Evidence-Based Divorce in Illinois

June 24th, 2015 at 6:16 pm

divorce, at-fault divorce, Naperville Family Law AttorneyThe majority of marriage dissolution actions, both nationwide and in The Land of Lincoln, are no-fault divorces. These divorce actions are easy to prove, as they require only the testimony of one spouse that the couple has “lived separate and apart” for the requisite period and “irreconcilable differences have caused the irretrievable breakdown of the marriage.” Even if the non-filing spouse insists that the parties can reconcile, the judge will most likely conclude that the spouses are obviously not on the same page, and that future reconciliation attempts would be fruitless.

All that being said, a fault divorce may be a better option, in many cases. Some people have very compelling personal or religious reasons for wanting or needing a declaration of marital fault. Perhaps more importantly, the waiting period in an evidence-based divorce is always substantially shorter, or maybe even nonexistent.

Grounds for Divorce

Section 401 of the Illinois Marriage and Dissolution of Marriage Act sets forth nine grounds for divorce, in addition to the no-fault provision:

  • Impotence: If either spouse is naturally incapable of having children, a divorce maybe granted.
  • Desertion: The absent spouse must remain away for at least a year; any period of legal separation or divorce litigation may be included in this calculation.
  • Alcohol or Drug Use: The addiction must last at least two years, and it must be so powerful that it “becomes a controlling or a dominant purpose of his life.”
  • Attempted Murder of a Spouse: The filing spouse must prove that there was “malice” in the act.
  • Physical or Mental Cruelty: “Once is happenstance, twice is coincidence, and three times is enemy action,” according to spy novelist Ian Fleming. A similar analysis applies here, although two instances may be sufficient, in some cases.
  • Intentional Infliction of a Sexually Transmitted Disease: This one really needs no further explanation.
  • Criminal Conviction: The statute limits the scope to a felony or “other infamous crime,” but does not define the latter term.
  • Bigamy: It is both illegal and grounds for divorce to be married to two different people at the same time.
  • Adultery: Any physical romantic relationship, with or without sexual contact, is legally adulterous. Pornography, online adult chat rooms, and other “virtual affairs” are in a grey area.

It is a defense to prove that the petitioner caused or provoked the offending conduct; for example, a spouse who left the marital home for more than a year to escape the threat of physical cruelty in unlikely to be found at-fault for abandonment.

Both evidence-based and no-fault divorces are available in Illinois. For a free consultation with a compassionate Naperville divorce attorney, contact our office. Convenient payment plans are available.


Over the Line: Moving Children Out of State after a Divorce

June 16th, 2015 at 1:02 pm

out of state, relocation, Illinois family lawyerDivorce can often have a various surprising impacts on a family’s life long after the case has run its course. One common way that this has been seen in recent years is the issue of relocation, a parent with custody moving the child out of state. Custodial parents are not free to do this on a whim. Instead, they need a court order before they will be allowed to take the child out of state. This has become a major issue in recent years with more and more parents moving out of state as they look for work. Consequently, parents should be aware of how courts decide relocation cases, and the impact that a relocation decision can have on a visitation schedule.

How Courts Decide Relocation Cases

The major issue with relocation cases is that if only one parent is moving out of state, uprooting the child can interfere with the relationship between the child and the non-custodial parent. Therefore, courts are leery of allowing that without good reason, and the moving parent must demonstrate that the move would be in the child’s best interests. Illinois law provides five concrete factors that courts should look to when determining what the child’s best interest is. The five factors are:

  • The likelihood that moving would increase the child and custodial parent’s quality of life;
  • The custodial parent’s motives in asking for the move;
  • The noncustodial parent’s motives in objecting to the move;
  • How the move would impact the noncustodial parent’s visitation rights; and
  • Whether the court could implement a realistic visitation schedule if it allows the move to go forward.

If the court decides that, on balance, these five factors make it seem as though the move is in the child’s best interests, then the court will likely grant the custodial parent the ability to move out of state with the child. Additionally, the court will also likely reconfigure the visitation schedule to accommodate this.

Visitation after Relocation

Visitation scheduling following an out-of-state relocation will be done with an eye towards the practical realities of trying to accomplish visitation at such an increased distance. For instance, courts will probably award longer continuous blocks of visitation to avoid forcing either the child or noncustodial parent to be constantly traveling back and forth. Additionally, these long blocks mean that visitation for children who have been relocated out of state will likely be more concentrated during vacations from school to accommodate these longer blocks.

