August 31st, 2015 at 1:56 pm
Illinois supporting parents currently owe approximately $3 billion in unpaid child support, and a new law hopes to address not only the numbers, but also the reasons behind the numbers.
House Bill 2791, which took effect July 30, challenges the notion that past-due supporting parents are simply “deadbeat dads” who refuse to pay. Instead, State Representative Camille Lilly (D-Chicago), the bill’s sponsor, believes that parents fall behind because they are unable to pay. Accordingly, the new law directs the Division of Child Support Services to “identify and minimize barriers to paying child support so as to decrease the total amount of unpaid child support in Illinois.”
The study will develop an accurate demographic profile of delinquent parents, including their incomes, the ratio of the child support amount to that income, primary language spoken, employment history, and criminal history. The study will also examine any “institutional barriers” to collection and assess any impact that unpaid child support has on a supporting parent’s ability to get a job.
In an accompanying statement, Rep. Lilly stressed that HB 2791 is designed to make the system more efficient and not give past-due supporting parents the chance to justify their actions.
Child Support in Illinois
The impetus behind HB 2791 is the idea that delinquent payors are predominantly poor and nonwhite, employers do not hire them because of their negative credit histories and possible issues regarding withholding orders, and the collection system is inefficient and biased. Whether or not these things are true remains to be seen.
Although some other states have reworked their child support laws to account for the relative incomes of the parents, the amount of time they spend with their children, and other factors, the State Legislature did not really incorporate any of these changes into the new Senate Bill 57. Instead, Illinois is still a straight percentage-of-income state, albeit with a twist.
The child support guidelines state that supporting parents must pay a percentage of their net incomes on a scale that starts at 20 percent for one child and ends at 50 percent for six or more children. “Income” is broadly defined to include imputed income, if the court finds that the supporting parent intentionally quit a high-paying job to avoid paying child support.
The court may deviate from the guideline amount if it finds that such action is necessary after considering the children’s:
- Educational, emotional, and physical needs;
- Probable standard of living if the parents lived together; and
- Financial needs and resources (this factor also applies to the parents).
Either party may typically file a motion to modify the amount based on a permanent and unanticipated change in circumstances.
A measure of financial security is important to both children and parents. If your family is dealing with child support issues, contact an experienced Naperville family law attorney for a confidential consultation. After-hours appointments are available.
August 24th, 2015 at 4:02 pm
When the “Modern Family” law takes effect this January, it will fundamentally reshape the way family law cases move through the system and are ultimately decided. In addition to the subjects covered in previous blogs, there are a few other significant changes.
Modification and Property Division
While the change to in-state and out-of-state modification is by far the most important alteration, there are a few others of note. For example, child support can be made permanent by agreement of the parties, meaning that it cannot be modified absent extraordinary circumstances.
As for property division, the new Section 503 expands the marital property presumption and a change in classification must be supported by clear and convincing evidence. A related provision changes the rules when dealing with commingled property. Finally, the new law explicitly states that the trial date is the property valuation date, which can significantly affect retirement account balances and other figures. If necessary, a judge has the power to appoint a financial expert and divide the expense between the parties.
The Legislature included an entirely new section on this issue, which was sorely needed, because current law is very uncertain.
Any award can be made payable to an academic institution, a child, or a party. The obligation terminates if the child’s average drops below “C” or a similar ending event occurs. Furthermore, either party may bring a petition for children’s’ educational expenses through age 23, or age 25 in some circumstances. These expenses are defined as:
- Tuition and Fees: This amount is capped at the cost of the University of Illinois in a given year; a party can also demand reimbursement for books and supplies;
- Room and Board: Similarly, the amount is capped at the cost of a double-occupancy dorm room and standard meal plan at the University of Illinois Urbana-Champagne;
- Medical Costs: The petition may demand the actual cost of both medical insurance and uninsured expenses; and
- Living Expenses: This category includes all living expenses during recess periods, such as food, utilities, and transportation.
A future post will examine the new Section 602.7, which rewrites the way that divorced parents interact with their children.
It is safe to say that Senate Bill 57 is one of the most sweeping family law reform measures in the state’s history. For a confidential consultation with an experienced Naperville family law attorney that understands all the implications of these changes, contact our office. Convenient payment plans are available.
