate in fantasy sports leagues. So, it is important that child support be set at an equitable level and paid in both a timely and verifiable manner.

Setting Support

Illinois is one of only nine percentage-of-income states, which simply means that obligor parents pay a fixed percentage of their incomes based on the number of children. Most all other states employ some variation of the income-share model, which incorporates the income of both parents when setting child support payments.

In The Land of Lincoln, there is a sliding scale that begins at 20 percent for one child and ends at 50 percent for six or more children. The guideline amounts are presumed to be reasonable, when taking into account the:

  • Financial needs of the children,
  • Resources of the custodial parent,
  • Educational needs of the children, and
  • Standard of living the children would have had if the parents were married.

Either party may request an adjustment based on these same factors, though such variations are difficult to obtain. The amount may be modified upon proof of changed circumstances, like a new job or a pay change.

Paying Support

The best way to pay support is via wage withholding, because payments are transferred instantly and completely verifiable. If wage withholding is not an option – for example, if the obligor is self-employed – direct payment through the Attorney General’s website is almost as good. Sending paper checks to the Attorney General is also an option; the checks must always clearly reflect the account number.

Direct obligor-to-obligee payments, or the agreement to assume certain bills in lieu of paying cash support, is normally a bad idea for both parties. Obligee parents find themselves financially dependent on another person, and since the payments are not verifiable, obligors will have trouble establishing a payment history when disputes arise later.

For prompt assistance in this area, contact an experienced Naperville family law attorney. Convenient payment plans are available.



Now and Then

November 16th, 2015 at 5:52 pm

long-term marriage, divorce, Naperville family lawyerWhy are twice as many long-term marriages ending in divorce today than they were twenty years ago and fueling a so-called “gray divorce” revolution? The answer may be twofold.

First, many people have a different definition of a “happy marriage” today than they did twenty, thirty, or forty years ago. Then, the most important elements in a marriage relationship were security and stability, at least in most households. Now, in addition to these items, many people seek some level of personal satisfaction and self-fulfillment. So, the expectations have changed.

Attitudes about marriage and divorce have also changed. A record number of Americans (70 percent, according to a 2008 Gallup poll) believe that divorce is morally acceptable. In other words, while a self-reflecting question like “Do I really want to stay with my spouse?” was unutterable a generation ago, it is now commonplace. And, given the rising tide of expectations, many marriages simply do not measure up, at least in the minds of a partner.

It only takes a spark to light this fire. For many people, that spark comes with the untimely death of a friend or loved one, retirement, an empty nest, a significant birthday, or some other milestone.

Financial Considerations

While most spouses have largely emotional reasons for seeking a divorce, there are some concrete economic concerns as well, especially for older Americans:

  • Retirement Plans: In most cases, a divorcing spouse is entitled to an equitable share of the funds accumulated during the marriage. Where long-term marriages are concerned, the amount of money can be staggering.
  • Home Equity: In a similar vein, both spouses are typically entitled to a share of the equity in a residence. If a sale and partition is not an option, an owelty lien, which guarantees payout when the house is ultimately sold, may be available.
  • Health Insurance: If Husband and Wife divorce, and both spouses are covered by Wife’s work policy, Husband loses his coverage. New coverage can be difficult to find and afford, especially if Husband has any health problems.

Other economic concerns include the amount and duration of spousal maintenance payments, along with the financial support of adult children.

Gray divorce introduces a unique set of challenges into family law cases. For prompt assistance in this area, contact an experienced family law attorney in Naperville. We regularly serve clients throughout Chicagoland.


Should I Stay or Should I Go?

November 9th, 2015 at 9:08 pm

real property, real estate, Naperville Divorce AttorneyMany people have strong emotional attachments to real property. Such affinity often has a substantial price tag, especially in certain types of divorce actions.

This question may not be as significant for some younger people, as they may have little or no real property with equity or other economic value. But the landscape is often markedly different for couples over 50. For example, a divorcing couple might make decisions concerning a marital residence, revenue-producing property, and a vacation house or cabin. And, as the divorce rate in this age group has doubled in the past twenty years, even as the overall divorce rate has dipped slightly, the issue bears more attention.

Marital Residence

Perhaps the most streamlined way to deal with this situation is to sell the house and divide the proceeds, but in many or most situations, such an idea is impractical, for one reason or another.

