Family Law Updates 2016: Illinois’ “Modern Family” Bill

April 30th, 2015 at 6:36 pm

bill 57, modern family bill, Illinois Family LawyerCurrently, all issues related to marriage and divorce, including child custody, child support, and the division of a couple’s property are addressed by the Illinois Marriage and Dissolution of Marriage Act. This Act, though comprehensive, dates to the 1970s and many feel it is insufficient for the challenges and cultural trends that twenty-first century families face. To address these issues, lawmakers drafted Bill 57 to amend the state’s existing divorce laws. The bill passed in the Illinois House, but then died in Senate with no vote in 2014. In 2015, however, the proposed law was passed by both parts of government and was officially enacted on January 1, 2016.

The main goal of the bill was to avoid creating feelings of “winners” and “losers” in child custody agreements. Rather than establishing parental roles in terms of custody, the bill allows for the “allocation of parental responsibilities” in relationship to the child. Similar to the procedures currently in place for determining child custody, responsibility for decision-making and other parental obligations would be divided between the parents according to the best interest of the child

Changes in Senate Bill 57

The most significant change to Illinois’ current custody law in Bill 57 is the elimination of the delineation between joint vs. sole custody. Under this bill, each parent is assigned specific parenting tasks. This is intended to encourage both parents to remain involved in their children’s lives and limit litigation over minor disputes between parents

Critics have pointed out that the changes included in Bill 57 do not sufficiently address the realities that dual-income families face. Although in theory, parents affected by Bill 57 will share childcare duties, the Bill still allows one parent to be given the majority of parenting time while the other pays child support to him or her. This can not only create skewed parenting schedules for children, but fail to require parents to make equal financial contributions to their child’s well being.

Another important change included in Bill 57 is the removal of the requirement that divorcing couples prove grounds for their divorce. This portion is meant to acknowledge that in many cases, marriages fail simply because of differences in personality and goals. It also eliminates the right of an individual to sue his or her former spouse or the former spouse’s lover for committing adultery and destroying the marriage.

Divorce and Family Attorneys in the Chicago Area

If you are considering divorce, you should know how the laws regarding child custody and support affect your situation. Contact Anderson & Associates, P.C. at 312-345-9999 to discuss these changes with one of the experienced Illinois family law attorneys at our firm. We proudly serve Illinois families in our five office locations in Schaumburg, Northbrook, Orland Park, Wheaton, and downtown Chicago.

Orders of Protection: An Abused Area of the Law?

April 28th, 2015 at 6:08 pm

domestic violence, orders of protection, Illinois family lawyerWhen an individual faces domestic violence from his or her intimate partner or another member of the household, he or she has the right to petition for an order of protection. An order of protection, sometimes also known as a restraining order, is a court order that prohibits an individual from engaging in specific behaviors, including physical abuse, stalking, or contacting another individual, for a specified length of time. These orders can be enforced in several ways, including by the penalties outlined in the Illinois Criminal Code, including fines and jail time.

But can orders of protection be sought frivolously and abused by vindictive individuals seeking control of their former partners? Absolutely. However, without an order in place, a victim may be at risk for further abuse, injury, and death. This is why the longest-lasting type of order of protection, a plenary order of protection, requires the opportunity for both the petitioner and his or her alleged abuser to present their case to a judge before the order may be issued – to determine whether or not the petitioner truly needs and can be helped by an order of protection against his or her former partner.

Types of Orders of Protection

Three different types of orders of protection are available to victims. They are as follows:

  • Emergency order of protection. This is an order that a petitioner may obtain if he or she was abused as defined by the Illinois Domestic Violence Act. The abuser, known as the respondent, is not required to be present when the order is issued.  The emergency order of protection, however, can only last for up to 21 days;
  • Plenary order of protection. The respondent must be served with notice of the order of protection proceedings and given an opportunity to appear before the court. This type of order of protection may remain in place for up to two years;  and
  • Interim order of protection. An interim order of protection can act as a stopgap between an emergency and plenary order of protection.  A court can enter an interim order of protection if the respondent has been served with notice of the proceedings or if the petitioner proves that he or she has made a diligent effort to serve the respondent.  An interim order of protection can last for up to 30 days.

