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St. Charles divorce attorney asset and property division

Divorce can require you to do a number of things that you likely never expected when walking down the aisle. If you have children, your primary concerns are probably focused on creating a healthy and fair parenting plan. For those who have a family business, you may be concerned about how this will be divided between you and your spouse. Some of the divorce determinations may be unique based on your family’s circumstances, but one area that every divorce requires to be addressed is the division of marital property. Whether you have been married five months or five years, anything accumulated during that time is considered marital property and must be divided equitably according to Illinois state law. Many couples’ largest asset is the home that they have built together and it can be the most difficult belonging to “divide.” Since an apartment or house cannot physically be cut in half, there are other means that can be taken to determine what is fair.

What Is an Appraisal?

In order to properly determine the current value of your home, one should seek out a professional who specializes in such work. The price at which you bought your home is unlikely to be its current value and looking at the cost of homes in your neighborhood is not enough for a true estimate. An appraisal provides homeowners with the value of their home based on prices in the area and the features of your house. An appraiser will come into your home to complete an inspection of the property. They will look at all of the work you have put into your home and all of the features that elevate its value. The professional will then factor in recent sale prices of homes in your area and use both numbers to provide you with the true market value of your home. 

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St. Charles divorce attorney parenting plan

If you are a parent considering divorce, you probably have a million questions swirling through your head. Who will be the primary caregiver of my children? How often will I see them? Where will my kids live and how long will they be at each house? Imagining carting your children between two homes can seem unfair and difficult, especially for kids who are old enough to have homework, after-school activities, and friends to see on the weekends. It can feel as if their lives are always in transition between one home and another. A recent phenomenon has caught the attention of divorcing parents who might be concerned about this two-home lifestyle for their children. Before making decisions about what will happen to the family home and how your children’s time will be divided between you and your ex-spouse, learn about a new option many families are considering: Nesting.

One Home Sweet Home

What most families will do once their divorce is finalized is have one parent remain in the family home as the primary caregiver while the other finds an apartment or alternative living space where the children can visit based on their parenting plan. The two separate living spaces can be beneficial for former spouses, but it can be difficult for kids to live between two homes. Nesting is a modern alternative that many co-parents have begun to consider in the weeks or months following their divorce. Rather than having the children come to the parents, the parents come to the children. One parent will keep the family home and the kids will continue to live there full-time and each parent will stay at the house when it is his or her scheduled time with the children.

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St. Charles family lawyerNo one likes to imagine the worst-case scenario, but in some cases, it can be helpful. When a couple gets married, they can choose to plan ahead in case the relationship deteriorates and ultimately ends in divorce. A prenuptial agreement (prenup) is a legally binding document that outlines how various marital issues will be handled should a couple decide to terminate their marriage. In order to be valid, the terms must be put in writing and signed by both spouses. It states who gets the rights to what property in case a legal separation or divorce were to occur. Previously thought to be appropriate only for those with significant assets or in second marriages, prenups have gained popularity in the past few years. However, it is important to understand what elements a prenup can include and factors that could make it invalid.  

What Issues Does a Prenup Address?

A premarital agreement can include several issues and it can be modified at any point during the marriage if a couple so chooses. Any amendment to it must also be in writing and signed by both parties. Spouses can revoke the prenup entirely, but both of them have to agree to cancel it by stating their intentions in writing and signing it.

Here are a few of the typical terms that are in a prenuptial agreement: 

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St. Charles family law attorneysThere is no denying that a divorce can be a complicated process. The legal dissolution of a marriage is not simply signing a piece of paper. Decisions about important issues need to be made, including how a couple’s assets and property will be divided. In some situations, spouses may have complex or high net-worth assets, including a family business. It can be difficult to determine how to handle the company’s ownership after the divorce, especially if both spouses are active in running the day-to-day operations. There are several options when it comes to dividing this intangible asset. Regardless, it is important to hire a knowledgeable divorce attorney to help protect your rights. 

The Equitable Distribution of a Company

According to Illinois law, marital property is subject to equitable distribution. This means that any assets or property acquired during the marriage will be divided fairly but not necessarily equally in half, or 50/50. Some couples may create a prenuptial agreement to decide ahead of time how to disperse marital assets in case they get divorced. Some couples may choose to sell the business, continue to jointly own it, or buy out their share.

