Archive for January, 2015

Prenuptial and Postnuptial Agreements: How You Can Protect Yourself and Your Assets

January 31st, 2015 at 2:58 pm

postnuptial agreement in Chicago, Illinois divorce attorneysWhen a couple marries, they do not assume that their marriage will end in divorce. The reality of modern American marriage, however, is that approximately 40 to 50 percent of marriages in the United States end in divorce, with higher rates for second and subsequent marriages and certain age groups.

With a divorce usually comes the division of the couple’s property. For many individuals, this can pose a number of problems. An individual might have entered his or her marriage with significant assets such as a home or a successful business. One might also have children from a previous marriage who must be supported financially. In cases like these, opting to sign a prenuptial or postnuptial agreement is a way for a couple to make a plan for their assets and finances in the event of a divorce or a death.

Prenuptial and postnuptial agreements can contain virtually identical language. The difference between the two agreements is when the agreement is signed: prenuptial agreements are signed before a couple marries and postnuptial agreements are signed after the wedding.

What is in a Prenuptial or Postnuptial Agreement?

Generally, prenuptial and postnuptial agreements address  each partner’s finances and property. The following are examples of topics that may be covered:

  • Each partner’s debts and other financial obligations and if the other is responsible for these in the event of his or her death;
  • Issues related to spousal maintenance, such as the length of time one may receive it and the amount that he or she may receive;
  • The couple’s jointly-owned property and is distribution in a divorce;
  • Each partner’s individual property; and
  • Each partner’s estate planning.

It is important to remember that prenuptial and postnuptial agreements aren’t just for the wealthy.  This type of agreement is also attractive to individuals entering their second or later marriages. This is because older parties may have children from prior relationships and an individual who has been divorced previously may have obligations to his or her former spouse that must be considered. However, any couple who is getting married should consider signing such an agreement.

A Valid Agreement

The terms in a prenuptial agreement are only valid under certain conditions. These are contained in the Illinois Uniform Premarital Agreement Act. Your attorney can work with you to draft an agreement that will protect you and your assets in court or, if you have already signed an agreement, help you determine if it is susceptible to being found invalid in by a court. Any premarital agreement made under the following circumstances is not valid and cannot be enforced:

  • Either spouse did not voluntarily enter into the agreement, including if the spouse was threatened or coerced; or
  • A spouse did not fully disclose all of his or her assets or debts and the other spouse could not have had knowledge of the other spouse’s assets or debts (unless if the spouse voluntarily waived the disclosure).

Postnuptial agreements, on the other hand, are governed by the Illinois Marriage and Dissolution of Marriage Act.  The standards that apply to a postnuptial agreement depend on when the agreement is being signed and the agreement’s purpose.  If you are considering entering into a postnuptial agreement, it is important to consult with an experienced attorney who understands the intricacies of drafting valid postnuptial agreements.

Experienced Divorce Lawyers in Illinois

Anderson & Associates, P.C. proudly serves clients in Chicago and will give your case the care and dedication it deserves. If you are considering signing a prenuptial or postnuptial agreement, contact our office to discuss your options with one of our firm’s experienced Chicago, IL divorce attorneys. We have five offices in Northbrook, Schaumburg, Wheaton, Orland Park, and downtown Chicago.

Visitation Rights as a Grandparent

January 30th, 2015 at 12:36 pm

grandparent visitation rights in Illinois, child custody attorney in ChicagoYour son or daughter has filed for divorce or completed the divorce process with their ex-spouse and custody of the children will be or has been determined. As the grandparent, you are left wondering about your visitation rights with your grandchildren. In Illinois, grandparents can petition for visitation rights under the Illinois Marriage and Dissolution of Marriage Act if the grandchild is at least one year old, under certain conditions.

Determining Your Rights

When a grandparent is unreasonably being denied visitation with their grandchild, a grandparent may petition for visitation rights if:

  • The child’s other parent is deceased or has been missing for at least 3 months; or
  • A parent is found to be incompetent by a court of law; or
  • A parent has been incarcerated during the 3 months preceding the filing.

In addition, grandparents can file a petition for visitation if the parents are divorced or there is a pending dissolution of marriage and at least one parent does not object to visitation. In the event that the child was born to unmarried parents and the parents are not living together, maternal grandparents may file for visitation.  Paternal grandparents, however, cannot file unless paternity has been established by a court.

