DuPage County Divorce Lawyer Blog

Illinois “Pet Custody:” Allocation of Ownership & Responsibility for Companion Animals

Published on: May 29, 2018 | Kollias, P.C.

When two people get divorced, the court allocates marital property among the parties. Previously, family pets were considered “property” and were allocated as such.

The seminal case in Illinois to address issues with family pets was Marriage of Enders, which was decided in 2015. In this case, the parties agreed to “joint custody” of the two family dogs. Thereafter, the wife in this case denied the husband “visitation” of the two dogs. As a result, the husband filed a petition requesting visitation with the two pets. The trial court determined that the husband had no visitation rights, and the appellate court affirmed.

Subsequently, the Illinois legislature amended the Marriage and Dissolution of Marriage Act. Now, Section 503(n) provides:

Who Gets “Custody” of a Child When a Parent Dies?

Published on: May 14, 2018 | Kollias, P.C.

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.

Is Past-Due Child Support Collectible at Any Time? Or Is There a Deadline?

Published on: April 30, 2018 | Kollias, P.C.

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.”

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?

Retirement and the Obligation to Pay Maintenance

Published on: April 16, 2018 | Kollias, P.C.

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.

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.

Attorney Fees and Costs for Enforcement of a Court Order in Illinois

Published on: January 3, 2018 | Kollias, P.C.

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.

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.”

Wasting Marital Money: Illinois Divorce Law on Dissipation

Published on: July 17, 2017 | Kollias, P.C.

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?

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.

Exclusive Possession of the Marital Residence: Who Leaves?

Published on: June 20, 2017 | Kollias, P.C.

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.

DuPage County Children’s Center

Published on: May 15, 2017 | Kollias, P.C.

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.

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.

Are Individual Federal Income Taxes Dischargeable in Bankruptcy?

Published on: May 1, 2017 | Kollias, P.C.

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.

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.

How Much Does the Date Matter when Signing a Prenuptial Agreement?

Published on: April 3, 2017 | Kollias, P.C.

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?

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.