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Divorcing people are more reasonable than you would think. 95% of divorces end up settling out-of-court. But, there are divorce litigants who are so inflamed about the divorce that they refuse any and all attempts to settle. For the spouse who is willing to settle their divorce case, the refusal to adopt or consider a reasonable settlement is worse than frustrating…it’s horribly expensive. Without a settlement, every little issue must be proven up to the judge using the formal rules of evidence. This is enormously time consuming and divorce lawyers charge a lot of money for their time. A spouse or former spouse’s refusal to settle can be the be basis for a petition for attorney’s fees. Illinois divorce courts can award attorney’s fees for any reason the court deems reasonable. “The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay a reasonable amount for his own or the other party’s costs and attorney’s fees.” 750 ILCS 5/508(a) The settlement-minded litigant should remind the court that failure to compromise is a valid reason to award attorney’s fees. “The trial court [may] determine[] that the attorney fees resulted from the parties’ unwillingness to compromise. A party cannot enter into such a battle and expect to come out unscathed. While we recognize the purpose of the statute is to allow a spouse to contest the dissolution on an equal footing so that concerns about incurring large attorney fees will not coerce a litigant into conceding meritorious claims, it is an unreasonable expectation to anticipate that the trial court will automatically require the other party to pay such attorney fees regardless of one’s conduct during the litigation. There are times when the failure to compromise is frivolous. The parties should have been aware of the expenses they were incurring in order to split up the limited pot they were contesting.” In re Marriage of Mantei, 583 NE 2d 1192 – Ill: Appellate Court, 4th Dist. 1991 Excessive attorney fee expenses due to a failure to compromise can even result in a reduction in the total assets awarded to the party failing to compromise. “The use of marital assets to pay fees to one’s attorney for the costs of the divorce constitutes a dissipation of marital assets.” In re Marriage of Berberet, 2012 IL App (4th) 110749 An […]

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Being a real estate agent, also known as a realtor, is like being the world’s friendliest gambler. You might sell a house for a client, you might buy a house for a client, or you might not. Either way, real estate agents have to keep smiling through it all. Smiling through challenges is a distinct advantage real estate agents have in an Illinois divorce. Real estate agents are agreeable people who have wildly varying incomes. This creates a particular challenge when a realtor gets divorced because they want to make a deal…but cannot predict their income in order to sell that deal. Illinois realtors and their soon-to-be ex-spouses need to understand how Illinois divorce law impacts them in a divorce. Realtors Income In An Illinois Divorce Real estate agents do not collect a paycheck. Real estate agents receive commission checks from the sale or purchase of the properties they worked with. Those commission checks come in heavy during season (spring and summer) and barely come at all out of season (Illinois’ frigid winters). Furthermore, not all years are created equally. A massive drop in interest rates in 2020 created a flurry of residential real estate transactions for the next year. Subsequent high rates have quashed demand while owners with 2020s low mortgage rates are loath to sell. In 2024, 71% of real estate agents did not close even one home. In Illinois, child support and maintenance (formerly known as alimony) are based on both parties’ income. If one party is a real estate agent, how does an Illinois court determine their income when that income is changing every year? Illinois divorce courts can guess at an average income for the purposes of support in a process called “imputation of income” “If present income is uncertain, a court may impute income to the payor.” In re Marriage of Gosney, 394 Ill. App. 3d 1073, 1077 (Ill. App. Ct. 2009) Imputing income to a real estate agent is almost always done by looking at past years’ income. “[W]hen a party’s current income is difficult to ascertain or uncertain, a court may consider [the party’s] past earnings…Moreover, when a party’s income fluctuates from year to year, income averaging is an approved method to apply in determining the party’s current income.” In re Marriage of Gabriel, 2020 IL App (1st) 182710 (citations omitted). If an Illinois divorce court does impute income to a real […]

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Child support and maintenance (formerly known as alimony) in Illinois are determined by both parties’ incomes. A business owner does not receive just a check every two weeks and a W2. A business owner has ongoing revenue and expenses that have to be calculated to determine the business owner’s income. Beyond that, business owners have future income and expenses in the form of accounts receivable and accounts payable. Some of these sources of income and some of these expenses are under the control of the lawyer…and some are not. How does one accurately determine a business owner’s income in an Illinois divorce. To further complicate the matter, for business owners, it is always feast or famine: business is either booming or business is collapsing. When a business owner is getting a divorce, the business suffers. More importantly, a business owner who may be liable for support will be greatly incentivized to portray his income as struggling. How does a business owner prove his income is legitimate? Conversely, how does a business owner’s spouse or co-parent prove a business owner’s income is being manipulated by the business owner? How Is Support Calculated In An Illinois Divorce Or Parentage Action Maintenance and child support are both determined based on the net income of both parties. “Maintenance…shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income…[not to exceed] 40% of the combined net income of the parties.” 750 ILCS 5/503(b-1)(1)(A) “The court shall compute the basic child support obligation by taking the following steps:(A) determine each parent’s monthly net income;(B) add the parents’ monthly net incomes together to determine the combined monthly net income of the parents;(C) select the corresponding appropriate amount from the schedule of basic child support obligations based on the parties’ combined monthly net income and number of children of the parties; and(D) calculate each parent’s percentage share of the basic child support obligation.” 750 ILCS 5/505(A)(1.5) In an Illinois divorce or parentage action, for the purposes of support, net income is not just the money left over after taxes. “[I]n determining appropriate child support, we are not bound by the technicalities of federal income tax law.” In re Marriage of Ackerley, 333 Ill. App. 3d 382, 392 (Ill. App. Ct. 2002) Rather, “net income” for the purpose of support is calculated by determining the gross income of the parties. The Illinois […]