When considering what happens to a business, if one spouse started a company before he or she got married, the business may be considered non-marital or separate property. In other cases, one or both spouses may have opened a store or launched a business together after they took their vows. In these instances, the business would likely be classified as marital property. 

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Kane County divorce attorneysWhen two people get married, they rarely think at the time that they might get divorced. However, statistics show that 40-50 percent of all U.S. marriages end in divorce. In some cases, a couple may be married for three years and split up after one spouse has engaged in an extramarital affair. In other situations, partners who have been together for 20 or 30 years may realize they have nothing in common after their kids leave and they find themselves “empty nesters.” Regardless of how long a marriage lasts, some of the same issues will need to be addressed before spouses can legally terminate their marriage. There are several characteristics that can make a divorce complicated when it comes to making determinations in how the marital estate will be divided.   

Child-Related Issues 

With multiple issues to resolve, a couple may have trouble agreeing on certain matters. This can include child-related issues if they have young kids, such as the allocation of parental responsibilities (child custody) and parenting time (visitation). Both parents may want to have equal decision-making authority and spend as much time with their children as possible. If spouses cannot agree on an arrangement, the court will intervene and make a decision based on the best interest of the children. Co-parenting can be especially difficult when spouses harbor resentment or anger toward each other. 

Division of Assets 

One of the most contentious aspects of a divorce is the division of the marital estate. Splitting up property and assets can cause many disputes. Illinois is an equitable distribution state, which means marital property is divided in a fair way but not necessarily completely in half.  

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Kane County parenting time attorneyA divorce can be one of the most difficult experiences one can go through, especially if children are involved. The allocation of parental responsibilities (child custody) and parenting time (visitation) are two important issues that need to be resolved during the divorce proceedings. A couple can create a parenting plan, which essentially outlines details such as what days of the week the child is with each parent. If they cannot agree on the terms, a decision will be made based on the best interest of the child by the court. 

Courts will also weigh other factors before making a decision on parenting time in order for both parents to take an active role in child-rearing. However, in these uncertain times, with stay-at-home orders issued in many states, parents are being creative by using technology for virtual visits if they cannot be done in person.  

Determining Factors for Visitation

Illinois courts recognize that children benefit from a relationship with both parents. This is generally true as long as there is no evidence or history of abuse or that a parent poses a threat to the welfare of a child. Otherwise, parenting time may be denied or supervised visitation ordered. 

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b2ap3_thumbnail_home-buying-open-house-real-estate-selling.jpgDeciding to get a divorce can be one of the most difficult decisions of anyone’s life. For those couples who have been married a long time or who have children, it can be devastating. The mere thought of separating and starting over can be daunting. For some parents and kids, the marital home may have sentimental meaning. This is especially true if the couple purchased the house together after they got married and it is where they raised their family. However, the division of property is one of the main issues that needs to be resolved in any divorce. That does not automatically mean the house will have to be sold, but it is a possibility. Assuming both spouses own the home together, there are two options: sell or stay. Deciding who gets to stay can be the source of much conflict during the proceedings. A skilled divorce attorney can help figure out what is the best option.  

Benefits of Selling the House

It is imperative that both spouses learn the home’s current value. This may require an appraisal to get an accurate amount of what it is worth on the market. An assessment of the home’s monthly or yearly costs is also important, which may include the mortgage payment, homeowner’s insurance, and utility bills. Depending on the economy and housing market, most people hope to earn a profit when they sell a house. This money is typically split between divorcing spouses in the final property settlement. In certain situations, one partner “buys out” the other from the home. This means paying the spouse the portion that he or she would have received if the home was sold to an outside party. For those who want to stay in the home, possibly with the kids, this can be a good option.  

Some of the advantages to selling the marital home in a divorce include: 

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Kane County family law attorneySome people have a tendency to become addicted to certain substances or activities. This can include alcohol, drugs, gambling, or pornography. Addictions to these things can often lead to the demise of a marriage. In many cases, controlled substances can change the addicted spouse’s personality and make him or her physically and emotionally abusive to his or her partner or child. In other situations, a spouse may dissipate assets to sustain his or her gambling problem. If you are considering filing for divorce and your spouse has an addiction, it is important to take certain precautions in order to protect your best interests as well as your child’s during the proceedings. 

