Monthly Archives: January 2015

Is the Illinois Child Support Model Unjust and Unfair to Children From Multi-partner Families?

Is the Illinois Child Support Model Unjust and Unfair to Children From Multi-partner Families?

There are three child support models utilized by the states in calculation of the child support:

 

(1) The Income Shares Model.  The Income Shares Model utilized in 40 states as well as Washington D.C. is based on the idea that the child should receive the same share of his/her parent’s income that he or she would have received if the parents had not divorced. In families where the parents live together, both parents usually combine their income for the benefit of their children. Under this model, both parents’ income is considered when calculating child support. Each parent is then responsible for his or her share of child support. As a result,the noncustodial parent will usually pay approximately what he or she would have paid had the family stayed together.

 

(2) The Melson Formula. Although this model is similar to the Income Shares Model, it is more complicated because it is designed to ensure that in addition to the children’s needs each parent’s basic needs are met as well. Under this model, courts first determine each parent’s minimal self-support needs and children’s support needs as well as children’s standard of living. After each parent’s minimal support needs and children’s support needs and standard of living is established, the courts allocate the support between the parents according to each parent’s percentage of total net income. If there is any additional income, the parents will be ordered to share this additional income with the children to improve their children’s standard of living in proportion to the parents’ improved standard of living.

 

(3) The Percentage of Income Model. This model is utilized by the State of Illinois as well as nine other states. Although the Percentage of Income Model requires income information from both parents, it only considers the noncustodial parent’s income in determining the child support amount. (See our Child Support Article for more details on calculation of child support). The amount of child support is then determined by multiplying the net income of the noncustodial parent by 20% for the support of one child; 28% for the support of two children; 32% for the support of three children, etc.

 

Where the noncustodial parent (responsible for paying child support) has multiple children from multiple partners, application of this model to Illinois child support calculations results in uneven and unfair child support payments for the following reasons: prior child support obligations pursuant to court order are subtracted from the parent’s gross income before applying the percentage for child support. As a result, the oldest child will receive more in child support than his or her younger siblings from a different partner. For that reason, this approach is often called “first in time, first in right”.

 

In comparison to Illinois, New Jersey created a different process to prevent such unjust and unfair results in multi-partnered families.  New Jersey guidelines grant their courts theauthority to have a consolidated proceeding where the court will modify and adjust all child support orders by averaging those orders to ensure that the resultingchild support is fair to all the children.

 

The ISBA Family Law Section Council proposed a new legislation in Illinois to address such uneven and unfair results in child support awardsin multi-partnered families by utilizing the Income Shares Model to determine child support obligations rather than the Percentage of Income Model.

 

The question is, “Will that be enough to have a fair and just system for calculating the child support? Or should the State of Illinois grant its courts an authority similar to that granted to New Jersey courts, allowing an adjustment of all child support orders on a case-by-case analysis to ensure that the resulting child support award is fair to all the children?”

 

To schedule a consultation with a dedicated and experienced family law attorney serving Will County, Dupage County, and Kendall County, call us today at (815) 207-9570 or (815) 409-8858.

The information on this site is not legal advice.  Retain an attorney licensed in the state which has jurisdiction over your matter before taking any action which affects your legal marital status or custody arrangements, and follow the advice of your retained lawyer.  

Grandparents Visitation Rights: Recent Ruling Allowing Visitation

Grandparents Visitation Rights: Recent Ruling Allowing Visitation

Illinois law not only addresses parents’ visitation rights in custody issues, but also grandparents visitation rights.  A question that grandparents may have from time to time is whether they have the right to a visitation schedule with their grandchildren.  This is a developing area of law and a recent case in November 2014 helps illustrate the factors that courts will consider when determining whether grandparents may be granted a visitation schedule.

In its recent decision, Robinson v. Reif, 2014 IL App (4th Dist., Nov. 24, 2014), the Illinois trial court found and the Illinois Appellate court later affirmed that it would be harmful to the children if their relationship with their grandparents ceased to exist and, therefore, awarded grandparents temporary and permanent visitations with their grandchildren.