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Child support is irksome to some people. Some parents just don’t want to pay child support…and usually have an articulable reason for objecting to the payment of child support. Setting child support at zero in an Illinois divorce can be done…but you have to be very careful to prepare the child support order so that there is truly no child support obligation now or in the future. “[T]he court may order either or both parents owing a duty of support to a child of the marriage or civil union to pay an amount reasonable and necessary for support.” 750 ILCS 5/505(a) While an Illinois divorce court may order child support, an Illinois divorce court shall make a determination of what child support should be according to the child support guidelines. “The court shall determine child support in each case by applying the child support guidelines unless the court makes a finding that application of the guidelines would be inappropriate” 750 ILCS 5/505(a)(2)(emphasis mine) The child support guidelines are an abstract formula which compares the income of both parties to the nights the children spend with each parent. Someone will always owe the other party something under the Illinois child support guidelines. An Illinois divorce court is only going to set the child support to zero if the guidelines amount would be “inequitable, unjust, or inappropriate.” 750 ILCS 5/505(a)(3.4) The reasons for asking the court to deviate from the guidelines and set the child support to zero are infinite: the parents share equal time with the child, one parent pays for day care or private school, one parent has a disability, etc. The reason for zero child support is easy. The hard part is doing the proper math in a zero child support order to show what child support should have been under the guidelines. “Any deviation from the guidelines shall be accompanied by written findings by the court specifying the reasons for the deviation and the presumed amount under the child support guidelines without a deviation.” 750 ILCS 5/505(a)(3.5)(emphasis mine) The math still must be done as to what child support should be under the guidelines. “The court shall compute the basic child support obligation by taking the following steps:(A) determine each parent’s monthly net income;(B) add the parents’ monthly net incomes together to determine the combined monthly net income of the parents;(C) select the corresponding appropriate amount from the […]

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Divorce law is funny in Illinois. We say “dissolution of marriage” instead of “divorce,” we say “maintenance” instead of “alimony,” and we say “body attachment” instead of “an order for arrest.” A body attachment is a big deal! A body attachment is an Illinois court saying, “if you don’t follow our rules, we will lock you up until you do.” “A body attachment order has long been held an appropriate vehicle to effectuate an order of commitment after a person has been adjudged in civil contempt.” In re Marriage of Harnack, 2022 IL App (1st) 210143 The court does not have an absolute power to lock people up, however. There are strict rules that an Illinois divorce court must follow if it wishes to put someone in jail.  What Leads Up To A Body Attachment In An Illinois Divorce? Before a body attachment can be issued by an Illinois court, there must be a finding of contempt. There are four kinds of contempt in Illinois: direct criminal contempt, indirect criminal contempt, direct civil contempt, and indirect civil contempt. Direct criminal contempt is a person doing something outrageous in front of a judge so that the judge “directly” sees the contemnor and immediately imprisons him for his bad behavior. No need to issue a body attachment as the contemnor is right there in front of the court. The officer (a bailiff in other states) is there at the court’s disposal for the exact purpose of restoring order by placing the unruly into immediate custody. Indirect criminal contempt is where the court hears about a contemnor doing something outrageous outside of the courtroom. It is criminal contempt to diminish the “dignity and authority of the court” Peo. ex Rel. Chi. Bar Assoc. v. Barasch, 21 Ill. 2d 407, 173 N.E.2d 417 (Ill. 1961).  But, if the judge did not see the bad behavior, it happened “indirectly.” Then the judge has to conduct a hearing to make sure the contemptuous behavior actually happened. “The respondent in a…criminal contempt proceeding is entitled to information on the nature of the charge, an opportunity to answer, the privilege against self-incrimination, the presumption of innocence, and the requirement of proof of guilt beyond a reasonable doubt.” In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404 (Ill. App. Ct. 1990) In order to conduct this hearing, the court can issue a body attachment […]

