Divorce and Custody Law

How Can a Parenting Time Schedule Affect Child Support Payments?

 

 

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How Can a Parenting Time Schedule Affect Child Support Payments?

The amount of overnights per year that both parents each have with their child is now taken into consideration when calculating child support under the new statute. 

A basic child support calculation will simply consider both parents’ respective gross incomes.  However, if the parent with less parenting time (formerly called the “non-custodial parent”) has at least 146 overnights per year with the child by court order, this could affect the basic child support calculation.  In many instances, it could result in a lower child support amount.

 

How the Child Support Calculation for Equal or Shared Parenting Time Works

Note: This formula is quite long.  For a faster estimation, you can try the child support calculator/estimator.

  1. Both parents’ gross monthly incomes are entered into the gross to net monthly income conversion chart

For this example, the parties have one child, and Father is the parent with less parenting time.  Under the chart, he is the “Parent With Duty to Support.”

Father: $5,000 gross income per month 

Mother: $4,000 gross income per month

              

Father’s net monthly income from the chart:  $3,759

Mother’s net monthly income from the chart:  $3,177 (one child)

              

  1. The resulting numbers are then used to determine each parent’s percentage of the whole.

$3,759 + $3,177 = $6,936 combined total net income available for support

Father’s percentage of the whole:  54%

Mother’s percentage of the whole: 46%

Here is a helpful website for calculating percentages.

 

  1. The combined total of both parents’ net incomes are applied to the income shares chart to obtain the basic child support obligation

$1,129 (for one child)

 

  1. The basic child support obligation is multiplied by 1.5

$1,129 x 1.5 = $1,693.50

 

  1. The resulting number from step 4 is multiplied by both parents’ percentages from step 2.

$1,693.50 x .54 = $914.49 Father’s share of child support obligation

$1,693.50 x .46 = $779.01 Mother’s share of child support obligation

 

  1. The number of overnights each parent has with the child under the parenting time schedule will be divided by 365. This will result in the percentage of overnights that each parent has with the child.

Father:  146 overnights with the child per year

Mother:  219 overnights with child per year

 

146/365 = 40% of overnights for Father

219/365 = 60% of overnights for Mother

 

  1. Mother’s percentage from step 6 is multiplied by Father’s number from step 5, and Father’s percentage from step 6 is multiplied by Mother’s number from step 5.

.60 x $914.49 = $548.69

.40 x $779.01 = $311.60

 

  1. The difference between the two numbers from step 7 results in the monthly child support amount. The higher-earning parent will pay this amount in child support to the lower-earning parent.

$548.69 – $311.60 = $237.09

Note: Calculations using the state child support estimator result in $240.48.   

 

How Child Support Calculation for “Split Care” Works

“Split care” refers to when each parent has the majority of parenting time with at least one child.  For example, the daughter lives primarily with Mother and the son lives primarily with Father.

  1. Calculate child support separately for Mother using the method here.
  2. Calculate child support separately for Father using the same method here.
  3. The difference between the two numbers calculated above will be the child support amount. The parent who owes more from the calculations above will pay this difference to the other parent.

 

Try the Child Support “Calculator”

As you can see, these calculations are even further complex than the new basic method for calculating Illinois child support.  Luckily, the state has released an online Illinois child support calculator, or “estimator,” as it is more accurately described, which can provide an estimate of the basic child support amount.  In this estimator, a parent can enter the amount of overnights he or she has with the child per year.  Please note that this calculator provides an estimate only, which may vary from resulting calculation that is performed by a judge.

 

Keep in mind that if, when trying to establish the initial parenting time schedule, a parent is pushing for equal parenting time, or more than 146 overnights per year, a judge or Guardian Ad Litem may be suspicious that he or she is doing this specifically to lower the child support rate.  Is it entirely plausible that a parent would want equal parenting time, not for financial reasons, but to maximize his or her time with the child?  Of course.  However, the first thought that will cross a judge’s or GAL’s mind will be the possibility that the parent may be requesting such a schedule to lower child support.   At this point in history, equal parenting time is not a default schedule that Illinois courts revert to when establishing a parenting time schedule.  Often, specific circumstances will have to exist in order to establish such a schedule, which can include, but are not limited to:

1) The parents living a short distance from one another

2) The parent’s work schedules allowing for equal parenting time

3) The child’s school and activity schedules allowing for equal time, and

4) The child being of the appropriate age for such a schedule. 

Judges, Guardian Ad Litems, and legal practitioners differ in their views as to when a child would be of an appropriate age for an equal parenting time schedule.  The point is, whether an equal parenting time schedule will be established will depend on the facts of each case.

 

Can I Change My Child Support Rate if I Have 146 or More Overnights?

Possibly.  To modify child support, there must be a “substantial change in circumstances.”  If, after the last child support order was entered, a new court order was entered granting more overnights to the parent with less parenting time, this could potentially qualify as a “substantial change.”  However, if there has not been any substantial change in circumstances since the last court order (for example, there has not been a new court order granting 146 or more overnights for the parent who pays support), then a modification of child support would not be granted.  The key concept is that a change has to occur after the last child support order was entered.

 

If you or someone you know is seeking legal representation on a child support matter in a Will County, Dupage County, or Kendall County case, call (815) 207-9570 to schedule an initial consultation with a child support attorney.

Call to schedule an initial consultation

(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.

