In many custody disputes, allegations of abuse against children are thrown around.  Sometimes, people use this simply as a means of mudslinging to gain an upper hand in the court’s eyes against the opposing party.  However, other times, even the slightest indication of abuse can reveal a Pandora’s Box, leading to a full blow investigation to ensure a child’s safety.  In DuPage County, allegations of abuse against children are taken very seriously, and the County specifically set up an investigative body to handle such allegations.

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In 1987, Illinois’ first (and the country’s fifth) Children’s Center was opened in DuPage County.  In 2001, it was incorporated into the DuPage County Office of the State’s Attorney.  The DuPage Children’s Center is distinct from schools and local police departments, and it aims to uncover and collect evidence regarding abuse of children to find the truth.  Once the DuPage Children’s Center has corroborating evidence, it will present a case to the Assistant State’s Attorney for review and possible charges.

 

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The answer is, it depends.  Generally, federal income taxes that are due and owing are non-dischargeable in bankruptcy, meaning that even if the bankruptcy eliminates a person’s other secured or unsecured debt, the tax debt he or she has will remain.  In very limited circumstances, outstanding federal income taxes can be discharged in bankruptcy.  However, if the taxes a person owes cannot be discharged through a bankruptcy and he or she cannot pay them in full in a timely manner, the person may be able to enter into a payment plan with the IRS or else resolve the outstanding debt by way of an offer in compromise.

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This article primarily focuses on tax debt and bankruptcy.  However, payment of tax debt can be easily addressed if a person enters into a payment plan with the IRS, wherein the person agrees to pay a certain monthly payment on the full balance owing.  Sometimes this option also allows a person to reduce or eliminate any penalties or interest associated therewith.  Notably, even though a person is in a payment plan, his or her future tax refunds, if any, can be automatically applied towards the existing balance.  If he or she fails to comply with the terms of the repayment plan, fees and penalties might accrue so it is important to remain current.

 

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When a married couple divorces, often the wife will opt to return to the use of a former or maiden name.  The reasons and rationale are as diverse as the individuals who make this choice.  Illinois law provides this opportunity but not requirement when a divorce judgment is entered and a divorce is finalized.  In fact, the Illinois Marriage and Dissolution of Marriage Act, provides: “Upon request by a wife whose marriage is dissolved or declared invalid, the court shall order her maiden name or a former name restored.”

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This is a right and an option, but not an obligation.  Therefore, it is important to preserve that right in the judgment of dissolution of marriage (often referred to as the “divorce decree). If the name change is not covered by the judgment, an entirely new legal case must be filed to obtain a name change.

 

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Imagine the classic scenario: you are presented with a prenuptial agreement on the eve of your wedding, and asked to sign before you make your vows tomorrow.  You’ve been together for years and had no idea this was coming.  Your soon-to-be spouse earns significantly more than you and has more assets than you.  Should you hire an attorney?  Did your spouse disclose assets you had no idea he or she had?  Are you being asked to waived spousal support in the event of divorce?  Should you just “risk it” and sign the agreement, hoping that if you get divorced the court will deem it unenforceable?

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In Illinois, the Uniform Premarital Agreement Act governs the formation and enforceability of prenuptial agreements.  It provides that a premarital agreement is not enforceable if the party against whom enforcement is sought can prove that he or she did not execute the agreement voluntarily, or if the agreement was unconscionable when it was executed, and that party was either 1) not provided a fair and reasonable disclosure of the assets or financial obligations of the other, 2) did not voluntarily and expressly waive any right to disclosure of the same, and 3) did not have or reasonably could not have had an adequate knowledge of the property or financial obligations of the other.  As you can see, there are several factors that a court will consider when determining whether a premarital agreement should be enforced.  This results in a very fact-intensive inquiry by the court.

 

 

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Divorce litigation affects children, especially if they are living in a contentious atmosphere.  In an effort to minimize the impact of the legal process on children, counties in Illinois have implemented programs and procedures to keep children out of the courtroom, and facilitate resolution of parenting issues in domestic relations cases.  A handful of these programs are summarized here.

 

Mediation

 

Counties in Illinois are required to offer mediation programs for divorcing parents.  If parents are unable to reach an agreement regarding parenting time and the allocation of parental responsibilities, and so long as there are no extenuating circumstances (such as domestic violence), the court will send parents to mediation to try to resolve these issues outside the courtroom.  Judges will often remind parties in a divorce that parents know their family situations and needs best.  As parents, they should take advantage of the opportunity to reach a resolution that is in the best interests of the family, rather than delegating that decision a third party outsider.