Individuals who wish to seek an order of protection may do so with the circuit court of the county where they live, where the respondent lives, where the alleged abuse occurred, or where the petitioner is temporarily located if he or she left to avoid further abuse.

Famlily Law Attorneys in the Chicago Area

If you are a victim of domestic violence, contact the skilled Chicago family law attorneys Anderson & Associates, P.C. at 312-345-9999 to schedule your free legal consultation in one of our firm’s five convenient office locations: downtown Chicago, Wheaton, Orland Park, Schaumburg, and Northbrook. We are here to advocate for you and your family and provide you with top-notch legal advice and representation when you need it most.

Prenuptial Agreements for Second and Third Marriages

April 24th, 2015 at 6:04 pm

prenuptial agreement, prenup, Illinois family law attorneyWhether you are entering your first marriage or your fifth, it is important to protect your assets by signing a prenuptial agreement. A prenuptial agreement is a legal document that details your plans for your assets and support in the event of a death or a divorce. In Illinois, they are governed by the Illinois Uniform Premarital Agreement Act.

Prenuptial agreements are especially important for individuals entering second and subsequent marriages because they are entering into a new agreement after being previously married and divorce. In essence, a marriage is a contract and when signing a new marriage contract, one must consider the terms he or she is bound to by his or her previous divorce contract.

Without a prenuptial agreement, your new spouse may be automatically entitled to your assets. Likewise, you may be entitled to his or hers. Prenuptial agreements are recommended for any individual who is planning to enter a marriage, but especially for business owners and individuals who have significant assets. Although it can seem unromantic to ask your partner to sign a prenuptial agreement, it is a realistic, responsible way to ensure that you retain your assets in a divorce or your children from a prior relationship still receive an inheritance after you pass away. It also allows you to have a full and frank discussion with your fiancée about your priorities and finances prior to entering into the marriage

What May Be Included in a Prenuptial Agreement?

  • Designations about who may receive funds from your assets, such as your stocks, bonds, and financial accounts;
  • Money and property allocations to your children from a previous marriage or former spouse;
  • The beneficiaries of your retirement plan. If your current spouse opts to waive this right, you may instead name a former spouse or your child the beneficiary of your retirement plan after your death;
  • The amount of spousal support, if any, a spouse will receive in the event of a divorce;and
  • Each spouse’s responsibility to your jointly-accumulated or individually-held debts.

For a prenuptial agreement to be valid, both parties must fully disclose all of their assets and debts. If either party is later found to have withheld information or lied about his or her financial circumstances at the time the prenuptial agreement was signed, the agreement may be invalidated.

Terms that can not be legally enforced may not be included in a prenuptial agreement. These include lifestyle choices like the number of children a couple has, where they live, and how they spend their time. Only tangible issues, such as those regarding a couple’s finances and assets, may be written into a prenuptial agreement.

Divorce Attorneys in the Chicago Area

If you are considering getting married for the second, third, or subsequent time, contact Anderson & Associates, P.C. to discuss the importance of signing a prenuptial agreement. The skilled Chicago divorce attorneys at our firm understand the unique financial considerations that individuals entering second and subsequent marriages face. Do not get married again without a prenuptial agreement. Contact us today to set up your initial legal consultation in one of our firm’s five convenient locations: Schaumburg, Orland Park, Northbrook, Wheaton, and downtown Chicago.

Can a Business’ Retained Earnings Be Considered Marital Property?

April 23rd, 2015 at 2:54 pm

retained earnings, division of property, Chicago divorce attorneysIn short, yes. When a couple builds a business together during their marriage, both partners have the right to seek a portion of the business’ value during their divorce.

Retained earnings are the profits that a company makes which are not distributed back to its shareholders. They are the profits that are held onto in a reserve and used for specific goals, such as paying off company debts, or reinvested into the business.

