Posted on March 10, 2015 in Divorce

In 2012, an Illinois appellate court considered a dissipation case called In re Marriage of Berberet. Dissipation occurs when one or both spouses waste marital assets to prevent the other spouse from receiving those assets during a divorce. Under Illinois law, dissipation refers to a person’s use of marital property for his or her sole benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.

Berberet involved several issues related to dissipation. For example, the wife claimed dissipation when the husband took a trip with their children during the divorce proceedings, in addition to a solo hunting trip and a trip to Las Vegas. The court found that these trips did not constitute dissipation because they were not unusual or inconsistent with the lifestyle established during the marriage. In fact, the husband had taken similar trips in the past, and the wife had also taken similar trips with the children.

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 Posted on February 25, 2015 in Divorce

Illinois is an equitable distribution state, which means that marital assets are divided equitably, and not necessarily equally. The first assets that likely come to mind when you think about dividing marital property are the bank accounts, as well as the house, car and other large tangible objects. But there are additional, more “unusual” assets that are often overlooked before the divorce proceeding begins. Examples include:

• Pets – Pets are considered personal property under Illinois law and are treated as such during a divorce proceeding. One factor that contributes to who gets Fido is who gets the kids.
• Gifts given during the marriage – If your husband gives you diamond earrings for Valentine’s Day, or if your wife gives you an expensive watch for your birthday, those “gifts” are actually marital property, if they were purchased using marital assets. While it seems likely that each spouse will end up with his or her respective gift, that is not a guarantee.

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 Posted on February 23, 2015 in Child Custody

In some cases, courts have trouble enforcing child custody orders and orders forbidding removal of the child from the court’s jurisdiction. If the respondent improperly removes the child from the petitioner’s physical custody or improperly retains the child after his visitation time legally ended, then the court may enter an enforcement judgment.

If the child’s whereabouts are known, then the judgment may direct law enforcement to assist the petitioner in apprehending the child. Moreover, the judgment may authorize babysitters, teachers or anyone who has custody of the child to surrender the child to law enforcement.

The enforcement order may be entered without providing notice to the respondent if the court determines that notice would make it more difficult to locate the child. For example, the respondent might conceal the child or take him out of the state.

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 Posted on February 18, 2015 in Family Law

Illinois does not recognize alimony between unmarried couples, commonly referred to as palimony. Palimony, similar to alimony (maintenance), is an arrangement whereby one partner makes support payments to the other partner after the relationship ends. This law was established by the Illinois Supreme Court in 1979. However, a state appellate court recently held that the Supreme Court’s decades-old decision has been rendered obsolete.

The appellate case involves domestic partners (Jane and Eileen) who met in the 1980s. During their years together, the couple raised and cross-adopted three children. They also merged their finances, purchased real estate and registered as domestic partners in Cook County in 2003. After the relationship ended in 2008, Jane moved out of the house that they had purchased together. Two years later she filed a petition seeking to divide the value of the house. Eileen filed a counterclaim, arguing that she should have sole title since she had been a stay-at-home mom while the children were young, Jane’s medical partnership was purchased with common funds and Eileen had assumed maintenance costs after Jane moved out.

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 Posted on February 11, 2015 in Alimony / Maintenance

When a couple divorces, the court often orders one party to make maintenance (alimony) payments supporting his or her former spouse. Generally, this maintenance amount may only be modified or terminated if there has been a substantial change in either party’s circumstances. The court will consider various factors when considering a party’s petition for modification or termination, including:

• Changes in employment status, and whether the change was made in good faith (i.e.,  if the receiving spouse quits his or her job for no reason and then seeks additional maintenance, that change was not made in good faith);
• Whether the receiving spouse is making reasonable efforts to become self-supporting;

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 Posted on February 09, 2015 in Divorce

A Florida judge recently allowed a gay couple to divorce, even though the state did not officially recognize the couple’s right to marry in the first place. However, that might change soon. In August 2014, a federal district judge overturned Florida’s gay marriage ban. Both the Eleventh Circuit Court of Appeals and the U.S. Supreme Court refused to extend a stay on the ruling, which means that gay couples were able to marry beginning in January.

Florida’s first same-sex divorce is a harbinger for gay couples in Illinois, where gay marriage became legal in June 2014. Illinois gay couples now have the same rights as straight couples, which includes the right to divorce. Not every state permits same-sex marriage, though, so a gay couple that marries in Illinois could move somewhere that does not recognize their marriage – or their divorce.

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 Posted on February 04, 2015 in Divorce

Aside from child custody, division of marital property is one of the most contentious issues divorcing couples face, especially if they entered the divorce proceeding without a premarital or postmarital agreement outlining these particulars.

The first thing to understand is exactly what assets constitute marital property, as opposed to non-marital property. The law presumes that all property acquired by either spouse during the marriage is marital property.  However, there are several exceptions:

• Property acquired by gift, legacy or descent;
• Property acquired in exchange for non-marital property (assets brought into the marriage) or in exchange for property acquired by gift, legacy or descent;

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 Posted on February 02, 2015 in Child Custody

A Missouri mother whose teenaged son became a temporary ward of Illinois after a local judge found that she interfered with his medical treatment is fighting back. She has rallied support from Missouri lawmakers, who are considering legislation that would protect guardians from abuse charges when they seek a second opinion from a licensed health care provider and follow that provider’s treatment advice.

The Illinois court’s decision to place the Missouri teen in temporary protective custody due to alleged child medical neglect is not the first – or last – of its kind (although the fact that Illinois is not the teen’s home state does distinguish his case from some of the others). Similar cases have appeared elsewhere across the United States. For example, the Connecticut Supreme Court recently held that the state can require a 17-year-old girl to receive chemotherapy treatment.

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 Posted on January 29, 2015 in Divorce

Divorce is a common occurrence in the United States. Most Americans “enjoy” this right and probably take it for granted that an unsuccessful marriage does not have to last forever. In fact the right to divorce exists everywhere in the world – with one exception.

 The Philippines is the only country that does not allow a majority of its citizens to divorce. (The country permits divorce between Muslim couples.) The only recourse for unhappily married couples is church annulment, civil annulment or legal separation. Of course, couples who legally separate are not allowed to remarry, and annulment requires evidence that the marriage was defective (e.g., one of the parties was too young or already married). Note that a marriage cannot be annulled due to irreconcilable differences or infidelity.

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 Posted on January 27, 2015 in Divorce

Divorce can be a drawn-out process, especially when children are involved. However, courts typically streamline this process by resolving child custody issues in conjunction with the related divorce. Illinois courts also recognize that the child’s best interests might differ from his or her parents’ interests. That is why courts often appoint a guardian ad litem (GAL) to represent the child’s interests during the custody proceeding. To that end, the GAL might submit a rules of the road” order to the court. A rules of the road order outlines how the parents must behave in their child’s presence. For example, the order might prohibit the parents from making disparaging remarks about each other. The point is to limit the emotional toll that the proceedings already have on the child.

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