by

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.

child-support-bad-luck-300x139

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.

Continue reading

by

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.

 

cigarette-smoking-300x200

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.

Continue reading

by

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.

illinois-supreme-court-building-300x194

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?

Continue reading

by

There are two types of social security benefits, namely SSI (supplemental security income), and SSDI (social security disability income). SSI is available to low-income individuals who most likely do not have a job or have not worked enough to qualify for SSDI. To qualify for SSI, you must have less than $2,000 in assets and a very limited income. On the other hand, SSDI is available to employees ages 65 or younger who have accumulated a certain amount of work credits and have paid Social Security taxes. If a party receives SSDI income, that party’s spouse and children are entitled to benefits which are called “auxiliary benefits” or “dependent benefits.” This is additional income every month to cover the SSDI recipient’s dependents.

social-security-admin-logo

Can social security benefits be garnished? The short answer is that SSI income cannot be garnished, because it is exempt from the IRS for child support. On the other hand, SSDI dependent benefits can fulfill and satisfy a payor’s child support obligation during the period of time that the recipient is receiving SSDI income and dependent benefits. A parent who receives SSI income cannot be ordered to pay child support on that income pursuant to the case of Lozada vs. Rivera. In that case, the court determined that Congress’ intent in providing SSI to low-income individuals was to satisfy that recipient’s minimum needs only. To order the recipient of SSI income to then pay child support and reduce their income even more would be greatly against public policy. The Court also determined that it would put a huge burden on the recipient of SSI income to live far below the minimum standard of living decided by Congress.

Continue reading

by

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?

 

Continue reading

by

The “traditional” American family is changing, and assisted reproduction techniques are advancing.  One option for an infertile couple is to seek the assistance of an egg donor.  Egg donation is the process by which a woman donates her eggs to a recipient couple who wishes to have a child.   The donor’s eggs are then fertilized through the in vitro fertilization process, and implanted into the recipient mother.

egg-donor-law-illinois-300x167

Currently, no law exists in Illinois that governs egg donation. However, egg donors and recipients commonly hire attorneys to represent each of them in drafting an Egg Donor Contract or Egg Donor Agreement for several reasons.  One important reason to hire an attorney is that Illinois law imposes an obligation to pay child support upon the biological parents of a child.  Since an egg donor is the biological mother of the resulting child, a written agreement is essential in order to ensure that this is a one-time transaction to donate eggs, and not a lifelong commitment.   Many doctors actually require a written agreement before beginning the egg donation process. Egg donors may choose to remain anonymous as well.

 

Continue reading

by

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.

prenup-image-300x150

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.

Continue reading

by

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.

2018-1040-image-300x169

“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”).

 

Continue reading

by

Last year, the Illinois legislature introduced Illinois House Bill 4113, which was the most politically controversial family law bill in a generation. It proposed a statutory mandate requiring a 50/50 shared parenting time schedule in divorce and parentage cases, except under limited circumstances.  The legislation was supported by father’s rights groups, among others, who believe that Illinois law contains an unwritten bias in favor of the mother when it comes to parenting time decisions.  They believe that the way to effectively address this bias is with a bright line rule.

parents-tug-at-child-300x225

At the same time, the legislation was vigorously opposed by a wide variety of individuals and organizations which, according to the Chicago Tribune, included the following:

  • The Illinois State Bar Association
  • The Chicago Bar Association
  • The Kane County Bar Association
  • The Du Page County Bar Association
  • The Lake County Bar Association
  • Illinois Chapter of the American Academy of Matrimonial Lawyers
  • Archdiocese of Chicago Domestic Violence Outreach
  • Jewish Child & Family Service
  • The Illinois Coalition Against Domestic Violence

Continue reading

by

It seems like only yesterday that Illinois amended the maintenance statute to put new guidelines in place regarding maintenance, formerly known as alimony.  In fact, there were a couple of amendments, one in 2014 and another in 2017, which changed the way the courts calculated the amount and duration which one spouse would have to pay to the other during and after the divorce proceedings.  Historically, maintenance paid was tax deductible to the payor and deemed taxable income to the payee.

 

Then, in 2017, Congress passed the Tax Cuts and Jobs Act, which altered the tax treatment of maintenance payments ordered on or after January 1, 2019.  Specifically, under federal law, maintenance would no longer be tax deductible to the payor, and would no longer be treated as taxable income to the payee.  This change in federal law made Illinois’ relatively new maintenance guidelines obsolete.

Continue reading