Shares in a company can become a contentious topic among divorcing couples because of the prospect of retained earnings. Retained earnings contribute to a company’s overall value. Shareholders have an interest in these earnings and a say in how they are used. If the court determines that an individual’s shares in a company are marital property, their value must be divided among the spouses. If one’s shares are nonmarital property, the court must determine the spouses’ contribution to the company to determine a fair distribution of their value.

Illinois is an equitable distribution state, which means that property is not necessarily divided exactly 50/50 between divorcing parties. Instead, the division of a couple’s property is done according to a variety of factors, including each partner’s needs and personal resources.

Marital Property vs. Non-Marital Property

Generally, all property acquired during a couple’s marriage is presumed to be marital property. This includes the couple’s home, any joint bank accounts, and any businesses that the couple starts together. A business that one partner started before the marriage, but considerably expanded during the marriage with marital money, credit, or labor, may be also considered to be marital property.

When determining whether a company’s retained earnings may be considered to be marital property during a divorce, the following questions must be asked:

  • Are the retained earnings calculated as part of the company’s total value?
  • Are the retained earnings being used for corporate business?
  • How much control does the spouse involved in the business have to pay out the retained earnings as dividends to him or herself?

Whether other individuals are part owners or shareholders in the company and what the couple chooses to do with the business upon their divorce can also determine whether its retained earnings may be divided among the spouses. Some couples choose to sell their businesses and split the profit while others opt to continue them, either jointly or with one spouse buying out the other’s share of the company.

Divorce Attorneys in the Chicago Area

Anderson & Associates, P.C. is proud to serve clients throughout the Chicago area in our five accessible office locations: downtown Chicago, Orland Park, Northbrook, Schaumburg, and Wheaton. To discuss your unique circumstances, call 312-345-9999 to speak with one of the experienced Chicago divorce attorneys at our firm.

Older Couples Must Contend with Special Challenges in Divorce

April 22nd, 2015 at 5:48 pm

older divorce, older couple, Illinois divorce lawyerFor married couples with partners under the age of 50, the good news is that the U.S. divorce rate has been steadily decreasing since the 1980s. For couples who have passed the age 50 milestone, the bad news is that the divorce rate for their demographic is at its highest level ever. Recently, a recent study found that among divorcing couples over the age of 50, two-thirds of the divorce proceedings are initiated by the wife.

Societal Shifts and Longer Lifespans

Members of the Baby Boomer generation are divorcing at higher rates for a variety of social, cultural, and health related reasons. Compared to previous generations, divorce has simply become more common and more socially acceptable. Another reason is connected to longer lifespans. At age 50 or 60, many people are planning for a lengthy retirement and want to prioritize enjoying the last twenty to forty years of their life. This can result in them evaluating relationships with a more critical eye than people in generations past.

Increased Risk for Complicated and Litigious Divorces for Older Couples

When older couples initiate divorce proceedings, the size of their estate and issues surrounding retirement planning, accounts, and healthcare all may cause the process to be complicated and potentially very expensive. If the couple is not in agreement or able to work together with their attorneys to negotiate successfully, they are at risk for a litigious divorce proceeding. For older couples, this can be a dangerous scenario for people who are over 50 because, typically, their prime earning years are behind them. They simply will not have the ability or the opportunity to replace a great deal of the money spent on a protracted divorce.

Complex Estate and Retirement Issues

The issues of estate division involving retirement and pension plans, home equity, health insurance, and social security benefits all become critical and nuanced for couples over age 50. In many cases, the couples’ retirement planning was done under the assumption that they would be living as a married couple. In such cases it is not uncommon for the couple to discover that if they were to divide the estate, they simply don’t have enough assets for each spouse to afford retirement on their own.

Retirement accounts such as pension plans, 401(k) plans and Individual Retirement Accounts (IRAs) are generally regarded as marital property in a divorce. In addition to state divorce laws, there are federal guidelines that mandate how certain retirement plans are redistributed in divorce. Often times this will require specific types of orders to be entered to divide the accounts and it is important to have an experienced attorney  negotiate and draft these orders to ensure that your interests are protected.