Filing for divorce is a major decision that can impact a person’s life for years. If you are considering filing for divorce, make sure you get all the information about the process beforehand. Contact a dedicated Naperville divorce attorney today to learn more about how the divorce process works.

Options for Collecting Delinquent Child Support

June 9th, 2015 at 8:18 am

Illinois divorce attorney, Illinois child support attorney, Illinois family law attorneyPeople rarely think about what happens after a lawsuit comes to an end. Whenever a movie focuses on a legal proceeding, once it ends the credits start rolling. However, real life often does not wrap up as neatly. This is especially true in divorce cases involving child support. While some supporting parents dutifully send a check each month, many attempt to avoid it. In those instances, parents of children who are owed child support should know that they have a variety of options for enforcing that support obligation ranging from wage garnishment to state-imposed criminal penalties.

Wage Garnishment

One of the most effective ways to enforce a child support obligation is through the use of a wage garnishment. A wage garnishment is a procedure under Illinois law that allows someone who is owed money to take that money directly from the debtor’s paycheck. In a practical sense, this is done by having a court direct the debtor’s employer to pay some portion of that check to the child being supported, rather than giving it to the supporting parent.

However, there are some limitations on a wage garnishment proceeding. First, a person must be earning a minimum amount of money before that person’s wages may be garnished. In Illinois, that amount is $371.25 a week. Additionally, even if a person makes enough for their wages to be garnished, the law places a limit on the total amount that may be taken. Ordinarily, Illinois law caps it at 15 percent, but the fact that the debt is child support raises that cap to 50 percent, and possibly even higher.

State-Imposed Penalties

If wage garnishment is not an option, there are also a variety of state-imposed penalties that people can seek, either directly or through the appropriate state agency. One common penalty is contempt of court. Child support is a court order, and court orders are legal documents that come with consequences if someone disobeys them. In this case, if a supporting parent cannot show good cause for why they have not been paying the support, then the court may impose jail time on them.

In more serious instances, failure to pay child support may also be a crime. Illinois law makes it a felony offense to willfully fail to pay child support for more than six months or to the point where the debt becomes greater than $5,000. If that happens, then the delinquent parent may end up facing a prison sentence of one to three years.

Children have a legal right to be supported by their parents. If your former spouse is failing to obey a court order to pay child support, contact a skilled Naperville family law attorney today to learn more about your options for collecting the money owed to your child.

Time Value of Money: What People Need to Understand about Time, Money, and Divorce

June 2nd, 2015 at 9:08 am

Illinois divorce lawyer, Illinois family law attorney, division of assets,Which is better: $100 today or $100 tomorrow? The fact that that is an easy question demonstrates an intuitive, but important, concept about money: it decreases in value over time. However, that simple principle can lead to much more complicated questions, especially when it comes to divorce. For instance, what if the question had been, “Which is better: $100 today or $200 in a year?” or “a $300,000 marital home now or a retirement account that will be worth $400,000?” These more complicated questions require more than just an intuitive understanding that money now is better than money later. They require the understanding of something known as the time value of money.

The Time Value of Money

The time value of money is a concept used by economists to calculate how much a certain amount of money at one time would be worth at another time. Of course, just going through a divorce does not require a nuts and bolts knowledge of how to figure out the time value of money, but understanding the basic principles can help people make smart decisions when it comes to dividing up the marital property.

The basic idea behind the time value of money is that there are a variety of things that make money now worth more than that same amount of money in the future, including lost profits, risk, and inflation. As far as lost profits goes, money that people have can be invested for a profit. Even money that just sits in a savings account earns interest. The problem of risk relates to the risk that the payment will not actually come through. As promises of payment get made further and further into the future, more and more potential obstacles to payment appear, such as the spouse who is obliged to pay suddenly losing their job or falling ill. The final problem is one of inflation, which creates issues because money loses purchasing power over time during the ordinary growth of the economy.

Why This Matters in Divorce

This general decrease in the value of money over time is important in divorce because much of the property division process involves negotiation and tradeoffs between current obligations and those in the future. Take the example from the beginning about a $300,000 marital home and a $400,000 retirement account. Comparing those items is difficult for a variety of reasons, such as the unique benefits provided by a home and the upkeep costs associated with home ownership. Of course, one of the major difficulties is comparing the value of the home, which is immediately available, with the retirement account, which may not be accessible for decades. While the comparison could be done by hand, there are a variety of calculators online that can make the process easier.

