Child custody cases are rarely simple. Unfortunately, many parents lose sight of what is really important and instead are determined to “win” at any cost. This mindset usually continues after the case is over and it can be challenging to co-parent with these types of people. If parents are unable to collaborate during the negotiations for determining the allocation of parental responsibilities and a parenting time schedule, this can have a negative impact on the final outcome of any custody agreements.

It is critical for the child’s emotional well-being that both parents focus on being the best parents for their child during these negotiations and beyond. The following are some of the issues that parents should absolutely avoid. For more detailed information about your particular circumstances, contact a Kane County family law attorney.

Do Not Let Negative Feeling About Your Soon-to-Be Ex Become a Priority Over Your Child’s Best Interests

The judge in your case does not care why you are divorcing (unless the situation involves family violence, addiction, or criminal issues). Instead, the judge has his or her focus on what is in your child’s best interest. Regardless of your feelings, never speak badly about your spouse in front or to your child.

Many of the divorces we hear about in the media that involve celebrities, athletes, and politicians often involve knock-down, drag-out fights, taking months – if not years – to settle. These types of divorces can also be found in our own social circles. If you are considering divorce but cannot imagine you and your spouse engaging in this type of process, you may just qualify for a joint simplified dissolution of marriage.

Contested and Uncontested Divorces in Illinois

If a spouse contests a divorce, it does not mean that they will permanently stop the divorce. It just means that the couple does not agree on at least one major issue they need to decide on, such as asset division or child support. While a contested divorce usually ends up taking much longer and costs a lot more than an uncontested divorce – one where the couple does agree on all major issues – it will eventually come to a legal conclusion.

The timeline for an uncontested divorce is typically much quicker. This is because the only task for the court is to give its stamp of approval to the divorce agreement the couple has come up with after determining that the agreement abides by Illinois law. In most cases, the uncontested divorce process is approximately six months.

In an Illinois divorce, the assets the couple has amassed during their marriage have to be equitably distributed between the two. If the marriage is young, that marital estate is often not a complicated one. However, in today’s society, one of the fastest-growing types of divorce is a “gray divorce.” Gray divorce is one in which couples over the age of 50 decide to end their long-term marriage. Due to the length of the marriage, the marital estate is often a more complex one to distribute than an estate from a marriage between a younger couple. Not only may the older couple have property to divide up, but there are also often complex financial accounts, such as pensions and 401(k)s, that are part of the marital estate. This leads many people to wonder how their Social Security retirement benefits could also be impacted by their divorce.

Social Security Retirement Funds

The good news is that the court does not consider Social Security retirement benefits as part of the marital estate. Divorce is handled on a state level, with each state making its own dissolution of marriage laws. However, Social Security rules and regulations are handled by the federal government. States have no oversight or input into how that system is run.

One issue in many gray divorces, however, is that one of the spouses was the primary breadwinner while the other spouse had primary care of raising the children and taking care of the home. This means that one spouse may have made significant contributions to their Social Security retirement fund, while the other spouse did not have the same opportunities, resulting in a significantly less amount of benefit.

On January 1, 2023, the SAFE-T Act (Safety, Accountability, Fairness, and Equity-Today Act) will go into effect. The Act addresses a number of criminal justice reform issues, including the elimination of cash bail. According to the new law, judges will determine whether defendants charged with a specific set of violent misdemeanors and specific felonies pose a flight risk, pose a risk to another person, or pose a risk to the public or if they can be released. The changes mean that a judge has the discretion to release a defendant who is charged with domestic violence or other violent crime without the requirement of monetary bail.

This has led some state prosecutors to begin filing individual petitions to keep violent defendants – who could qualify for release when the new law goes into effect – in jail while they await trial. One county’s state prosecutor’s office has already filed petitions on more than 50 domestic violence defendants.

Domestic Violence in Illinois

Last year, an Illinois domestic violence hotline received almost 30,000 calls from domestic violence survivors, an increase of five percent from the year before. Domestic violence organizations were able to help more than 49,000 survivors. Tragically, there are thousands of women and men in Illinois and across the country that are trapped in the cycle of domestic violence.

Many people are familiar with the line, “You are (are not) the father!” The line – often repeated tongue-in-cheek – was made famous by daytime talk show host Maury Povich. Many episodes of the show were centered around participants who were either trying to prove or disprove allegations that they were the parent of a child. At some point during the episode, the results of a paternity test would be revealed to the show participants and the audience the results, with the host delivering his famous line.

The reality for many people, however, is that paternity of a child is anything but entertainment. Proving paternity means a father will have parenting rights, as well as being required to contribute to the financial support of a child. In Illinois, paternity is determined in several ways.

