How does joint custody work?
As stated in the answer to #1 above, the court now allocates the parental responsibilities of time and decision making. Joint allocation of those would mean that both parents spend significant time with the child(ren) and share significant decision making regarding medical/health, religion, education and extra-curricular activities.
How much influence are my child’s wishes in a custody battle?
The child’s wished are not usually a significant factor in a custody contest, particularly young children’s wishes. In some situations an older child’s wishes will have more significance to the court if the reasons are well founded.
I’m a man. Is it harder for me to get custody of my children?
The Illinois Marriage and Dissolution of Marriage Act (IMDMA) was changed substantially in 2016 and the term custody is no longer used. The law now refers to allocation of parenting time and allocation of parental decision making. What you refer to would be joint allocation of parenting time and decision making. The law is gender neutral, but rather looks at many factors to determine what is in the best interests of the child. It should not be harder for you just because you are a man.
Can my ex-spouse move out of state with our children?
Yet another change in the IMDMA is the provision allowing a parent to move out of state with a child if it is within 25 miles of the current Illinois residence. If the distance is more than 25 miles, the other parent has to agree or a court has to allow the move. In any event, a court order should be entered allowing the move.
Can I record phone calls with my ex-spouse as evidence of bad parenting?
Probably not. It is a violation of the Illinois wiretapping law to record someone who has an expectation of privacy unless you have their consent. So you would first have to tell the person that you were recording the conversation and they not object but continue talking for it to be an acceptable recording. And, keep in mind, a recorded conversation that you believe reflects bad parenting on the part of your ex, might not be seen the same way by a judge.
My husband is behind on support. Do I have to give him visitation?
No. Child support and visitation are separate from each other. Being behind in child support payments is not a basis for withholding visitation. Likewise, if the custodial parent withholds visitation, that is not a basis for stopping child support payments.
What is the current law regarding child support?
In 2017 the Illinois statute for calculating child support was changed from a percentage of the payor’s net income to a shared income approach. That means both parent’s incomes are considered when child support is calculated. As a result of the tax act enacted in late 2017, the statute was changed again for 2019 to calculate based on both parties’ net incomes (after taxes) whereas before it was based on their gross incomes.
My husband doesn't want to contribute to my child's college expenses. What does the law say?
The Illinois Marriage and Dissolution of Marriage Act provides that a court may order one or both parents who have been divorced to contribute to the college education expenses of their child.
However, the IMDMA was amended January 1, 2017 to provide that a parent’s liability in most cases for tuition and housing should not exceed the amount of those costs at the University of Illinois Champaign-Urbana campus. Also, the parent cannot be held liable for expenses incurred by a child over 23 years of age, except for good cause shown and then not beyond the child turning 25.
My spouse just filed for divorce. What is the first thing I should do
The first thing you should do is talk with an attorney. You need to know what the law provides regarding children, support and property when a marriage is dissolved. You also need to know what the court rules say you need to do to participate in the case. Time is also important so you should see an attorney as soon as you can.
I’m considering filing for divorce, what steps should I take?
You should first talk with an attorney. Even if you have a very small, simple case and you plan to represent yourself, you should have information from a lawyer about the issues that will have to be determined and the court process in which it will occur.
Can we both use the same attorney in an uncontested divorce?
No. You cannot both be represented by the same attorney. If one party has an attorney and the other does not but rather represents him/herself (pro se), the attorney can draft the agreement that the two parties reach between themselves. The attorney and his/her client can then go to court to get the divorce. However, the attorney cannot represent the other party or give that person any legal advice. It is better if both people consult with their own attorney even if one decides to represent him/herself in the court case.
What is the current law regarding spousal support (maintenance/alimony)?
The judge must first consider several factors such as the length of the marriage, the age and health of each spouse, the education and employment of each party and many others. If the court decides that one party should receive maintenance, it is calculated by taking a percentage of each party’s income, subtracting the lower from the higher and that is the amount of maintenance the lower income party should receive. However, the recipient is not to receive more than 40% of the parties’ combined income. The formula is capped at $500,000 so if one spouse earns more than $500,000 and the other is not employed, the amount of maintenance must be negotiated between the parties with their attorneys or decided by a judge if they cannot agree.
