Non-Minor Child Support in Divorce Cases

November 18th, 2014 at 10:05 am

child support modification, Illinois child support attorney, Illinois divorce lawyer,In most circumstances, child support stops once the child has reached the age of majority. However, that is not always in the child’s best interest. Many children have mental or physical disabilities that require more care from parents. Additionally, many parents these days have a hand in covering their children’s expenses during college. The law does not require child support to cover these sorts of issues, but Section 513 of the Illinois Marriage and Dissolution of Marriage act does give judges the option of awarding non-minor children support in certain circumstances.

When Non-Minor Support Is Available

The law makes non-minor child support available to children in two cases. The first case relates to children with disabilities. The law is fairly sparse on guidelines in this area. It only states that courts may award non-minor support in cases where there is a child with a mental or physical disability.

The law provides considerably more guidance in the second case, which relates to educational expenses for non-minor children. Courts can award support related to education expenses for non-minor children with regard to college, professional school, vocational school, and even expenses incurred in high school after the child reaches age 19. The law also provides examples of things the expenses can cover, like tuition, room and board, transportation, books, and other fees. The statute also provides for the actual procedures that can be used to pay the expenses such as paying the other parent, paying the school directly, or setting up a trust for the purposes of educational expenses. Importantly, if courts do award educational support, the law requires parents and children to consent to the supporting parent’s ability to access academic transcripts.

How Judges Decide

As with most issues of child support, the law gives judges a wide latitude to consider the entire family situation in making their decision about whether to award non-minor child support. In fact, the law directs judges to “consider all relevant factors that appear reasonable and necessary.” In order to illustrate some of those factors, the law lists four as examples:

  • What the financial resources of each parent are;
  • What standard of living the child would have had if the parents had not divorced;
  • What financial resources the child has access to; and
  • How the child is performing in school.

However, these are just some of the many different considerations that may ultimately end up impacting the decision to award non-minor child support for college expenses or additional care.

Protecting your child’s future is an important consideration for any parent. If you are thinking about filing for divorce and would like to learn more about these issues, contact an experienced Naperville divorce lawyer today. Our team of dedicated professionals is here to help you understand the process and make the best decisions for yourself.

Why Seek an Annulment?

November 11th, 2014 at 7:40 am

Illinios family law attorney, Illinois divorce lawyer, When people consider ending their marriages, they most commonly consider pursuing a divorce. However, Illinois law does provide another option, a declaration of the invalidity of marriage. These declarations are more commonly referred to as annulments. Annulments differ from divorces in that they are a legal acknowledgment that a marriage never occurred because of some defect in the marriage, whereas a divorce is a legal unwinding of a marriage that did happen. That difference makes annulments considerably more difficult to qualify for, but they can have different practical impacts in certain circumstances, which may make an annulment a better option.

Reasons to Get an Annulment

There are a variety of reasons to prefer an annulment over a divorce when one is available. Annulments are a legal declaration of a marriage’s nonexistence, which some people may prefer on an emotional level. Beyond that, annulments can prevent a person from needing to pay alimony. However, this comes with a caveat that if the other spouse believed at the time that they were entering into a valid marriage then they have the right to collect support like the spouse of a legitimate marriage would have in many circumstances. Additionally, the annulment would not make a difference for purposes of child support because the child’s right to collect support from their parents is independent of their parents’ marital status. Annulments can also be useful to the parents of a minor who has gotten married without their consent. Such a lack of consent would invalidate the marriage, and the parents are allowed to file for an annulment on the minor’s behalf.

Who Qualifies?

Annulments are considerably more difficult than divorces to qualify for because there needs to be some sort of legal defect with the marriage. However, a variety of legal defects qualify. One of the most common is one party’s inability to consent to the marriage. If one spouse was forced into the marriage or was drunk or somehow defrauded, then the marriage may be eligible for annulment. Other potential qualifying issues with the marriage include an inability to consummate it, a minor spouse marrying without parental consent, and an “illegal” marriage. Illegal marriages are those forbidden by law, such as the marriage of close relatives or a bigamous marriage.