Illinois Child Support Calculator for New 2017 Laws

 

 

(815) 207-9570

Call to schedule an initial consultation with a family law attorney for a child support case in Dupage County, Will County, or Kendall County

 

Illinois Child Support Calculator for New 2017 Laws

The Illinois Department of Healthcare and Family Services has released a child support calculator corresponding to the new Illinois child support laws which had come into effect on July 1st, 2017.  The “Child Support Estimator,” as it is called, can help parents calculate an estimate as to what the child support rate in their case may be under the new law.

The Child Support Estimator for parents can be found here.  

The Child Support Estimator for attorneys can be found here.

 

Please note that these calculators provide estimates only, and will not necessarily provide the final amount that is established by the court in a child support case.  For a more detailed look into your Will County, DuPage County or Kendall County child support case, contact the law firm of Navarro Family Law, LLC to schedule an initial consultation with a child support attorney.

 

(815) 207-9570

Call to schedule an initial consultation

 

Related Articles:

New Changes to Illinois Child Support Laws in 2017

Child Custody

 

 

The information on this site is not legal advice and does not create an attorney-client relationship.  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 Are My Options in a Divorce Case?

 

 

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What Are My Options in a Divorce Case?

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Whether you are currently involved in a pending  case, or are considering filing for divorce, this article will give you an overview of common issues that arise in Illinois divorce cases.

 

Maintenance, “Alimony”

Whether maintenance, or “alimony” as it is often called, will be awarded to a spouse will depend on the facts of each case.  It is often determined, in part, by how much of a difference there is between the two parties’ income levels.  The more one spouse earns than the other, the higher likelihood of there being a maintenance award, and the higher the actual payments could be.   The closer the income levels are, the less likelihood of there being a maintenance award.  Illinois courts use a formula for determining a basic maintenance calculation.  The court should also determine whether a maintenance award is appropriate, taking into consideration the income, needs, and earning capacity of each spouse, as well as other factors.

In some cases, a spouse’s income level might not be clear, for example, when a spouse is paid by commission instead of a base salary.  In such cases, the lower-earning spouse may try to maximize his/her potential maintenance award by minimizing his/her claimed income level, and maximizing the other spouse’s income level, so that the parties’ incomes appear further apart.   To try and minimize the maintenance award, the higher-earning spouse may try to minimize his /her claimed income, while maximizing  the other spouse’s income level, so that their incomes are closer.  No matter what outcome each spouse “wants,” they are both required to truthfully disclose their income levels.  If they do not, the divorce process could take longer and be more expensive, as more discovery may be required.

 

Division of Property – “Will my spouse get half of my assets?” 

As part of every divorce case, the parties will have to fully and truthfully disclose all of their assets, whether they were acquired before or during the marriage.  Some examples of property that could potentially be divided in a divorce case include, but are not limited to, bank accounts, retirement or investment accounts, the available equity in real estate property or vehicles, and the settlement awards from personal injury or workers compensation claims.  Generally, property acquired during the marriage (“marital property”) could be divided as part of the divorce.  However, property acquired before the marriage, or other non-marital property, could be taken into consideration when dividing the available marital property.

Although it is not required by law, in practice, many judges often try to allocate marital property equally.  However, if one spouse has spent or disposed of marital property in an inappropriate manner, the other spouse could potentially have a claim for dissipation of marital assets.  If successful, the dissipation claim could result in an offset of the division of available marital property, such that the spouse claiming dissipation could receive a higher percentage of the remaining property.

 

Debts

Any debt that was accumulated during the marriage is potentially marital debt.  Both spouses could be ordered responsible for paying off this debt, regardless of who actually incurred the debt.  In some cases, a claim of dissipation could be made whereby a spouse argues that he or she should not be responsible for contributing towards a certain portion of the marital debt, because the other spouse incurred it for reasons that did not benefit the family, or marital interests.  This would require an examination as to whether the debt was incurred for a purpose that was one-sided, wasteful, or whether incurring such debt and making such expenditures was typical during the marriage.

 

Custody of Children

In every divorce case where the spouses have minor children, the court must make a determination as to the authority that each parent will have in making major decisions for the children.  Such major decisions can include the choice of medical providers, educational opportunities, choice of day care providers, extracurricular activities, and religious upbringing.  If there is a dispute between the parents as to how to arrange parental decision-making responsibilities, the court may look at the level of involvement that both parents have had with the children within the two years before the divorce was filed.

 

Parenting Time or Visitation

Typically, a parenting time schedule will also be established, listing both parents’ regular and holiday time with the children.   Factors which are taken into consideration usually include, but are not limited to, both parents’ work schedules, the children’s school schedules, and the age of the children. 

The parent with whom the children primarily live, that is, the parent with the “majority of parenting time,” will typically be awarded child support, paid by the other parent.  Sometimes there will be a disagreement as to which parent should have the majority of time.  In these cases, the court may also look at the parents’ involvement with the children in the two years prior to the filing for divorce, as well as other factors.

 

Child Support and Child Expenses

Child support in Illinois is now calculated based on both parents’ incomes.  Both parents’ incomes will be run through different charts to determine the paying parent’s child support obligation.  

In addition to child support, both parents are also typically responsible for contributing towards medical, educational, extracurricular, and day care expenses for the children.   The judge could order that the parties contribute to the costs 50/50, or, in his or her discretion, could also divide the parents’ contributions based on their respective incomes. 

 

What do Judges Want From Spouses in a Divorce Case?