If you are a member of the Baby Boomer generation who is considering a divorce, it is imperative that you consult with an experienced Chicago family law attorney at Anderson & Associates, P.C. to review your options. We are easily accessible at five convenient locations including offices in Wheaton, Orland Park, Northbrook, Schaumburg, and downtown Chicago. Please call 312-345-9999 to schedule your complimentary consultation today. We look forward to speaking with you.

Can You Appeal a Divorce Ruling?

April 21st, 2015 at 5:46 pm

divorce appeal, divorce ruling, Illinois Divorce LawyerAn appeal is a request to change the court’s official ruling after the ruling has been made. Any final court decision can be appealed, including divorce decrees. The individual who appeals the court’s decision is known as the appellant, and the other party involved with the appeal is known as the appellee. When an individual appeals a ruling, the case goes to appellate court, rather than back to trial court.

An appeal can be used to challenge the trial judge’s interpretation of the law, admissibility of evidence, or the application of the law to a particular case. An individual may file an appeal once a final order is entered by the trial court. He or she has up to 30 days after the ruling to file a notice of appeal, which communicates the appellant’s intention to appeal the case’s ruling to the court. The right to appeal a divorce ruling is included in the Illinois Marriage and Dissolution of Marriage Act.

The Appeal Process

The process of appealing a divorce ruling involves multiple steps. It can be a lengthy process and there is the possibility that your appeal will be rejected, leaving the original ruling in place. It is recommended that you work with a knowledgeable divorce attorney to develop and pursue your appeal.

Once you have filed your Notice of Appeal, the next step is to deliver your case’s certified trial court file to the appellate court.  You then will have the opportunity to file your appellate brief, which is your chance to argue in writing why you think the trial court’s decision was wrong. Work with your attorney to develop a well-crafted argument for your position that your divorce was decided incorrectly by the judge. If your former spouse files a response brief, you may then file a reply brief, having the last word about your case before it goes to the appellate court for a decision.

Under some circumstances, the appellate court may request an oral argument for your case. Discuss this possibility with your attorney to determine if you may need one. Once the briefs are submitted and oral arguments are held, you will receive the appellate court’s decision. Ultimately, the appellate court will decide to reverse the original ruling, send it back to trial court to be heard again, or affirm the original ruling

Divorce Attorneys in the Chicago Area

If your divorce was recently finalized and you feel that it was somehow unfairly decided or poorly handled by the judge, consider filing an appeal. Your appeal could be your opportunity to change the court’s decision and get a fairer settlement for your divorce. Contact Anderson & Associates, P.C. at 312-345-9999 or on the web to discuss your case with one of the dedicated Chicago divorce attorneys at our firm. We proudly serve Illinois residents in our five convenient locations: Schaumburg, Orland Park, downtown Chicago, Wheaton, and Northbrook.

 

Child Support in an Illinois Divorce

April 17th, 2015 at 3:14 pm

child support, children of divorce, Illinois family law attorneysWhen a couple with a child divorces, two of the most important issues they have to work out during the divorce process are child custody and child support. Child support is the money paid from one parent to the other to cover the child’s basic needs, such as his or her food, clothing and housing until the child becomes an adult. In some cases, child support may continue even after the child turns 18 years old..

When beginning to analyze a child support amount, the court is required to first consider specific guidelines. The guidelines that the court must use to determine a couple’s child support agreement are included in the Illinois Marriage and Dissolution of Marriage Act.

The court’s goal is to ensure that your child’s needs are met and apportioning the child’s financial needs between both parents. Generally, a parent of one child can expect to pay 20 percent of his or her net income for child support. This percentage increases with each additional child being supported. However, this is only a starting point– other factors may be considered when determining a child support amount, and a parent may end up paying more or less than this amount depending on what the court finds to be in his or her child’s best interest. This is known as a deviation from the child support guidelines.