Some of these annulment qualifications also come with time limits, but the time limits vary depending on the reason for the annulment. A marriage without consent must be annulled within 90 days, but a marriage that cannot be consummated can be annulled any time within the first year. Marriages of minors without parental consent can be annulled any time until the minor reaches the age of 18, and illegal marriages have no time limit for annulment.

If you believe you may qualify for an annulment and would like to discuss it, reach out to an experienced Naperville divorce lawyer today to learn more about the different options available to you.

Illinois’ Right of First Refusal for Childcare

November 4th, 2014 at 6:23 pm

parenting plan, Illinois child custody attorney, Illinois family law attorney, A change to Illinois’ divorce laws went into effect at the start of this year, and it has important implications for parents who rely on childcare. Parents used to be able to arrange for childcare in any way they saw fit, so long as they had custody of the child. However, the legislature recently altered the Illinois Marriage and Dissolution of Marriage Act, and now that may not be the case for all parents. The legislature recently instituted a right of first refusal for parents in childcare situations. This means that parents looking to arrange childcare must first offer the other parent the option of watching the kids before letting someone else take over. The idea is based on the fact that Illinois child custody law is designed to look after the child’s best interests, and that it is often in the child’s best interests to have as much time with both parents as possible.

When the Right Applies

Importantly, the right does not apply to all parents. Instead, courts can choose to award the right of first refusal for childcare during the divorce process. However, the judge may not award the right unless it is either a joint custody situation or a situation where one parent has custody and the other has visitation rights. While the specifics of the right vary based on judicial discretion, it can apply very broadly. The idea is not simply to replace babysitters or nannies with the other parent. The right can also give the other parent the option of watching the child instead of grandparents or family friends. However, the law does allow parents some flexibility. If an emergency occurs and the custodial parent requires childcare with little warning, then they are not required to abide by the right of first refusal.

How the Right Works

The practical portions of the right of first refusal are set up when the judge decides to award the right as part of the divorce decree. The parents are allowed to negotiate the best practical way of implementing the right, but the judge can also step in and make decisions if necessary. The practical questions include things like the length of time that the childcare would last for, how the custodial parent should notify the other parent of the opportunity, the way the other parent should respond, who is responsible for dropping off or picking up the child in the event that the right is exercised, and any other practical issues that may affect the interests of the child.

The right of first refusal is just one of many changes that the legislature has implemented to Illinois family law over the past year. If you are considering filing for divorce, reach out to a dedicated Naperville divorce attorney to make sure that you know your rights.

Expensive Weddings May Lead to Divorce

October 28th, 2014 at 10:50 am

Illinois family law attorney, Illinois divorce lawyer, wedding planner,Many people spend over a year planning the details of their wedding and even longer dreaming about it. Lavish weddings of the rich and famous are televised and scrutinized events, and engagement rings have become a social symbol worthy of being professionally photographed so that they can be posted on Facebook. However, new research may show that these sorts of wedding expenses can actually shorten people’s marriages. The study, which was performed by researchers at the Emory University Department of Economics, found that expensive wedding rings and ceremonies were correlated with an increased divorce risk.

What the Study Found

The authors of the study surveyed over 3,000 people from the U.S. who either were currently married or had been married at one point. The researchers found people with similar relationships and demographic details like age and geography, and compared the length of the marriages as they related to ring expense and wedding ceremony expense. The study’s authors reported a variety of interesting findings. For instance, people who spent between $2,000 and $4,000 on the engagement ring saw a 30 percent increase in their risk of divorce. Conversely, people who only spent between $500 and $2,000 on the ring had a lower risk of divorce as compared to the general population. The findings were even more striking for the wedding expenses as a whole. People whose weddings cost over $20,000 were 350 percent more likely to get divorced than people who only spent between $5,000 and $10,000.

Additionally, these findings are not as clear at lower levels of expenditure. People who spent less than $1,000 on their wedding did still experience a lowered divorce risk. Yet, people who spent less than $500 on a wedding ring were more likely to divorce than the middle expenditure group of $500 to $2,000.