Preparation Is Key

Deciding to legally end your marriage takes courage, but it also requires careful planning if your spouse has an addiction. Preparation is key to make the process as smooth as possible, even if your spouse tries to contest the divorce. Here are a few ways to mitigate the stress of divorcing an addict: 

  1. File for an order of protection if you feel like you or your child is in immediate danger. 
  2. Save text, voice, or email messages that show your spouse’s harmful behaviors.
  3. Take photos of any damaged property caused by alcohol- or drug-induced incidents. 
  4. Change your passwords for email, social media, phone accounts. 
  5. Remove your spouse from your joint credit card, bank, or retirement accounts.
  6. Move valuable items such as jewelry or family heirlooms to a safety deposit box.
  7. Confide in people you trust or a therapist. 

If a court decides that it is not in your child’s best interest to spend time with his or her other parent, you will probably be allocated the majority of the parental responsibilities. This may also mean that you receive the marital home as part of the property division to maintain some sense of stability for your child.

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St. Charles family law attorneyWhen contemplating divorce, you may be concerned about how it will affect your children. Even if you and your spouse have been unhappy for years, you may have put off filing to protect your kids’ feelings. Although you may think this is in the best interests of your children, it is sometimes better to end the marriage. Kids can sense the constant tension and turmoil, which can be detrimental to their emotional well-being. Once a couple decides to divorce, there are many issues that need to be addressed, including the division of marital property, child support, spousal maintenance, and the allocation of parental responsibilities.

Child support payments are court-ordered, but in some cases, a parent may fall behind on payments or fail to pay altogether. Since the other parent relies on this financial assistance to care for the children, it may be necessary to enforce the order. If you are struggling to collect child support payments, a skilled family law attorney can advise you of your legal options.

Enforcing Court Orders

In Illinois, child support services are administered by the Department of Healthcare and Family Services’ (HFS) Division of Child Support Services (DCSS). A child support order, however, is issued by the court and enforceable under penalty of law. Therefore, a parent who fails to pay his or her designated child support can be held in contempt of court. In extreme contempt situations, an obligor who fails to pay child support may be convicted of a Class A misdemeanor, which can result in up to one year in jail.

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Kane County family law attorneysUnfortunately, not every marriage ends happily ever after as they do in the fairytales. In some cases, spouses simply grow apart or cannot reconcile due to infidelity or an addiction problem. When a couple has a child with a physical or mental disability, it can also put a significant strain on their relationship. In these family situations, the decision to divorce can be especially difficult. The thought of caring for a special needs child as a single parent can be overwhelming. On top of the usual issues that need to be resolved, such as the allocation of parental responsibilities, parenting time, and the division of property or assets, there can be a lot of uncertainty about caring for your child as a divorced parent.   

Disabilities Can Take Different Forms 

A special needs child is a minor who has been diagnosed with a condition that requires attention and certain assistance that other children do not. The state may declare this status for the purpose of offering benefits for the child’s well-being and growth. Some of these conditions may result in occupational or physical therapy, in addition to emotional or behavioral support. In some cases, a child may be confined to a wheelchair or need a seeing-eye dog. 

The following disabilities are typically placed in specific categories: 

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b2ap3_thumbnail_dissipation-wasting-money-divorce-broke.jpgDivorce can happen after three years or 30 years of marriage. Every relationship is unique, and there are many factors that cause the breakdown of a relationship. Some of these may include adultery, addiction, financial problems, and even mental health issues. In some cases, a spouse may be blindsided by the news that his or her partner wants to end the marriage. Divorce under the best of circumstances can be challenging, so for those individuals who are not prepared, it can be overwhelming. 

There are many issues that need to be resolved, including how all the couple’s possessions will be divided. Unfortunately, this can be a contentious process, especially when one party is not being truthful. The dissipation of assets occurs when one spouse intentionally squanders or destroys marital property to prevent the other spouse from getting his or her fair share of the marital estate.