Calculating Child Support in Illinois

If the court is going to deviate from the guidelines under law for determining an appropriate amount of child support, it will consider the following factors:

  • Each of the parents’ income and current financial resources;
  • The child’s specific individual needs, including his or her academic or health care needs;
  • The standard of living that the child had before the divorce; and
  • Any financial resources the child may have.

Talk to your attorney about how your individual financial circumstances may affect your child support order. Significant changes in your family’s financial circumstances, such as job loss or retirement, can be a cause to seek a modification of your child support order.

Child Support Attorneys in the Chicago Area

If you are a parent planning to file for divorce in the near future, contact Anderson & Associates, P.C. at 312-345-9999 to learn more about what you can expect from your child support hearing. Our skilled Chicago family law attorneys proudly serve Illinois families in our five office locations: Schaumburg, Northbrook, Orland Park, Wheaton, and downtown Chicago. Do not wait to contact our firm – when you are working through any type of legal issue, it is always in your best interest to be proactive and seek legal guidance as soon as you can.

How Can DCFS Being Called Affect Your Child Custody Agreement?

April 16th, 2015 at 6:42 pm

protective services, DCFS, Chicago Family LawyerAlthough the possibility of initiating a Department of Children and Family Services (DCFS) complaint is often dismissed as an empty threat, it should be taken seriously. Every day in Illinois and the rest of the United States, children are subjected to dangerous neglect and abuse by their parents. Social service departments like DCFS exist to get children out of these kinds of situations and prevent them from being endangered in the future. Certain cases may require established custody orders to be altered.

When somebody calls DCFS with a concern about your child’s safety or welfare, the agency is required to investigate the claim. If a representative finds that abuse, neglect, or any other form of child endangerment has occurred in your household, your custody agreement may be changed. You could, depending on the severity of the mistreatment that occurred, lose custody of your child, have restrictions placed on your visitation, or lose all parenting rights completely. DCFS can not determine your custody agreement, but its input can play a role in the court’s decisions regarding your child’s custody.

If you find yourself in an open case with DCFS, contact an experienced family attorney to learn more about your rights as a parent and what you need to do to keep your custodial rights.

Child Protective Services in Illinois

The Illinois Department of Children and Family Services (DCFS) is the agency that handles all child welfare issues in Illinois. It is tasked with investigating allegations of child abuse or neglect, facilitating adoptions, reunifying children with their families, and licensing day care facilities. It also provides professional services for families throughout the state who are involved in a pending DCFS case.

If DCFS Gets Involved With Your Family

Although it may be difficult, it is important to keep in mind that DCFS is most interested in the well-being of your child. If and when a DCFS investigation becomes necessary, it is important to cooperate with reasonable requests from the representative who comes to your home. This will generally permit the agency to quickly reach a conclusion and make a finding in your case.

Cooperate with the court as well. If your custody or visitation order is modified and you would like to return to your prior arrangement, you will need to prove to the court that it is in your child’s best interest. In some situations, the court may order an in-home evaluation to ensure that you are providing a safe and health environment for your children. It is important to attend court and follow the orders entered by the judge.

Chicago Child Custody Attorneys

If your family is invovled in a DCFS case, contact a skilled Chicago family attorney at Anderson & Associates, P.C. to discuss the impact it can have on your child and your child custody case. You can reach us at 312-345-9999 and at one of our five convenient office locations in downtown Chicago, Schaumburg, Wheaton, Orland Park, or Northbrook. Our firm will work to advocate for you when working with the Department of Children and Family Services.

 

Heavy Social Media Use Linked to Divorce Rates

April 14th, 2015 at 6:30 pm

social media, divorce rate, Illinois divorce lawyerCould your constant Facebook posting, Twitter use, and other social media posting be cause for concern in your marriage? A new study says it can and shows a correlation between social media use and divorce. The cause for divorce is not the use of social media, but rather those who use social media more than those who do not are more likely to get a divorce.

The researchers compared data collected about married couples from 2008 through 2010 with data from a 2011 study of married couples. The growth of Facebook and other social media sites were found to be correlated to the rise in divorce rates during the same time periods.