Possible Explanations

The authors of the study looked at the data and tried to determine the reason for this correlation. The current explanation is that these sorts of large expenses around the wedding are usually financed, at least in part, by debt. This forces the marriage to start off down in a financial hole on top of any other debt that the new spouses may have been carrying. This can lead to stress on the marriage that ends up causing more of the couples with lavish weddings or rings to end up getting divorced. This may be especially likely to be true because of the fact that financial troubles and stress are one of the leading reported causes of divorce.
Divorce can be an emotionally difficult process with many different causes. If you are considering filing for a divorce, you do not have to go through it alone. Contact an experienced Naperville divorce attorney today to learn more about the process.

Determining Asset Values in Divorce

October 21st, 2014 at 6:48 pm

marital estate, Illinois divorce attorney, Illinois family law attorney,Dividing up the assets of the marriage is one of the most important tasks that the parties have in a divorce. It also happens to be one of the most complicated. The basic rule in Illinois is one of equitable distribution. This means that judges examine a variety of factors and determine asset value and what is the fairest way to divide up the property. These factors include, among other things, the parties’ income, how much they contributed to the marriage, their standard of living, and their potential income in the future.

In order for the judge to make these decisions about property division accurately, they must know what all the different property is worth. In many cases, this is a simple enough process. Valuing a bank account is as simple as looking at the balance sheet. Even something like a car is easy enough to value. Cars are bought and sold often enough that determining the fair market value of the car is mostly about research. There are other asset values that are tougher to determine. These include unique assets, and assets that have rapidly shifting values.

Unique Assets

Unique assets can take a variety of forms, such as expensive jewelry, rare artwork, and antique furniture. By far, the most common unique asset is the marital home. No two homes are quite alike. They have different locations, different layouts, and different levels of upkeep and different renovations. This can make coming up with the fair value of the home difficult.

The most common way for the court to get a home’s value is through the testimony of expert witnesses. Expert witnesses are people that both parties hire based on their skill in a certain area. The expert can then help the court understand complex issues. For houses, people can hire appraisers to get an estimate of the house’s value based on the appraiser’s knowledge of the market. These appraisers can look at the history of home sales in the neighborhood, searching for homes of comparable size and quality, and then use those to estimate the worth of the marital home.

Rapidly Shifting Assets

The other type of assets that can create a challenge during the valuation are those with values that change quickly. Stock portfolios are a good example of this type of asset. The value of a stock portfolio at any instant is easy to determine, but it changes day by day. For these sorts of assets, the court picks a valuation date, usually near the date of the trial, and uses that as the point from which the assets can be valued.

Divorce is a complex legal process, and an experienced guide can make the whole event much easier. Reach out to an experienced Naperville divorce attorney today to learn about your options.

Understanding Marital Property in Illinois Divorce

October 14th, 2014 at 8:35 pm

Illinois divorce lawyer, Illinois family law attorney, marital estate,When pursuing a divorce, property division is often an important concern, and can be a difficult process. First you must assess what is considered marital and non-marital property. Although this may initially seem straightforward, both parties may not automatically agree upon which property belongs to whom.

Marital Property vs. Premarital property

In Illinois, property that is acquired and owned during the marriage is considered marital property. However, property that you acquired and owned prior to marriage is considered your premarital property. This property is not considered part of the divorce and should be immediately transferred to the person who originally owned the property. There is one caveat, however: an increase in value of premarital property during the marriage may then be considered a marital possession.

Take, for example, a situation in which you owned a condo before marriage, and after the marriage you decided to rent out the condo and move into a house. The rental income from this condo during marriage is considered marital property, and can be divided among the spouses. In this situation, the condo would revert to you, as the owner, upon divorce.

Consider the same scenario, however, although when you rented out the condo, you decided to use marital income to add upgrades. The value of the improvements to the property is considered marital property. If your spouse can prove to the court that the added value to the property during marriage has not decreased to nothing, then the added value of the property is considered marital property. The non-owning spouse may then demand a larger portion of other marital property in order to be compensated for these improvements.