Examples of How Assets Are Dissipated

In order for a court to find someone guilty of dissipation, the spending must be wasteful, excessive, and without the other spouse’s knowledge or approval. It is also important to note that this means it is only benefitting one spouse while the marriage is going through an irreconcilable breakdown. Dissipating marital assets or property can take different forms. Here are a few examples of the most common actions that constitute such behavior: 

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Kane County family law attorneysThere is no denying that a divorce can be challenging even if both spouses mutually agree it is for the best. The decision to end a marriage may be especially difficult if a couple has a child together. In many cases, both parents want to spend as much time with their child as possible and it is one of the reasons they often put off filing for divorce. Every state has laws governing divorce and child-related issues, and Illinois is no exception. The allocation of parental responsibilities (child custody) and parenting time (visitation) must be determined before a divorce is finalized. It is possible for the custodial parent to relocate, so it is crucial to know the rights each parent has under Illinois divorce laws.

Illinois Divorce Laws

Under the Illinois Marriage and Dissolution of Marriage Act, one parent is typically awarded the majority of the parental responsibility for his or her child in a divorce. According to a new statute that was enacted in 2016, that parent must give the other parent 60 days written notice if he or she wishes to relocate with the child. Several important details must be included within that notification, such as: 

  • Date of the planned move
  • New address
  • Length of time if the relocation is temporary

The parent is permitted to move with his or her child within the state according to certain guidelines. A move beyond the mileage restrictions or out of Illinois requires permission from the other parent unless the court allows it. If the other parent objects to the move, the court may still permit the move if it is considered to be in the child’s best interest.

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St. Charles parenting plan attorneysThe COVID-19 pandemic has affected millions of people on a global scale, from China to Italy to the United States, as well as many other countries. This novel (new) coronavirus is highly contagious and results in respiratory illness that can range from mild to life-threatening. Those who have pre-existing medical conditions or who are over the age of 65 are reportedly at a higher risk of fatalities. The Centers for Disease Control and Prevention (CDC) is aggressively responding to the worldwide outbreak of the virus, with updates and guidelines for citizens to follow. Some of these directives include isolation or quarantine orders if someone tests positive for the virus. During this unsettling time, parents who are divorced may be worried how it will affect their parenting plans

Illinois’ Response to Coronavirus 

Here in Illinois, Governor J.B. Pritzker and his administration are committed to the health and safety of citizens across the state. In an effort to flatten the curve on the number of new cases, Pritzker issued a “stay at home” order that began March 21 and tentatively runs through April 7. This means that all “non-essential” businesses are closed, including schools, restaurants (dine-in service), bars, casinos, shopping malls, salons, and more. Students are doing online schooling and people who can work from home are doing so. Government offices, medical facilities, gas stations, and grocery stores are still open. Health and county officials are urging people everywhere to practice social distancing. This means keeping six feet away from others and refraining from large gatherings or traveling unless absolutely necessary.   

Child-Related Issues Amidst the Outbreak

In an Illinois divorce, one parent is typically awarded the majority of the parental responsibilities (child custody). The non-custodial parent has designated parenting time (visitation), which is outlined in a parenting plan. This document is basically a schedule of when the children are with which parent. For example, some parents alternate weeks or weekends and holidays. However, what happens when the kids are off school for a prolonged period of time, such as during the COVID-19 outbreak?  

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Kane County divorce attorneysWith all the issues your divorce might bring – child custody, child support, and more – the division of marital assets can seem especially complicated. If you and/or your spouse own a business, the proceedings can be even more complex. Illinois is an “equitable distribution” state, which means a court will determine how to split assets fairly instead of just dividing your and your spouse’s assets precisely in half. Therefore, you must have a business valuation conducted to accurately determine the company’s worth. To receive your fair share of this asset, it is important to hire an experienced divorce attorney, who, along with a financial professional, can ensure your rights are protected every step of the way.

What Valuation Method Is Best for My Business?

There is not a one-size-fits-all approach to valuating a business, and a forensic accountant along with a skilled lawyer will typically choose from these three methods:

  • The market approach: With this method, an appraiser would look at what similar businesses were sold for recently and use those values as a reference.
  • The income approach: In this case, an appraiser compiles your profit-and-loss statements, tax returns, and any customer contracts to determine your earnings in the near past and estimate what you are likely to earn in the near future.
  • The asset approach: As it sounds, this method uses your business’ assets, accounts receivable, and enterprise goodwill, which is the value that your name or brand carries in the public’s eye. It is difficult to estimate this last item’s value, but that is why you need subject matter professionals to help you place a value on your business.

What If My Business Is Non-Marital Property?