All of these conditions may be irrelevant if the parent is giving up their parental rights to the child. If the grandchild is being adopted by someone else, it cuts off the grandparent’s visitation rights, unless the child is adopted by certain family members or a stepparent.

Best Interests of the Child

If one of the above conditions is met, the judge will then make a decision he or she feels is in the best interest of the child after taking into account multiple statutory considerations.   In making this decision, the court presumes that a parent’s decisions regarding visitation do not harm the well-being of the child; a grandparent requesting visitation has to prove the parent’s actions and decisions are harmful to the child’s mental, physical or emotional health.

If you are looking for representation to get visitation rights for yourself or limit visitation rights for another person, contact one of our five offices in Illinois. Our Chicago grandparents’ rights attorneys assist clients from our locations in downtown Chicago, Northbrook, Orland Park, Schaumburg, and Wheaton. Anderson & Associates, P.C., can discuss your concerns and help you understand your options.

A Premarital Option for Gay Couples Contemplating Marriage

January 29th, 2015 at 2:36 pm

premarital option for gay couples, Chicago family law attorneysThe United States Supreme Court recently granted certiorari in four same-sex marriage cases. The Court will decide whether it is unconstitutional for states to ban same-sex marriage, and whether the Constitution requires states to recognize same-sex marriages performed elsewhere.

Currently, a majority of states permit same-sex marriage, including Illinois. (Illinois’ marriage equality law took effect on June 1, 2014.)

Gay couples have the right to marry in Illinois–and the right to divorce. For that reason, gay couples, like straight couples, may want to consider their options for mitigating the consequences of marriage dissolution. One of these options is a premarital agreement, which is a written contract outlining how marital assets will be divided if the marriage ends in divorce (or legal separation).

Executing a Premarital Agreement

The agreement must be written and signed by both spouses. The contract is not valid if either party was coerced, or if evidence exists of duress or fraud. If the couple wishes to revoke or amend the agreement, which is enacted upon marriage, they must voluntarily sign a separate agreement expressing those changes.

A basic prenuptial agreement includes information pertaining to:

  • Marital assets, which is generally property that the couple acquires during marriage;
  • Non-marital assets, which is includes property only one spouse possessed before the marriage;
  • How marital and non-marital property will be divided in the event of a divorce;
  • Whether or not each party should write a will reflecting the terms of the premarital agreement;
  • A party’s responsibility to make maintenance payments (alimony); and
  • The party’s choice of law to govern how the agreement will be interpreted (e.g., does Illinois law or another state’s law apply).

While the agreement may address maintenance, the court does not have to accept the parties’ terms on this issue under certain conditions. For example, if the parties agreed to eliminate alimony, but one party would suffer undue hardship due to unforeseen circumstances, the court may require the other party to make payments.

Executing a Postmarital Agreement

If you opted against a premarital agreement, it is not too late to define each spouse’s financial rights and responsibilities. A couple can achieve similar results by entering into a postmarital agreement after they marry. A postmarital agreement must also be in writing and voluntarily signed by both parties.

Marriage is stressful enough without having to contemplate what might happen in the event of divorce. If you are considering a premarital (or postmarital) agreement, contact one of our Illinois family law attorneys today at (312) 345-9999. The law firm of Anderson & Associates, P.C. will help you execute a valid contract with beneficial terms. We can assist clients from our Illinois offices located in Schaumburg, Wheaton, Northbrook, Orland Park, and downtown Chicago.

Illinois Recognizes the “Mature Minor Doctrine” in Some Cases

January 29th, 2015 at 12:22 pm

mature minor doctrine in Illinois, Chicago family law attorneyA 17-year-old Connecticut girl diagnosed with cancer was removed from her home after doctors reported her mother for medical neglect. The state’s Department of Children and Families took temporary custody of the teenager, who refused to undergo chemotherapy. The single mother supported her daughter’s wishes, arguing that the teen is mature enough to make her own decision. A unanimous Connecticut Supreme Court disagreed and ruled that the state can force the teen to receive medical treatment.

