Uncategorized Category Archives — DuPage County Divorce Lawyer Blog Published by Naperville Family Attorney

Filing an Appeal in Illinois

Published on: July 26, 2021 | Kollias, P.C.

You expected to achieve a particular outcome in court. You worked hard preparing for it. You and your attorney analyzed the facts of your case, gathered documents, and obtained statements from witnesses. You were confident that you were correct in your interpretation of the law and that justice would prevail. The other side refused to settle, so you went ahead and presented your witnesses and documents to the judge at trial. Then, the rude surprise came. The judge disagreed with you and ruled in favor of the opposing party, or gave you an outcome you didn’t want. What now? How can you resolve your case believing that you had the law on your side?

Here are a few important tips to consider if you choose to appeal a final judgment in your case.

First, what is an “appeal?” An appeal is a person’s request to seek review of a final judgment by a higher court. Blacks Law Dictionary, 5^th Edition. Typically, in civil cases, this involves someone appealing a circuit court or trial court’s final judgment to the higher appellate court in one of the five districts here in Illinois. Because every final judgment of a circuit court in a civil case is appealable as a matter of right, under Supreme Court Rule 301 there is no restriction on seeking an appeal as a remedy to a final and appealable judgment that you may wish to challenge. There are only requirements that must be met before you can reach a determination made by the appellate court regarding the substance of your case.

How Will My Pension Be Divided in My Divorce?

Published on: February 16, 2021 | Kollias, P.C.

Generally speaking, retirement benefits that are earned during the marriage are considered marital property under the Illinois Marriage and Dissolution of Marriage Act. However, determining the amount of spousal retirement benefits that are marital property is often times a central issue to the division of the marital estate upon divorce. In particular, retirement benefits such as a defined benefit plan or a pension can be more complicated to value at the time of divorce, especially where the employee spouse is not yet eligible for retirement.

A defined benefit plan is a type of retirement plan that accrues benefits usually pursuant to some formula. This formula often will take into account several variables such as salary, length of service, and a multiplier. Because of these variables, the exact amount of the benefit that the employee will receive cannot actually be determined until they retire and the variables become fixed. Sometimes, after a certain number of years of employment, the pension plan may be able to produce an estimate of what the employee will receive upon retirement. However, the accuracy of the benefit amount depends on how close the employee is to actually retiring. Generally, under a defined benefit plan, the benefits are not considered to be “mature” because they depend upon the employee spouse reaching a certain age and they cannot be immediately paid to the other spouse (or “alternate payee” under the plan) at the time of divorce or entry of the Qualified Domestic Relations Order (“QDRO”). So, what do courts do when an employee is not yet eligible for retirement, but a portion (or all) of the pension or defined contribution plan is marital and subject to division upon divorce?

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

Published on: March 22, 2020 | Kollias, 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.

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

Published on: March 5, 2020 | Kollias, 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.

Can My Social Security Benefits be Garnished for Child Support?

Published on: October 1, 2019 | Kollias, 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.

EGG DONOR AGREEMENTS – THERE IS NO LAW IN ILLINOIS

Published on: July 22, 2019 | Kollias, 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.

Julie Q – a Constitutional Check on the Illinois DCFS’ Authority

Published on: September 4, 2018 | Kollias, P.C.

The Illinois Department of Children and Family Services (DCFS) is charged with investigating allegations of child abuse and neglect. DCFS workers are notified of alleged child abuse and neglect and depending on the circumstances, investigate the allegations.

DCFS has promulgated administrative rules for conducting investigations and has devised a list of allegations comprised of behavior that constitutes abuse or neglect. If DCFS decides that there is not enough evidence to support the allegation, the allegation is deemed “unfounded.” If DCFS finds that the allegation is credible, DCFS makes an “indicated finding” against the perpetrator.

Admit it! Using Illinois Supreme Court Rule 216 to Prove Your Point

Published on: July 23, 2018 | Kollias, P.C.

Trials can be complicated. There are often a variety of factual issues that will require extensive evidence in the form of documents and testimony. What if there was a way to narrow the facts and, in turn, simplify the issues for the judge and all parties’ sake? Behold, Illinois Supreme Court Rule 216 and your request for admissions of fact.

Of course, you know the facts better than anyone. The question is how much time and money do you have to spend to prove those facts to the judge. In many cases, there may be some facts which both sides agree upon. They may still draw different conclusions from those facts, or argue that certain facts are more important than others. The ultimate outcome will still be determined by the court. But both parties may benefit from the clarity that can be provided by the proper use of Rule 216.

Making a Statutory Custodial Care Claim under Illinois Law

Published on: January 8, 2018 | Kollias, P.C.

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 ›

I Want a New Judge: Illinois Law on Substitution and Recusal

Published on: November 13, 2017 | Kollias, P.C.

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.

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.