Just because you acquired your business before your marriage does not mean that you do not need a proper valuation during your divorce. Your spouse may be eligible for some of those assets if you invested any marital funds in your business. For example, if you used $10,000 to renovate your retail space and you earned $20,000 in profit, your spouse could receive a portion of the initial investment and a portion of the profits.

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St. Charles divorce attorneysThe decision to file for divorce is just the first step in a long road toward legally ending a marriage. One of the major concerns for couples who are divorcing is figuring out who gets what in the final settlement. Illinois is an equitable distribution state when it comes to dividing marital property in a divorce. However, non-marital property is handled differently. Under Illinois divorce law, both spouses are entitled to keep all of their own or separate assets. Non-marital assets are classified as property acquired as a gift, through an  inheritance, or prior to the marriage, as well as property that is specifically protected by a valid prenuptial agreement. In some cases, disputes can arise if spouses argue over these items.  

Identifying Separate Property 

Distinguishing between marital and non-marital or separate property in a divorce is not always as simple as it may seem. One of the difficulties that can arise when trying to establish a non-marital asset occurs when the spouses have commingled or mixed non-marital and marital funds. Tracing is a method of following the flow of money or assets from their original source to demonstrate that they are indeed non-marital. This requires proof that the original source of the asset came from a gift, an inheritance, or ownership prior to the wedding. 

Proving the non-marital nature of inheritance money may require documents such as wills, trusts, and tax returns. These documents can establish the timing of when a spouse received the inheritance. Next, it must be proven that it has not been commingled with any marital funds, such as put in a joint bank account. If this occurs, then the non-marital asset can be transmuted into marital property, which is subject to division between both spouses. 

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Kane County divorce attorneysThe thought of going through a divorce can be intimidating, even if you are in an unhappy marriage. Suddenly becoming single after years of being married is often a difficult transition. When children are involved, the breakup of the family unit can seem devastating. However, a dysfunctional relationship is not healthy, so in many of these cases, divorce is the best option. Facing a new chapter of your life may be scary, but there are steps you can take to alleviate the stress. It is also critical that you hire a proficient divorce attorney to guide you through the process and protect your rights when it comes to the division of property or assets, spousal support, and child support.

Practical Ways to Adjust to Your New Life

You will most likely go through an adjustment period once you are divorced. You may be sad, angry, or bitter. Similar to when someone you love passes away, there is no set time when you should “be over” your divorce. It is painful even if it was your idea to split up. Here are several helpful tips for obtaining a fresh start after your marriage ends: 

  • Give yourself time to grieve. Regardless of the circumstances, a divorce is a loss, and you need to acknowledge that. Cry if you want, or spend time with family members and friends who can provide unconditional love and support. 
  • Process your feelings and emotions. Talk to a therapist or join a divorce group to talk about your regrets, hopes, and dreams. People who are going through the same thing can often relate. 
  • Rediscover your interests. You may have put aside your dreams or hobbies during your marriage if your spouse did not like the same things. Take time to pursue your passions by joining a book club or a fitness class. 
  • Try new things. Be adventurous and open to exploring different things, such as taking golf lessons or learning how to crochet or paint. Book a trip to a place you have always wanted to go. 
  • Embrace your new status. When you are ready, you may want to start dating again. Join a dating service or “meet up” groups where other singles enjoy networking and mingling in a social setting. 

Contact a St. Charles Divorce Attorney 

Although a divorce signifies the end of your marriage, it does not mean your life is over. Many people can find happiness again, whether they remain single or get remarried. It is important to understand the necessary legal steps to finalize your divorce in an efficient manner. The dedicated legal team at Weiler & Lengle P.C. will fight for your rights to secure the best possible outcome. Speak with a qualified Kane County spousal support lawyer to learn your options for protecting your rights to the marital estate. To schedule a confidential consultation, call us today at 630-382-8050.

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St. Charles family law attorneysMany couples who are unhappy put off filing for divorce if they have children together. The thought of hurting their kids by breaking up the family can be overwhelming. However, ending a dysfunctional marriage may benefit everyone in the long run. In Illinois, parenting time (visitation) refers to when a parent sees his or her child after a divorce or breakup. Parents can develop their own arrangement for parenting time, but a judge will still have to approve the schedule. When a couple cannot reach an agreement, the court will determine an appropriate parenting time schedule for the parents.