Presumptions of Paternity

The state of Illinois has enacted presumptions of paternity in certain cases where there is a question of who a child’s father is. The state may presume the person is the child’s father in the following situations:

Parental Alienation Syndrome (PAS) has been recognized by some in the medical community since 1985 when one child psychologist identified the similar behaviors that children exhibit when they have been exposed to parental alienation by one or both parents. In the decades since, the syndrome has yet to be recognized by the American Psychological Association or the American Medical Association.

Despite the debates over whether PAS per se actually exists, there is no debate about the existence of parental alienation. Unfortunately, it occurs far too often in divorce and child custody situations.

What Is Parental Alienation?

Parental alienation is when one parent disparages the other parent to their child, deliberately manipulating the child’s perceptions of the parent, with the goal of turning the child against that parent. For example, a father may tell his children that their mother will stop loving them just like she did him or a mother tells her children that their father is going to forget all about them now that he has a new girlfriend.

When a couple is planning their wedding, they are usually focused on their future together and their goals for their married life. Divorce is not usually a topic that comes up during this planning, but national statistics belie that optimism. Although the divorce rate has dropped over the past several years, it still hovers at close to 50 percent. The percentage is even higher for second and subsequent marriages.

This is one reason why engaged couples should have prenuptial agreements on their wedding to-do lists. A prenup is a contract the couple enters into that details what would happen in the event of a divorce. Prenuptial agreements are legally binding contacts and are enforceable, but like many contracts, there may be legal issues a spouse can cite in a divorce that would nullify the prenup.

Contents of a Prenuptial Agreement

A prenuptial agreement can address several issues that the couple would need to agree on in a divorce, essentially stating the rights and responsibilities of each spouse in the event of a divorce. Some of the issues that can be included in a prenup include:

According to the National Coalition Against Domestic Violence, approximately 20 people are physically abused by an intimate partner every minute. Statistics gathered by Illinois domestic violence advocacy organizations reveal that domestic violence also continues to rise in the state of Illinois, which saw a 40 percent increase in requests for services last year. More than 40 percent of women in Illinois and 25 percent of men say they are survivors of domestic violence.

If you are a domestic violence survivor who is seeking to leave your abusive partner, it is imperative for your safety and your children’s safety to take the necessary steps to protect yourself. A Kane County divorce attorney can help. One of the first things your attorney can do is help you obtain a protective order against your abuser. 

Emergency Orders

When the survivor is facing an imminent risk of harm, they can file for an emergency order of protection. In these situations, the alleged abuser is not notified of the requested hearing or given a chance to object to the petitioner’s request in order for the court to issue the order. Typically, the emergency order will be in effect for 14 to 21 days, but when the court issues the emergency order, it also schedules a hearing for a plenary (long-term) order before that expiration date. If the hearing cannot be scheduled before the expiration date, the court will extend the emergency order’s date.

Part of our job as parents is teaching our children how to be independent. This includes encouraging them so they are ensured their voices are heard and that their opinions and feelings matter. This process is an ongoing one and there are times when parents do need to overrule what their child wants because it is not in their best interest. One question that parents going through a child custody case often ask is whether or not the court will take into consideration the child’s wishes. Although in many cases the judge will consider the child’s wishes, it will not be the deciding factor.

Allocation of Parental Responsibilities and Parenting Time

In 2016, there was a major overhaul to the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Lawmakers eliminated the phrase “child custody,” replacing it with the allocation of parental responsibilities and parenting time. What did not change is how family court judges decide the allocation and parenting time, basing those decisions on the best interest of the child doctrine.

When it comes to whether or not the child’s wishes have any sway in the court’s decision, that often depends on the age of the child. Under the statute, the court will take into consideration the child’s “maturity and ability to express a reasoned and independent preference.” While this usually refers to older children, it can also apply to a younger child who is especially articulate and mature for their age and is able to clearly express their wishes in a manner that assures the court they are not just repeating what they have overheard or been told what to say by one of the parents.

Although the divorce rate has somewhat decreased over the past few years, it is still high. Approximately half of all first marriages in the United States end in divorce. Sixty percent of all second and 73 percent of all third marriages also end up in divorce court.

One of the major issues that divorcing couples need to decide is how their marital estate will be divided between the two of them. This can be difficult enough, but when one or both spouses own a business, that equitable division of assets can become very complicated. This is just one more reason why anyone going through a divorce should have a skilled divorce attorney advocating for them.

Is a Business Marital Property?

If the business was formed while the couple was married, the court will likely rule that the business is a marital asset. This applies no matter what type of business structure – partnership, LLC, or corporation – that the business was formed under.

In most situations, an Illinois family law judge will not make a decision regarding the custody of a child unless both parents are able to present their side/argument to the court. However, there are situations where the court will grant one parent temporary emergency custody based on that parent’s testimony alone, often without the other parent even being notified of the hearing if there are allegations that the child is in some kind of danger of abuse or neglect if they are left in the other parent’s care. These child custody orders are referred to as “ex parte” orders.