Can I date before my divorce is final?
Legally you can date before the divorce is final. However, there are reasons it might not be a good idea. One reason is that it might have an influence in a custody decision if custody is an issue. If you spend money to date or give money or gifts to a boy/girlfriend while you are still married, that is dissipation and would be considered against you when property is divided.
To avoid a bad marriage how should I protect myself from a charmer?
Be suspicious if the man (or woman) meets you through the internet (no common friends or co-workers), always sees you at your place or in public (never at his/her home) and doesn’t introduce her to any of his/her friends or family. Be very skeptical, especially after 2 or 3 months of this behavior. You might also try googling the person’s name to see if there is anything suspicious. Also look at yellowpages.com and reputable background check websites. Finally, he/she if wants to share finances or asks for money … run! That is rarely a good sign.
My spouse and I have a very large marital estate. Will our divorce be different than others, and if so, how?
If spousal support is an issue, the amount will be determined differently if the combined income is over $500,000 annually (see answer regarding spousal support above.) It is also likely that professionals other than attorneys will be needed to appraise property and/or give an opinion as to the value of an ongoing business such as a manufacturing plant, automobile dealership or medical practice. If the standard of living has been high, a professional might be called to analyze and testify as to the day-to-day expense needs of a spouse in a hearing to determine the amount of support he/she and possibly children, will receive. The case will probably take longer to complete because of the additional people involved.
Is the value of a marital estate always divided 50/50 between the spouses?
No, but it often is divided close to equally. Many things should be considered when dividing property in a marital estate. Those include the type of asset to be allocated; cash can be divided easily but closely held stock is much more complicated. Another consideration is if one party will receive maintenance in addition to property or possibly a bigger share of property in exchange for maintenance. If the estate is large enough, should some money be put into a trust for their child(ren)’s college or other expenses?
Do I need a lawyer to adopt a child?
Yes. The process to adopt a child is complex and must be followed for the adoption to be legal.
I have remarried and my new spouse wants to adopt my children from my first marriage. Does my former spouse have to be involved?
Yes. Even if you were not married but the other parent is legally the parent of the children, that person has to receive notice of your request for the adoption but he/she must also consent before the court has the authority to enter a decree of adoption for you and your current spouse.
Why should I consider a prenuptial agreement?
There many reasons you might want a prenuptial agreement. If you have children by a prior marriage or relationship and want to protect property for them in the event of your death it could be done through a prenuptial agreement. Prenuptial agreements also can provide for terms for property division and spousal support, including barring support, in the event of a divorce. Some parties have prenuptial agreements to provide how they will manage money and pay household and personal expenses during the marriage. There are countless reasons you might want to have a prenuptial agreement. To more fully consider the question you should speak with an attorney experienced in domestic relations law.
What assets can or can’t I protect in a prenuptial agreement?
You can protect almost any asset you want whether acquired before or after your marriage, including your income after the marriage. You must not mix the asset with your spouse or put his/her name on the title of the asset. Special rules apply to retirement plans which are often protected by federal law. The exception would be if the asset is determined by a court to be necessary for the support of a child born to you and your spouse after the marriage.
How long can a prenuptial agreement last?
A prenuptial agreement can last indefinitely, until death or divorce. However, if the parties agree, it can also have review requirement at a specified time or an expiration date, e.g. 10 years after the marriage if there is no divorce pending.
What is a post-nuptial agreement?
A post-nup is an agreement between two people who are married but want to make provisions for their respective rights and obligations in the event of divorce or death. An example would be if one spouse inherited money but needed to use it to maintain a joint asset such as the marital residence. The post-nuptial agreement could provide that when the house is sold, the contributing spouse would get his/her money back before the sale proceeds are split.
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Marcia S. Lipkin
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