Divorce court judges want to see spouses truthfully disclose their incomes and assets (this should go without saying, but unfortunately does not always happen), and be reasonable in attempting to reach a settlement.  With regards to child custody and parenting time, judges generally want to see parents who act maturely, who cooperate and work together for the best interests of their children. 

 

For a more detailed look into your potential options for proceeding on a Will County, Dupage County, or Kendall County divorce or child custody case, contact a family law attorney at (815) 207-9570 and schedule an initial consultation.

 

 

Call to schedule an initial consultation

(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.

Dissipation of Marital Assets: A Closer Look

 

 

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Dissipation of Marital Assets: A Closer Look

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A common question asked of divorce attorneys is “Can my spouse withdraw from his or her retirement account, then spend all the money and get away with it?”  

In a previous article about dissipation of marital assets in an Illinois divorce, I explained the basic idea of what might occur if a spouse improperly uses or wastes marital property or funds.  This article will go into more depth as to some of the factual requirements for making a dissipation claim. 

  

Basic Requirements for a Dissipation Claim

 Generally, dissipation could be found to occur when:

  1. A spouse improperly uses marital property for the sole benefit of him or herself, for a purpose unrelated to the marriage, without the permission and/or knowledge of the other spouse; and
  2. The improper use occurs during a time period when the marriage was undergoing an “irreconcilable breakdown.”

 

Was the Property Really “Dissipated?”

Perhaps the most common dispute in dissipation claims is over whether the spending of marital property was wasteful, or whether it was a legitimate, appropriate use. 

Here is a common scenario:  Spouse A withdraws large amounts of money from a savings, retirement or investment account, such as an IRA, then spends it on bills, food, and clothing during divorce proceedings.  Spouse A claims that the funds were used for “regular household expenses,” while Spouse B claims that the money was spent so that it would not have to be shared when the divorce is finalized.  Their divorce lawyers then review bank account statements to look for signs of waste or unusual spending patterns.

Whether or not a court will find that a spouse dissipated marital property will depend on the specific facts of each case.  Dissipation is generally based on the idea of “waste.”  Unusual expenditures that do not benefit “common marital interests” could be held improper.  Here are some examples of potential dissipation:

  • Spending money on an extra-marital boyfriend or girlfriend, such as buying expensive jewelry, or paying off his or her debts
  • Loss of marital funds though gambling
  • Intentional destruction of property
  • Failing to pay the mortgage on a house, causing it to go into foreclosure, and resulting in a loss of equity in the home
  • A pattern of giving gifts or donations which were not agreed to, and were not typical during the marriage
  • Using savings or investment account money to pay household expenses, when the parties had enough available income to pay these expenses
  • An increased level of expenditures that was not agreed to or typical during the marriage

A spouse properly charged with dissipation must present clear and convincing evidence that the expenses were legitimate.  To survive the dissipation claim, he or she cannot simply state that marital funds were spent on regular or necessary expenses.  A detailed accounting of financial records, or in-court testimony may be required for the accused spouse to prove that the use of marital property was not selfish or wasteful.

 

The Irretrievable Breakdown of the Marriage

Another potential issue is the timing of when the improper acts or expenditures occurred.  The key point in the time line is the period when the marriage began to undergo an irretrievable breakdown.  If the improper use of the marital property occurred during or after this period, then the court could find that it was dissipation.  Courts in the past have defined the key starting point as the time when the marriage began to undergo an irreconcilable breakdown, and not the time when the marriage had reached its  “final breaking point.”

Some examples of potential starting points for an “irretrievable breakdown” are the following:

  • The date when the divorce was filed. The breakdown could certainly occur before this, but when a spouse files for divorce they typically allege in the initial divorce papers that an irretrievable breakdown has occurred.
  • The date when a spouse moved out of the marital home
  • The date when the spouses began sleeping in separate bedrooms

 

The court’s evaluation of whether dissipation has occurred, and the outcome of a dissipation claim can depend on the specific circumstances and facts of each divorce case.  If you believe you may have a dissipation claim against your spouse, or your spouse is alleging a claim of dissipation against you, contact a divorce attorney to schedule an initial consultation at (815) 207-9570.  Navarro Family Law, LLC represents clients in Will County, Dupage County, and Kendall County divorce cases.

Call to schedule an initial consultation

(815) 207-9570

Related Articles:

Dissipation of Marital Assets in an Illinois Divorce

How is Property Divided in an Illinois Divorce?

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.

New Changes to Illinois Child Support Laws in 2017

 

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Call to schedule an initial consultation with a family law attorney for a child support case in Dupage County, Will County, or Kendall County

New Changes to Illinois Child Support Laws in 2017

New changes have come to Illinois child support laws, effective July 1st, 2017.   Child support will be calculated by an entirely different method than what had been used for the past 30 years.

 

Update: A new Child Support Calculator has been released by the Illinois Department of Healthcare and Family Services.  Click here for links to the estimator.  Please note that this child support calculator only provides estimates of what the child support payments may be.  The resulting calculations may differ from what is actually established by the court in a child support case.