In Robinson, grandparents, Plaintiffs, filed a Petition for Temporary and Permanent visitation with their grandchildren. Plaintiffs’ daughter was killed in a car accident and her husband, Defendant, was severely injured and spent 18 months in a hospital. At the time of the accident the oldest child was age of 3 and the youngest was age of seven months. Plaintiffs took on full parenting responsibilities for their grandchildren and raised the children for 18 months following their daughters’ death and defendant’s hospitalization. After Defendant recovered and remarried, he regained custody of the children and deprived the grandparents of visitations with the children (by the time Defendant regained custody of the children, his relationships with Plaintiffs were irreparably damaged due to the custody battle where Plaintiffs sought to keep custody of the children but ultimately lost).

Defendant in this case argued that his decisions regarding grandparents’ visitation were not harmful to the children’s mental, physical, or emotional health. Defendant further argued that under section 607(a-5)(3) of the Illinois Marriage and Dissolution of Marriage Act, “there is a rebuttable presumption that a fit parent’s actions and decisions regarding grandparent, great-grandparent, or sibling visitation are not harmful to the child’s mental, physical, or emotional health. The burden is on the party filing a petition under this Section to prove that the parent’s actions and decisions regarding visitation times are harmful to the child’s mental, physical, or emotional health.” 750 ILCS 5/607(a-5)(3). Such presumption derives from the due process clause of the fourteenth amendment to the United States Constitution, which “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 68 (2000)

In making a determination as to whether it would be harmful to the children’s mental, physical, or emotional health if their relationship with Plaintiffs ceased to exist, the trial court considered the following factors:

a) The preference of the children if the children are determined to be of sufficient maturity to express a preference;

b) The mental and physical health of the child;

c) The mental and physical health of the grandparent, great-grandparent, or sibling;

d) The length and quality of the prior relationship between the child and the grandparent, great-grandparent, or sibling;

e) The good faith of the party in filing the petition;

f) The good faith of the person denying visitation;

g) The quantity of the visitation time requested and the potential adverse impact that visitation would have on the child’s customary activities;

h)   Whether the child resided with the petitioner for at least 6 consecutive months with or without the current custodian present;

i) Whether the petitioner had frequent or regular contact or visitation with the child for at least 12 consecutive months;

j)   Any other fact that establishes that the loss of the relationship between the petitioner and the child is likely to harm the child’s mental, physical, or emotional health; and

k) Whether the grandparent, great-grandparent, or sibling was a primary caretaker of the child for a period of not less than 6 consecutive months.”  750 ILCS 5/607(a-5)(4).

 

Based upon these factors and all the evidence presented in court, the trial court in this case found that it would be unreasonable to completely cut all ties with the grandchildren and deprive grandparents of any visitations with them. The court stated that children formed an attachment to Plaintiffs during the 18 months that Plaintiffs raised them following the car accident and that the children would be damaged emotionally if deprived of all visitations with Plaintiffs. The court then awarded the following visitation rights to Plaintiffs: (1) a weekly, unsupervised phone call; (2) a seven-day visit every June in Decatur; and (3) weekend visits in New Mexico once every April, October, and December.

The Illinois Appellate court later affirmed trial court’s decision to award grandparents temporary and permanent visitation rights with their grandchildren.

 

To schedule a consultation with a dedicated and experienced family law attorney serving Will County, Dupage County, and Kendall County, call us today at (815) 207-9570 or (815) 409-8858.

The information on this site is not legal advice.  Retain an attorney licensed in the state which has jurisdiction over your matter before taking any action which affects your legal issues, legal marital status or custody arrangements, and follow the advice of your retained lawyer.  

How Does the Divorce Process Work in Illinois?

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How Does the Illinois Divorce Process Work?

 divorce papers

Initial Divorce Papers

A divorce in Illinois begins when one spouse files a Petition for Dissolution of Marriage.  This is the initial document of the divorce papers to open a divorce case in the court system.  Depending on the nature of the pleadings in the Petition, this petitioning spouse may be asking for various types of relief under Illinois law, including but not limited to maintenance, a custody arrangementchild support, a division of marital property, or other relief.