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Once you have 50/50 joint physical custody of your kids after an Illinois divorce and paternity action, you’re not likely to ever change your schedule.  Still, life will come at you with changes like new work schedules, new spouses, and new moves.  So, how far away can a parent move and still have 50/50 custody with their children?  Follow your Parenting Plan The simplest answer to “how far away can you move and still maintain a 50/50 custody and time-sharing arrangement” is that it depends on your Allocation of Parenting Time and Parenting Responsibilities.  This is also referred to as a “parenting plan” At the end of every divorce or parentage action, an allocation of parenting time and parenting responsibilities will be entered within the court.  This agreement is an individual contract between you and the other parent that the court has agreed is in the best interests of the children.  You and your ex have to live under the power of this order until the order is changed. Illinois parenting plans must have a provision that addresses relocation. “[A] parenting plan must set forth the following” … provisions for resolving issues arising from a parent’s future relocation” 750 ILCS 5/602.10(f)(12) So, the order might already allow you to move a certain distance from the other parent.  If so, this would maintain the 50/50 custody/time-sharing agreement that you originally entered into.  Usually, what isn’t written in the parenting plan is as important as what is written in the parenting plan.  If it doesn’t say you can’t move…then you can move so long as you are able to abide by the other clauses of the parenting plan. In the Parenting Plans that my family law office prepares, we always include exactly what will happen in a relocation or move of one of the parents. For example, this language is always included: “Intention of the Parties. While the parties anticipate that each will continue to reside within reasonable proximity of each other in the State of Illinois, in the event either party seeks to permanently relocate the minor children from the State of Illinois, the parties acknowledge the statutory definition of “Relocation” set forth in Section 600(g) of the Act (750 ILCS 5/600(g)) and the applicability of Section 5/609.2 of Act (750 ILCS 5/609.2).“ We typically say, “we intend to follow the statute” as our back up.  But you can write […]

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In today’s society, children are not left alone.  Kids just aren’t trusted to be on their own. The concern is rarely the children themselves but outside threats, perceived or real. Still, it is impractical to think that a parent will never ever leave their child alone.  Sometimes a parent has to go to the store, jog around the block, or talk to a neighbor outside.  The wisdom of each absence of a parent from a child is always debatable…until something happens to the child. A child getting hurt, lost, or sick because they weren’t supervised is a problem. But, if the child’s other parent is no longer partners with the parent who wasn’t watching the now hurt child finds out….it’s going to be a massive problem. Every parent should know exactly what the law or the standard is regarding leaving a child home alone in Illinois. Is Leaving A Child Unattended A Crime In Illinois? In Illinois, leaving a child alone is a crime under some circumstances. It’s called “Child Abandonment” “A person commits child abandonment when he or she, as a parent, guardian, or other person having physical custody or control of a child, without regard for the mental or physical health, safety, or welfare of that child, knowingly leaves that child who is under the age of 13 without supervision by a responsible person over the age of 14 for a period of 24 hours or more.” 720 ILCS 5/12C-10(a) So, the short answer is “don’t leave a child ages 0 to 12 home alone.” And if you have a babysitter, In Illinois, the babysitter cannot be 13 years old.  The babysitter must be 14 per the statute.  “Child abandonment is a Class 4 felony. A second or subsequent offense after a prior conviction is a Class 3 felony.” 720 ILCS 5/12C-10(c) For Class 4 Felonies, “The sentence of imprisonment shall be a determinate sentence of not less than one year and not more than 3 years.” 730 ILCS 5/5-4.5-45 For Class 3 Felonies, “The sentence of imprisonment shall be a determinate sentence of not less than 2 years and not more than 5 years.” 730 ILCS 5/5-4.5-40 Illinois criminal courts are not throwing parents in prison for years for abandoning their children for a few moments (or even days).  Parents automatically get probation.  “A person commits endangering the life or health of a child when he or […]

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During and after divorce proceedings an attorney can request attorney’s fees from the opposing party, his own client or both parties. An attorney’s time and expertise as an attorney will be compensated via court order. But what about the attorney driving to the courthouse? Can expenses for travel time be ordered by an Illinois divorce court? Reasonable Attorney’s Fees And Divorce In Illinois An Illinois divorce court has great powers to award fees for almost any reason. However, the ordered attorney’s fees must be “reasonable.” “The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay a reasonable amount for his own or the other party’s costs and attorney’s fees. Interim attorney’s fees and costs may be awarded from the opposing party, in a pre-judgment dissolution proceeding in accordance with subsection (c-1) of Section 501” 750 ILCS 5/508(a)(emphasis mine) An Illinois divorce court need not even hear the details of every moment of billable attorney time. A court can here just here an argument and review invoices. “Except for good cause shown, a proceeding for (or relating to) interim attorney’s fees and costs in a pre-judgment dissolution proceeding shall be nonevidentiary and summary in nature… When a party files a petition for interim attorney’s fees and costs supported by one or more affidavits that delineate relevant factors, the court (or a hearing officer) shall assess an interim award after affording the opposing party a reasonable opportunity to file a responsive pleading.” 750 ILCS 5/501(c-1)(1) Any temporary award of attorney’s fees must only pay for “reasonable fees” An order “in favor of the petitioning party’s current counsel, [must be] for reasonable fees and costs either already incurred or to be incurred” 750 ILCS 5/501(c-1)(emphasis mine) If there was some kind of bad behavior on the part of one party, the court must award attorney’s fees to the other party. Even these mandatory awards only cover “reasonable attorney’s fees” “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… If at any time a court finds that a hearing under this Act […]