 

Old Law

Illinois child support law has traditionally been calculated by taking the payor’s net income (gross income, minus taxes and other deductions), and applying a certain percentage based on the number of minor children, for example:

One minor child:  20% of net income

Two minor children: 28% of net income

Three children: 32% of net income

 

New Law

Under the new Illinois child support law in 2017, both parents incomes will be considered when calculating support.   That is, child support will be calculated based on the combined net incomes of both parents.  The old method of using flat percentages based on the number of children will no longer be used.  Instead, child support will be calculated as follows:

  1. Determine each parent’s “net income” by running their gross incomes through a gross to net conversion chart.
  2. Combine both parents’ net incomes to determine the combined net income.
  3. Determine what percentages of the combined net income is represented by each parent’s net incomes.
  4. The combined net income from step 2 will be plugged into an income shares chart to determine the basic child support obligation. 
  5. Multiply the resulting number from step 4 with the percentages from step 3, for each parent.
  6. The resulting numbers are each parent’s child support obligations.  The number for the non-paying parent, typically the parent with the majority of parenting time, will be presumed to already be applied to the child.  The number for the paying parent will be that parent’s child support obligation, and must be paid to the non-paying parent.

 

Here is a basic example of how the new process can work.  In this example, the parties have one child, Mother has the majority of parenting time, and Father is paying the child support obligation:

  1. Father’s gross income is $3,000 monthly, which applied through the gross to net conversion chart results in a net income of $2,384.  Mother’s gross monthly income is $7,000, which when applied to the same chart results in a net income of $5,122.
  2. Calculate the combined net income of both parents: $2,384 + $5,122 = $7,506.
  3. Father’s percentage of the combined net income is 32%, Mother’s percentage of combined net income is 68%
  4. The combined net income amount from step 2 ($7,506) is then plugged into the income shares chart, resulting in a basic child support obligation of $1,201, for one child.
  5. The resulting number from the chart, $1,201, is then multiplied by 32% for Father, and by 68% for mother.  This results in $384.32 for Father, and $816.68 for Mother.
  6. In this example, Father will pay $384.32 per month to Mother.  The resulting number above for Mother, $816.68, is assumed to be used by her in every day expenditures for the child.

*Please note that this is a basic example for illustration purposes only.  The income levels used here will not necessarily result in the child support amount shown above.  Other factors can be taken into consideration.

As you can see, calculation under the new law will be a bit more complex than the previous child support model. 

 

More Changes

  • If a parent is currently paying court-ordered child support in a separate and unrelated case, the amount of child support being paid in that other case will be deducted from that parent’s gross income, for determining net income.
  • If one parent is paying maintenance (“alimony”) to the other, the maintenance payment is subtracted from the paying parent’s gross income, and added to the receiving parent’s gross income, before calculating each parent’s net income and percentages.
  • Health insurance premiums for the child will be added onto the child support calculation, and divided between the parents based on their respective percentages of the combined income.
  • Under the new law, the “custodial” parent, or parent with the majority of parenting time, will be entitled to claim the tax dependency exemption for the parties’ minor child, unless the parties otherwise agree, or unless a judge previously ruled otherwise.
  • If a parent is voluntarily unemployed or underemployed, child support will be calculated based on potential income. The court will consider the parent’s work history, available job opportunities, and earning levels in the community.  If there is no work history to determine potential income, there will be a rebuttable presumption that the parent can earn 75% of the U.S. poverty guidelines,  and the court can order a minimum child support amount of $40 per month per child, with a maximum total of $120 per month to be divided among all of that parent’s children.
  • Under the new child support law in 2017, when parents have close to equal amounts of parenting time, the actual number of overnights that each parent has with the children will be taken into consideration when calculating child support.

 

Why the Changes?

The old “percentage model” has been the method of calculating child support in Illinois for over 30 years.  However, this model usually only considered the paying parent’s income, and did not fully consider both parents’ income.  The new child support law in 2017 attempts to provide for child support similar to what a child would have received if both parents had stayed together.  As of early 2017, Illinois was in the small minority of states which were still using the percentage model of child support calculations.  The new “income shares” model of calculation has become the national trend, and is used in the majority of states.

 

Can I Change My Child Support Amount Based on the New 2017 Law in Illinois?

Under the new statute, a previous child support order can be modified if there is a substantial change in circumstances.  The 2017 change in Illinois child support law, in and of itself, will not be considered a substantial change in circumstances.  If there was already a child support order entered before July 2017, one cannot file to modify the support amount based solely on the change in law.

 

(815) 207-9570

Call to schedule an initial consultation

If you or someone you know is seeking professional legal representation in a child support case in Will County, Dupage County, or Kendall County, call (815) 207-9570 to schedule an initial consultation with an experienced family law attorney.

 

 

Related Articles:

Illinois Child Support Calculator for New 2017 Laws

New child custody laws in Illinois

What might put me at risk in an Illinois Child Custody Case?

The information on this site is not legal advice and does not create an attorney-client relationship.  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 are Holidays Arranged in an Illinois Divorce or Child Custody Case?

How are Holidays Arranged in an Illinois Divorce or Child Custody Case?

holiday parenting schedule custody attorneys plainfield

Illinois family law courts recognize that it is important for children to spend the holidays with both parents.  A Parenting Plan will usually contain a regular parenting time schedule, and a holiday parenting time schedule.   This article will offer some examples of how holiday parenting time schedules are often arranged, so that both parents share these special days with their children. 

