Posted on March 24, 2015 in Divorce

The Illinois Marriage and Dissolution of Marriage Act is a comprehensive law that covers divorce, legal separation, division of marital assets, child support and other related issues. Some aspects of the law do not fit neatly into a single category, which is why the state legislature lumped those issues into a “Miscellaneous” section. Here are five examples of the resulting hodgepodge:

1. Who gets possession of the family home is often a dispute during divorce proceedings. In fact, either party may file a petition seeking the other party’s temporary eviction while the proceeding is pending. The court will grant the petition if continued occupancy by both parties jeopardizes their (or their children’s) physical or mental well-being. There must generally be an opportunity for a full hearing on the issue.

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 Posted on March 19, 2015 in Family Law

Generally, only a child’s parents or legal guardians have the authority to make decisions regarding the child’s care and well-being. To a certain extent, that authority even extends beyond the grave. Illinois law permits parents and guardians to appoint standby guardians, which allows them to decide who will care for their children if the worst happens. A standby guardian is someone who would immediately take on the care of minor children upon the passing of the parents or guardians.

You may appoint a standby guardian in your will, but the law does not require the designation to be made this way. There are other legal forms that you can use instead. However, the content requirements are the same, no matter the type of document used:

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 Posted on March 17, 2015 in Divorce

Debt is often unavoidable for modern families, whether the debt accrues from credit cards, loans, college tuition or other necessary expenses. However, it is important to remember that marital debt is separate and distinct from personal debt. Illinois law recognizes that married persons can retain property acquired before the marriage as nonmarital property. Furthermore, the law allows married persons to acquire property during the marriage that belongs solely to them (property acquired by descent is one example). That distinction can be confusing for couples and for their creditors. Here are the relevant rules set forth in the Rights of Married Persons Act:

1.       Family expenses (including private school tuition and other education-related expenses) may be considered the property of both spouses, or of either them, in regards to creditors. The couple may face a lawsuit separately or jointly.

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 Posted on March 12, 2015 in Divorce

Child custody battles can be stressful and upsetting, especially for parents who do not have their desired custody arrangement or visitation rights. While child custody can be an emotionally fraught issue, it is also a legally delicate one. If you are a non-custodial parent and missing your child, do not take matters into your own hands. Spending time with your child illegally will only hurt your custody and visitation rights.

Parents can be charged with abducting their own children under Illinois law. For example, a person commits child abduction when he or she:

• Intentionally violates the terms of a valid custody agreement or court order by concealing or detaining the child, or by taking the child outside of the court’s jurisdiction;

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 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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