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Parenting children is not easy.  Parenting children is even harder when you’re not parenting in the same household as the other parent.  The shuttling back and forth of children to two different homes is hard on everyone involved. Children are by definition immature and cannot make decisions for themselves but that doesn’t mean children don’t have opinions.  How old does a child have to be before they can decide if they will visit a parent in Illinois? The Initial Parenting Plan And A Child’s Wishes Illinois visitation laws say that when determining the parenting schedule, the two parents are supposed to both submit proposed parenting plans to the courts within 120 days of the filing of the divorce or the parenting action. “All parents, within 120 days after service or filing of any petition for allocation of parental responsibilities, must file with the court, either jointly or separately, a proposed parenting plan.” 750 ILCS 5/602.10(a) Hopefully, upon perusing their respective proposed parenting plans, the parties can independently negotiate a final agreed allocation of parenting responsibilities and parenting time to be submitted to the court.  This final allocation of parenting responsibilities and parenting time will then govern where the children visit, spend the night, and with whom. The children are NOT consulted when preparing a final parenting plan in Illinois. If the parties remain disagreed after exchanging parenting plans, the parties are required to attend a mandatory mediation regarding the parenting schedule. “The court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan unless the court determines that impediments to mediation exist” 750 ILCS 5/602.10(c)  If after mediation, there is an agreement, the parties can submit the mediation report to their attorneys for final preparation of the agreed allocation of parenting responsibilities and parenting time. Children are NOT allowed in mediation.  Children have no voice in the mediation. The parents can enter into the final agreement without consulting the children. If the parties still can’t agree on a parenting schedule after mediation, the Illinois courts can step in and decide what the children’s parenting schedule should be. “The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 5/602.7(a) Illinois courts will consider the child’s wishes along with a multitude of other factors. “[T]he wishes of the child, taking into account the child’s maturity and ability to […]

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During an Illinois divorce, sooner or later, you will receive an email or a letter that says “pursuant to Illinois Supreme Court Rule 201(k)…” and then a bunch of demands will follow. What is this? A threat? Or just empty legal jargon? Actually, it’s important to know what rule 201(k) is and what you must do when the opposing party is claiming to invoke it. Additionally, you must know how to use rule 201(k) in order to get the discovery you need so you will have the evidence you need to negotiate, settle, or try your Illinois divorce case.  What Is Illinois Supreme Court Rule 201(k) The Illinois Code Of Civil Procedure empowers the Illinois Supreme Court to provide rules under which the court system will be governed. The “Supreme Court may provide by rule for the orderly and expeditious administration and enforcement of this Act.” 735 ILCS 5/1-105  One of those rules, 201(k), requires the parties to cooperate in resolving any disputes they have regarding discovery. “Reasonable Attempt to Resolve Differences Required. The parties shall facilitate discovery under these rules and shall make reasonable attempts to resolve differences over discovery. Every motion with respect to discovery shall incorporate a statement that counsel responsible for trial of the case after personal consultation and reasonable attempts to resolve differences have been unable to reach an accord or that opposing counsel made himself or herself unavailable for personal consultation or was unreasonable in attempts to resolve differences.” Ill. Sup. Ct. R. 201(k) After a party to an Illinois divorce issues discovery requests to the opposing side or a 3rd party, the party receiving the discovery request has 28 days to answer the said request. If they have not answered the discovery request to the requester’s satisfaction, the requester must first try to resolve the issue BEFORE filing anything with the court. Rule 201(k) was “designed to curtail undue delay in the administration of justice and to discourage motions of a routine nature.” Urmoneit v. Purves, 338 NE 2d 423 – Ill: Appellate Court, 2nd Dist. 1975 Hopefully, this 201(k) conference will resolve the outstanding issue and the other party will comply with discovery as initially requested. “Cooperation between counsel and good-faith efforts by them to resolve disputes without judicial intervention are essential to the efficient and expeditious administration of justice in this State”  Spiller v. Continental Tube Co., 447 NE 2d 834 […]

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People are getting married a lot less lately….or at least getting married a lot later. It’s not uncommon for unmarried couples to not only live together but to buy homes together.  What happens when an unmarried couple buys a property and then breaks up? Does either party have a claim to the property they bought together or property they  bought individually while they were not married to each other? What are the rights of unmarried couples in Illinois? Illinois law treats property acquired by people who are married as marital property.  That is, if two people get married and then earn and keep some asset, property or money, that asset, property or money will be divided equitably between them both. If you’re not married, the Illinois statute doesn’t say anything. So the presumption is that whoever has the property in their name or possession gets to keep that property in their name or possession.  The Illinois statute treats Illinois unmarried couples and their property the same way it would treat two strangers or two close friends and their property…as completely separate non-joint parties. You’re Not Married Until You’re Married. When the Illinois statute doesn’t say something or the Illinois statute is outdated or contextually wrong, the Illinois courts can step in and make a ruling that defies the statute. But, they rarely do. One particular Illinois supreme court case underscores how Illinois is so committed to keeping a strict distinction between the married and the unmarried. Two women, Ms. Brewer and Ms. Blumenthal, lived as a married couple for years.  They clearly would have been married had it been legal to enter into a same-sex relationship. They lived together. They had children together. When civil unions finally became legal in Illinois, the two women immediately entered into a civil union.  If any unmarried couple had the right to have their property declared as “marital” and thus be divisible between the two, it was Ms. Brewer and Ms. Blumenthal. The Illinois Supreme Court was not moved by their story. “Since marriage is a legal relationship that all individuals may or may not enter into, Illinois does not act irrationally or discriminatorily in refusing to grant benefits and protections under the Marriage and Dissolution Act to those who do not participate in the institution of marriage.” Blumenthal v. Brewer, 69 NE 3d 834 – Ill: Supreme Court 2016 So, now that you […]