Divorce is a complex process, and the legal issues represent only some of the considerations that go into it. If you are considering a divorce and want to learn more, contact a skilled Naperville divorce attorney today.

What Qualifies as Income for Child Support?

May 26th, 2015 at 8:55 am

Illinois divorce attorney, Illinois family law attorney, Illinois child support lawyerOne of the largest financial impacts that divorce has is the assignment of child support, a regular check designed to see that a child’s needs are met despite their parent’s having separated. Illinois law determines child support as a percentage of the supporting parent’s net income. However, this raises some important questions, namely “Exactly what qualifies as income?” and “What sorts of expenses can be netted out of that income?” As it happens, the Illinois statute governing marriage lays out the basic rule in section 505, but that basic rule can be subject to some complications.

What Qualifies as Income

The basic definition of net income in Illinois law is slightly circular. The law ends up violating that old classroom rule about never using a word to define itself, and states that net income is “all income derived from all sources” minus certain allowable deductions. This definition has left it up to the Illinois courts to determine what qualifies as income.

Courts have generally interpreted this language broadly to sweep most financial gains of the parents into their income. This is because Illinois has a stated public policy of wanting to maximize child support awards in order to benefit children, and this broad definition of income helps with that. Consequently, many unusual types of income are included in the child support calculations, even if they are only one-time things. Some examples of things that can be considered income under Illinois law include the sale of stock, lottery winnings, and employee bonuses or housing stipends.

However, in some of those cases it can be a little more complicated. For instance, an Illinois appellate court recently dealt with the issue of when a stock sale counts as income. The supporting spouse had received the stock as a gift from his father-in-law during the marriage and he sold it after the divorce for a loss. His wife argued that the sale should be included in his income for child support purposes, but the court disagreed because the sale of depreciated stock realizes a person’s decreased net worth.

Allowable Deductions

Once the court has figured out what qualifies as income, the law lays out a set of specific deductions that they are allowed to take from it. These deductions include:

  • Federal and income taxes;
  • Social Security payments;
  • Retirement contributions;
  • Union dues; and
  • Certain necessary medical expenses.

The full list of allowable deductions is laid out explicitly in section 505 of the Illinois statute.

Trying to determine the full financial impact of divorce can involve applying some complex legal rules. If you are considering a divorce and want to learn more about how it might affect you, contact a skilled Naperville divorce lawyer today for more information.

Proposed Law Would Speed up International Adoptions

May 19th, 2015 at 8:29 am

Illinois family law attorney, Illinois adoption lawyer, Illinois adoption laws,While all adoptions involve no small amount of legal requirements and bureaucracy, international adoptions can add some extra difficulties because of the many different government entities involved. This is especially true in Illinois. Illinois is the last state in the country to have a position known as an Intercountry Adoption Coordinator. The Intercountry Adoption Coordinator is an additional state office official that needs to approve an international adoption on top of the usual offices that need to approve it in other states. This creates problems because it slows down the process, and lets adoptions rest on the unpredictable judgment of one person.

In recognition of this concerns created by the office, a bill has been introduced in the Illinois House to remove the Intercountry Adoption Coordinator’s position, allowing the international adoption process to move more predictably and more swiftly. Currently, the bill is awaiting debate in the Illinois Senate before it can potentially be voted on.

The Intercountry Adoption Coordinator

The Intercountry Adoption Coordinator is a position within the Illinois Department of Children and Family Services who is responsible for approving international adoptions in Illinois. The Intercountry Adoption Coordinator enters the process following the home study, a written report performed by a social worker who investigates and interviews the potential parents. That home study then goes to the adoption coordinator who must approve the findings in it before the adoption is allowed to proceed.

The New Bill

The new bill eliminates the Intercountry Adoption Coordinator based on two concerns about how the position hinders the international adoption process. First, the extra layer naturally slows down the process. This is especially true because there is only one person who can make the approval, which forms a bureaucratic bottleneck. It comes after a licensed social worker has already studied and approved the adoption. However, the Intercountry Adoption Coordinator can request extra documentation beyond that study, which can slow the process down even more.

Beyond the issues with speed, the bottleneck created by the Intercountry Adoption Coordinator also creates concerns about predictability. Leaving the decision up to one person introduces their own views and feelings into the mix. While the Intercountry Adoption Coordinator has the best interests of the child at heart, they are still only one person and there are many issues with adoptions that reasonable people could disagree about. Having only one person act as a gatekeeper makes it difficult to determine which side of those issues they will come down on.