One option is an owelty lien for partition. In such an arrangement, no money exchanges hands at the time. Instead, the non-occupant owner obtains a lien for a share of the equity. Then, when and if the house is sold, the non-occupant owner receives a predetermined equity share. Other couples choose an offset agreement. For example, a couple may agree for Wife to remain in the house and retain the equity in exchange for her waiver of interest in a share of Husband’s retirement plan.

Whatever the outcome, it is important for the occupant owner to keep the cost of ownership in mind (maintenance, taxes, and other expenses).

Non-Resident Property

Most landlords will agree that profit margins for owners are very thin. While there is no rule of thumb, it would be unwise to assume that the property will always be occupied, the tenants will always pay rent on time, and the occupants will always care for the property. So, in the same way as determining the financial cost of a marital residence, these expenses should always be incorporated into the calculation.

The same logic applies to vacation properties, as they often have significant expenditures attached to them. However, these properties are often ordered to be sold in the divorce proceeding.

For prompt assistance in divorce property division matters, contact an experienced family law attorney in Naperville. After-hours and remote appointments are available.



Forming a Premarital Agreement

November 2nd, 2015 at 5:13 pm

prenuptial agreement, premarital agreement, Naperville family law attorneyWhen renting a car, no one expects to get involved in an accident. However, responsible drivers still obtain the optional insurance, just in case the unexpected occurs. Premarital agreements are very much the same. No couple anticipates a divorce. However, especially if one or both spouses have been married before, a prenuptial contract is nearly always a very good idea.

What It Covers

Child support is about the only subject that is completely off limits. A premarital agreement cannot limit the right to child support in any way, shape, or form.

Many people rightfully associate these contracts with property division, spousal support, or other financial matters. These are probably among the most common subjects in many premarital agreements. In addition to property, many people choose to clarify division of debt issues. That is largely because money is a very common source of disagreement in many marriages. So, a premarital agreement removes a potential source of conflict before the marriage even begins.

A number of premarital agreements also address inheritance and business succession issues. These provisions also remove a potential source of conflict: there is virtually no dispute about who will inherit what if these directives are in black and white.

Legal Issues

For a complete discussion of this subject, please refer to our recent post on this subject. In a nutshell, the agreement must be at least somewhat fair and be completely voluntary. In Illinois, “fair” does not necessarily mean equal, or even anywhere close to equal. “Voluntariness” is usually evaluated in terms of the financial disclosure made, or not made, by both sides; people cannot voluntarily sign documents if they do not understand all the ramifications of those instruments.

Additionally, the premarital agreement must have all the elements of a contract. These items are:

  • Unambiguous offer and acceptance;
  • Consideration, meaning both parties either receive something of value or surrender a legal right; and
  • Mutuality, which is often referred to a “meeting of the minds.”

Assuming that the agreement is voluntary, fair, and has all the proper elements, it is very difficult to overturn.

To start your marriage on a more solid foundation, contact an experienced Naperville family law attorney today. We serve individuals and families throughout Chicagoland.



Thoughtful Parents Making Amicable Divorce a Trend

October 12th, 2015 at 1:23 pm

amicable divorce, divorce trends, Naperville Family Law AttorneysCouples do not usually marry with the intent of someday divorcing. Yet divorce does happen, each and every day. For couples, the experience may be stressful, painful, depressing, and emotionally taxing. But for children, the separation and upheaval of home and family can be emotionally traumatic. This is especially true when there is a lot of shaming, blaming, or arguing between parents.

Thankfully, there is a new trend emerging that is mindful, thoughtful and intentional. More importantly, this new “trend” places the separating couple’s focus on a joint goal: successful and amicable co-parenting. This goal is so important that it takes precedence over any and all issues the parents may have with one another.

Doing Divorce the Right Way

An amicable divorce is not one without unresolvable problems. After all, the divorcing couple probably would not be separating if they could resolve their issues. But with the right mindset, the right approach, and qualified help, it is possible to set differences aside to ensure that children do not end up feeling as though they must choose one parent over the other. In the end, the reward is worth the work.

Tips for Achieving an Amicable Divorce

Amicable divorces do not just happen; they are worked toward with purpose and intent. They are also often the result of working closely with a team of professionals, such as therapists, divorce attorneys or mediators. Family support may also play an important role in achieving a friendly, non-confrontational divorce. But, at the end of the day, you have to remember that it is what you do (or do not do) that makes all the difference in how your divorce will end.