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A Judgment of Dissolution, a Marital Settlement Agreement, and an Allocation of Parenting Time and Parental Responsibilities all determine how two formerly married people (or unmarried parents) must conduct themselves in relation to each other post-divorce (or post-judgment of paternity). What happens if one of the parents dies after an Illinois divorce? What happens to all of those obligations the dead spouse entered into when the parties divorced? Who gets custody of a child after a parent dies in Illinois?  Custody Of A Child After The Death Of A Parent In Illinois If a parent dies in Illinois, the other surviving parent has the right to have complete control over the children. “There shall be a rebuttable presumption that a parent of a minor is willing and able to make and carry out day-to-day child care decisions concerning the minor, but the presumption may be rebutted by a preponderance of the evidence.” 755 ILCS 5/11-5(b)(ii) If both parents are dead, the last parent to die can determine who will be the children’s guardian. “A parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, may designate in any writing, including a will, a person qualified to act under Section 11-3 to be appointed as guardian of the person or estate, or both, of an unmarried minor.” 755 ILCS 5/11-5(a-1) The designation of a child’s guardian after the death of a parent must be done in a very specific manner. “A parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, or a guardian or a standby guardian of an unmarried minor or of a child likely to be born may designate in any writing, including a will, a person qualified to act under Section 11-3 to be appointed as successor guardian of the minor’s person or estate, or both. The designation must be witnessed by 2 or more credible witnesses at least 18 years of age, neither of whom is the person designated as the guardian. The designation may be proved by any competent evidence.” 755 ILCS 5/11-5(a-1) Section 11-3 of Illinois’ Probate Act says only certain people can be guardians. “A person is qualified to act as guardian of the person and as guardian of the estate if the court finds that the proposed guardian is capable of providing an active and suitable program of guardianship for the minor and that the […]

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Note: this article was largely inspired by a lecture made by David Del Re at the Lake County Family Law Conference in February of 2025 which I attended. Mr. Del Re does excellent work and I endorse him and his firm for all family law matters. There’s an old adage in family law courts that “children should have a voice but not a choice”.  Children are also highly discouraged from testifying in divorce cases. Without testifying, anything a child alleged said is impermissible hearsay. So, how do children make their wishes known to the court in an Illinois divorce. Why Do Children Need To Have A Voice In An Illinois Divorce? Courts base all decisions related to children on “the child’s best interests” 750 ILCS 5/602.7(a), 750 ILCS 5/602.5(a) Kids do not get to pick which parent they will spend time with but the court can consider their wishes. “In determining the child’s best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:…(2) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time” 750 ILCS 5/602.7(b)(2) Likewise, the court must also consider the child’s wishes as to which parent makes what decisions for the child. “Determination of child’s best interests. In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including, without limitation, the following: (1) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to decision-making” 750 ILCS 5/602.5(d)(1) The child’s wishes have to be communicated to the court somehow. But, courts do not like putting kids in the witness box and subjecting them to cross-examination. “The court should…determine whether the best interests of the child would be served by permitting her to testify or be sheltered from testifying and being subjected to vigorous cross-examination.” Crownover v. Crownover, 337 NE 2d 56 – Ill: Appellate Court, 3rd Dist. 1975 Without testifying, the children’s wishes are hearsay testimony. Hearsay And Children’s Testimony In An Illinois Divorce or Parentage Action “”Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Ill. R. Evid. 801(a) Hearsay is not allowed […]