Importantly, the bill still needs to make its way through the Illinois State Legislature before it becomes law. Regardless, dealing with the legal complexities surrounding international or domestic adoptions can be difficult. If you are considering adoption and want to learn more about the process, contact an experienced Naperville family law attorney today.

Couples Therapy: What a Trip to IKEA Says about Your Chances of Divorce

May 13th, 2015 at 7:10 pm

Illinois divorce attorney, divorce study, Illinois family law attorney,While it may seem odd that a trip to a furniture store can have the ability to predict the strength of your relationship or likelihood of divorce, a psychology professor at California State University says that it can do just that. As it turns out the complexity of much of the furniture from IKEA can act as a test about people’s strength with skills like communication and cooperation that can be important for a relationship to succeed. Assembling the flat-packed dresser or desk can end up leading to resentment and hurt feelings or it can demonstrate real skill and compatibility.

The “Divorce-Maker”

The doctor has highlighted one particularly challenging piece of furniture as an excellent test run, nicknaming it the Divorce-Maker. The actual name is the “Liatorp,” an enormous entertainment center. The Divorce-Maker is nine-feet-wide and seven-feet-tall with over 150 screws and 30-plus pages of instructions, not to mention heavy planks of wood and fragile panes of glass. The wall unit is clearly a two-person job, and it often requires the couple to work together to get it built and to avoid someone being hurt if something goes awry. According to the doctor, the stress of putting the Liatorp together acts as a fair litmus test for a relationship.

Underlying Causes

Of course, couples who have trouble are not actually fighting over an entertainment unit per se. The test works because it places the couple into a high-pressure environment and it forces them to work together, often outside of their comfort zone. That type of environment often reveals deeper issues that the couple may not have been aware of.

In fact, even a simple trip to IKEA can cause trouble for a relationship without purchasing anything. The stores are famous for their maze-like layouts showing idealized domestic scenes. This can promote conflict for any number of reasons. Some are simple or straightforward, such as if couples disagree over a piece of furniture. The fight becomes less about the furniture and more about how much the couple respects the wants and needs of each other. However, some fights can go deeper. Shopping for furniture, particularly in IKEA’s uniquely domestic environment, can bring out more serious concerns such as where the relationship is going, people’s concerns about their own space, and even questions about children that can often stay buried in people’s day to day lives.

There are many reasons that people can start thinking that divorce may be right for them. If you are considering filing for divorce and want to learn more about how the process works, contact a skilled Naperville divorce lawyer today. Our firm is here to help answer your questions and determine whether divorce is the right choice for your unique situation.

The Grey Divorce Trend

May 6th, 2015 at 6:55 pm

Illinois divorce lawyer, illinois family law atorney, gray divorce,It used to be the case that divorce was something only undertaken by younger couples; older spouses with longer marriages tended to be considered “safe” from it. However, that is no longer the case. Shifting divorce demographics reveal that couples over the age of 45 have seen a major increase in the number of divorces. In fact, according to statistics reported by the Washington Post, couples in that age group are divorcing at twice the rate that they used to in 1990. This shift has important implications for divorce law because divorces between older spouses tend to have different issues or shifted priorities.

Understanding Grey Divorce

The trend of grey divorce is a relatively recent one, and sociologists have been attempting to explain what is causing it. It seems to be a confluence of a variety of different factors. For one, divorces are generally looked on with much less stigma today than they were in the past, so people of all ages feel freer to get them. Beyond that, many women are achieving considerably greater financial independence than they had in past generations, which means that divorce is now a realistic possibility because they can comfortably support themselves.

There has also been a shift in the way that people view the institution of marriage. What was once about raising children and creating a stable environment for them has become much more about the personal fulfillment and happiness of the couple. Many people find it difficult to maintain that level of fulfillment and happiness with just one person throughout their whole lives. This is especially true because people are living longer now, meaning that marriages would have to last longer than they did in the past.

Special Considerations in Grey Divorce

If a couple is going through a grey divorce, it is important to understand that the priorities and issues may be different than they are in a divorce with a younger couple. For instance, child custody is much less likely to be an issue since the children are probably grown and out of the house. However, the adult children are still going to be affected emotionally and financially by the divorce, so there are special considerations to managing the spouses’ relationships with them during the divorce. Additionally, retirement assets such as IRAs will become more central to the property division process because the spouses will likely have less time to get their retirement plans back on track. Similarly, there are special Social Security issues related to ex-spouses that will likely loom large.