 

Alternating Years

Holidays are often alternated each year.  A common way to arrange the schedule is to use “even year” and “odd year” designations.  That is, one parent shall have the children for certain holidays in even-numbered years (2016, 2018, 2020), and the other parent will have these holidays in odd-numbered years (2017, 2019, etc.) Take a look at the following example:

  • Easter: Mother shall have the children in even years starting in 2016, Father shall have the children in odd years starting in 2017
  • Memorial Day: Mother has even years, Father has odd years
  • Fourth of July: Father even years, Mother odd years
  • Labor Day: Father even years, Mother odd years
  • Halloween: Mother even years, Father odd years
  • Thanksgiving: Father even years, Mother odd years
  • Christmas Eve: Mother even years, Father odd years
  • Christmas Day: Father even years, Mother odd years
  • New Year’s Eve: Father even years, Mother odd years
  • New Year’s Day: Mother even years, Father odd years

 

Memorial Day and Labor Day

These holidays fall on Mondays.    A common provision in Parenting Plans is for a parent to have the children continuously from Sunday overnight through Monday, if that parent is scheduled to have the children for the preceding weekend.  That is, if a parent is scheduled to have the children the weekend before Labor Day, that parent can have them Friday evening through Monday evening.

 

Mother’s Day, Father’s Day, and Birthdays

In a typical holiday schedule, Mother will have the children every year on Mother’s Day, and Father will have the children every year on Father’s Day.  Mother will have the children every year on her birthday, and Father will have them every year on his birthday.   For the children’s birthdays, the parents will alternate having them each year.

 

Fourth of July

It is important to note that the Fourth of July is not always celebrated on the 4th, but sometimes the 3rd.  If July 4th falls on a Sunday or weekday, family members could decide to celebrate on the 3rd, because they will not have work the next day.  Parents may want to take this into consideration when arranging this holiday.  They can agree to alternate having the “first choice” as to the 3rd or the 4th of July each year.

 

Halloween

For Halloween, trick-or-treating time can be shared by both parents.  Parents can either alternate years as they do for other holidays, or they can split the trick-or-treating time each year.  For example, Father can take the children trick-or-treating from after school until 5 p.m., and Mother can have them from 5 p.m. to 7:30 p.m. 

 

Thanksgiving

Parents can alternate years having the entire Thanksgiving day, or split the day with particular hours.  For example, 9 a.m. to 5 p.m. for one parent, then 5 p.m. overnight into the next day for the other parent.  If one parent is scheduled to have the preferred portion of the Christmas Holiday, such as Christmas Eve overnight into Christmas Day, the other parent can have the entire day or the preferred portion of Thanksgiving within that same year. 

 

Christmas

A common arrangement for Christmas is to alternate years having the children overnight on Christmas Eve.  On Christmas morning, the children will then spend time with the other parent for the rest of the day, or overnight until the morning of December 26th.  The parents would thereafter alternate years having the children overnight on Christmas Eve and Christmas Day.

Parents might want to take into consideration that it may not be best to exchange the children too early in the morning on Christmas Day – it may be better for the children to enjoy the full Christmas morning before heading to the other parent’s home.    

 

New Year’s

The New Year’s holiday can be arranged similar to Christmas, where one parent has the children for New Year’s Eve into the morning of New Year’s Day, and the other parent has the children from the morning of New Year’s Day through the morning of January 2nd. 

 

 

Holidays and birthdays usually take precedence over regular parenting time.  That is, when holidays or birthdays occur, the scheduled parent will have the children for that holiday, even though the other parent might normally be scheduled to have them on that day. 

Other factors which can be considered in arranging a holiday schedule are the family’s cultural practices, or the way that they had arranged holidays in the past if the parents lived separately.

As with all topics relating to parental responsibilities and parenting time, judges generally prefer when parents can work out the schedules between themselves or their attorneys, rather than having court hearings which could leave an emotional impact on everyone involved.  This requires cooperation and fairness from both sides.  Even if parents do not wish to get the courts involved, hopefully this article will help offer some suggestions on how to arrange the holidays in a way that is best for the whole family.

 

If you or someone you know wishes to schedule a consultation with a family law attorney regarding an Illinois divorce or child custody case in Will County, Dupage County, or Kendall County, call us at (815) 207-9570.

 

Related Articles:

New Illinois Child Custody Laws in 2016: Parenting Plan

New Illinois Child Custody Laws in 2016

Essential Tips in a Divorce or Child Custody Case

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 Might Put Me at Risk in an Illinois Child Custody Case?

What Might Put me at Risk in an Illinois Child Custody Case?

child custody attorneys (2)

Child custody issues can arise in the following scenarios:

  • When divorcing spouses have minor children
  • When unmarried parents have disagreements as to their rights and obligations relating to their minor children
  • When unmarried parents agree on these matters, and wish to put their agreements into writing

 

Major issues that typically arise with these situations can include:

  1. How to divide decision-making responsibilities in major areas of the children’s lives,
  2. How to schedule when each parent will be spending time with the children

 

In determining how to arrange decision-making responsibilities and parenting time schedules, the court will examine the best interests of the child.  The following are common scenarios which may weaken a parent’s position in a child custody or parenting time dispute.

The following scenarios are examples only, and will not necessarily guarantee any result in a child custody, parenting time, or other family law case.  Make sure to speak with an experienced family law attorney for guidance in your particular case.