According to Boston University’s director of the Division of Emerging Media Studies, James E. Katz, “the apparent association between the use of Facebook and other social networking sites and divorce and marital unhappiness in the United States raises troubling questions not only about how we use these tools, but how their use affects marriage.”

Stopping the Social Media Use Conflict

When it comes to social media use and marriage, if someone is unhappy in their marriage, it is easy to see why they may turn to social media and become immersed in social media. They make connections on Facebook, Twitter, or other social media sites. The friends they have on those sites are supportive and listen. They can give encouragement and lend a virtual shoulder to cry on.

Turning to those virtual friends, which sometimes leads to real-life friendships, does not always help mend the problems in the marriage. It can turn into an serious problem, though. Spending more time on social media and interacting on social media sites may have characteristics similar to other behaviors that may cause marital conflict. Continual heavy usage of social media and not communicating with your spouse may lead to divorce.

If your spouse is spending more time on social media sites than they are communicating with you, you may start feeling resentful and unhappy in your marriage. If you are considering filing for divorce, you should speak with an experienced Chicago divorce attorney. Anderson & Associates, P.C. assists clients in Illinois from one of our five offices, conveniently located in Chicago, Schaumburg, Wheaton, Northbrook, and Orland Park.

Deciding Which Spouse Keeps the Family Home in a Divorce

April 10th, 2015 at 5:35 pm

family home, division of property, Illinois divorce attorneyDivorces are often fraught with uncertainty. Will I have to pay alimony? Who will get custody of the kids? Who gets to keep the house? During this difficult process, it is crucial that you keep yourself grounded and educated about how divorces work. Multiple factors play into which spouse keeps the family house after a divorce, if either spouse keeps it at all. In some cases, the couple is required to sell the house and split the proceeds.

If you want to keep your family home following your divorce, talk to your spouse about your desire and why it is important to you. If you choose to divorce through mediation or collaborative law, you will need to work with your spouse to develop a settlement that achieves both of your goals. After discussing your intention to keep the house with your spouse, the next step is to speak with an attorney about your rights, legal options, and how your case’s unique circumstances may affect your opportunity to keep your house.

The Family Home as Marital Property

The most important factor used to determine a house’s position and rightful ownership during a couple’s property division process is whether or not the house is considered to be marital property. Generally, marital property is any property that was purchased or significantly developed during the marriage. If you and your spouse purchased the home together after marrying, your home is marital property. Likewise, if either partner owned it prior to the marriage but the spouse made mortgage payments or significantly contributed to the home’s value through improvement projects after marrying, it may be considered to be marital property.

Under the Illinois Marriage and Dissolution of Marriage Act, Illinois is an equitable distribution state, which means that marital property is not necessarily split 50/50 during a divorce. Rather, it is divided between the spouses according to each partner’s contribution to the property during the marriage and their needs following the divorce.

Factors Considered When Determining Which Spouse Keeps the House

One of the most prominent factors considered when the court must determine which spouse keeps the family home is which spouse has primary custody of the couple’s children. If the court determines that it is in the children’s best interest to remain in the home and, by extension, their community and school district, the court may award the family home to the parent with whom the children will live most or all of the time. Sometimes, this award is temporary and the couple is required to sell the house once the youngest child turns 18.

Even if a spouse is awarded the home, that spouse may be required to buy out his or her former partner’s interest in the home. In some cases, the higher-earning spouse may be required to continue to pay for the home’s insurance or mortgage as part of a support arrangement. Either of these scenarios may be a possibility for you, depending on your current economic circumstances and your divorce’s details.

Chicago Divorce Attorneys

Call 312-345-9999 to schedule your free legal consultation with the skilled Chicago divorce attorneys at Anderson & Associates, P.C. to learn more about how the court may determine who keeps the family home in your divorce. We proudly serve our clients in five convenient locations: Wheaton, Orland Park, Northbrook, Schaumburg, and downtown Chicago.