Couples that wish to achieve an amicable divorce may benefit from these tips:

  • Whether you are dealing with custody arrangements, child support, or debt, try to focus on reaching a compromise that you can both live with. After all, there are no “winners” in a divorce;
  • Seek a divorce attorney who encourages problem-solving and mediation rather than one who wishes to add fuel to the emotional fire between you and your soon-to-be ex-spouse;
  • Be responsible for your own feelings about the divorce and seek help from a professional therapist, if necessary;
  • Have a plan that you and your soon-to-be ex-spouse can agree upon when it comes to discussing the divorce with your children. Decide ahead of time what will be shared (and what will not);
  • Remember that your children love both of you, so avoid any blaming or shaming, and try not to get defensive if your children ask uncomfortable questions. Instead, try to have age-appropriate responses ready;
  • When possible, hold discussions with your children together;
  • Assure children that, while you will no longer be a couple, you will both continue to be loving and active parents in their lives; and
  • Focus on how things will not change, rather than how they will change (i.e. we will still sit together at your piano recitals).

Looking for a Qualified Divorce Attorney?

If you plan on working toward an amicable divorce, it is important that you seek qualified help as soon as possible. Contact the experienced Naperville, IL family law attorneys at Roscich & Martel Law Firm, LLC today at 630-355-5222.


Calculating Alimony in Illinois

October 6th, 2015 at 5:03 pm

calculating alimony in Illinois, Naperville Family Law AttorneyIn all new Illinois divorce cases, spousal support awards are much more predictable than they used to be, at least in most situations. In the last several years, a growing number of states have reconsidered their alimony laws in response to criticism from advocacy groups. These organizations claim that permanent alimony is essentially punitive and does not reflect the purpose of such payments. The argument may be correct or incorrect; however, its tenants have been at least partially adopted in a number of jurisdictions, including The Land of Lincoln.

The Change

Before January 2015, spousal support determinations were similar to child custody orders—both were rather subjective. Custody orders must be in the best interests of the children, and judges examine a number of factors to make that determination; maintenance awards used essentially the same process.

Furthermore, the law contained an implicit assumption that the recipient spouse’s economic status was permanently lower than the paying spouse’s lifestyle. Such a condition may be true in many cases, but it is certainly not present in all situations.

The main objection from lawyers and advocacy groups was that the subjective standard led to unpredictable results.

As of January 2015, spousal maintenance decisions structurally resemble child support orders: there is a default guideline, and judges have discretion to deviate from the guidelines in certain circumstances. Moreover, permanent alimony has essentially been abolished under this more objective standard.

The Rule

The revised Section 504 of the Illinois Marriage and Dissolution of Marriage Act applies to all couples whose combined gross income is under $250,000. In most cases, the formula to determine the amount is 30 percent of the payor spouse’s gross income minus 20 percent of the payee’s gross income; the duration of payments is a multiplier based on the length of the marriage.

Assume that Wife’s gross income is $40,000, Husband’s gross annual income is $30,000, and they are divorcing after an eight year marriage. Wife would owe Husband $7,000 per year for 3.2 years ($13,000 minus $6,000 multiplied by .4). In most cases, the payments would be $580 per month for 38 months.

Before the judge can award maintenance, however, there must be a determination that maintenance is reasonable under the circumstances, based on factors including:

  • Income and property of the parties,
  • Duration of the marriage,
  • Custody of minor children, and
  • Any other factor the court deems relevant.

A judge can deviate from the guidelines and apply these same factors to determine the amount and duration of payments, if appropriate.

If you have questions in regards to calculating alimony in Illinois, or any other family law matter, please contact an experienced Naperville family law attorney today at Roscich & Martel Law Firm, LLC. Convenient payment plans are available.


Challenging a Prenuptial Agreement in Illinois

September 29th, 2015 at 2:02 pm

prenup, coercion, Naperville Divorce LawyerMost family court judges uphold the agreements between parties to the greatest extent possible, provided that the agreements fall within certain parameters. However, just because a person’s signature appears on a written document, or assent is given to an oral agreement, does not mean that the pact was entered into voluntarily and knowingly. What must a spouse prove to render a premarital agreement unenforceable?