 

The mediator does not represent either party and does not give legal advice.  Rather, the mediator’s job is to facilitate conversation between the parties, and hopefully aid them in resolving the matters related to their children.  The mediator will the issue a report stating whether the parties reached a full resolution, partial agreement, or were unable to reach an agreement.


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Section 504 of the Illinois Marriage and Dissolution of Marriage Act addresses maintenance.  The Internal Revenue Service calls it “alimony” on tax forms, and it’s sometimes called spousal support.

 

Under the law, upon the entry of a judgment for dissolution of marriage (a divorce decree), one spouse may be entitled to maintenance, either for a specific duration of time or permanently.  Before awarding maintenance to one spouse, the court must first determine whether an award of maintenance would be appropriate.  Just because the parties have been married a long time or have disparate incomes,that does not necessarily mean one spouse is entitled to maintenance.  Before the court may make a decision about how much maintenance is appropriate and for how long, the law requires the court to first decide whether maintenance is appropriate, after considering the following factors:

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Under Illinois law, child support may be modified upon a substantial change in circumstances.  Normally, a job loss is considered a substantial change in circumstances which would warrant a modification of child support, but sometimes it isn’t.  This post discusses two cases, and the reasons why the courts reached different outcomes.

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Scenario #1:  Father is working full-time and bringing in most of the family’s income.  He and mother decide they are going to get a divorce, and she is awarded the majority of allocated parenting time with the children.  Mother is seeking child support from father, who is an engineer.  Due to a combination of his unreliability and misconduct at work, he is fired from his job during the pendency of the divorce.  He was paying child support of $2,500 per month on a temporary basis during the pendency of the case.  Now, after a few months, he is unable to find new employment and is living with his parents.  Mother is seeking child support from father, but his position is that he should not be ordered to pay child support because he is not working.

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In Illinois, during a divorce, either party can ask the court to order the other party to pay some or all of his or her attorney fees while the case is pending.  Section 501(c-1) of the Illinois Marriage and Dissolution of Marriage Act provides in pre-judgment (pre-decree) divorce cases, the court can assess attorney fees in favor of the petitioning party and against the other party.  The purpose of these interim attorney fee awards is to “level the playing field” and allow an economically disadvantaged spouse to participate adequately in the litigation.  See, Marriage of Rosenbaum-Golden.  This may be necessary where one spouse uses his or her greater control of assets or income as a litigation tool, making it difficult for the disadvantaged spouse.

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If the court decides that one party cannot pay his or her attorney fees but the other party can, it can order that the party able to contribute pay some attorney fees to the other party.  However, if the court determines that both parties do not have sufficient financial ability or access to funds with which to pay, the court will allocate available funds for each party’s attorneys, including any retainers or interim payments previously paid.

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In this current economy, many people find themselves underwater in their mortgage payments, credit card debts, car loans, student loans, and the like.  In certain situations, filing for bankruptcy may seem like a “get out of jail free” card to rid yourself of all the suffocating debt that you’ve racked up over the years.  But before you call a bankruptcy attorney, take a step back and consider: are all debts dischargeable? What does the law have to say about support owed to a former spouse or children?

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While the United States Bankruptcy Code is expansive and provides for discharge of many debts under several sections, there are certain debts which the legislature has specifically noted are NOT dischargeable, even in bankruptcy.

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Changes to Illinois’ Child Support statute are imminent.  On June 27, 2016, House Bill 3982 was sent to Governor Rauner for his approval, and on August 12, he signed it.  It is currently scheduled to become effective July 1, 2017.  Among the changes in HB 3982 is the revision of the guideline support calculation method.  Currently, child support in Illinois is calculated based on a percentage of the payor’s net income and number of kids to the parties (20% for one child, 28% for two, 32% for three, etc.).   It is a statutory remnant from the days when the “typical” family consisted of one breadwinner, rather than two working parents.  HB 3982 abolishes these guidelines and adopts a method that many other states are already using: the income share approach (previously discussed on this blog here).

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Under the new approach, child support will be calculated based on the parents’ combined adjusted net income estimated to have been used for child-related expenses if both parents and child(ren) were living together.  The Department of Healthcare and Family Services (“HFS”) will publish worksheets to aid in calculating the amount of support, as well as a table that reflects the percentage of combined net income that parents living in the same household in Illinois ordinarily spend on their children.  As of the writing of this blog, those tables have not been published.  However, examples of the tables and worksheets previously proposed by HFS can be found here.  They will not be part of the statute, but will be updated periodically and available on the HFS website.

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