When Are Ex Parte Orders Issued?

As mentioned above, under normal circumstances, the court wants to hear from both parents – along with any witnesses they may have – as to what their preferred role in the allocation of parental responsibilities and parenting time should be.

Unfortunately, there are circumstances where one parent’s behavior or choices place the child in a dangerous and/or unhealthy living situation. It is in these situations that the court will allow a hearing where the other parent can present their allegations and evidence to the court showing that the parent is putting the child in danger, without the parent being present or even notified that a hearing is taking place. There is often a concern in these situations that if the allegedly abusive parent was aware of the hearing, they might take off with the child, creating an even more alarming and dangerous situation.

 There is no denying that divorce and all it entails takes a heavy emotional toll on a family, especially on the children. But not every divorce needs to be a contentious one. In fact, more and more couples are realizing the benefits of using mediation as a major component in the divorce process. A mediation attorney from our law firm can explain how this less stressful and friendlier process can be used to obtain resolutions to issues of child custody, division of assets and property, spousal support, and more. Below is a brief overview of how divorce mediation works. Call our office for more details about how it could work in your situation.

Mediation Process

The goal of mediation is to avoid having to litigate your case and go to trial. Not only does this cut down on the emotional side of divorce, but it also helps the financial side. It is recommended that both spouses still have their own attorneys during mediation because there are legal requirements that Illinois family law statutes may require that could affect the agreement you and your spouse come up with. Having your own attorney also ensures your rights are protected and you are not being taken advantage of by the other party.

You and your spouse will work with your attorneys to identify which issues need to be addressed, share what ideas you both have on how they should be addressed, and work towards meeting an agreement on those issues. When it comes to child support, the state has its own guidelines which must be followed; however, you and your spouse can work out an agreement for those expenses that child support does not always cover, such as the costs of extracurricular activities your child may be involved in.  

On January 1, 2020, recreational marijuana use in Illinois became legal. Although this law means that a person could no longer be criminally charged for possessing cannabis, it did not address how family courts should address the issue when it comes to parental responsibility and parenting time issues, except to say that marijuana use, like alcohol use, cannot in and of itself be considered when making decisions about custody. 

The Best Interest of the Child Standard

When an Illinois family court judge is determining child custody, their decision will be based on the best interest of the child. It is generally accepted by the majority of judges that a child’s best interest is served best when both parents are actively involved in their life. There are exceptions to that, however, such as in cases where the welfare of the child could be in jeopardy because of the actions or behaviors of a parent.

One of the most common of these exceptions is substance abuse. When a parent struggles with a substance abuse issue, the court often imposes certain restrictions on how much and/or the type of parenting time the parent will have with the child.

You have finally made the difficult decision to end your marriage but now you are unsure of how to begin the process. Dealing with the emotional aspects of a divorce can be hard enough, and the stress and worry about your future and your children’s future can feel overwhelming. But the steps you take at the beginning of this process can go a long way in protecting that future, especially the financial side of it. The following are some steps you can take to begin the divorce process while protecting yourself financially. For more details, contact a Kane County divorce lawyer.

Get Legal Advice

The first thing you should do before moving forward is speak with a qualified divorce attorney. Even if you think your divorce is going to be friendly because you and your spouse are on the same page when it comes to child custody and family finances, it is important to understand that once that divorce petition is filed, the process can quickly become a contentious one. Having an attorney dedicated to your best interests will ensure you are protected should this occur.

Protect Financial Accounts

Money can cause people to act in ways you may never expect. At our law firm, we have heard many stories from clients whose spouses wiped out their bank accounts as their marriage was falling apart. Contact your financial institutions to amend all of your accounts to now require both your and your spouse’s signatures in order to make any withdrawals. Once the divorce petition is filed, the court can issue a temporary restraining order that prohibits either spouse from moving or selling assets.

In most cases of divorce, the erosion of the marriage takes place over a period of time. It is not uncommon for one or both spouses to change their minds many times before making a final decision about whether they truly want to end the marriage. Once that decision is made, however, the question then becomes when they should file their dissolution of marriage petition with the court. In some cases, the petition can and should be filed right away, but in other situations, it may be better for financial reasons to hold off for a bit before legally initiating your intention to end your marriage.

Equitable Distribution

When a couple is married, they amass what is referred to as their marital estate. This includes any real estate they own, financial assets, household property, and vehicles. Illinois is an equitable distribution state, which means that in a divorce, the court’s goal is to divide that marital estate in a fair and “equitable” manner. Keep in mind that equitable does not necessarily mean equal or 50/50 like in community property states. An exception to this division of assets is if the couple had a valid prenuptial or postnuptial agreement in place that stipulates what each spouse will end up with in a divorce.