 

What do I have to do when a divorce has been filed against me?

You must file what is called an “appearance” at the courthouse.   To do this, you would go to the clerk’s office at the county courthouse where the Petition for Dissolution was filed, and pay a fee to show that you will be participating in the divorce proceedings.  This fee varies depending on the county, and is generally around $150 to $200.  This is a fee which is paid directly to the court, and which must be paid whether you hire an attorney or not.  Also, you must file a “Response” to the Petition for Dissolution of Marriage.  This is paperwork that is written in response to the Petition that your spouse had filed against you.  It would contain your responses to the allegations in the Petition and the relief that you would be asking for under Illinois divorce laws.  It is important to note that once you have been served with a Petition, you will generally have 30 days in which to file an appearance and a response.  If you do not, the judge may order a “default judgment” against you, meaning that the relief requested by your spouse in the Petition could be automatically granted.

 

Exchange of Financial Information

Next, the parties commonly request an exchange of financial information.  Upon request, both parties will be required to fully disclose their incomes, assets and debts.  This information is required to fairly determine how the marital property should be distributed under Illinois law.  The process for requesting this information is called Discovery, and can be initiated through requests in writing, or face-to-face interviews under oath with the spouses, called depositions.  If the parties are in agreement on all matters related to the divorce, they have the option of skipping the discovery process, though some minimal exchange of financial information is typically required.

 

Settlement, or Hearing

Depending on the relief that each party is asking for, the case may then proceed to settlement negotiations, or may proceed to hearing on any of the pending issues.  A hearing is when both parties appear in front of the judge to dispute a pending issue on the case.  Arguments are made by both sides, and evidence may be presented.  The judge then makes a final ruling, which can become an official Court Order which must be complied with by both parties.

Another option to resolving any contested issue is to schedule a Pretrial conference with the judge.  This is an informal hearing where both parties’ attorneys have a private conversation with the judge, often in the judge’s chambers outside the court room.  At this hearing, both attorneys present evidence and their respective clients’ issues to the judge.  The judge then states how he or she would rule on these issues if the matter actually proceeded to a formal hearing.  The judge may also make recommendations for how to settle the case.  The purpose of a Pretrial is to facilitate settlement, so that the parties can resolve the matters without expending the costs and resources of proceeding to a full hearing.

If the matters go to hearing, the judge will make the final decision as to what relief will be granted to the parties.  If the parties come to an agreement on all matters, then detailed documents will be drafted outlining the agreed matters between the spouses.  For the divorce matters, the document drafted will be a Marital Settlement Agreement.  For custody matters, the document will be a Parenting Plan.  These documents are often referred to as a divorce decree, or divorce papers, and will be signed by both parties.

 

Finalizing the Divorce

Next, the case will be set for prove up.  This is the last court date on which the judge will approve the signed documents and the divorce will be finalized.  At this court date, the parties step before the judge, and are asked to confirm that they both agree to each of the terms of the Marital Settlement Agreement and Parenting Plan.   After these documents are approved by the judge, they will be entered into an official Court Order, and the divorce will be finalized.

With the Marital Settlement Agreement and Parenting Plan now being part of a Court Order, both parties will be required to comply with all the terms within.  If one party does not, he or she may be in violation of the Court Order, and the other ex-spouse can bring the case back before a judge to enforce the terms of the Order.

 

(815) 207-9570

Call to schedule an initial consultation

If you have questions about how to get a divorce in Illinois and wish to schedule a consultation with an experienced and dedicated family law attorney serving Will CountyDupage County or Kendall County, call us at (815) 207-9570.

 

The information on this site is not legal advice.  Retain an attorney licensed in the state which has jurisdiction over your matter before taking any action which affects your legal issues, legal marital status or custody arrangements, and follow the advice of your retained lawyer.  

What happens when I mix pre-marital property with property obtained during the marriage?