Grey divorces present unique issues that spouses should consider carefully. If you are thinking about filing for divorce and want more information about the process, contact a skilled Naperville divorce attorney to learn more about your options.

Illinois Family Law Primed for Major Updates

April 28th, 2015 at 6:57 pm

Illinois divorce lawyer, Illinois family law attorney, Illinois marriage laws,The primary Illinois statute covering divorce, the Illinois Marriage and Dissolution of Marriage Act, was passed back in 1977. The 40-year-old law was designed for a different society with different social conventions and is in need of an update. An Illinois legislative advisory group has been working for years to develop revisions to the law. The group recently introduced Senate Bill 57, which would make a variety of changes to Illinois’ family law if it passes. The most important of these changes is the fact that the bill removes the concept of child custody, but it also makes a couple other changes to the law.

Removing Custody

The biggest change the law makes is that it includes major revisions to the way that Illinois courts handle child custody proceedings. Currently, Illinois courts award custody of the child to one or both parents. This involves both physical custody, which determines who actually cares for the child, and legal custody, which determines which parent can make decisions about how the child is raised. The new bill would eliminate this view of custody.

Instead, courts would be responsible for allocating parental responsibilities between the divorcing spouses. These parental responsibilities mirror the types of parental actions that used to be covered by custody. For instance, courts can award parenting time, the right to choose what school the child attends, and the right to direct the child’s religious upbringing, among other things. The general standard for making these determinations would not change with the new bill, and would still be based on the child’s best interests. However, it is important to note that the bill lays out a variety of different factors that judges should look to when determining the best interests of the child.

Other Changes

The bill would also make a couple of smaller changes, such as the elimination of a separate hearing that is currently required in which the spouses show why the court should grant them a divorce. This hearing often involves couples airing their dirty laundry or criticizing each other, which can result in otherwise friendly divorces becoming more acrimonious.

The bill also eliminates a pair of archaic legal actions known as the “heart balm torts.” The heart balm torts are a pair of legal causes of action that allow a spouse to sue a third party who breaks up a marriage or engages in adultery. Although these types of cases used to be more common, most states have already removed them from their laws. This change would bring Illinois into line with most of the country.

Illinois family law is constantly changing to better suit the needs of Illinois families. If you are considering a divorce and would like more information, contact a skilled Naperville divorce lawyer today.

Imputed Income in Illinois Divorce

April 20th, 2015 at 5:35 pm

Illinois child support attorney, Illinois family law attorney, Illinois divorce lawyer, One major piece of any divorce involving children is calculating the proper amount of child support. A key input in that calculation is the amount of income that the supporting parent earns. Ordinarily, determining the parent’s income is simply an exercise in checking records, but there are some cases where the court will increase the supporting parent’s income compared to what they are actually earning. This increase, known as imputed income, occurs in two scenarios. First, it happens when supporting parents consciously earn less than they could in order to evade a support obligation. Second, courts will impute income to certain business-owning spouses when it can be difficult to distinguish the income of the business and the income of the parent.

Evading Support Obligations

One of the main reasons that courts will impute income is because the supporting parent can be earning more than they actually are. This can happen in two cases, either through voluntary underemployment or voluntary unemployment. The underemployment context occurs in cases where a parent is employed, but they could be earning more than they do at their job. The court can decide that the parent is under-earning based on a variety of reasons. Some of them are general, such as the parent’s vocational training or work experience compared to their current job. Others are more specific, such as the parent not taking a promotion that they were offered, or delaying the payment of commission or bonuses.

The other common instance of imputed income is when the supported parent is voluntarily unemployed. Courts will find cases of voluntary unemployment when the parent has quit or intentionally gotten fired, yet they refuse to find another job without a medical reason for doing so.

Business-Owning Spouses

The other common instance of imputed income is when the supporting spouse owns a business. There are certain instances where spouses have control of a business and as such can manipulate the amount of income they receive as compared to the amount of income that they choose to reinvest in the business. A recent case dealt with this in the context of S-Type corporations. Those corporations have an extra wrinkle in that taxes on them are decoupled from actual payments to the shareholders. This means that the corporations can end up paying out only enough to actually cover the taxes and keeping the rest in the company for future years. Consequently, courts may use imputed income in some circumstances to allow the child support to properly reflect the amount of money that the parent actually earns.

Family law involves many doctrines like this to try to allow legal decisions to better reflect reality. If you are considering divorce and have questions about how the process works, contact a skilled Naperville family law attorney today.

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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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