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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 Posted on January 22, 2015 in Family Law

On Friday, January 16, the United States Supreme Court granted certiorari in four same-sex marriage cases. The court’s decision to hear these cases is historic – soon, all Americans will have the right to marry and divorce, or they will not.

Specifically, the court agreed to consider whether states have the constitutional power to ban same-sex marriage, and whether the Constitution compels states to recognize same-sex marriages performed elsewhere. The first issue addresses equal protection under the Fourteenth Amendment, while the second issue addresses full faith and credit (e.g., states must recognize marriages legally performed in other states).

Circuit Split on Same-Sex Marriage

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 Posted on January 20, 2015 in Child Custody

When an unmarried couple has a child, the father does not automatically have the same rights to his son or daughter as a married father has to his child. This is because unless a couple is married at the time of the child's birth or the mother was married at the time of conception, her husband or former husband is assumed to be the father. With this assumption comes the title of “legal father,” which comes with all the standard rights a father has to his child.

Unmarried fathers need to prove their paternity in order to have rights to their children. These rights are outlined in the Illinois Parentage Act of 1984 and include the following:

• The right to seek partial or full custody of the child;

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 Posted on January 15, 2015 in Divorce

As a marital relationship deteriorates all aspects of the marriage are affected. This ranges all the way from affection to finances. Once divorce becomes imminent, affection becomes less critical and finances become an all important facet of the relationship. There are two highly contested issues that couples dispute whilst going through a divorce: children and money. If you and your spouse have a respectful relationship throughout the divorce process and are able to discuss these peacefully, all the better. Unfortunately, this is not always the case. Tempers run short and emotions flare when two adults decide to split the life they have created together. Fortunately, courts recognize this and have created a process by which couples can get an accurate picture of each others’ finances, even without the help of one another. This process is known as “discovery.”

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 Posted on January 14, 2015 in Child Custody

Illinois created the Department of Children and Family Services to provide social and protective services to Illinois children and their families. One of the department’s most important responsibilities is outlined in the Abused and Neglected Child Reporting Act: DCFS must investigate reports of child abuse or neglect and offer protective services to prevent any further harm from befalling the child. DCFS must keep the best interests of the child in mind throughout this process.

While Illinois law generally assumes that keeping families together is in a child’s best interests, there are situations where DCFS must remove a child from his home. DCFS will only take a child away from his parents if that is necessary to keep the child safe. (Note that the department separates a child from his parents only as a last resort.) The department may ask the family to agree to a safety plan, which typically arranges for either the child or one of the parents to stay elsewhere while DCFS completes its investigation. The plan must be in writing.

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 Posted on January 08, 2015 in Family Law

Every year the Illinois legislature passes new laws that affect the rights and obligations of state citizens. There are nine new Illinois family-related laws for 2015:

1. Sixteen-year-olds can be placed in temporary custody with the Department of Children and Family Services for delinquency (committing minor crimes). The age threshold used to be 15 years old.
2. Amendments to the Child Care and Adoption Act address civil unions and expand the definition of “relative” to include great-grandparents, step-grandparents and cousins.
3. There is now a Statewide Youth Advisory Board and regional youth advisory board to advise the Department of Children and Family Services on foster services.

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 Posted on January 07, 2015 in Divorce

Before Illinois permitted same-sex marriage, gay couples had the right to enter into civil unions. (Heterosexual couples, too, have this option.) Semantics and ceremonial purposes aside, there is not much difference between a marriage and a civil union in Illinois, especially since the Religious Freedom Protection and Civil Union Act took effect in 2011. That act gives civilly unioned couples the same rights under state law as married couples.

Those rights include the right to de-couple. For a married couple, it means the right to divorce. For a civilly unioned couple, it means the right of dissolution. The laws applicable to a divorce are the same as those applicable to a civil union dissolution. Thus, all couples receive the same benefits under the law when they break up, whether the break up is a marriage or a civil union. Couples in a civil union, like in a marriage, will need to resolve:

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