Setting Aside a Prenuptial Agreement

In terms of voluntariness, most Illinois courts require some sort of physical coercion to set aside the prenuptial agreement. In fact, Illinois courts have specifically held that a “sign or else” ultimatum is not coercive. Courts in nearby states have made similar rulings regarding the bride’s pregnancy and the sudden appearance of a premarital contract.

While it is almost impossible to prove coercion, the second possibility – that the agreement was unconscionable when made – is not as difficult to establish.

The first point is that the agreement must be unconscionable “when made.” Although it took place in California, the Frank and Jamie McCourt divorce is a good example of this concept. Ms. McCourt agreed to relinquish her ownership share in the Los Angeles Dodgers for pennies on the dollar, at a time when the franchise’s value was extremely low. Later, when Mr. McCourt sold the resurgent team for a record amount, Ms. McCourt could not prove that the contract was unconscionable at the time she signed it.

In Illinois, unconscionability also has an objective element. In addition to unfairness, challenging parties must prove that they did not:

  • Waive, in writing, the right to a full property disclosure,
  • Have an adequate knowledge about the amount of property, and
  • Receive a fair and reasonable disclosure of the other party’s property or financial obligations.

In other words, the judge will probably uphold the agreement if the non-challenging spouse can show any fault on behalf of the signing spouse.


Although prenuptial agreements can limit the amount, duration, or frequency of maintenance payments, such limitation cannot create an “undue hardship.” The same Illinois court which ruled that an ultimatum was not coercive also ruled that a spouse’s reduction from a “lifestyle of luxury” to a $24,000 annual salary was not an undue hardship.

The best approach in premarital agreements is to have aggressive representation at the time it is signed. For a free consultation in this area, contact an experienced Naperville family law attorney. After-hours appointments are available.




Who Pays What?

September 26th, 2015 at 2:10 pm

support, stepparent income, Illinois Family Law AttorneyMost states do not consider a new spouse’s income when determining a child support obligation, under the theory that step-parents do not have a legal obligation to financially support their step-children. But courts often interpret Illinois law in a different manner, due in large part to a case from the Second District Court of Appeals in northern Illinois.

The Case

In In re Marriage of Drysch, a case that originated in Kane County, the court considered the division of college expenses pursuant to a reservation clause in a 1988 divorce. Since that time, Father had maintained basically the same standard of living and same income. His most recent tax return declared an annual income of roughly $80,000, part of which was attributable to his new wife. However, Mother had married a successful real estate broker with an annual income exceeding $620,000; he also paid his wife a $50,000 annual salary.

Furthermore, Father and his son were not at all close. Testimony indicated that they had not seen one another in at least three years following an altercation that resulted in a restraining order, and the son had legally changed his last name to that of his step-father.

Based on this evidence, the trial court ordered Father to pay 10 percent of the son’s educational expenses, citing the income discrepancy between the two households and the estrangement between Father and son. In upholding the financial portion of the division, the appeals court relied on Section 513 of the Illinois Marriage and Dissolution of Marriage Act. This provision states that, when apportioning college expenses, a court must consider:

  • Financial resources of both parents;
  • The standard of living the child would have had if the parents remained married; and
  • Financial resources of the child.

The court concluded that both Mother and her son had access to her new husband’s considerable financial resources, and that the son’s standard of living would have been considerably lower if Father and Mother had remained married. However, the court also declared that the trial judge’s consideration of the relationship between Father and son was improper.

Broad Application

The court specifically held that “it is likely that both parties pool their resources with those of their second spouses, so that their assets and liabilities are substantially intertwined.” In other words, a new spouse’s income may also be relevant when assessing a motion to modify child support based on increased income.

Judges have broad discretion to deviate from the child support guidelines, given specific fact patterns. For immediate assistance in this area, contact an experienced Naperville family law attorney today. Convenient payment plans are available.


What About Us?

September 17th, 2015 at 3:06 pm

grandparents, visitation, Naperville Family LawyerIn most child custody cases, the primary focus is understandably on the immediate family, or the parents and children. But there are nearly always secondary caregivers as well, including grandparents. According to the government, it is quite common for grandparents to spend a considerable amount of time with their grandchildren; as a matter of fact, over four million households contain both grandparents and grandchildren.

