You have just received shocking news that the mother or father of your child has passed away. Suddenly, you are in the position to take a more prominent role in your child’s life by having your child live with you, possibly indefinitely. Who is stopping you from asserting this role? Are the child’s grandparents holding you back? Is a step-parent preventing you, or are you yourself hesitant to change your own lifestyle in this situation?  This post explores Illinois law on the subject.  Please note that many of the cases on the topic use terms like “custody,” “custodial parent,” and “non-custodial parent.”  The 2016 statutory amendments replaced those terms with “parental responsibilities” and “parenting time.”

 

To begin the legal analysis, the courts will imply constructive parenting time and parental responsibility in favor of the surviving parent, because it is legally presumed that the surviving parent’s right or interest in the care, custody, and control of the child is superior to that of any third person who may otherwise attempt to assert their rights to the child.  Marriage of Archibald.

Continue reading

In Illinois, there are very specific laws related to enforcing and collecting money judgments.  There are even more specific laws as well as unsettled caselaw related to if and how those collection laws apply to child support in domestic relations cases.  Are there time limits to within which a parent must enforce and collect on past-due child support or child support judgments?  Do any special rules apply?  The answer is, as it often is, “it depends.”

Past-Due-300x187

Imagine the following scenario:  A husband and wife were divorced on January 1, 1970.  The divorce decree entered on that date provided that the husband would pay the sum of $100.00 for child support for the parties’ minor child, who was three years old at the time the divorce was finalized.  The Husband paid no child support whatsoever.  The child emancipated in 1985 and wife never took the husband back to court for payment of child support.  In 2017, the wife found out that the previously unemployed husband had won $500,000 playing the Illinois lottery, and so she decided to collect on the past-due child support that was due and owing from 1970 through 1985.  However, more than 32 years have elapsed since the child emancipated, and more than 37 years have elapsed since the first unpaid child support came due.  Is that too long?

 

Continue reading

Congratulations! Your dream of retiring is about to become a reality. You’ve worked hard your whole life. Sure, the divorce set you back financially, but it was years ago.  You have prudently saved and invested your money.  It wasn’t easy to do, especially having to write that maintenance (alimony) check to the ex each month.  Wouldn’t it be nice to finally cash out and spend that money traveling the world or vacationing? The bags are packed, and the tickets have already been paid for. You’ll want to send a postcard to your loved ones from where ever you are.  Before you take flight, however, you may want to re-read your judgment for dissolution of marriage.

retirement-maintenance-obligation-to-pay-256x300

Upon reading it, you snap out of your dream and you realize that your support obligation remains in full force and effect. Your maintenance obligation doesn’t automatically terminate upon your retirement. Sweat begins to form at your brow, nervousness comes over you, and panic sets in. However, you can rest easy, because Illinois law affords you some relief.

 

Continue reading

Everyone has someone in their immediate or extended family who, because of advanced age or other physical or mental health troubles, requires more day-to-day intensive care.  This can be health care, assistance with performing daily tasks, help running errands, among many other things.  When a family member is the one that ends up providing this care, rather than hiring a sometimes costly third-party care provider, this commitment can take a toll on them as well.  The questions many people may have is what, if any, compensation or financial assistance is the caretaker entitled to for their services and sacrifice.

 

In situations such as this, the Illinois Probate Act provides that any spouse, parent, brother, sister, or child of a person with a disability who dedicates himself or herself to the care of the person with a disability by living with and personally caring for the person with a disability for at least 3 years is entitled to a claim against the estate upon the death of the disabled person. Continue reading

Scenario:  A motion has been filed in your case to obtain some general relief in family court, such as maintenance, child support, or parenting time. The judge in your case has heard all the facts and considered the evidence. A hearing or trial has taken place, and the judge has entered an order on the issue. You and the opposing party must now abide by this order or you will be subjected to the consequences for violating the same.

Contempt-of-Court-Attorney-Fees-300x251

Fortunately, you are an upstanding individual who obeys court orders to the letter. Unfortunately, the opposing party is not, and he or she is now disregarding the order. What do you do? Do you have to go back to court to enforce the order? Why should you have to pay an attorney to deal with the opposing party’s malfeasance? Thankfully, within the world of enforcing orders and being in contempt of a court, the law exists to help you by offering you remedies for your troubles.

 

Section 508(b) of Illinois Marriage and Dissolution of Marriage Act states as follows:

“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney’s fees of the prevailing party.”

Continue reading

If you have a lawsuit pending in a courtroom before a judge and want to change judges, do you have any recourse? Must the judge have acted improperly to be removed from the case?  In Illinois, the answer to these questions is: yes, and not necessarily, in that order.

substitution-of-judges-300x169

To begin, once a case is filed, it is automatically assigned to a courtroom (or “calendar,” to use Cook County parlance) in the particular courthouse. Cases are assigned to courtrooms, not judges. Judges are frequently re-assigned to new courtrooms for various reasons, including due to retirement, recent elections, and appointments to fill vacancies.  Therefore, often a change of judges will occur for no reason other than an administrative change in judicial assignments.

Continue reading

The dictionary definition of “dissipation” is waste by misuse, to spend or use wastefully or extravagantly, to squander, to deplete.  The definition contained in the Illinois Marriage and Dissolution of Marriage Act refers to a spouse’s wasting of marital assets during while a marriage is undergoing an irretrievable breakdown.  What does that mean?

dissipation-waste-of-marital-money-300x200

 

In the case of Marriage of O’Neill, the court stated, “dissipation arises when property is improperly used for the sole benefit of one spouse, for a purpose unrelated to the marriage, at a time when the marriage is undergoing an irreconcilable breakdown.”   If a spouse spends marital money frivolously on items or individuals not related to the marriage while the marriage is breaking down, the other spouse may make a claim for dissipation in a divorce. In many cases, this arises when one spouse spends marital money on an extramarital affair, extravagant travel, and/or expensive hobbies, none of which benefit the marriage or family. Often a spouse does not learn of his or her partner’s dissipation until the discovery or information-finding step in the divorce.

Continue reading

Many couples continue to reside together in the marital residence during divorce proceedings, even when the thought of having to continue to live with their spouse is terribly unpleasant.  This may be especially true when there are children involved.

 

But what happens if the living situation becomes especially sour or openly hostile?  Specifically, what happens when the physical or mental health of one of the spouses, or even one of the children, is at risk?  Section 501 of the Illinois Marriage and Dissolution of Marriage Act provides a remedy for the situation during the pendency of a divorce.

exclusive-possession-marital-residence-eviction

Continue reading

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.

ChildAbuseImageWithHand1-269x300

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.

 

Continue reading

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.

Death-and-Taxes-300x180

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.

 

Continue reading