Dividing the Marital Estate

Under Illinois law, the marital estate is distributed based on the valuation date. In most cases, the valuation date is the date of the divorce trial or as close to that date as possible. This means any assets that are acquired by either spouse up until the valuation date are considered joint marital assets.

National statistics show that approximately 50 percent of all married couples divorce. The percentage for subsequent marriages is even higher – 60 percent of all second marriages end up in a divorce court and a whopping 73 percent of all third marriages also end in divorce. Illinois is ranked at number 44 when it comes to the national divorce rate with a rate of just over 6 percent; however, while that number may seem low, remember the population of the state is approximately 13 million people.  

Every divorce case is different – the process and resolution with some cases are quick, while the process and resolution with others drag on for months or even years. The constant in all Illinois divorces is that the court will issue a divorce decree that declares the marriage is legally over and stipulates the final decisions on child custody, child support, division of assets, alimony, and any other issues. And although this decree is a legal order from the court, some spouses fail to adhere to it. What legal options do you have if your ex-spouse is not obeying your divorce decree?

Ignoring the Decree

When your ex is failing to follow the divorce decree, the first thing you want to do is consult with your lawyer. There will be steps your attorney will recommend that may convince your ex to comply without having to go to court. Some of the things you should be doing that will help your case if you do have to go back in front of the judge include:

Dealing with a divorce is difficult for an entire family. However, unique issues can arise for non-custodial fathers after a separation or divorce. No longer living with your children is difficult, and it can be devastating for a parent. Suppose you are a father who is no longer the primary custodial guardian in your child's life. In that case, it is a good idea to prepare for this transition in a few ways. Here are four critical tips for dads during a divorce. 

Stay on Top of Your Parenting Plan 

When you are no longer the custodial guardian of your children, it is easy to overlook the day-to-day activities and responsibilities of being a parent. It is important to stay organized with your parental responsibilities. During the divorce, both parents are included in creating custody, visitation time, and responsibility plans for life after the separation. Typically, each parent is allocated specific responsibilities and visitation with the children. You must stay on top of these responsibilities to maintain an important role in their lives. 

Spend Time Helping Your Kids Cope

Divorces and separations can be highly confusing for young children. No matter your child's age, they may be grieving the old familial structure, especially if you are no longer living with them. During visitation time, or when you have your shared custody arrangement, take the time to speak with your children and support their emotions.

For many people, property division is one of the most challenging aspects of divorce. When it comes to business interests, dividing property becomes more complicated. Typically, the two ways to consider property division during a divorce are shared marital property or individual property. Depending on whether or not spouses share a business, there are different ways to protect your interests legally. 

Is Your Business Shared Property?

The first step in ensuring you retain maximum interests within your business during a divorce is understanding whether or not it is shared. Illinois law considers a business unshared if you owned the company before getting married, you built the business with inheritance or your own money, or a prenuptial or postnuptial agreement states that only one spouse owns the business.

A company may be considered shared marital property if:

One of the most critical aspects of divorce is selecting an attorney that best fits your needs. It can become overwhelming to decide which divorce lawyer will represent your interests and help you secure the most favorable outcome of your divorce. A few key things to remember when selecting a divorce attorney include the type of divorce you are handling, your budget, and your personal ethics and values. Here are three essential tips for choosing the right attorney for your divorce. 

Consider the Type of Divorce at Hand

Before selecting the best attorney for you, it is crucial to examine what type of divorce process you are facing. There are a few different types of the divorce process that differ in price, complication, and duration, including:

• Contested vs. uncontested divorces
• High-value and asset divorce
• Divorces involving children 

Contested versus uncontested divorces are the most significant variation between divorce processes. During a contested divorce, both partners cannot agree upon at least one crucial aspect of the divorce process. These can lead to conflict, extended negotiation time, and even litigation. Uncontested divorces are more straightforward in that both parties agree on the outcome of the divorce and how property and other assets will be divided for the future. 

When dealing with a divorce, spouses tend to worry about how financial responsibilities will be taken care of when the marriage is dissolved. Alimony, also known as spousal support or maintenance, refers to a series of payments made from one spouse to another following a divorce. Many couples going through a divorce wonder how to obtain spousal support or how the court will decide which partner is responsible for paying spousal support. If spousal support is found to be appropriate, the court will decide who pays spousal support by determining the supporting and dependent spouses. 

Supporting vs. Dependent Spouses 

When deciding which spouse will pay spousal support after the divorce is finalized, it is critical to analyze the financial health of both spouses. By looking at each spouse’s financial statements, a divorce attorney can help identify which spouse will be supporting the other. Below are the general characteristics of a supporting and dependent spouse.

A supporting spouse is a partner in a relationship that has the most substantial financial health and assets. Usually, this partner’s income takes care of the majority of the bills during a marriage. The supporting spouse often makes more money at their job, owns the most valuable financial assets, or is the primary family provider.