 

Not Being Involved in the Children’s Lives

The past actions of both parents may be taken into consideration when arranging a parenting time schedule, or assigning important decision-making responsibilities.  If one parent had traditionally left most of the child-rearing responsibilities for the other parent to handle, this could weigh against the lesser-involved parent in a dispute over decision-making responsibilities or parenting time.  If a parent wishes to be involved in a child’s life, it must be demonstrated through action and initiative.  It should also be consistent, genuine, and occur from the child’s birth, or long before any divorce or child custody case is even filed.  For example, imagine that a parent rarely interacts with his or her child for several months, or years.  Then, a case is filed in court and suddenly this parent shows major efforts to be involved with the child.  The court could look at these recent efforts positively, but also might not give them much weight in favor of the lesser-involved parent, due to the timing of these actions.  The more strongly-involved parent may raise the argument that the other parent only started to show interest in the child now that a case has been filed requesting child support, custody, or permission to relocate with the child.  It is generally preferred that both parents have as much involvement as possible, but courts may take all relevant facts into consideration, including whether a parent shows a sudden interest in his or her children right after a case has been filed. 

 

Seeing the Children Rarely or Inconsistently

If a parent has only been seeing the children occasionally, or sporadically, this can also weigh against that parent if he or she wishes to have equal decision-making responsibility, or if that parent believes the children should primarily live with him or her.  This can also weigh against that parent if the other parent is requesting permission to relocate a far distance with the minor children.  When a court must determine whether to allow a parent to move far away with the children, one factor which will be taken into consideration is the frequency and consistency of the other parent’s visitation with the children.  Spending time with the children on a consistent, frequent basis is best for the children, and provides more stability in their lives.  The court might be less inclined to allow a parent to move far away with the children if it would disrupt the regular and frequent parenting time schedule of another parent.

 

Moving out of the Home

A parent’s decision to move out of the home can negatively affect him or her later in the case.  Even if this parent moved out to avoid tension in the home, the other parent might try to argue that the decision to move out is evidence of a lack of concern for the children, a lack of interest in being involved with the children, or abandonment of the children.  Moving out will not necessarily be the determining factor in every child custody case, but the judge may take this into consideration when deciding whether the children should live primarily with one parent or the other.  If there is too much tension in the home to the point where living together would not be best for the well-being of the children, or either parent, parents should speak to a family law attorney about other possible options available.

 

Not Having a Suitable Home Environment for the Children

When there is a dispute as to who the children should live with most of the time, or as to whether a parent has a suitable environment for the children during scheduled parenting time, a Judge or Guardian ad Litem may wish to investigate into whether each parent’s home is adequate for overnight stays, or whether it would provide stability and safety in the children’s lives.  Having a home with no separate bedrooms for the children, or in a high-crime area, might in certain cases work against a parent who is arguing that the children should live with him or her most of the time.  If the conditions are not safe or suitable for the children, this may even prevent a parent from being able to exercise parenting time in his or her own home.  Also, any other residents of the home may be taken into consideration depending on whether they would affect the safety, health, or well-being of the children.

 

Not Being Reasonable or Cooperative With the Other Parent

Want to make a judge happy?  Then cooperate.  This goes for both parents.  In the past, judges have sometimes refused to grant joint custody or shared custody when both parents were unable to cooperate or communicate effectively relating to the care of their minor child.  If one parent is clearly being unreasonable in his or her behavior, and is only acting to hurt the other parent, this will not look good in the eyes of a judge.  One example is when a parent will not let the other parent see the children, not because of safety concerns, but because they are angry at the other parent, or want to hurt the other parent.  All parents can benefit from taking a step back, and doing a self-honest assessment as to whether they are acting in the best interests of their child, or just acting out of anger and emotion.  These times require the utmost maturity and self-control.   Children’s well-being are at stake, and should be given the highest priority by both parents.  

 

If you or someone you know is seeking professional representation in a child custody or visitation rights case in Will County, Dupage County, or Kendall County, contact our family law attorneys to schedule a consultation at (815) 207-9570 or (815) 409-8858. 

 

Related Articles:

New Illinois Child Custody Laws in 2016

Essential Tips in a Divorce or Child Custody Case

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 Could Put Me at Risk in an Illinois Divorce Case?

 

 

What Could Put Me at Risk in an Illinois Divorce Case?

Divorce Lawyers

As divorce attorneys, we are often approached with questions from married and unmarried people alike.  Some are contemplating divorce, while others are simply curious as to what risks they could face if they were married and later went through a divorce.  Below are some commonly asked questions family law attorneys receive relating to divorce cases.

 

Why Would I Have to Pay Alimony?

The purpose of spousal maintenance, commonly referred to as “alimony,” is to allow for a spouse to be able to support him or herself after a divorce.  Whether spousal maintenance will be granted in an Illinois divorce case may largely depend whether there is a significant difference in incomes between the two spouses.  A common scenario for when spousal maintenance might be granted is when one spouse earns significantly more than the other, and the other spouse not only earns less income, but has less job skills, and a lower earning capacity. 

Several factors could determine how long maintenance payments will last.  Generally, the longer the marriage, the longer the paying spouse might have to pay maintenance.  In some cases, maintenance payments can even last for the rest of the paying spouse’s life.  One example of when such “permanent maintenance” might be granted is when one spouse earns substantial income, the other spouse is disabled, and the marriage has lasted over 20 years. 

Maintenance is not granted in every case.  Examples of when maintenance might be denied is if the marriage is very short, or if the spouses make the same or close to the same level of income.