A similar case emerged in Illinois almost 30 years ago. In that case, a 17-year-old Jehovah’s Witness diagnosed with leukemia refused a medically necessary blood transfusion. A court found the mother guilty of medical neglect and appointed a temporary guardian to make decisions regarding the teen’s cancer treatment. However, the Illinois Supreme Court ruled that the teen could refuse life-saving medical treatment with court approval.

The Mature Minor Doctrine

The “mature minor doctrine” has been recognized by several states, including Illinois. In these states, the law gives minors an opportunity to prove they are mature enough to make medical decisions for themselves. Other states that recognize the mature minor doctrine include:

  • Maine – In 1990, the state Supreme Court held that doctors should respect a 17-year-old’s wishes (the teenager was in a vegetative state) about not being kept alive artificially;
  • Massachusetts – The state allows mature teenagers to refuse medical treatment for religious reasons;
  • Montana – Statutory law permits minors who have graduated from high school to make medical decisions for themselves;
  • Tennessee – The state follows the “Rule of Sevens“: Under the age of 7 there is no capacity; between the ages of 7 and 14, there is a rebuttable presumption that there is no capacity; and between the ages of 14 and 18, there is a rebuttable presumption of capacity; and
  • West Virginia – The state Supreme Court set forth seven factors that courts should consider when determining whether a minor is mature enough to make his own medical decisions. Those factors are age, ability, experience, education, exhibited judgment, conduct and appreciation of the relevant risks and consequences.

Medical Neglect

The “mature minor” line of cases is not the only scenario involving child medical neglect. For example, an Illinois judge recently considered a medical emergency custody case involving an out-of-state teenager. In that case, a Missouri teen hospitalized in Chicago became a ward of Illinois once the medical facility reported his mother for medical child abuse. Specifically, the Illinois Department of Children and Family Services placed him under temporary protective custody, arguing that the mother had interfered with the medical treatment of her child.

Illinois parents can be found guilty of neglect if doctors determine that a child is not receiving necessary care or medical treatment. If you risk losing custody of your child due to allegations of medical neglect, contact one of our Illinois family law attorneys today at (312) 345-9999. Anderson & Associates, P.C. helps clients from our offices in Schaumburg, Wheaton, Northbrook, Orland Park, and downtown.

Determining a Court’s Jurisdictional Authority in Child Custody Cases

January 28th, 2015 at 1:05 pm

court jurisdiction in child custody,  Illinois family law attorneysCourts may only decide child custody cases if they have proper jurisdiction. “Jurisdiction” is the authority to issue legal decisions and judgments. Issues regarding jurisdiction in child custody cases can be complicated, especially when such cases cross state lines.

In general, courts in Illinois only have jurisdiction to make initial determinations regarding child custody if:

  • The child lives in Illinois with a parent or a person acting as a parent for at least six months prior to the proceeding (also known as home state jurisdiction)  or if Illinois was the home state within six months before commencement of proceedings and a parent lives in Illinois;
  • The child’s home state chooses not to exercise jurisdiction because the child and a parent have specific ties with Illinois and there is evidence in Illinois regarding the child’s care and wellbeing;
  • All courts having jurisdiction have chosen not to exercise it because Illinois is the more appropriate forum; or
  • No other court has jurisdiction.

Exercising Jurisdiction across State Lines in Emergency Situations

However, per the Uniform Child-Custody Jurisdiction and Enforcement Act, Illinois courts may have temporary jurisdiction over non-resident children in emergency situations. For example, when an out-of-state child is mistreated or abused in Illinois, then a court in Illinois may take action.

Specific rules apply in these situations:

  • The temporary child custody order issued by an Illinois court will remain effective until a court having jurisdiction issues a separate order;
  • If a court that has jurisdiction does not begin a child custody proceeding, then the Illinois order becomes final; and
  • The Illinois court must immediately communicate with the court that has jurisdiction once informed that the other court has initiated a custody proceeding or has issued a child custody order.

The same is true if another court exercises temporary jurisdiction in a child custody case that ordinarily would be decided in Illinois. In that case, the order issued in the other state must be followed unless Illinois takes action.

Once the child’s home state makes a custody determination, that decision takes precedence over the Illinois court’s emergency actions. For example, if Illinois makes a custody determination based on emergency jurisdiction and subsequent to that decision the home state’s court that conflicts with that order, the home state custody determination will take precedence over the Illinois court’s order.