Marital Property vs. Gifts

In Illinois, the court also makes exceptions for gifts during marriage. Any gift that was given specifically to you during your marriage is considered your separate property. These items may include:

  • Property received as an inheritance or gift;
  • Property received as an exchange for property owned prior to marriage;
  • Property given to you by the court in a legal separation;
  • Property excluded by a premarital or post marital agreement; and
  • Property previously awarded to you in a court order.

This non-marital property should be immediately transferred to the owning party at the time of separation and should not be considered part of the marital property to be divided during a divorce.

Marital Property

Once marital property has been separated from non-marital property and other gifts, the court may then distribute the property equitably among both parties. In doing so, the court will consider specific factors.

The factors the court considers include:

  • The contributions of each party during the marriage;
  • The valuation of the property given to each party;
  • The length of the marriage;
  • The consequences to both parties due to the division of property;
  • Obligations the parties may have due to a prior divorce;
  • Premarital and postmarital agreements;
  • The needs of the parties, including medical, emotional, and occupational;
  • The custody arrangement for children;
  • Alimony awards;
  • Future opportunities regarding income for the parties; and
  • The tax consequences of the property division.

Understanding the consequences of property division is important when entering into a divorce. Our experienced Naperville family law attorneys can help you better understand your rights. Contact us today to schedule a consultation.

How to Establish Paternity in Illinois

September 21st, 2014 at 3:33 pm

paternity tests, Illinois family law attorney, legal parent, parental rights, In today’s society, establishing paternity is not always a simple process. There are now many different factors that must be considered when a child is born, which can affect how paternity is determined. The following is a list of situations that could affect the child’s paternity.

The Mother and Father are Married

This is the easiest scenario for parents of a child. Under Illinois Law, when a child is born to a married mother, the mother’s husband is automatically considered the child’s father.

The Husband is Not the Child’s Biological Father

Sometimes a mother marries during the pregnancy to a person other than the child’s father, or perhaps the mother got pregnant during a marriage with a different man than her husband. In these situations, the husband may not always want to be named the legal father of the child. If the husband does not wish to be named the father, the husband needs to request a Denial of Paternity Form when the child is born. The husband, mother, and biological father must all sign the form. If one of the parties refuses to sign the form or it is unknown who the biological father is, the parties should contact the Department of Healthcare and Family Services’ Child Support Services and request a DNA test.

The Mother and Father are Not Married

When the mother and father are not married, the father’s name does not appear on the birth certificate with just the naming of the father by the mother. Instead, the father is considered an “alleged father” until paternity can be established, which is done by:

  • Both parents signing a Voluntary Acknowledgment of Paternity Form. This can happen if both parents agree on the paternity and voluntarily sign the form;
  • If both parents do not agree to sign the form, the mother can contact the State of Illinois Department of Healthcare and Family Services’ Child Support Services for the entry of an Administrative Paternity Order; or
  • The court can enter a Paternity Order.

If the parties choose to contact the Department of Healthcare, the department will interview the mother and request the name of the father. The department will then attempt to interview the father by serving the father notice to attend the interview. If the father attends the interview, the department will ask the father to sign the Voluntary Acknowledgment of Paternity Form. If the father refuses, then a DNA test will be requested. If the father does not attend the interview, the department can declare the alleged father the father by default.

The mother’s other option is to file for paternity through the court. If this happens, the court will order a paternity test and then enter an Order of Paternity if the DNA test is positive.

Why Establish Paternity

For some, it may not be clear why establishing paternity is such an important issue. Ultimately though, paternity can have a large impact for a variety of reasons. The child has a right to know his/her father, to receive support from his/her father, to receive medical insurance from the father, to receive veterans’ benefits from the father, to receive Social Security benefits from the father, to receive inheritances from the father, and to know the medical history of the father. Additionally, the father has legal rights to know his child and to have his name on the child’s birth certificate. Lastly, the mother has the right to request child support from the father as well as payment to cover medical expenses for the child.