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If you have ever opened up any kind of account with a financial institution, you will be asked to name a beneficiary. The beneficiary will be the person who will receive the account, if you pass away. If you are married, you will likely choose your spouse to be the beneficiary of that account. If you subsequently get divorced in Illinois, your ex-spouse’s beneficiary designation is not completely undone by an Illinois divorce. You may be awarded the entirety of an asset but your right to give away that asset remains…even to your ex-spouse. “Illinois case law pertaining to nontrust property assigned to one party after a divorce, where the ex-spouse is still named as the primary beneficiary, distinguishes two distinct types of interests. One interest is ownership interest, the ability to do with the property as one wishes. The second interest discussed is an expectancy or beneficial interest. Expectancy is defined as ‘the interest of a person who merely foresees that he might receive a future beneficence, such as the interest of an heir apparent… or of a beneficiary designated by a living insured who has a right to change the beneficiary.’ ” (Emphasis added.) Deida v. Murphy, 271 Ill. App. 3d 296, 299 (1995) (quoting In re Marriage of Weinstein, 128 Ill. App. 3d 234, 244 (1984)). If you really own something, you have the right to give it away to whomever you choose. Complete ownership of an asset means you can leave that asset to your ex-spouse through a beneficiary designation. “Because having the right to do whatever one wants with property includes the power to direct, “After I die, A shall become the owner,” there is no inconsistency between an ownership interest in one person and an expectancy interest in someone else. This power of after-death disposition is a stick in the brush pile of ownership. Being awarded property, such as an account, means gaining the ability to control who will be the new owner after one dies (and either changing one’s mind inter vivos or not changing one’s mind about the after-death beneficiary).” Mowen v. Kelly, 2025 IL App (4th) 240906 To illustrate, in one case, Robert E. Leahy owned some real estate on North Clark Street in Chicago. He put the property in a land trust, naming his wife, Margaret K. Leahy, as the contingent beneficiary in case he died. Robert and Margaret afterward […]

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Curfew is “[a] regulation that forbids people (or certain classes of them, such as minors) from being outdoors or in vehicles at certain hours.” Black’s Law Dictionary (11th ed. 2019) Like my mother always said, “Nothing good ever happens after midnight. So, be home by then.” Illinois has a state curfew statute and numerous local municipal citations that govern curfew regulations. “Illinois curfew law properly further[s] the State’s valid interest in protecting its children.” Village of Deerfield v. Greenberg, 550 NE 2d 12 – Ill: Appellate Court, 2nd Dist. 1990 “The [Illinois curfew] statute proceeds upon the basic assumption that when a child is at home during the late night and early morning hours, [the child] is protected from physical as well as moral dangers” People v. Chambers (1976), 66 Ill.2d 36, 360 N.E.2d 55  What Is Curfew In Illinois? “A minor commits a curfew offense when he or she remains in any public place or on the premises of any establishment during curfew hours.” 720 ILCS 5/12C-60(a)(1) Only children 16 years and under are subject to Illinois’ curfew statute. “”Minor” means any person under 17 years of age” 720 ILCS 5/12C-60(d)(4) In Illinois, “Curfew hours” means:(A)Between 12:01 a.m. and 6:00 a.m. on Saturday;(B)Between 12:01 a.m. and 6:00 a.m. on Sunday; and(C)Between 11:00 p.m. on Sunday to Thursday, inclusive, and 6:00 a.m. on the following day.” 720 ILCS 5/12C-60(d)(1) Breaking curfew is not a big deal in Illinois. You can’t even go to jail for it. “A violation of this [the Illinois curfew law] is a petty offense with a fine of not less than $10 nor more than $500” 720 ILCS 5/12C-60(e) “”Petty offense” means any offense punishable by a fine of up to $1,000 and for which a sentence of imprisonment is not an authorized disposition.” 705 ILCS 135 “The Curfew Act…only authorizes a fine as a sentence” People v. BRADLEY M., 815 NE 2d 1209 – Ill: Appellate Court, 3rd Dist. 2004 Aspect Detail Definition of Minor Any person under 17 years of age Curfew Hours for Minors Saturday: 12:01 a.m. – 6:00 a.m. Sunday: 12:01 a.m. – 6:00 a.m. Sunday to Thursday: 11:00 p.m. – 6:00 a.m. the following day Penalty for Curfew Violation Fine between $10 and $500, classified as a petty offense (no imprisonment authorized)   Defenses To Curfew Violations In Illinois To be guilty of breaking curfew in Illinois you must “remain in a public […]

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Whenever a celebrity’s child support amount is announced in the news, the child support always seems absurdly high. Kelly Clarkson pays her ex-husband $ 45,601 in child support. Nick Cannon pays $2.2 million dollars a year to the mothers of his nine children. Celebrities do not live in Illinois. So, celebrities are not a useful guide to what the actual upper limits of child support are in Illinois. What is the cap on child support in Illinois?  How Is Child Support Calculated In Illinois? “The court shall determine child support in each case by applying the child support guidelines” 750 ILCS 5/505(a)(2) In Illinois, child support “guidelines” are determined via an “Income Shares Method.” This method estimates what amount of money parents with their respective incomes and time with the child will spend on the child. “The Illinois Department of Healthcare and Family Services shall adopt rules establishing child support guidelines which include worksheets to aid in the calculation of the child support obligations and a schedule of basic child support obligations that reflects the percentage of combined net income that parents living in the same household in this State ordinarily spend on their child.” 750 ILCS 5/505(a)(1) With both parents’ net incomes and the income shares schedule, child support can be calculated. “The court shall compute the basic child support obligation by taking the following steps:(A) determine each parent’s monthly net income;(B) add the parents’ monthly net incomes together to determine the combined monthly net income of the parents;(C) select the corresponding appropriate amount from the schedule of basic child support obligations based on the parties’ combined monthly net income and number of children of the parties; and (D) calculate each parent’s percentage share of the basic child support obligation.” 750 ILCS 5/505(A)(1.5) What Is The Maximum Child Support That Can Be Paid In Illinois UPDATE: The Income Shares Tables Changed in February 2023. I will update this article soon On the current 2022 Income Shares Schedule Based On Net Income, there is a maximum net income for both parties available: $ 30,024.99. That is $ 360,299.88 a year as the maximum net income for both parents to determine child support based on the income shares schedule. Anything beyond $ 30,024.99 a month, the income shares schedule does NOT provide a corresponding child support amount. That maximum income is a net amount after taxes. What is the gross […]