Unfortunately, after a divorce, weekend sleepovers and other treasured activities are sometimes replaced by weak excuses as to why the children cannot come as scheduled. Often, divorced caregiver parents feel no emotional connection with their former in-laws, and non-custodial parents hesitate to share their parenting time. In other situations, the parents may feel that denying visitation to grandparents is a way to “get back at” their former spouses.

Grandparent Access

Section 602.9(c) of the Illinois Marriage and Dissolution of Marriage Act directly addresses these situations, and empowers grandparents to legally maintain contact with their grandchildren. To secure visitation rights, which may differ based on the circumstances of the family, the grandparents must prove that there is an “unreasonable denial of visitation by a parent that causes undue mental, physical, or emotional harm to the child.” When considering this factor, the judge may consider whether or not the child:

  • Lived with the grandparent petitioners for at least six months;
  • Had “frequent and regular contact or visitation” with the petitioners for at least 12 months; or
  • Was left with the grandparents as the “primary caretaker” for at least six consecutive months during the preceding two years.

In addition, at least one of the following five factors must be present:

  • A parent is deceased or has been missing for at least 90 days;
  • At least one parent does not object to grandparent visitation, and the requested time does not diminish the parenting time of the unrelated parent;
  • A judge has declared a parent to be legally incompetent;
  • A parent has been incarcerated for at least 90 days; or
  • The parents were never married.

The second factor is the one most commonly present. Typically, for practical purposes, the biological child carves out some of his or her parenting time and relegates it to his or her parents.

For a confidential consultation with an experienced Naperville family law attorney who is dedicated to giving grandparents and other secondary caregivers a voice in child custody proceedings, reach out to us today.



Ashley Madison Breach Creates Issues In Divorce Cases

September 8th, 2015 at 3:42 pm

adultery, ashley madison, Naperville Divorce AttorneyThe adultery website Ashley Madison is facing yet another potential class-action lawsuit, in the wake of a serious data breach in August 2015. What impact, if any, does this development have on property division actions in Illinois?

In the latest action, California resident “John Doe” claims that the website’s parent company, Canada-based Avid Life Media, failed to permanently delete account records, despite its promises to do so and collection of an additional $19 fee from each member. The lawsuit also states that the company negligently failed to take the proper precautions to protect “particularly sensitive” information that users submitted, given the rash of high-profile hacks over the past several years. Finally, court papers claim that Avid Life Media failed to promptly disclose the breach to possibly-affected members.

The lawsuit demands unspecified damages.

Adultery in Property Division Matters

Fault in the breakup of the marriage – including adulterous conduct – is not admissible in a divorce property division matter. However, a clever lawyer may be able to get this information before the judge and, perhaps more importantly, make adultery, or even attempted adultery, a matter of public record.

Under the Illinois Marriage and Dissolution of Marriage Act, dissipation of marital property is a factor in determining an equitable property division. Although waste is typically associated with items like failing to maintain real property or an ostentatious and extravagant lifestyle, purchasing gifts for a girlfriend, or even using funds from a paycheck (which is marital property) to pay membership fees on a website, may also qualify as dissipation.

The length of the marriage is yet another factor. An argument can be made that if Husband had not committed adultery, the marriage would have lasted longer, and Wife would therefore be entitled to a greater share of the marital property.

If nothing else, marital infidelity may be used as leverage during settlement negotiations. If Wife possesses evidence of Husband’s adultery, he may think twice before rejecting a somewhat unfavorable settlement offer and proceeding to trial. The same logic applies earlier in the process: Husband may come to the bargaining table to avoid disclosing embarrassing and potentially damaging information.  This is particularly true if Husband is a government or military employee, as adultery is grounds for revocation of a security clearance or even termination, in some cases.

For a confidential consultation with an experienced Naperville divorce attorney who tenaciously fights for your share of the marital estate, contact our office. Convenient payment plans are available.



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Roscich & Martel Attorneys has provided high-quality legal representation in divorce, family law, real estate, estate administration, probate, wills, Advance Health Care Directives (living wills), powers of attorney for over 60 combined years to residents of Naperville, Aurora, Bolingbrook, Wheaton, Warrenville, Winfield, Downers Grove, Lisle, Kendall County, DuPage County, Kane County, and Will County in Illinois.

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