TRANSMUTATION OF MARITAL AND NON-MARITAL PROPERTY

One of the main issues besides child custody, child support, and maintenance/spousal support that divorcing couples often face during the divorce proceeding is the division of property. There are two types of property: marital and non-marital. In the state of Illinois there is a presumption that the property acquired during the marriage is marital (see our article on division of property for more details).  Typically, non-marital property is not divided in a divorce.  However, if non-marital property is “comingled” with marital property, it may be considered martial property and therefore will be considered for division among the parties as part of the divorce.

The process of commingling marital property with non-marital property is called transmutation. Section 503(c)(1) of the Illinois Marriage and Dissolution of Act states that “when marital and non-marital property are commingled by contributing one estate of property into another resulting in a loss of identity of the contributed property, the classification of the contributed property is transmuted to the estate receiving the contribution.”  Therefore, non-marital property becomes marital. Under the Illinois statute, transmutation occurs if two elements are satisfied: (1) marital and non-marital assets have been commingled; and (2) the commingling resulted in a loss of identity between the marital and non-marital property. The second element, loss of identity between the marital and non-marital property, is the most challenging one for parties to prove because once the property is mixed there is a presumption that the owner of the non-marital property intended to make a gift of the property to the marital estate. However, this presumption can be rebutted/overcome. Simply tracing funds from non-marital into marital account is not enough to prove transmutation. Illinois courts have been applying the Conduit Rule when determining where transmutation occurred. Under this rule, non-marital funds transferred into the marital account which is merely used as conduit through which the non-marital funds flows, does not lose its identity and, therefore, no transmutation occurs. One of the factors the courts consider when applying the Conduit rule is the length of time non-marital and marital funds have been comingled. The longer the period of time during which marital and non-marital funds were mixed, the more likely the court to find that the non-marital funds were not merely flowing through but rather were gifted to the marital account and therefore, transmutation occurred.

Another factor that the court will consider when making a determination whether transmutation has occurred is the amount of money that was mixed. If a large sum of marital funds is mixed with a smaller sum of non-marital funds, the court will more likely find that transmutation occurred and non-marital property became marital property. Finally, the court will also look at whether a party intended to gift non-marital property to the marital estate. Shall the court determine that such donative intent existed, it will find that transmutation occurred. Although transmutation cases are not as black and white as they may seem to be, these are the basic factors that Illinois courts consider in determining whether transmutation occurred.

To schedule a consultation with a dedicated and experienced family law attorney serving Will CountyDupage County, and Kendall County, call us today at (815) 207-9570 or (815) 409-8858.

The information on this site is not legal advice.  Retain an attorney licensed in the state which has jurisdiction over your matter before taking any action which affects your legal issues, legal marital status or custody arrangements, and follow the advice of your retained lawyer.  

Visitation rights: I cannot see my child. What can I do?

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 Visitation rights:  I cannot see my child.  What can I do? 

visitation rights father's rights

Illinois law strongly favors maximum involvement by both parents in their children’s lives.  This includes the right of both parents to visit and spend time with their children.  Even though one parent may have been granted the majority of parenting time, or was granted decision-making responsibilities over all major areas of the child’s life, the other parent still has the right to enjoy time with the child.  Visitation rights are strongly encouraged by Illinois courts, and are only taken away in circumstances where a parent poses a serious danger to the child.

If the other parent of your child is denying you the right to see your child, or is concealing the child’s location from you, the family law attorneys at Bugarsky & Navarro can bring your case in front of a judge and fight for your rights to parenting time.  If a previous court order was in place granting you a visitation schedule, and the other parent is refusing to follow this schedule, he or she may be in violation of the court order.  Our family law attorneys can file a petition to bring this violation to the attention of a judge.  If no previous court order has been granted, we can file a petition and ask that the court grant you a reasonable visitation schedule.