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Some parents do really dumb things with their kids. It is possible that the dumb activity might be so dangerous or ill-conceived that the reckless activity may constitute abuse for the purpose of getting an order of protection against that parent. “In any proceeding to obtain an order of protection, the central inquiry is whether the petitioner has been abused.” Best v. Best, 223 Ill. 2d 342, 348 (2006) If abuse is found an order of protection shall issue. “If the court finds that petitioner has been abused by a family or household member…an order of protection prohibiting the abuse, neglect, or exploitation shall issue” 750 ILCS 60/214 The child need not file the petition for an order of protection to get protection from a “bad parent.” Literally, anyone can file a petition for an order of protection for a minor child. “A petition for an order of protection may be filed only…household member or by any person on behalf of a minor child” 750 ILCS 60/201(a) Determining whether abuse has occurred is not a high standard. “The standard of proof in such a proceeding is proof by a preponderance of the evidence” 750 ILCS 60/205(a) When the “standard of proof is only a preponderance of the evidence, [a Petitioner] must prove that it is more probably true than not true that [Respondent] was guilty of such acts of [abuse].” In re Marriage of Gordon, 599 NE 2d 1151 – Ill: Appellate Court, 1st Dist., 6th Div. 1992 Abuse is defined by the Illinois Domestic Violence Act. The statute outlines 5 types of abuse: 1) physical abuse, 2) harassment, 3) intimidation of a dependent, 4) interference with personal liberty or 5) willfull deprivation. The petition for an order of protection must specify which kind of abuse is being alleged. “ ‘Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation but does not include reasonable direction of a minor child by a parent or person in loco parentis.” 750 ILCS 60/103(1) (emphasis added) Whatever kind of abuse is being alleged, it will not be deemed actionable if the abuse is “reasonable direction of a minor child by a parent.” Bad parenting that constitutes abuse of the child is invariably physical abuse under the statutory definition. “Physical abuse” includes sexual abuse and means any of the following: (i) knowing or reckless use of physical force, confinement […]

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Divorces are heated. Often, parents don’t agree on how to raise their children. Sometimes, parents, their relatives, and/or friends can even believe a child is in danger to the point where they call the authorities. In Illinois, the Department of Children And Family Services (DCFS) is responsible for investigating the possible endangerment of a child. What happens if the report to DCFS is false? What are the consequences for the reporter and the reported parent? What Happens When DCFS Receives A Report? When DCFS receives a report they are obligated to investigate the allegations and, if necessary, act on those allegations. “The Illinois Department of Children and Family Services shall, upon receiving reports made under this Act, protect the health, safety, and best interests of the child in all situations in which the child is vulnerable to child abuse or neglect, offer protective services in order to prevent any further harm to the child and to other children in the same environment or family, stabilize the home environment, and preserve family life whenever possible.” 325 ILCS 5/2 Upon receipt of a report, “the Department shall determine whether to conduct a family assessment or an investigation as appropriate to prevent or provide a remedy for child abuse or neglect.” 325 ILCS 5/7.4(a-5) So, there are two courses of action DCFS can take upon receipt of a report: 1) family assessment and 2) investigation. ”[F]amily assessment” means a comprehensive assessment of child safety, risk of subsequent child maltreatment, and family strengths and needs that is applied to a child maltreatment report that does not allege substantial child endangerment. “Family assessment” does not include a determination as to whether child maltreatment occurred but does determine the need for services to address the safety of family members and the risk of subsequent maltreatment.” 325 ILCS 5/7.4(a-5) Family assessments are a former an offer of help to the parents of the child. In a family assessment, there are no findings of abuse or subsequent steps if that help is refused. An investigation is an inquiry, not just an offer of help. “”[I]nvestigation” means fact-gathering related to the current safety of a child and the risk of subsequent abuse or neglect that determines whether a report of suspected child abuse or neglect should be indicated or unfounded and whether child protective services are needed.” 325 ILCS 5/7.4 If abuse gets discovered after the investigation, that investigation’s findings […]

