DuPage County Divorce Lawyer Blog — Published by Naperville Family Attorney

Substitute Parenting Time When Servicemembers Are Deployed

Published on: March 30, 2020 | Kollias & Giese, P.C.

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.

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.

Parenting Time During Coronavirus: How Are The Rules Enforced in Illinois?

Published on: March 22, 2020 | Kollias & Giese, P.C.

During these unprecedented times during the Covid-19 outbreak, it seems like everything is uncertain and up in the air. On Friday, March 20, 2020, Governor Pritzker enacted Executive Order In Response to COVID-19 (COVID-19 Executive Order No. 10), otherwise known as the “Shelter In Place” order. The order provides that all residents of the State of Illinois must stay home, practice social distancing and that all “non-essential businesses” must cease operations (with certain exceptions). This order left many parents with questions, such as “Do I still have to hand over my children to the other parent?” Before Governor Pritzker clarified his initial shelter in place order, the answer was that we simply didn’t know. However, as the governor has expanded his order, we have more clarity. Pursuant to Section 14(e) of the order, it provides:

Essential Travel. For the purposes of this Executive Order, Essential Travel includes travel for any of the following purposes. Individuals engaged in any Essential Travel must comply with all Social Distancing Requirements as defined in this Section:

…(e) Travel required by law enforcement or court order, including to transport children pursuant to a custody agreement. (Emphasis added)

So in short, the answer is yes, you must continue to comply with your parenting agreement. COVID-19 is not an excuse to deny the other parent his or her court-ordered parenting time. However, this would obviously not apply if the child(ren) has been somewhat exposed to the virus and is in self-isolation or is experiencing symptoms of the virus. If this is the case, the parent in possession of the child in self-isolation should clearly communicate to the other parent that the child is exhibiting symptoms of the virus. Remember that the most important thing at this time is the child’s best interests. During this time, communication with the other parent is key, and you should both utilize your best judgment.

How Does Your Inheritance Affect Your Divorce Case?

Published on: March 19, 2020 | Kollias & Giese, P.C.

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?

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.

My Divorce is a Private Matter – Can the Court Seal My Records?

Published on: March 5, 2020 | Kollias & Giese, P.C.

Typically, all court records are readily available to the public, except for cases involving minors. Cases involving divorce, paternity, and child support are available to the public and not sealed absent significant circumstances. Depending on the county, any person can view court records online, or obtain court records from the county clerk’s office. The Illinois Clerk of Courts Act states: “All records, dockets and books required by law to be kept by such clerks shall be deemed public records, and shall at all times be open to inspection without fee or reward, and all persons shall have free access for inspection and examination to such records, docket and books, and also to all papers on file in different clerks’ offices and shall have the right to take memoranda and abstracts thereof.”

Because divorce cases are so personal and involve many situations a person considers to be private, many clients involved in a divorce case request that their case be sealed so that the records are not available to the public. Unfortunately, it is not that easy, because the public interest favors the freedom of access of information. When faced with a compelling interest, a Court has the discretion to restrict or impound records provided the interest asserted for restricting access outweighs those in support of access. Doe v. Carlson. Illinois courts have held that a Court may seal records if they are highly detrimental to minor, family, or financial privacy interests. A.P. v. M.E.E. In order to succeed on a motion to seal, an individual must show a compelling interest that favors restricted access, and propose a protective order is drafted in a way that is least restrictive to the public’s interest. Marriage of Johnson.

Modifying Child Support? When a Substantial Change in Circumstances Isn’t

Published on: November 18, 2019 | Kollias & Giese, P.C.

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.

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.

Is Cigarette Smoking a Basis to Restrict Parenting Time Under Illinois Law?

Published on: October 28, 2019 | Kollias & Giese, P.C.

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.

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.

The Illinois Maintenance Calculation Conundrum: 2018 v. 2019

Published on: October 14, 2019 | Kollias & Giese, P.C.

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.

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?

Can My Social Security Benefits be Garnished for Child Support?

Published on: October 1, 2019 | Kollias & Giese, P.C.

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.

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.

Retroactive Child Support Under Illinois Law

Published on: August 5, 2019 | Kollias & Giese, P.C.

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?

EGG DONOR AGREEMENTS – THERE IS NO LAW IN ILLINOIS

Published on: July 22, 2019 | Kollias & Giese, P.C.

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.

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.