Recent Blog Posts
Spousal Support Laws in Illinois Permit Fixed-Term Maintenance
When a marriage comes to an end through divorce, one spouse may be at a significant financial disadvantage. In many cases, this spouse may have taken on other roles within the marital relationship, such as primary caregiver for the couple’s children, while financially contributing less. After divorce, a disadvantaged spouse will often need to find new ways to support him- or herself, and spousal maintenance laws are designed to help him or her do so when applicable. Recent changes to the law, however, may allow a court to place limits on spousal support by utilizing fixed-term maintenance in certain situations.
The provisions for fixed-term maintenance went into effect on January 1, 2015, along with a number of other amendments to the Illinois spousal maintenance statute. While the new formula for standardized calculations has been previously discussed in detail, many Illinois residents may be unaware of the court’s option for marriages lasting less than ten years.
Do You Know What Reason to State for Your Divorce?
Filing for a dissolution of marriage, or divorce, may leave some people wondering if their petition will be granted. When you file the paperwork for divorce, you must state why you are filing the petition. If a judge decides the grounds, or reason, you stated on your paperwork and evidence is not sufficient, your petition may be denied and the process will have to start over again. Speaking with an experienced divorce lawyer before you file your petition for a dissolution of marriage can save you unnecessary steps during the process.
Illinois allows the petitioner to file for a "grounds" or "irreconcilable differences" divorce. A divorce on specific grounds is generally attributed to the fault of one partner, while one based on irreconcilable differences is commonly called a "no-fault divorce."
Irreconcilable differences divorces are becoming the most common type of marriage dissolution. The spouse filing the petition does not have to list one specific reason for the divorce. Instead, he or she must sufficiently prove that there has been a breakdown in the marriage and reconciliation is not possible. In Illinois, filing for an irreconcilable differences divorce requires the couple to live apart for at least two years. If both spouses agree the marriage should end, a waiver is available for both spouses to sign to have the time limit waived. Signing the waiver means neither spouse is going to contest the proceedings.
Be Wary of Informal Custody Agreements
Divorced or unmarried parents often face a great deal of difficulty in determining arrangements for their children. They may be unable to communicate effectively with each other, making it necessary for the court to issue orders related to child custody, visitation, and support. Others, however, are able to get along just fine and cooperatively establish an agreement that meets their needs while providing for the best interest of their child. While such cooperation is certainly preferable to a contentious situation, parents should be cautious of informal agreements related to issues involving their children.
Following a divorce or breakup, some couples may find it very easy to create an informal arrangement for custody of their child. In some cases, the agreement is entirely verbal, with no written record whatsoever. For parents in an amicable situation, involving the court may seem unnecessary, as the child’s needs are being met while maintaining a positive relationship with each parent.
Parental Alienation: What Are My Options?
When you have separated from or divorced your child’s other parent, you know how difficult cooperation with him or her can be. As most parents in similar situations have discovered, the challenge often lies in keeping the negative feelings you may have toward your ex-partner, valid as they may be, from interfering with your child’s relationship with the other parent. This type of interference is known as parental alienation, and can present serious problems for divorced or unmarried parents, as it may affect a parent’s rights to custody of the child.
Understanding Parental Alienation
Children fare best when they have the love and support of both parents, regardless of the relationship between adults. Sometimes, however, the relationship between the parents is allowed by one or both adults to directly affect the child’s view of and relationship with the other parent. Parental alienation is estimated to be a factor in up to 15 percent of divorces involving children. While not always intentional or necessarily severe, the impact can be serious, not only on the parent-child relationship, but on the child’s own mental health.
Reasons Your Prenuptial Agreement May Not Be Valid
Before your wedding, you and your fiancé went through the process of drafting a prenuptial agreement. Like many couples, you decided that it was in your best interest to create an arrangement for financial security in the event of a divorce or premature death. Maybe you were not fully on board with the idea, but you loved him so much that you were willing to do just about anything to marry him.