Establishing paternity can be complicated in today’s society. If you are in the position where you need to establish paternity, either as the mother or the father of a child, our experienced Naperville family law attorneys can answer any questions you may have. Please contact us today for a consultation.

Child Support in the State of Illinois

September 17th, 2014 at 4:11 pm

child support payments, Illinois child support attorney, Illinois divorce lawyer, For many couples, a divorce equates to a fight over children, as well as who will be responsible for child support payments, and for how much. If you are currently going through a divorce, before you go in front of a judge, it is important to know what the court looks at to determine child support in order to adequately prepare.

Illinois Law

In Illinois, a child is owed support when the child’s guardian is not married to the child’s parent. Child support is to be used to support the physical, emotional, medical, and educational needs of the child.

Calculation

Child support is calculated on a guideline set by the state, and is determined as follows:

  • For one child, 20 percent of the net income of the non-custodial parent;
  • For two children, 28 percent of the net income of the non-custodial parent;
  • For three children, 32 percent of the net income of the non-custodial parent;
  • For four children, 40 percent of the net income of the non-custodial parent;
  • For five children, 45 percent of the net income of the non-custodial parent; and
  • For six or more children, 50 percent of the net income of the non-custodial parent.

This can seem simple or straightforward, but first net income must be determined before the calculations can be made.

Net Income

Net income is considered your gross income minus allowed deductions. The Illinois court allows the following deductions:

  • Federal and state income tax;
  • Social Security deductions;
  • Mandatory retirement deductions;
  • Union dues;
  • Health insurance;
  • Life insurance;
  • Child support obligations or children of another relationship;
  • Spousal support obligations;
  • Debt obligations; and
  • Foster care payments.

If you think the deductions can be confusing, also consider that the court can deviate from the guideline amount for the following reasons:

  • The child’s financial resources;
  • The custodial parent’s financial resources;
  • If the parents had stayed married, the standard of living the child would have enjoyed;
  • The physical, mental, emotional, and educational needs of the child; and
  • The non-custodial parent’s financial resources.

In addition to the set child support amount, a non-custodial parent can be ordered to pay the costs of the child’s day care and medical expenses not covered by the child’s insurance. The custodial parent is typically responsible for the health insurance of the child.

Modification

Both the custodial parent and the non-custodial parent have the ability to request a modification of support from the court. The court will only modify support if there has been a significant change in circumstances, for example a large increase or decrease in either parent’s salary. When you file for a modification, the court has the ability to modify the support retroactive to the date of the filing, not to the date of the change in circumstances. Additionally, the change in circumstances cannot be voluntary, for example, if you quit your job to pursue interests in a different field that pays less, you cannot use this excuse to get increased support.

Another reason for modification could be that one of your children has reached adulthood and no longer need support. In Illinois, once a child reaches the age of 18 or graduates from high school, there is no longer a responsibility to pay support (or the age of 19 if the child is still in high school). Again, the court can only order the reduction in child support retroactive to the date of filing. Therefore, as soon as the child reaches majority, you need to file for support. Additionally, please be advised that when the court re-calculates support, it will use current income data, not the original income amounts.

Child support can be complicated. To ensure that your child receives the accurate amount of support, please contact our experienced Naperville family law attorneys for a consultation.

Guardian Ad Litems, Attorney for the Child, and Child Representatives

September 3rd, 2014 at 7:27 am

attorney for the child, Illinois child custody attorney, custody decisionsIn Illinois child custody cases, under state law, a judge has the option to appoint a guardian ad litem, an attorney for the child or a child representative. It is important to understand the differences between these three positions and what each can report to the judge.

Guardian Ad Litem

A guardian ad litem (GAL) is an attorney appointed by the court to find the best interest of the child. The GAL is akin to the eyes and ears of the court in the custody case. The GAL is tasked to interview all parties involved in the case and all other information sources, including teachers, doctors, siblings, etc. Most importantly, the GAL is tasked with speaking with the child. The GAL will take all the information and submit a report to the court stating what the GAL believes is the best for the child.

At the custody hearing, the GAL can question witnesses, call witnesses of his/her own, and be asked to testify. The information supplied to the GAL is not privileged and can be repeated in either the report or testified to in court.