 

Alienation

In some cases, one parent will instill bad feelings in the children towards the other parent, or will discourage the children from wanting to spend time with the other parent.  This is called parental alienation, and numerous psychological studies have shown that this can be damaging to a child’s mental health.  Illinois judges generally want both parents to cooperate in encouraging a close and loving relationship between the children and each parent.  If you feel your children may be at risk of alienation by the other parent, the divorce and custody attorneys at Bugarsky & Navarro can ask a judge to put a court order in place prohibiting both parents from engaging in such alienating behavior which would discourage a healthy relationship between the children and parents.

If you have not seen your children for a long time, despite your attempts to reach out and contact them, a judge may want to exercise a certain degree of caution during the process of reunifying your relationship with the children.  This may be especially true when the children are at a young age.  A judge may order that a neutral attorney, such as a Guardian Ad Litem or Child Representative be appointed to your case.  This attorney’s role would be to represent the interests of your children.  The attorney would investigate the facts of your case by speaking to both parents and the children, and would report back to the judge as to his or her recommendations going forward with the case.  A judge may also order that counseling sessions take place between you, your child, and a therapist to help carefully ease the reunification process.  The time span of this process may be frustrating, however it is important to understand that a judge would be taking these precautions for the health and best interests of your children.  Court proceedings can have a serious effect on a child’s mental or emotional health, and judges often determine in certain cases that such counseling sessions are the safest way to begin facilitating a reunification between a parent and an alienated child.

 

(815) 207-9570

Call to schedule an initial consultation

To schedule a consultation with a dedicated and experienced family law attorney serving Will CountyDupage County, and Kendall County, call us today at (815) 207-9570.

The information on this site is not legal advice.  Retain an attorney licensed in the state which has jurisdiction over your matter before taking any action which affects your legal issues, legal marital status or custody arrangements, and follow the advice of your retained lawyer.  

How will new alimony laws affect my case?

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 How will new alimony laws affect my case?

alimony lawyers

A new law has come into effect on January 1, 2015 which dramatically changed the maintenance provisions of the Illinois Marriage and Dissolution of Marriage Act. This new law provides a formula for computing maintenance (commonly referred to as “alimony”) based on divorcing couples’ gross income and the length of the marriage. This formula applies only to couples whose combined gross income is less than $250,000. Maintenance awards in Illinois were previously very inconsistent without the statutory maintenance formula because under previous law, judges were calculating maintenance based on the list of factors provided in sections 504 and 505 of the Illinois Marriage and Dissolution of Marriage Act. Previous law made it difficult for attorneys to predict the amount of maintenance to be awarded, if any. Although under the new maintenance law judges are not required to use the maintenance formula, if they do not use the formula, they must provide an explanation as to why they chose not to use it.

Under the new maintenance formula, a maintenance award is calculated by subtracting 20% of the payees’ gross income from 30% of the payor’s gross income.  The resulting number is then added to the payee’s gross income.  The sum of the payee’s gross income, plus the amount of maintenance, may not exceed 40% of the combined gross income of the parties.

The duration of the maintenance award is computed by multiplying the number of years of the marriage by 20% if the marriage was 5 years or less, by 40% if the marriage was more than 5 years but less than 10 years, by 60% if the marriage was 10 years or more but less than 15 years, by 80% if the marriage was 15 years or more but less than 20 years, and if the parties were married for 20 years or more, the maintenance could be permanent or last the length of the marriage.

Although the new maintenance laws will provide consistency to maintenance awards, it currently raises a lot of questions such as whether the new statutory formula will apply to cases filed before January 1, 2015, or whether it will apply to maintenance modification orders entered after the effective date.

Additionally, the new maintenance law affects the amount of child support awards by adding the following provision to the definition of the net income: “obligations pursuant to a court order for maintenance in the pending proceeding actually paid or payable under Section 504 to the same party to whom child support is to be payable.”

(815) 207-9570

Call to schedule an initial consultation

To schedule a consultation with a dedicated and experienced family law attorney serving Will CountyDupage County, and Kendall County, call us today at (815) 207-9570.

 

 

The information on this site is not legal advice.  Retain an attorney licensed in the state which has jurisdiction over your matter before taking any action which affects your legal issues, legal marital status or custody arrangements, and follow the advice of your retained lawyer.