Our Chicago family law attorneys understand the intricacies of emergency and cross-state child custody and will work aggressively on your family’s behalf. Contact Anderson & Associates, P.C. today for a consultation at 312-345-9999. We can assist you from our offices in Schaumburg, Wheaton, Northbrook, Orland Park, and downtown Chicago.

New Illinois Laws in 2015: Part 2

January 28th, 2015 at 11:57 am

new Illinois laws in 2015. Chicago family law attorneyThere are other changes going into effect in 2015 that will have an impact on Illinois family law in addition to the recent amendments to the Children and Family Services Act and the Child Care Act. These changes address probate, children’s advocacy, the rights of birth parents, foster care services and juvenile delinquency.

Guardianship Law

The Illinois Probate Act regulates the guardianship of both minors and disabled adults. There are three types of guardianship under the Act: guardian of the person, guardian of the estate, and guardian of the person and the estate. The requirements for requesting a guardianship depend on the nature of the petition.

Recent amendments to the Probate Act have made it more onerous to petition for guardianship of a disabled adult. For example, the petition must include an evaluation of the adult’s disabilities and this accompanying report must now contain additional information about the professionals who performed the evaluation to ensure that their assessment is credible.

Investigating Child Maltreatment

The Children’s Advocacy Center Act authorizes accredited centers to investigate reports of child sexual abuse throughout the state. That authority has been extended to “child maltreatment cases,” which include specific criminal offenses committed against children or witnessed by a child.

The Rights of an Adult Adopted Person’s Birth Parents

Under the Adoption Act , an adult adopted person’s birth parent may request a non-certified copy of the adoptee’s birth certificate if he or she is named on the original copy and certain procedural requirements are met. For example, the non-certified copy cannot reflect the state file number that is on the original certificate, and the petitioner cannot be charged a fee.

Foster Youth to Advise DCFS

A new Illinois law requires the Department of Children and Family Services to convene a Statewide Youth Advisory Board and regional youth advisory boards to work with the agency on foster care services. The boards will be comprised of former and current foster youth between the ages of 14 and 21 years old. DCFS will appoint the boards’ members.

The boards will provide DCFS with a foster youth’s perspective on the services provided by the agency and make suggestions for improvements to these services. Additionally, the boards will advise DCFS on proposed or pending legislation in the General Assembly that will affect the state’s foster care system.

Custody of Juvenile Delinquents

In certain situations, the Department of Children and Family Services has the authority to take juvenile delinquents into custody without an independent basis for abuse or neglect. Recent amendments raised the age threshold from 15 to 16 years old.  Minors over 16 but less than 18 may still be placed in DCFS custody if there is an independent basis of abuse or neglect.

If you have questions regarding your rights and responsibilities under any family-related law–including guardianship, children’s advocacy, adoption, foster care and temporary custody–contact one of our experienced family law attorneys in Chicago today at (312) 345-9999. Anderson & Associates, P.C. assists those in the Chicago area from offices in Schaumburg, Wheaton, Northbrook, Orland Park, and downtown.

Read Part 1: New Illinois Laws in 2015

What are the Differences Between a Legal Separation and a Divorce?

January 27th, 2015 at 8:14 pm

legal separation and divorce difference, Chicago divorce and family law attorneyNot everyone understands the distinction between a legal separation and dissolution of marriage. However, it is important for couples experiencing marital problems to understand the options that are available to them, especially after deciding that they can no longer live together.

Legal Separation

Pursuing a legal separation is similar to filing for divorce. The main difference between a separation and dissolution is that a legally separated couple is still married. Keep in mind that opting for a separation does not prohibit a divorce in the future–that option remains open. A couple might want to consider a legal separation if they:

  • Do not want a divorce;
  • Live in separate residences; and
  • Want a court to legally define their rights and obligations regarding child support, and maintenance payments.

Note that a court will also address the issues listed in the third bullet point during a divorce proceeding. The court generally will not address issues regarding the division of property in a legal separation. However, the entry of a judgment for legal separation will stop the accumulation of marital property. In other words, any property that either spouse acquires after the legal separation would be presumed to be nonmarital property if either spouse files for divorce in the future.