Illinois Divorce Laws

According to the Illinois Marriage and Dissolution of Marriage Act, the allocation of parental responsibilities (child custody) is divided into two main elements. The first aspect involves decision-making authority for important issues, such as education, religion, and healthcare. The second basic element of parental responsibility is parenting time, which may include the right of first refusal. This means that if a parent intends to leave a child with a caregiver for a substantial amount of time, that parent must first offer the other parent an opportunity to take care of the child. Examples of third parties include a babysitter, relative, stepparent, friend, or daycare facility. 

First Refusal Rights

When divorcing parents or the court includes the right of first refusal in a parenting plan, the plan must address details of how the right can be exercised. This includes:

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St. Charles family law attorneysThe decision to file for divorce can be one of the most difficult experiences of someone’s life. If a couple has children together, breaking the news to them can be just as heartbreaking. Many spouses who are unhappy stay together just for the sake of their kids. However, remaining in the relationship can do more harm than good. It is important to be honest and open with your children about your marriage ending so they are not blindsided if one parent suddenly moves out of the house. Following are some practical tips for helping you and your children during this major life transition. 

Preparation and Delivery Are Important

It is crucial that you do not tell your children that you and their other parent are getting a divorce until you are absolutely sure that is what you are going to do. The news that their family unit as they have known it is splitting up can be devastating to kids. It is critical that you make it clear to them that this is not their fault; it is a breakdown of the relationship between you and your spouse. The conversation is not going to be easy, but the manner in which you deliver the news can make a difference in your kids’ reactions and set the tone for moving forward.

Here are a few ways that parents can alleviate the stress of an impending divorce on their children: 

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Kane County family law attorneyA divorce can be difficult for a child to process. His or her world changes dramatically when the family unit as he or she knew it is no longer intact. Moving out of the marital home and into a new residence may be a challenging adjustment for any child, especially if he or she is living part time with both parents. 

According to Illinois law, parenting time (visitation) is determined based on several factors if the parents cannot come to their own arrangement. Depending on the allocation of parental responsibilities, one parent may have the majority of the time with the child once the divorce is final. However, there may be other family members who wish to see the child on a regular basis. In certain situations, other relatives such as grandparents or aunts and uncles may be awarded visitation rights. There are specific conditions that may warrant this scenario.      

Best Interest Considerations

Unlike parents, other immediate or extended family members typically do not have the presumed legal right to visitation, even if the child lived with them for a period of time or has a close personal relationship with them. However, depending on the circumstances, a grandparent, aunt, uncle, cousin, or sibling may have been denied visitation. This is common in contentious divorces, where a bitter spouse does not want the child to spend time with the other parent’s family. In these cases, those family members may file a request with the court asking to modify an existing visitation order. 

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Kane County divorce attorneysNo couple really expects to get a divorce when they first enter into a marriage, but unfortunately, not all partners live happily ever after. In some cases, people slowly grow apart for various reasons, causing a relationship to deteriorate over time. In other situations, one spouse may abruptly leave and file for divorce, leaving the other spouse shocked. Regardless of the circumstances surrounding a divorce, there are many issues the two parties will have to resolve before they can legally end their union. A divorce decree is a legal document that specifies the court’s final ruling on matters as well as any judgment orders that make the termination of a marriage official. However, in certain situations, it may be possible to appeal a judgment handed down by the court if you feel it was made erroneously. In other words, an appeal is a formal request of the court to set aside a judgment and hear the case again.   

Divorce-Related Issues That May Be Eligible for Appeal 

A request to change a court’s ruling is called an appeal. The right to appeal is included in the Illinois Marriage and Dissolution of Marriage Act. It is important to note that someone cannot appeal a decision simply because he or she does not agree with it. An appeal is used to address a procedural mistake, a judge’s incorrect interpretation of the law, the admissibility of evidence, or how the law related to the initial proceedings. For example, it is possible for a judge to miscalculate a spouse’s available resources when determining spousal or child support order amounts. In other cases, insufficient evidence may have been presented during the initial court proceedings, resulting in unfair bias toward one spouse. 

The individual who challenges a court’s decision is known as the “appellant,” and the other party is called the “appellee.” When someone appeals a ruling, the case goes to appellate court instead of going back to trial. It is important to note that a person has up to 30 days after the ruling to file an appeal.

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