Now it is several years later, your marriage has come to an end, and you realize that some of the terms and clauses in your prenuptial agreement seem to be a bit one-sided or unfair. You may even be wondering if it the agreement is valid and enforceable. Depending on the circumstances, it is possible that a prenuptial agreement may be invalidated for several different reasons.
Choosing a Mediator for Your Divorce
While deciding to end a marriage is never easy, some situations are certainly more difficult than others. Couples who are able to work together through the divorce process, however, often find that doing so leads to much more manageable stress levels and reduced difficulty in coming to a workable divorce agreement. Mediation, for many such couples, offers the opportunity to minimize the challenges of divorce while promoting a cooperative spirit that may last long after the divorce is finalized.
Is Mediation Your Best Option?
Before you and your spouse begin looking for a mediator to help you through the divorce process, you must first understand what your needs are. Mediation is an alternative dispute resolution method and is generally of value only to cooperative couples with unresolved issues in their divorce. If you and your spouse have already come to an agreement on most of the inherent details, it is possible that you would be better served by a divorce attorney who can help you file the necessary paperwork. However, if you and your spouse cannot reach an agreement regarding important concerns, a mediator may be able help you do so.
Division of Property: What are Marital Assets?
Divorce can present an entire spectrum of challenges for any couple, as they must contend with a large number of concerns. Depending on their specific circumstances, they may need to negotiate considerations for their children, determine new living arrangements, and establish an agreement regarding spousal support. Despite the difficulties inherent to any those issues, couples frequently have the most trouble in property division negotiations.
Equitable Distribution
Illinois law concerning divorce requires that, in the absence of a reasonable agreement, the property which constitutes the marital estate is to be divided between divorcing spouses. Unlike some states, however, Illinois property division guidelines require the equitable distribution of marital assets and debt as opposed to equal division. While equitable distribution will be addressed in more detail in a separate post, it essentially means that the property should be divided fairly, not necessarily 50/50, based on the consideration of circumstantial factors.
Division of Property Continued: Equitable Distribution
For a large number of divorcing couples, property division is among the most challenging aspects of the entire divorce process. Of course, much of the difficulty depends on how long a couple was married and how much property they accumulated during the marriage. Couples with few or no assets of significant value may be able reach an agreement rather easily, while couples with more complex concerns may end up having to finalize their arrangement through court proceedings. When the court gets involved, the division of property in divorce is governed by the state’s equitable distribution guidelines.
Determining and Valuating the Marital Estate
Prior to the application of equitable distribution principles, the court and the couple must establish what is to be considered marital property. A previous post covered marital and non-marital assets in greater detail, but, in short, marital property is any property acquired by either spouse during the marriage, with certain exceptions for assets such as gifts or inheritances.
Do My Child’s Wishes Matter in a Custody Case?
For an unfortunately large number of divorcing or separating parents, battles over child custody become very contentious. Emotional turbulence and bitterness can cause parents to lose sight of their child’s best interest, while each parent tries to "win" against the other. Other parents, however, have a truly difficult time in determining what exactly lies in the best interest of the child, even without acrimony and hostility between them. If you are in such a situation, you may know what you want for your child, but what about his or her desires? Will the court give consideration to the wishes of a child?
The short answer to the latter question is yes. The court does, in fact, consider the wishes of the child when making a determination for child custody. Illinois law requires a court to do so, but only as a part of the overall decision-making process. The child’s wishes are not sacrosanct, and the court may find that child’s desires would not actually serve his or her best interest, but they will be taken into account.
Am I Entitled to Visitation as a Grandparent?
If you are like most grandparents, spending time with your grandchildren is among the greatest joys in life. You, no doubt, look forward to having them come over or interacting with them at family gatherings, just as they eagerly anticipate getting to see you. In some family situations, however, things are often much more difficult, as a failing relationship between the parents may create challenges for fostering such a special bond. Grandparents in cases such as these may have no other option than to petition the court for visitation privileges.
Rights vs. Privileges
Under Illinois law, a parent who is not granted custody of his or her child maintains the right to reasonable visitation. These rights can only be restricted by an action of the court, and may only be done for cause. Visitation for all other family members is considered a privilege, and is not assumed by law in any way.
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