Divorce

A petition for legal separation generally does not have to include a party’s specific reasons for pursuing that option. The same cannot be said for a divorce petition. A party petitioning for divorce must establish one of the following grounds:

  • The petitioner’s spouse was at the time of the marriage and continues to be naturally impotent;
  • The petitioner’s spouse was already married when he or she married the petitioner;
  • The petitioner’s spouse was adulterous;
  • The petitioner’s spouse deserted the petitioner for at least one year;
  • The petitioner’s spouse has been habitually drunk or abused addictive drugs for at least two years;
  • The petitioner’s spouse has threatened or attempted to kill the petitioner;
  • The petitioner’s spouse is guilty of physical or mental cruelty;
  • The petitioner’s spouse is a convicted felon; or
  • The petitioner’s spouse infected the petitioner with an STD.

In addition to the above grounds for dissolution, a petitioner can prove that there are irreconcilable differences between the spouses that have caused the marriage to break down.

However, Illinois only permits divorce based on irreconcilable differences if the parties have been separated for at least two years. If the parties have lived apart for at least six months then that requirement may be waived, but only if both consent in writing. It is important to note that this separation requirement does not require a “legal separation.”

The respondent may contest the grounds of the divorce petition. While the chances of staving off divorce are slim, he or she can request that the court order a conciliation conference. If the parties are unable to reconcile then the court will proceed with the divorce.

If you are considering a legal separation or a divorce, or if your spouse has served you with a separation or divorce petition, contact one of our family law attorneys in Chicago, IL at Anderson & Associates, P.C. We assist clients from our offices in Schaumburg, Wheaton, Northbrook, Orland Park, and downtown Chicago.

New Illinois Laws in 2015: Part 1

January 22nd, 2015 at 6:01 pm

new Illinois family law, Chicago family law attorneysThe New Year heralds more than fresh beginnings and ambitious resolutions. In many cases, January 1 also marks the statutory beginning for laws recently enacted by the Illinois General Assembly.  One example this year is an amendment to the Children and Family Services Act that allows state officials to place children who have been temporarily removed from their homes with “fictive kin”–an individual who is not related to a particular child by blood or marriage but who maintains a close personal relationship with that child or his family.

Illinois law authorizes the Department of Children and Family Services to temporarily remove abused or neglected children from their homes while DCFS officials investigate the situation. DCFS prefers to place these children with able and willing relatives, but when that is not possible, the department may opt to make placements with fictive kin rather than with complete strangers. The fictive kin must then apply for foster care licensure within six months of the placement.

Other family laws that took effect on January 1, 2015, include:

  • The Child Care Act, which regulates child care licensing requirements and licensing exemptions, was amended. Generally, if you provide care to more than three unrelated children (this includes your own children under the age of 12), state law requires you to obtain a child care license from DCFS. Recent amendments expanded the definition of “related” to include great-grandparents, step-grandparents and first cousins.
  • A second amendment to the Child Care Act, which requires DCFS to submit a comprehensive annual progress report to the General Assembly. The report must include such information as:
    • Details regarding how child day care licensing is funded (e.g., the names of revenue sources that support child day care licensing and how funds are appropriated);
    • Staffing qualifications for day care licensing representatives and supervisors;
    • Data history for day care licensing representative caseloads and staff levels; and
    • Efforts to coordinate professional development with the Department of Human Services and the State Board of Education.
  • Amendments to the Children and Family Services Act, which require DCFS to use its case tracking system to monitor families subject to safety plans. A safety plan is often implemented when DCFS officials are investigating reports of child abuse or neglect. If officials determine that a child needs to be removed from his home during the investigation–or that one of the parents needs to reside somewhere else–they might ask the family to agree to a safety plan outlining temporary placement arrangements. If the parents do not agree then DCFS can take protective custody of the child for 48 hours.

If you have questions regarding your rights and responsibilities under the Children and Family Services Act or the Child Care Act, contact one of our experienced Chicago family law attorneys at Anderson & Associates, P.C. today. At Anderson & Associates, P.C., we have decades of experience helping clients from our five regional offices in Schaumburg, Wheaton, Northbrook, Orland Park, and downtown Chicago. Call 312-345-9999 to schedule a free consultation today.