The following are common scenarios that could possibly add to the risk that a spouse may have to pay maintenance after a divorce:

  • Being married to a spouse who makes substantially less income, has less marketable job skills, and a lower earning capacity
  • Being married to such a spouse for a long period of time

 

Why Would I Lose My Property in a Divorce?

How property is divided in a divorce can depend on several factors.  It is important to understand that there are two types of property: marital and non-marital.  Marital property is generally property that is bought or acquired during the marriage (with some exceptions).  Marital property can be divided in a divorce.  Non-marital property is typically property that was bought or acquired before the divorce, or acquired by gift, inheritance, or a few other methods.  Non-marital property generally will not be divided during a divorce (with some exceptions).  However, each party’s non-marital property can still be considered when it comes time to divide the total marital property.

Sometimes non-marital property can be converted to marital property if it is not kept separate during the marriage.  If you own property before a marriage, and add your spouse’s name onto the property after the marriage, this property may become marital property, even though it started off as non-marital.  Keeping non-marital, pre-marriage property solely in your name might help it maintain the “non-marital” status throughout the marriage.

The following are some common scenarios that could possibly add to the risk that a spouse will lose or have to divide property as part of a divorce:

  • Failing to keep non-marital property separate throughout the marriage
  • Adding the other spouse’s name to non-marital or pre-marital property
  • Mixing the other spouse’s money into a non-marital account
  • Buying property during the marriage using marital funds, marital property, or money acquired during the marriage that cannot be classified as non-marital
  • Accumulating retirement or investment account funds during the marriage

 

Why Would I have to Pay for My Spouse’s Debts After a Divorce?

Generally, debts accrued during a marriage are considered marital debt.  This means that the responsibility for paying off these debts might be split regardless of who incurred the debt during the marriage, and regardless of whose name is on the debt.  For example, if Husband accumulated massive credit card debt throughout the marriage, and Wife has no debts whatsoever in her name, it is possible that Wife may be responsible for paying off some of the debt after the divorce.  Even though Wife’s name is not on the debt, the final divorce Judgment will be a court order which could require her to contribute to the debts. 

Courts may look at each party’s income and ability to pay off the debt, as well as other factors, in deciding how debt is divided.  Each case will have different facts, which could create a unique result.  In practice, some judges simply divide responsibility for all marital debt 50-50 between the parties.  To settle a case, spouses often simply agree to just be responsible for all debts in their name, or debts which they incurred.

 

Every case has different facts, and will be decided based on their unique circumstances.  The examples above illustrate common occurrences, but will not necessarily bring about a particular ruling or result in an Illinois divorce case.  Be sure to consult with an experienced divorce attorney before taking action relating to your particular case.

 

If you or someone you know is considering filing for divorce in a Will County, Dupage County, or Kendall County matter, contact our divorce attorneys for an initial consultation at (815) 207-9570 or (815) 409-8858.

 

Related articles:

How is property divided in an Illinois divorce?

How does the Illinois divorce process work?

Essential tips in a divorce, child custody, or other family law case

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.

Is Visitation Allowed With Pets in an Illinois Divorce?

 

 

Is Visitation Allowed With Pets in an Illinois Divorce?

pet visitation in Illinois Divorce

A divorce in Illinois can involve disputes over financial matters, property, and custody of children.  What happens when the dispute is over pets?

One way to summarize how a court may view pets in a divorce is that they are not merely pieces of property, but are not given the same full considerations as children.  The result of this is that one spouse may be awarded possession of the pets, but, unlike cases involving children, the other parent will not be granted visitation rights with the pets after the divorce.

 

Pet Visitation – Enders v. Baker

Enders v. Baker was a 2015 divorce case where the Illinois Appellate Court ruled for the first time on the issue of pet visitation.  It ruled that Illinois courts cannot grant pet visitation rights to a spouse.

In Enders v. Baker, the parties had two dogs during the course of their marriage.  The Wife later filed for divorce.  During the divorce, the Husband filed a Motion requesting visitation rights with the dogs.  The Husband alleged that he and his Wife agreed they would have “joint custody” over the dogs.  His Wife, however, had been denying him visitation with them for several months.  The court granted the Husband’s Motion requesting visitation, and ordered that he be given temporary visitation rights with the dogs.  This was a temporary order, and the case later proceeded to trial. 

At the conclusion of the trial, the court ruled in the Wife’s favor, and awarded the dogs solely to her.  The trial court also denied the Husband any visitation rights with the dogs. The Husband filed an appeal, arguing that Illinois courts can order pet visitation rights, and that his visitation with the dogs would be in the best interests of the parties.  The case then proceeded to the Illinois Appellate Court.

Since there were no past Illinois cases relating to pet visitation rights, the Illinois Appellate Court reviewed a 2013 New York decision, Travis v. Murray.  Courts in different states may use a  “best interests of the child” standard when deciding how to rule on a child custody or visitation issue.  In Travis v. Murray, the New York court decided not to apply a similar “best interests of the dogs” standard when ruling on the issue of pet visitation.  Instead, it applied a “best for all concerned” standard.  While the court reasoned that household pets were more than just mere pieces of personal property, it also reasoned that dogs do not rise to the same level of importance as children.  Finally, the court reasoned that allowing pet visitation rights would increase the likelihood of more litigation between the parties after the divorce.   Thus, the court in Travis v. Murray refused to grant pet visitation rights as part of  divorce.