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Divorces in Illinois can often start with a bang. Specifically, one party can make horrible accusations about the other party in a Petition for Order of Protection. A Petition for Order of Protection can be granted on an emergency basis causing one spouse to be immediately awarded use of the marital home and physical custody of the children. Because the stakes are so high and the incentives so strong, parties to an Illinois divorce may be tempted to stretch the truth in the allegations listed in their Petition for Order of Protection. Lying in a Petition for an Illinois Order of Protection is a big problem. Not only will it cause the Petition for Order of Protection to be denied…it can also cause the party defending the Petition for Order of Protection to be awarded attorney’s fees as a punishment.  “Untrue statements. Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal, as provided in Supreme Court Rule 137.” 750 ILCS 60/266 There are two elements to find liability for attorney’s fees for untrue statements in a Petition for Order Of Protection: 1) that they were “made without reasonable cause AND found to be untrue.” Just stating false allegations is not enough. The allegations also had to be unreasonable at the time they were made. The allegedly false alleger can simply say “I believed those allegations were true at the time. Here’s why I thought that.” The statute does not say whether the “reasonable cause” must be objectively or subjectively reasonable. Do any lawyers reading think we have a strict scrutiny vague statute? In addition to 750 ILCS 60/266, there is Illinois Supreme Court Rule 137 which forbids false allegations in ANY pleading and allows attorney’s fees caused by said false signed allegations. “The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or […]

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Child support is money to help support the care and raising of a child.  In Illinois, when does a child stop being a child and therefore stop needing support? What is a parent’s duty to a child as the child continues to age? What are the Illinois child support laws after age 18? The Illinois statute defines a child for the purposes of child support. “[T]he term “child” shall include any child under age 18 and any child age 19 or younger who is still attending high school.” 750 ILCS 5/505(a) There’s the rule.  Child support continues in Illinois until the child turns 18 and, if the child is still in high school until the child graduates from high school or turns 19, whichever comes first. Every child support order in Illinois even requires that the child support termination date be included in the that child support order. “An order for support shall include a date on which the current support obligation terminates. The termination date shall be no earlier than the date on which the child covered by the order will attain the age of 18. However, if the child will not graduate from high school until after attaining the age of 18, then the termination date shall be no earlier than the earlier of the date on which the child’s high school graduation will occur or the date on which the child will attain the age of 19.” 750 ILCS 5/505(g) Without a termination date on some orders, child support continues until a motion to modify support is filed. “An order for child support may be modified as follows: (1) upon a showing of a substantial change in circumstances” 750 ILCS 5/510(a) The child reaching the age of majority and/or graduating from high school is certainly a substantial change in circumstances.  Is Child Support Ever Extended Beyond Age 18 or 19 in Illinois? Yes. If your child is significantly disabled you will have an obligation until that child overcomes their disability. “The court may award sums of money out of the property and income of either or both parties or the estate of a deceased parent, as equity may require, for the support of a child of the parties who has attained majority when the child is mentally or physically disabled and not otherwise emancipated. * An application for support for a non-minor disabled child may be […]

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Parents often come to me and ask if the other parent can simply “sign away their rights” and essentially have no further responsibility or right to their child. I’m not sure why they think a signature is all it takes to terminate a parent-child relationship…because that’s definitely not how it works in Illinois. There are many different ways to relieve a parent of their obligations and rights to their children. Some of those ways are permanent, some of those ways are temporary. Signing Away Visitation Rights And Child Support In Illinois By far the simplest way to eliminate duties and visitation with a child is to simply sign an Allocation of Parental Responsibilities where one parent has no decision-making authority in regards to the child and has no time with the child. In addition, the parents can further sever the parent-child relationship by “reserving child support.” Both of these options are temporary in nature. The non-custodial parent can allege a substantial change in circumstances at any time claiming that it would be in the child’s best interests to begin or resume parenting time with the child. This won’t be granted automatically…but after a request for parenting time even the most absent parent will eventually have some kind of parenting time granted. Child support can be reserved by agreement only if the judge allows for it. Some judges are so concerned for the well-being of the child that they insist on setting child support. Those judges need to be reminded that while there is a “duty of child support” under the Illinois statute, it is not mandatory to set child support in Illinois. “[T]he court may order either or both parents owing a duty of support to a child of the marriage or civil union to pay an amount reasonable and necessary for support.” 750 ILCS 5/505(a) (emphasis is mine) Judges still must approve any reservation. You cannot just tell the judge, “This is our agreement. Stamp the order!” “[P]arents may create an enforceable agreement for modification of child support only by petitioning the court for support modification and then establishing, to the satisfaction of the court, that an agreement reached between the parents is in accord with the best interests of the children” Blisset v. Blisset, 526 NE 2d 125 – Ill: Supreme Court 1988 Something that is reserved can be quickly un-reserved by either party. If child support is […]

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Being married means starting a life together. For most people, that means owning property together in furtherance of building a home and a family. That real estate can be held in a variety of ways based on how the deed to the real estate is conveyed to the married couple. In Illinois, property can be held as tenants in common, joint tenants and tenants by the entirety. These labels on the jointly held property impact what happens to the property in life, death and (sometimes) divorce. Deeds determine how property is held. What is written on the deed will matter, not what the parties intended. “The deed was unambiguous and its legal effect cannot be changed by parol evidence that it was intended to have a legal operation different from that which would be imported by its terms.” Jackson v. O’CONNELL, 177 NE 2d 194 – