Posted on October 04, 2017 in Prenuptial Agreements

Many couples feel like premarital or prenuptial agreements take the romance out of what should be one of the most romantic times in their lives: getting married. However, prenuptial agreements (“prenups” for short) can make a huge difference if you wind up getting a divorce; they can cut down on arguments and misconceptions, and with the help of a good attorney, may save you months of legal wrangling and bad blood.

The Basics

Prenuptial agreements are used in many cultures throughout the world. For example, there are such things as Jewish prenuptial agreements, which safeguard a Jewish woman from being rendered unable to remarry. Each prenuptial agreement is based in mutual trust, but there are varying formats in which these agreements are created.

Many people still operate under the misconception that prenuptial agreements are only for the wealthy, when this is no longer the case. In Illinois, the Uniform Premarital Agreement Act (UPAA) was enacted in 1990, which sets out specific rules for couples in any tax bracket to follow. Women are also attaining more equality and financial power in our society, and, as such, prenuptial agreements are becoming more common.

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 Posted on September 29, 2017 in Family Law

When two people decide they no longer wish to be married, they normally file a petition and obtain a divorce. At any point there may come what is often called a “separation.” With rare exceptions, being “separated” is not a legal status. Legal separation does sometimes happen, but most of the time, it is simply unnecessary.

When a Spouse Moves Out

When most couples separate, they simply decide not to live together anymore. One spouse may move out, and marital benefits like intimacy and cooperative decision-making typically cease. Such situation is not considered a legal separation, however. In the eyes of the law, most couples that are “separated” are still legally married, with all the positives and negatives of that status attached.

Trial separations are usually the last fix a couple tries before agreeing to divorce. Many couples live apart for weeks or months and are able to work out issues exacerbated by too long in proximity. Some couples who try a separation do work out a written agreement, but it is informal and not to be confused with a legal separation or a divorce decree. In this case, any written agreement is a sort of unofficial contract for the spouses to abide by, reminding them to reevaluate their situation in a certain amount of time.

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 Posted on September 25, 2017 in Child Custody

Illinois law tries, whenever possible, to allow both parents to have parenting time—also called visitation—with their children. However, sometimes that is difficult to manage due to one or both parents’ having issues that would make it unsafe for them to be around their children alone. The answer to this problem is to have supervised or restricted visitation, and to see how a parent fares before permitting him or her to engage in unsupervised visitation.

General Parenting Time Guidelines

A standard visitation agreement is often rather vague, allowing the parents themselves to regulate the terms of the visits. The parent with fewer parental responsibilities entitled, as a general rule, to parenting time unless a court disagrees, and in many instances, the parents are able to work out a schedule that suits all involved. However, if one parent has issues, the court may take action.

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 Posted on September 22, 2017 in Mediation and Collaborative Law

When two people decide to get a divorce, the process is likely to be stressful and difficult. However, more and more couples are turning to mediation as a way to potentially avoid costly court battles. It is not the right option for every couple, but it is generally worth investigating to see if it might be right for you and your spouse.

Benefits of Mediation

Divorce mediation is a process in which you and your spouse engage the services of a neutral, third-party mediator in an attempt to work out a divorce agreement without resorting to litigation. It has several advantages, but may also have drawbacks depending on the situation. Anything from parental responsibilities (child custody) to spousal support may be mediated if the spouses agree. Illinois law does not mandate certain elements of a divorce to be decided by a judge, but a judge will review any agreements related to your children to ensure you have their best interests in mind.

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 Posted on September 19, 2017 in Divorce

In this day and age, many people are always looking for tax deductions, but most do not think to look to the fees associated with a divorce to find them. Yet it is possible to claim certain divorce-related expenses as tax deductible, and the deductions can add up. Being aware of such possibilities can make a significant difference in your end-of-the-year tax bill.

Alimony

The Internal Revenue Service (IRS) Code clearly states that you may not deduct the cost of “counseling, litigation, or personal advice.” However, if you are a spouse seeking maintenance—also known as alimony—in a divorce there are some fees that you may be able to claim as deductions. If you incur fees such as filing fees while in the process of seeking alimony, you are able to claim many of them as miscellaneous deductions. The important thing to remember is that the claimed deductions related to alimony may not exceed more than two percent of the person’s adjusted gross income (AGI), which for most people is a fairly small number.

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 Posted on September 14, 2017 in Division of Assets

Sometimes in a divorce proceeding, one or both spouses try to get an unfair advantage in regard to property division. Asset hiding is depressingly common, with Forbes reporting approximately one-third of people with joint bank accounts have committed “financial deception.” However, it is still illegal, and you could be in serious trouble if you are caught.

Illinois Property Division

In Illinois, marital property division is done equitably, which means fairly rather than equally. It is generally held to be a matter of good public policy that divorce proceedings do not leave one spouse in a significantly financially disadvantaged position. If one spouse has far more earning potential than the other, he or she will likelyl be ordered to provide more support or given fewer assets.

This does not, however, apply to non-marital property. Non-marital property refers specifically to assets or income that is obtained prior to the marriage or specific assets acquired by one spouse. Examples include inheritances or gifts, neither of which are divisible in Illinois (though they are in other states). Non-marital property can be commingled with marital property, to an extent that makes it difficult to separate the two - if this is the case in your divorce proceeding, the court may hold that the property has been “transmuted” into marital property by the act of commingling the two. This can be an unpleasant shock if one spouse does not expect it.

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 Posted on September 14, 2017 in Paternity

In many cases, the paternity of a newborn child can be established very simply: if the mother’s husband is a witness to the process, more often than not, he is the child’s father. However, there are many more complex instances where paternity is not so easily settled, and there are many situations where specifically being named as a child’s father confers certain rights on a man that he would not otherwise have. If you are in a position where the paternity of your children is in doubt, there are steps you can take to remedy that situation.

How Paternity Is Established

In Illinois, paternity is established via one of four methods:

1. The mother and putative father being married at the child’s conception, birth, or both;
2. Both parents signing and submitting a Voluntary Acknowledgment of Paternity (VAP) form to the appropriate authority;
3. Illinois Child Support Services entering an Administrative Paternity Order; or

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 Posted on September 06, 2017 in Child Custody

In Illinois, only parents are entitled to visitation rights with their children. However, in certain situations, non-parent relatives such as grandparents, great-grandparents or siblings may petition for visitation rights. Whether or not they will be granted depends on the facts of the case, but the law does allow for such considerations in certain situation.

Statutory Authority

The Illinois Marriage and Dissolution of Marriage Act grants parents the right to visitation—now known as parenting time—with their children. This right is generally upheld in all but the most extreme circumstances. Illinois courts tend to be of the opinion that children are best served by having both parents in their lives and have expressed this belief even in cases where one or both parents are incarcerated or profoundly mentally ill. The only criteria the court uses to deny parenting time is if it finds that spending time with a particular parent would endanger the child’s physical, mental, or emotional health.

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 Posted on September 06, 2017 in Divorce

Sometimes, a crisis in a marriage can be averted. It is not unheard of for a couple that has decided to divorce to discuss their issues and come to a collective decision to try again. While this most often happens while the divorce is still in process, it does happen—in extremely rare circumstances—that some couples remarry after divorce. While there are little to no statistics available on how often this succeeds, it is still something to be aware of, as things cannot simply go back to the way they were.

Before Divorce Is Final

If you and your spouse determine that you intend to give your marriage another try while your divorce is still pending, there are very few legal options you need to exercise. Divorce proceedings are, essentially, prolonged negotiations - nothing is set in stone until the final decree is signed by a judge. While filing fees and attorneys’ costs may be non-refundable, bulk of the work to be done if you reconcile before your divorce is final will primarily be emotional.

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 Posted on August 28, 2017 in Child Custody

Battles over child custody—also called parental responsibilities—are difficult enough in this day and age without the tactics that many resort to when their spouse comes out as LGBTQ. It is sadly not uncommon for an ex-spouse to use one’s sexuality or gender identity to assert a claim that a former partner may be an "unfit" parent. In the heat of an acrimonious divorce, for you to be aware of the current attitudes and know how it could affect you and your children.

What Is the Standard in Determining Parenting Time?

Illinois law dictates that the standard to be used in determining whether a parent should receive visitation—now known as a parenting time—is "the best interests of the child." More specifically, that granting parenting time is generally in a child’s best interest unless the parent’s presence would "endanger seriously the child’s physical, mental, moral or emotional health." These are all somewhat subjective, but in practice, the reality is that Illinois courts are extremely reluctant to ban all contact between a parent and child.

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