Recent Blog Posts
Enforcing Child Support Obligations
Parents can sometimes be dismayed to discover that securing a child support obligation in court does not end the battle. In some cases, collecting the support that the other parent owes can present a difficult problem. Fortunately, Illinois law provides a wide degree of options to help enforce support obligations. These options vary in severity from a simple civil lawsuit or contempt petition, to criminal penalties for more egregious cases of delinquency.
Civil Remedies The law gives a parent receiving child support the option to bring a suit against the supporting parent for failing to pay child support obligations. If the suit succeeds then the judgment will accrue interest against the the supporting parent. The judgment may also provide other collection options like wage garnishments in order to ensure payment. Parents may also file a contempt petition. This petition asks the judge to hold the delinquent spouse in contempt of court, which comes with increased civil penalties. Parents held in contempt of court could find themselves subject to a fine and possibly even imprisonment for up to six months or until they pay off their support obligations. Custodial parents should also keep in mind that the law does not allow them to use visitation rights as a method of enforcing child support obligations. That means that regardless of whether the supporting parent fails to pay child support, they still have the right to visit the child, and courts will enforce that right. Criminal Penalties In some circumstances, civil suits and contempt of court will not be enough to extract payment. In those cases, if the non-payment is serious enough, the law provides criminal penalties for the non-payment of support obligations. A parent collecting support may choose to initiate one of these cases by petitioning an Illinois State's Attorney, who will then handle the case's prosecution. A supporting parent's actions become eligible for criminal penalties once they fall more than six months behind on their child support, or if their support debt exceeds $5,000. A first offense would qualify as a Class A misdemeanor and repeated offenses become felonies. The law also provides for certain aggravating factors that can move a first offense to a felony level, such as leaving the state in order to avoid a debt of $10,000 or more, or having more that $20,000 of child support debt outstanding. If you are having trouble collecting child support, or face other post-divorce issues, contact a Wheaton divorce attorney today. They can guide you through the complexities of the court process, and help ensure that your rights are protected.
Grounds for Divorce in Illinois
Illinois law allows a person to file for divorce for a variety of reasons. One of the most common reasons is for "irreconcilable differences." The law refers to divorce for irreconcilable differences as a no-fault divorce, meaning that neither party caused the marriage to fail. Illinois law also recognizes a variety of grounds for fault divorce. Fault divorces assign blame for the marriage's failure to one party, and although that will not greatly affect the outcome of the divorce, it may impact child custody decisions.
No-Fault Divorce Divorce on the grounds of irreconcilable differences allows a couple to separate without needing to engage in a public fight over who was at fault for the marriage ending. Instead, the spouses simply acknowledge that their relationship has broken down. In order to file for a no-fault divorce like this, the couple must meet four requirements. First, the couple must live "separate and apart" for two straight years. Second, the couple must have irreconcilable differences, meaning that their relationship is not working. Third, the spouses' attempts to heal the marriage must have failed. And fourth, any further attempts to fix the marriage would likely not succeed, and would not be good for the family. The first requirement, living separate and apart for two years, is more complicated than it seems. Living apart does not necessarily mean living in separate places. Instead, the couple can show that they lived together, but merely as roommates for that period. Additionally, the spouses may not actually need to wait the full two years. If the couple lived apart for six months, and both of them agree in writing, then the judge can waive the remainder of the waiting period and grant the divorce. Fault Divorce Fault divorces are less common in Illinois, but the law still allows for them. In these cases, certain, specified types of marital misconduct can be grounds for a fault divorce. These grounds include:
Changing Spousal Support Obligations
Illinois law may require one spouse to pay support to another following a divorce. Of course, the amount that the court requires depends on the parties’ financial circumstances at the time of the divorce. In this uncertain economy, those circumstances are prone to change, meaning that the support obligation may have to change as well. Fortunately, courts allow parties to petition to change their support obligations if they can show some sort of pertinent change in their finances.
How Judges Calculate Support
To understand what changes would qualify as meaningful, it can help to look at how the law determines a person’s support obligations. The Illinois Marriage and Dissolution of Marriage Act governs the court’s awarding of spousal support. It instructs judges to examine a variety of factors when making the support determination, including:
Are Cold Feet a Sign That Divorce Lies Ahead?
Psychology researchers at UCLA conducted a four year study to determine whether cold feet before a wedding could predict divorce. Their answer: yes and no. It turns out that women’s doubts before a wedding may signal trouble ahead for the marriage, while men’s doubts do not correlate with significantly higher divorce rates.
The study divided marriages into four groups: marriages in which neither spouse had doubts, marriages in which the men had doubts, marriages in which the women had doubts, and marriages in which both the men and the women had doubts. The first group contained 36 percent of marriages, with neither side having doubts. In this group, the divorce rate was only six percent. Among the group of marriages with only male doubts, that number rose to 10 percent, an increase that the study’s authors say is too small to have significance. Conversely, marriages involving women with cold feet ended in divorce three times as often as those where neither side had any doubts; 18 percent reported divorce by the four-year mark. And, in cases where both sides had doubt, the number increases slightly to a 20 percent divorce rate, only a small difference from the women-only pool of marriages. The researchers attribute these differences to the fact that women are often more attuned to the dynamics of the relationship. Consequently, they do not get cold feet as much as men do, but when they do, they tend to be better at noticing real causes for concern.
Prenuptial Agreements: Do They Make Sense for You?
People often think that only the extremely wealthy need prenuptial agreements; however, with divorce now a common event in people’s lives, more and more couples can benefit from using them. While many people, understandably, find such topics uncomfortable to discuss before a wedding, the protection prenuptial agreements provide can save much heartache later.
How Prenuptial Agreements Work
In Illinois, prenuptial agreements are governed by the Illinois Uniform Premarital Agreement Act. This act sets out the general rules about topics that premarital agreements can regulate, which include:
- The rights and obligations of the parties regarding any property;
- The disposition of any property in the event of divorce or spousal death;
The Tax Consequences of Divorce
Ordinarily, the transfer of property comes with some sort of tax consequences. Since divorces can involve a lot of property transfer, you might expect complicated taxes surrounding them. Fortunately, the IRS exempts from taxation most property exchanges that take place in a divorce; however, appreciated assets, like stocks, and retirement accounts both come with particular tax issues.
General Tax Rules
Section 1041 of the Internal Revenue Code governs transfers between spouses and transfers related to divorces. The law generally exempts transfers so long as the transfer happens prior to the finalization of the divorce. The code also excuses transfers made after the divorce, so long as they are "incident" to it. A transfer counts as incident when it occurs within one year of the end of the marriage, or within six years of the end of the marriage if the divorce agreement requires such a transfer.
Supreme Court to Decide International Child Abduction Case
More and more families in the United States are international in composition, with at least one member of the family a non-citizen. It is under these circumstances that the United States Supreme Court will hear Lozano v. Alvarez, a case concerning the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention on the Civil Aspects of International Child Abduction is a multilateral treaty that provides means to return a child abducted abroad by a parent from one country to another.
In this case, Diana Alvarez was in a relationship with Manuel Lozano in London nearly ten years ago after both left Columbia. After having a child, their relationship began to fall apart. Ms. Alvarez claimed that Mr. Lozano was abusive, and eventually left London to live with her sister in New York City. After nearly 16 months, Mr. Lozano filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction for a return of their child to London and a court managed custody determination. The Supreme Court will have to decide whether an exception to the Convention should apply in this case. While normally a court is obliged to return a child that was abducted after a petition is filed under the Convention, Article 12 excepts-out petitions that have been filed after one year of the child leaving her home country. The defendant must also show evidence that the child is settled in her new environment and returning the child to her home country would not be in her best interests. The court will investigate whether the one-year filing period requirement may be suspended when the parent that left with the child hides their whereabouts. The decision will have an impact on many families in the United States. It is not unheard of for parents of children with non-U.S. citizenship to return to their home country after leaving a spouse. If you or someone you know is concerned that a child may be abducted and taken to another country, or if you have any other concerns regarding your rights as a parent, contact an Illinois family law attorney today. The Musielak & Rosinski LLC has provided people in Illinois with representation for nearly 20 years, and we are confident in our ability to answer your questions quickly and effectively today.
How Mediation Aids in Child Custody Disputes
If you are your partner agree on some subjects related to the divorce but are torn on child custody, mediation may offer an alternative method that allows for an expeditious solution and civil relations with the other party. Some couples don’t want the added complication and expense of going through litigation, and mediation provides a forum with a neutral third-party mediator focused on helping you reach a resolution.
Illinois Supreme Court rules indicate the importance of child custody proceedings that are child-focused, fair, and expeditious. The Supreme Court has continued to research and expand mediation efforts across the state with regard to child custody.
Mediation is non-adversarial, and the mediator does not take sides. The neutral atmosphere tends to keep parents focused on an end goal together. This can lay the groundwork for a civil communication procedure between parents post-divorce. When parents have had practice interacting appropriately, it makes transitioning the children from one parent to another for visitation and custody much easier and limits the tension that children might experience as they adjust to their new life.
Changes in Child Custody and Childcare in Illinois
Single parents often face issues when attempting to manage their busy schedules while meeting the demands of childcare. Until recently, parents with custody of a child could arrange for childcare as they saw fit. But, Illinois law changed on January 1, 2014.
The state legislature modified part of the Illinois Marriage and Dissolution of Marriage Act to give the child's other parent a right of first refusal for childcare in some circumstances. This means that the one parent must check with the other to see if they would like to care for the child before securing other care. However, not every parent receives this right of first refusal. Instead, the law leaves it to the discretion of the courts.
The Right of First Refusal The legislature added the right of first refusal to the law in order to give courts the ability to allow parents to spend more time with their children. However, the courts must make the decision to award this right of first refusal "consistent with the best interest of the child." Additionally, not all parents qualify for the right. Instead, the judge can only give a right of first refusal to a parent with joint custody of the child or with visitation rights. If the judge chooses to grant a right of first refusal, then control passes to the child's parents to determine its terms. The law suggests several provisions that the terms of the right should include, such as:
Debt, Divorce, and Remarriage: What You Should Know
When considering a divorce, many people concern themselves with the division of their marital property. While this is an important thing to worry about, the courts will divide more than just the couple’s assets. The judge will also mete out the marital debts to each of the spouses. However, the law does not make spouses responsible for the entirety of each other’s debt. Instead, the Illinois Rights of Married Persons Act clarifies which debts qualify as marital and which debts fall solely to one spouse.
Which Debts Get Divided?
The court will divide up a couple’s marital debts, while leaving each spouse solely responsible for their non-marital debt. That still leaves the question of which debts fall into which category. Generally speaking, marital debts are debts that both spouses acquire jointly or debts one spouse acquires for the family. For example, many spouses have joint credit cards. Since both spouses put their name on the card, they both agreed to bear responsibility for the debt.