Read Part 2: New Illinois Laws in 2015

Divorce Filings Found to Increase at the Beginning of the Year

January 22nd, 2015 at 10:33 am

divorce filings at New Years, Chicago divorce lawyerThe decision to end a marriage is rarely an easy one. The process can be complicated for many couples and the effects are usually far-reaching. While the difficulty of divorce is typically not a surprise, many couples choose to wait until the winter holiday season has ended to initiate the proceedings. Following a relatively quiet December, many court systems see a spike in divorce filings each January, beginning a new season for divorce which usually lasts through March.

“It doesn’t look very good to sue your spouse for divorce on Christmas Eve,” said James McLaren, South Carolina attorney and president of the American Academy of Matrimonial Lawyers (AAML). Although it may be evident that divorce is on the horizon, many couples give their children one last holiday season as an intact family before filing.

To some couples, the holidays may represent a last-chance effort at saving the marriage before deciding to file for divorce. Others approach the life change as a type of New Year’s resolution. In many cases, choosing to file early in the New Year will result in the proceedings being concluded by the end of the year. Not only will this allow couples to transition more quickly into the next stage of their lives, it also allows for some tax benefits.

Following a relatively booming January, divorce filings typically remain at a high rate for the next several months, usually peaking in March. Throughout the spring, many family law offices report a fairly consistent pace before tailing off again during the summer “vacation” months.

If you have been considering divorce and are ready to begin the process in 2015, you deserve qualified representation. Contact an experienced family law attorney in Chicago today. At Anderson & Associates, P.C., we can review your situation and provide you the help you need. Call 312-345-9999 to schedule a free consultation at our Chicago office or to make an appointment at one of our four other offices located in Northbrook, Wheaton, Schaumburg, or Orland Park.

Basic Divorce Terminology

January 22nd, 2015 at 9:12 am

divorce terminology, Illinois divorce attorneyThose who are considering divorce, or have already filed for divorce, are faced with numerous legal terms that can be confusing or overwhelming. For example, in Illinois a divorce is not actually called a divorce; it is technically considered a “dissolution of marriage.” Speaking with an experienced divorce lawyer can help you understand all the terms and definitions you will need to know throughout your divorce proceedings.

If you are considering filing for a divorce, below are some basic legal terms you may want to know:

Dissolution of Marriage: A divorce. Illinois refers to divorce as a dissolution of marriage. It is the process a couple must go through to end their marriage. The process can be completed through traditional litigation in court or through mediation, but ultimately will conclude with the entry of a Judgment for Dissolution of Marriage.

Petition for Dissolution of Marriage: The document you will file with the court requesting  a divorce from your spouse. It will include basic information about your marriage and the grounds for the divorce.

Grounds: A specific reason for the divorce. In your petition for dissolution of marriage, you must state a legal reason for why you are seeking divorce. The grounds for divorce in Illinois are listed in the Illinois Marriage and Dissolution of Marriage Act, which include adultery, desertion, physical or mental cruelty, and irreconcilable differences.

Irreconcilable Differences: A general, “no-fault” divorce. When you allege these grounds in your Petition for Dissolution of Marriage, you are saying that you have tried (but failed) to work out your differences with your spouse and you cannot stay married any longer because it will not benefit either party.

Equitable Distribution: method of dividing assets in Illinois. This does not necessarily mean assets will be divided equally, but rather they will be divided fairly. A judge will consider different factors and divide the property among the two spouses as they see is the fairest in light of both parties’ circumstances.

Spousal Maintenance: Formerly known as alimony. Spousal maintenance is a court-ordered amount of financial support awarded to one spouse that the other spouse must pay. A judge can determine whether maintenance is appropriate in your case based on a variety of factors, such as income, assets, potential earning income, and the standard of living enjoyed during the marriage.

Legal terminology can be confusing when it is used in place of “everyday” language. If you need experienced legal counsel to help you file for divorce, contact our Chicago divorce lawyers. Anderson & Associates, P.C. can help you understand the terminology and legal process you will go through in divorce proceedings. Anderson & Associates, P.C. assists clients in Illinois from one of our five offices, conveniently located in Chicago, Schaumburg, Wheaton, Northbrook, and Orland Park. Call 312-345-9999 today.