In a divorce case involving children or in parentage case, it is usually pretty easy to figure out what each of the parents wants. What often isn’t clear is what the child wants, and how much weight the court should give to a child’s expressed wishes.

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The Illinois Marriage and Dissolution of Marriage Act (IMDMA), which governs child-related issues arising in divorce and parentage cases, sets out a series of factors a court should consider in making determinations related to the allocation of decision-making responsibilities (i.e., “custody”) and parenting time (i.e., “visitation”), as well as other child-related issues.  This list is commonly referred to as the “best interests of the child” factors.

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In Illinois, the Mental Health and Developmental Disabilities Confidentiality Act (MHDDCA), protects communications made between a client and a therapist. Generally, when an individual begins therapy, the therapist’s first obligation is to explain that anything the client says to the therapist will remain confidential. However, this may not always be the case for children whose parents are simultaneously involved in a custody battle, and where a Guardian ad Litem (GAL) has been appointed to investigate and recommend to the court what is in the best interest of the minor child.

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In 2017, the Illinois legislature added section 607.6 to the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Given how recently section 607.6 was added, there is not much case law interpreting its provisions. Under this section of the statute, a court may order individual counseling for a child, family counseling for the parties and the child, or parental education for one or more of the parties. Perhaps the more controversial portion of 607.6 can be found in subsection (d). Section 607.6(d) provides, “all counseling sessions shall be confidential. The communications in counseling shall not be used in any manner in litigation nor relied upon by any expert appointed by the court or retained by any party.”

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If you are currently an active duty military servicemember with orders to deploy, you may be wondering what happens to your parenting time with your kids while you are deployed. In other words, will you be forced to forfeit your parenting time with the minor children by virtue of your deployment? Will the children automatically need to stay with the non-deploying parent the entire time you are gone or can someone else exercise your parenting time in your place? Worry not, because these questions have been answered by the Illinois legislature.

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For many servicemembers, the thought of “substitute” parenting time never crosses their mind. A common assumption is that if they are deploying, their children will naturally need to stay with the other non-deploying parent full-time until they return. However, for some families, this is not always the most functional scenario. For example, for children with parents who live in two different states, and with parents who do not get along, seeing both sides of the family can get very complicated when the non-deploying parent is unwilling to schedule time for the children to see the deployed parent’s family. Another example of where this may become complicated, is where the non-deploying parent does not have the capability of having parenting time with the children full-time due to other obligations such as work.

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It is not uncommon for a spouse to have  received an inheritance during the marriage.  When people are divorcing, one of the biggest issues is how the court will divide their assets. The first step a court must take when determining how to divide assets in a divorce case is to classify those assets as either marital or non-marital.  How would an Illinois court classify the inheritance?  Is it marital or non-marital?

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Pursuant to Section 503(a) of the Illinois Marriage and Dissolution of Marriage Act, all property acquired during the marriage is presumed to be marital property, except where that property is shown to be obtained by a certain method. Specifically, the statute lists “non-marital” property as “property acquired by gift, legacy or descent or property acquired in exchange for such property.” One party’s inheritance in a divorce case would typically fall under this category of non-marital property.

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Section 510 of the Illinois Marriage and Dissolution of Marriage Act allows a court to modify a child support obligation upon a substantial change in circumstances.  Prior to the 2017 amendments to the Act, child support was based solely on the payor’s income.  After the amendments, child support is calculated based upon both parties’ incomes.

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What happens when a parent with an obligation to pay child support attempts to modify a pre-2017 order based upon the recipient parent’s new job, when the recipient parent was not previously earning income? According to the Illinois Appellate Court, the answer depends not on the existence of their new-found income, but whether that new income was contemplated at the time of entry of the judgment.

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Would an Illinois family law court restrict a parent’s ability to smoke cigarettes or vape around a child?  Specifically, can a court limit a parent’s time with his or her minor child to prevent the exposure to second-hand smoke or vapor?  The answer to this hypothetical question is hazy at best.

 

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First, there’s the data about the harm caused by smoking.  According to the Centers for Disease Control and Prevention, over 34 million people in the United States smoke tobacco products. That’s about 14% of all adults in the nation.  While the health effects associated with one’s personal use of tobacco are well-established, ranging from cancer to arthritis, it is further believed that approximately 2.5 million nonsmokers have died from health-related problems caused by exposure to secondhand smoke since 1964.

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The Illinois maintenance law went through a major overhaul between 2018 and 2019 in that the calculation for the amount of maintenance changed and the tax treatment of maintenance payments changed because of the new tax laws.  Imagine a scenario where a judge enters a divorce judgment in 2018 that awards maintenance (alimony) to the wife, but the amount is not set at the time.  The judgment just says that upon the occurrence of a specific event, the wife will be awarded guideline maintenance.  The judgement does not specifically state whether the 2018 version or 2019 version of the law should be used to determine the “guideline” amount, however.

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Fast forward in this scenario to March of 2019 when  specific maintenance triggering event occurs.  Using the 2018 version of the law, the wife would receive $400 each month for maintenance, however, using the 2019 version of the law, the wife would not be entitled to any maintenance at all.  Which law should be used?  Does it matter that the 2018 judgment says that the wife was in need of maintenance?

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Here’s a fact pattern that occurs with some frequency in parentage court.  To make this blog post more easily readable, we’ll assume that the mother is seeking child support from the father.  Of course, that’s not always the case, but it is certainly the more common scenario.

  • An unmarried couple has a child together, then lives in separate residences.
  • At the time of separation, neither parent goes to court to set up any formal parenting time arrangement or child support obligation.
  • The child primarily resides with the mother, and sees the father on an as-agreed basis.
  • The father provides some financial support to the mother, and occasionally buys things for the child.
  • Years go by, often with little to no conflict whatsoever.
  • The mother, either on her own or through the State, files for child support.
  • As part of the child support case, the mother requests child support going all the way back to the date of the child’s birth.

Is the father obligated to pay child support all the way back from the time that the child was born? What about the contributions and support he has already paid in the past, which were not required by any court order? Do they count for anything?

 

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Section 7(b) of the Illinois Uniform Premarital Agreement Act states that if a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the prenuptial agreement undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the prenuptial agreement, a court, notwithstanding the terms of the prenuptial agreement, may require the other party to provide support to the extent necessary to avoid such hardship.  The following is a case study involving the application of these principles.

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In the case of In re the Marriage of Barnes, the Appellate Court for the Fourth District analyzed what constitutes undue hardship and unforeseen circumstances.  In that case, Edward was the sole shareholder and chief executive officer of a company.  He earned in excess of $250,000 per year.  His wife, Sandra, quit her office job where she had been earning $19,000 per year in order to spend more time with Edward.  Before their marriage, they signed a prenuptial agreement.

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Whether it be maintenance to or from your current or former spouse, or support for your child(ren), your income is relevant in divorce and parentage proceedings. The fact that you are the person obligated to pay or the person who receives money from another does not change the need for your income to be defined before an order for support is entered.

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“But what is my income? I am on social security benefits, or I run a business, or my income is constantly in flux. Surely, you cannot expect me to truly define my income. I’m special,” you say. Thankfully for you, the good and wise people of the Illinois legislature have defined what income is, and also what it isn’t, and they’ve done so in a way that isn’t confusing or contradictory at all.  Rather than use a single definition for all family law purposes, they instead have defined income in three separate-yet-related statutes: the Uniform Interstate Family Support Act (“UIFSA”); the Income Withholding for Support Act, and the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”).

 

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