August 17th, 2015 at 7:24 am
A sweeping new family law bill will take effect January 1, 2016, greatly changing the Illinois Marriage and Dissolution of Marriage Act (IMDMA). In addition to the end of “heart balm” actions, changes to modification proceedings, and the elimination of evidence-based divorces, there are some other relevant changes.
Child Custody Provisions
Many critics complain that most states, perhaps unintentionally, place too much emphasis on “winning” and “losing” child custody disputes. Senate Bill 57 is a direct response to these faultfinders.
The law replaces the term “custody,” which has some negative implications, with the phrase “parental responsibility allocation.” Although it is somewhat unwieldy, the words more accurately reflect the idea of shared parenting responsibilities in a divorced household.
Senate Bill 57, or the “Modern Family Law,” is much more than window dressing. The Legislature amended Section 102, including a few more overarching principles for family law cases. The new guideposts include:
- Protecting minor children from exposure to “conflict and violence,”
- Discouraging novel or unusual solutions,
- Accelerating the process, to the greatest extent possible,
- Recognizing the importance of joint decision-making after divorce, and
- Making timely support awards, including advances for legal fees and costs, when appropriate.
Court pleadings must be changed in accordance with the new rules; instead of “In Re Custody of XYZ,” they are to be titled “In Re Parental Responsibility of XYZ.”
This proceeding is not eliminated, but it is rather sharply limited. There may have been a concern that legal separation, though originally conceived as a shortcut, simply meant a longer legal proceeding and higher attorneys’ fees, at least in many cases.
In legal separations filed after January 1, 2016, the judge may only grant limited support and enter limited property division orders. Furthermore, all these questions must be entirely re-litigated, if and when a divorce is filed.
In a rather minor change, courts will now require a standardized affidavit in support of these requests. Child support is to be allocated according to parenting time, and there are “significant penalties” for intentionally filing a false affidavit.
There are some more significant changes.
- “Kick-Out” Orders: A judge may only remove a person from the marital residence after the petitioner files an affidavit or verified pleading, and a full hearing is conducted.
- Mediation: If ordered, the costs must be distributed equitably, as opposed to equally; the matter may be revisited in the final order.
- Prohibition on Extraordinary Expenditures: This subsection is entirely omitted.
There are still more changes in this law. For a confidential consultation with an experienced Naperville family law attorney, contact Roscich & Martel Law Firm, LLC. Although we have access to a vast network of resources, we strive to maintain a small-town atmosphere. Call 630-355-5222 today.
August 10th, 2015 at 3:51 pm
Governor Bruce Rauner recently signed Senate Bill 57 into law. The measure significantly reworks many portions of the Illinois Marriage and Dissolution of Marriage Act. While some of these changes are largely cosmetic, others have a significant effect on divorce cases.
It is no secret that the American family is changing. According to the Pew Research Center, 71 percent of American children lived in a “traditional” household – a married man and woman who were on their first marriage, along with their biological children – in 1960. By 1980, the figure had dipped to 61 percent; in 1994, for the first time in history, the number dropped below 50 percent.
To cope with the new reality, the Illinois House actually passed the so-called “Modern Family” bill in 2014, but it died in the Senate. Effective on January 1, 2016, Senate Bill 57 will be the law of the land.
Heart Balm Actions and Evidence-Based Divorces
The first section of the new law prohibits court action for alienation of affection; these “love triangle” negligence lawsuits often arise from divorces that are granted due to adultery, when a jilted spouse sues the person that broke up the marriage.
In a closely-related provision, Senate Bill 57 eliminates all grounds for divorce other than irreconcilable differences. The two-year waiting period for no-fault divorces is reduced to six months, and even that period can be waived, in certain circumstances and if both spouses agree.
Waste of marital assets, which can be a back door to admit evidence of adultery during property division proceedings, is still admissible. In a similar vein, emotional, verbal, and physical abuse is admissible in a protective order proceeding.
Existing law requires custodial parents wishing to move out of state to obtain court approval, while an in-state move requires no such permission. This provision often leads to seemingly unjust results: a move from Chicago to the Illinois side of the Kentucky border (300 miles) is perfectly legal, while a move from Chicago to Gary, Ind. (30 miles) requires judicial approval.
Senate Bill 57 imposes a flat 25-mile provision for most of the state. Any distance greater than that, the relocating party must file a motion with the court. In Cook County, and the five contiguous counties, the maximum distance is 50 miles.
In future posts, we will examine the sweeping changes to custody and support provisions.
Just like the family itself, Illinois family law is changing. For a consultation with an experienced Naperville divorce attorney who understands all the ramifications of the new law, contact our office. After-hours appointments with an attorney are available.
July 27th, 2015 at 3:39 pm
Older couples are getting divorced at a record pace, and these cases often create an entirely new set of challenges for family law attorneys.
Between 1990 and 2010, the marriage dissolution rate for couples over fifty roughly doubled. Many of the traditional divorce complications – most notably child custody and child support issues – are absent from these cases. So, on one level, a gray divorce may be less acrimonious than a divorce between thirty or forty-somethings. On another level, however, there are a number of unique challenges in these matters.
According to the Illinois Probate Act, divorce is the legal equivalent of death, at least for estate planning purposes. In other words, step-children may not be in line to receive a share of an inheritance.
Simply because they have lived longer, many older people have more property than younger people. Moreover, many older people have been married at least once before, so there may be a substantial amount of non-marital property. Some typical problems include:
- Retirement Accounts: Although these items may have little or no cash value, especially if the benefits have not vested, these accounts must still be divided just like any other asset.
- Commingled Funds: When the parties have been married for a number of years, the opportunity for the line between marital and non-marital assets to blur increases dramatically.
- Property Valuation: Many items may carry as much or more sentimental value than monetary value.
Just as it is not unusual for minor children to “pick sides” in their parents’ divorces, adult children may do the same thing. Under Illinois law, grandparents can only obtain custody of their grandchildren under limited circumstances, but they can bring an action for periodic visitation, if such a move becomes necessary. Essentially, if the judge finds that the grandchild’s biological parents are wrongfully withholding visitation and the grandparents brought the action in good faith, the judge may grant the petition.
A gray divorce can mean a unique set of family and financial circumstances. For a confidential consultation with an experienced Naperville divorce attorney, contact our office. We have been a fixture in downtown Naperville for over 40 years.
July 20th, 2015 at 4:24 pm
The wave of spousal support laws that is currently moving across the country, especially in states like Florida and New Jersey, made landfall in Illinois earlier this year. In response to reformers who claimed that alimony laws gave too much discretion to judges and led to sometimes indefensible results, the State Legislature significantly reworked the law. Spousal support is still an important component in most divorce proceedings, although the new law makes an award a two-step process.
According to the new Section 504 of the Illinois Marriage and Dissolution of Marriage Act, the court retains discretion to determine whether or not maintenance is appropriate in a given situation. The judge may consider a number of factors, including:
- Parties’ Income: This inquiry considers both the payor spouse’s ability to pay and the payee spouse’s financial need, when taking into account the parties’ employment or business income along with any property, especially income-producing property, received in the divorce settlement.
- Non-Economic Contributions: Some spouses delay career advancement, or leave the workforce altogether, to care for minor children, and this sacrifice may have a significant bearing on their earnings potential.
- Standard of Living: Divorce almost always means a reduced standard of living for both spouses, but the reduction must be roughly equal for both parties.
- Marital Agreement: Most judges defer to any formal or informal agreement between the spouses that is not manifestly unfair.
Other factors include the duration of the marriage, which is discussed further in the next section, tax consequences to the parties, the relative ages and health of the spouses, and “any other factor that the court expressly finds to be just and equitable.”
Amount and Duration
Although the judge has some discretion to deviate from the guidelines, the State Legislature clearly intended for the payments to be tied to a specific formula, at least in most cases. According to subsection (b-1), the amount is 30 percent of the payor’s gross income minus 20 percent of the payee’s gross income, and the length of the order is a multiple based on the length of the marriage.
Assume that Husband and Wife are getting divorced after 15 years of marriage. Husband earns $100,000 per year, and Wife earns $25,000. Wife would be entitled to $25,000 ($30,000 minus $5,000) per year for 12 years; in most cases, a judge would order monthly payments of $2,083.33 per month.
Spousal support is typically an important component of a property settlement. For a consultation consultation with an experienced Naperville divorce attorney, contact our office. Convenient payment plans are available.
July 15th, 2015 at 2:08 pm
The Land of Lincoln is an equitable distribution state, and “equitable” is not necessarily the same thing as “equal.” Although dividing property can be a drawn-out process, it is important to do it right the first time, because divorce decrees are rather difficult to undo later. For the most part, marital property division is a three-step process.
The parties typically exchange financial information, such as bank account records and tax returns, within a month or so after the petition is filed. However, these documents often give an incomplete profile of a person’s financial status, either due to unintentional gaps in the records or the party’s efforts to conceal assets.
There are a number of telltale signs that your attorney looks for, in order to pursue hidden assets. Some indicators include:
- Evasive or inconsistent answers to financial questions,
- Regular account statements that are suddenly redirected to a different email address or stop coming altogether,
- Correspondence addressed to unfamiliar business entities, and
- Unexplained changes in account balances.
There may be a perfectly innocent explanation for all these things, but their existence is a signal for a diligent attorney to dig a little deeper and ask more questions.
Section 503(a) of the Illinois Marriage and Dissolution of Marriage Act clearly defines the difference between “marital” and “non-marital” property. In a nutshell, non-marital property is anything acquired before the marriage or by gift.
Pragmatically, however, the difference is not always so clear cut. Assume that a wife buys a car shortly before the marriage, and continue to use funds from her paycheck to make the payments. Although the car itself is non-marital property, the money from her paycheck is marital property and should be subject to property division.
In cases like this, funds are commingled, and ownership must be clearly established. Typically, the contributing estate – in this case, the marital estate – is entitled to reimbursement for the value of its contribution to the receiving estate.
In this phase, the court must consider a number of factors. Some of the more prominent considerations include:
- Duration of the marriage;
- Valid agreements between the parties, including prenuptial and postnuptial agreements;
- Current and future economic circumstances of the spouses;
- Spousal maintenance; and
- Custody of minor children.
The judge must divide property in a manner that will not create an unreasonable financial burden for either spouse. This includes such concerns as maintaining payments on the marital home and tax liabilities resulting from the allocated assets.
Property must be located and classified before it can be properly divided. For a consultation with a thorough Naperville divorce attorney, contact our office. Our firm has been a fixture in downtown Naperville since 1973.
July 8th, 2015 at 4:14 pm
Most would probably agree that money is a source of friction in many marriages and personal relationships. This friction can lead to serious disagreements and eventually erupt into open conflict, and perhaps even divorce. A premarital agreement gives couples the opportunity to address financial issues before this friction develops, so it never has the chance to become a wedge that separates man and wife. These contracts are especially well-suited for second and subsequent marriages, because in addition to financial matters, the parties can make inheritance and other testamentary provisions.
Illinois law encourages the use of marital agreements to resolve actual and potential conflicts, since mutual understanding is almost always a better option that expensive and time-consuming litigation.
Elements of a Premarital Agreement
These agreements are basically like any other contract, in that certain elements must be in place to make them enforceable. There are two areas of note.
First, although oral contracts are enforceable, in most cases, a spousal agreement must be written. Second, it must contain consideration. In other words, both parties must either receive something that has tangible value or give up a right they would otherwise be able to exercise.
What It Can Do
Under the law, a premarital agreement can cover almost any potential source of conflict, including:
- Mortgage and real property management rights;
- General rights to marital property;
- Elimination or modification of spousal support;
- Property disposition upon divorce or separation;
- Ownership of a life insurance policy;
- Choice of law provisions;
- The making or execution of a will or trust; and
- “[A]ny other matter” that is “not in violation of public policy or a statute imposing a criminal penalty.”
Child support is off limits, as these provisions are not part of the marital property settlement, even though money technically changes hands. Matters related to the children of the marriage must be addressed at the time of divorce.
In addition to their potentially broad nature, spousal agreements are also relatively easy to enforce. However, there are two defenses:
- Lack of Voluntariness: Illinois law basically requires physical coercion in this area; even a statement like “sign this agreement or the marriage is off” may be insufficient to show involuntariness.
- Unconscionable When Made: If the agreement becomes one-sided later, for example, if a company goes public and its value skyrockets, that development is not a defense to enforcement. In addition, parties seeking to invalidate an agreement must prove that they did not receive a “fair and reasonable” disclosure, did not waive the right to further information, and could not ascertain that information.
A premarital agreement can help get a marriage started on a sure foundation. For a free consultation with an experienced Naperville family law attorney, contact our office. After-hours appointments with a lawyer are available.
June 24th, 2015 at 6:16 pm
The 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.
June 16th, 2015 at 1:02 pm
Divorce 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.