The Illinois Appellate Court in Enders v. Baker also noted that the Animal Control Act defines a pet owner as “any person having a right of property in an animal, or who keeps or harbors an animal, or who has it in his care, or acts as its custodian.” Here, the court found that the Wife was the “owner” of the dogs because when the Husband moved out of the marital home, he left the dogs with her.  Accordingly, the Wife was the person who “keeps or harbors” the dogs, had them “in her care,” and acted as their regular “custodian.”

Relying upon the reasoning of the New York court in Travis v. Murray,  and the definition of a “dog owner” under Illinois law, the Appellate court in Enders v. Baker concluded that Illinois law does not authorize the court to order pet visitation rights in a divorce.

Although this was the first Illinois case where the issue of pet visitation was ruled upon, there is no doubt that there will be more cases where such issues will be litigated.  For now, however, it is clear that Illinois courts have no authority to enter an order requiring that one of the parties’ have visitation rights with pets.

 

 

 

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 is Property Divided in an Illinois Divorce?

 

 

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How is Property Divided in an Illinois Divorce?

What Property Can be Divided in a Divorce?

Typically, marital property is eligible for division, and non-marital property is not.  Marital property is generally any property that is acquired during the marriage, with some exceptions.  Some examples of marital property which can be divided in a divorce include:

  • Balances of checking or savings accounts
  • Retirement or investment accounts
  • Equity in the residential property where both spouses lived during the marriage (the “marital residence”), or the proceeds of the sale of residential property
  • Cars, boats, other vehicles, the equity in or proceeds from the sale of such vehicles

 

The following are some general examples of non-marital property, which would not be divided in a divorce:

  • Property received as a gift. This can include gifts from people outside the marriage, or even gifts from one spouse to the other.
  • Property acquired by inheritance.
  • Property acquired before the marriage, which remains separate and in the owner’s sole name. A home that was purchased in contemplation of the marriage, however, can still be considered marital property.
  • Property that was received in exchange for giving away non-marital property, as long as the newly received property is kept separate and solely in the owner’s name.

Illinois statute includes a presumption that all property acquired during the marriage is marital property.  This presumption can be overcome by clear and convincing evidence.  Thus, strict documentation would better support an argument that new property was received in any of the circumstances mentioned above, and that it is therefore non-marital property.

It is important to note that any non-marital property owned by either party, although not up for division, can still be taken into consideration by the court when dividing and distributing the marital property.  As mentioned below, it is possible for a party with substantial non-marital property to be awarded less marital property than a spouse who has little or no non-marital property.

 

How Marital Property is Divided

Illinois is not a state where marital property is automatically divided 50/50 among the spouses.  In practice, some judges may try to divide property equally, but Illinois statute does not require this.  Our statute provides that a court shall divide marital property in “just proportions,” and can consider many relevant factors in reaching its decision.  Factors that a court will consider can include the following:

  • How much each spouse contributed towards buying and maintaining property, and towards increasing or decreasing the value of property. This includes contributions towards both marital and non-marital property.  In addition to financial contributions, a court can also consider a party’s contributions as a home maker, caring for the spouses’ children and the home during a long marriage. 
  • Whether there has been dissipation of marital assets by either party, that is, whether either party had used, transferred, or destroyed marital property for purposes unrelated to the marriage, at a time when the marriage was undergoing an irretrievable breakdown.
  • The value of the property assigned to each spouse. If one spouse owns a substantial amount of non-marital property, the court may decide to award the other spouse a larger portion of the total marital property.
  • The length of the marriage. In a lengthy marriage, if one spouse had accumulated most of the marital property, and the other spouse had primarily raised their children and tended to the home, the court may split the remaining marital property equally.  In a short marriage, a party’s contribution as a home maker might be given less consideration and weight in the judge’s analysis.
  • The economic circumstances of each spouse. The court will look at each spouse’s job skills, experience, and work capacity.  Under some circumstances, it could be possible for a spouse with no employment or property to be awarded a larger portion of the marital property.
  • Any rights and obligations arising from a previous marriage.
  • Any prenuptual or postnuptual agreement of the parties. A prenuptual agreement can designate certain property as non-marital when that property would otherwise be marital under the law.  A prenuptual agreement can also provide that each spouse receives specific items of property in the event of a divorce.
  • The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties. The court may take into consideration each spouse’s future earning capacity and employability, including whether either spouse is no longer employable due to age, health, or disability.
  • Custodial provisions of any children. A court may award the marital home to the parent who is awarded the majority of parenting time, to provide for continuity in the children’s lives.  The court can also award this parent a greater proportion of the marital property to meet the increased support obligations for the children.  The court may simply award this parent the marital home, and award other marital property to the other spouse in place of his or her interest in equity of the home.
  • Whether property is awarded instead of spousal support. A court may decide to award one party a greater share of marital property instead of awarding maintenance (alimony).
  • The reasonable opportunity of each spouse to acquire future assets and income.
  • Any tax consequences for the parties that result directly from the court’s division of property in the divorce.
  • Any other relevant factors, including the interest in avoiding future litigation and conflict after the divorce.

Each case will be different, and judges may use the above factors to determine whether marital property should be equally split, whether a spouse should receive more property than the other, or whether each spouse should receive specific items of marital property.  The court will not consider any marital misconduct of the parties in determining how to split property. 

(815) 207-9570

Call to schedule an initial consultation

If you are seeking professional representation in a Will County, Dupage County, or Kendall County divorce, contact our divorce lawyers to schedule a consultation:  (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.