The court is not under obligation to follow the GAL’s recommendation. However, the GAL’s opinion is weighted heavily by the court as an unbiased source.

Attorney for the Child

An attorney for the child is appointed by the court to represent the child in a custody case. This person is literally the child’s attorney. The attorney has the duty to fully and passionately represent their client, whether or not the attorney feels the child’s choice is in the child’s best interest.

Your child will have attorney/client privilege with this attorney. Therefore, anything your child states to the attorney cannot be repeated to you or your spouse. Likewise, at a hearing, the attorney cannot be called to testify. This attorney will not submit a report to the court, but can call witnesses to put on a case for the child.

In order for this relationship to work, the child must be old enough to effectively communicate with the attorney.

Child Representative

The child representative is a combination of a GAL and an attorney for the child. The child representative holds attorney/client privilege with your child, but is seen by the court as an unbiased source. The child representative submits a report to the court as to their recommendation, however he/she is not obligated to follow the best interests of the child rules.

The downside to a child representative is that he/she is seen as an unbiased source by the court, however, due to the attorney/client privilege, the child representative does not have to justify their opinion. For example, if you disagree with the child representative’s opinion, you have no way to question his/her opinion as the child representative cannot testify in court. Conversely, if you disagree with the GAL’s opinion, you can question the GAL in open court to ascertain how the GAL came to that opinion, and then call your own witnesses to attempt to contradict the GAL.

The experienced Naperville family law attorneys at our offices can answer any questions you may have regarding guardian ad litems, attorneys for the child, or child representatives. Please contact us for a consultation.

Nuts and Bolts of Filing for Divorce

August 27th, 2014 at 6:25 pm

separation period, divorce grounds, Illinois divorce attorney, Illinois divorce law, So, you and your spouse have decided to get a divorce. What you may not have considered though, is that there are a plethora of other issues that you must discuss now that you have decided to separate. You must worry about things like a separation period, grounds for divorce, financial consequences of a divorce, and numerous other issues. To begin though, the first step toward filing for divorce is labeling the grounds.

Ground for Divorce

Illinois is not considered a no fault state. Therefore, you must have a ground for filing for divorce.

In Illinois the grounds for divorce include:

  • Being impotent;
  • Bigamy;
  • One spouse committing adultery;
  • One spouse deserting another;
  • Continued drunkenness (for a period of more than two years);
  • Drug abuse (for a period of more than two years);
  • Abuse — either physical or mental;
  • Being convicted of a felony;
  • Being infected with a sexually transmitted disease from your spouse; and/or
  • Irreconcilable differences.

Separation Period

If spouses are filing for a divorce under irreconcilable differences, they have to wait until a two-year separation period has passed. However, if both parties agree to divorce on the grounds of irreconcilable differences, the two-year separation date can be reduced to six months. During the separation period, the parties cannot live as a married couple. Though the parties may live in the same house (sometimes necessary for financial reasons), they must live as roommates rather than a couple. The spouses should not eat together, join in any activities together, and should present themselves to the public as separated, i.e. the spouses should not go out to eat together, attend religious ceremonies together or attend family gatherings together. They should also let family and friends know that they are separated.

In addition to the separation period, if spouses are filing for divorce using irreconcilable differences, they must show the court that there is an irreversible breakdown of the marriage and that all efforts have been made to attempt to continue the marriage, but they mentally or physically can no longer do so. This can be done, for example, by showing that the spouses have tried marriage counseling, but that it has failed to work.

Property Division

Lastly, when deciding what grounds to file divorce under, please note that under Illinois law, the court is not allowed to consider the reason for divorce when determining how to distribute the property. This means that a judge will decide how to distribute the property, but his or her decision will not change if you have divorced for the reason of adultery. The judge will not give you a larger portion of the marital property just because the divorce was caused by your spouse.

For assistance with all your divorce concerns, please contact our experienced Naperville family law attorneys. We have five offices throughout Illinois and can help you understand the law and form a plan for your divorce that will benefit you.

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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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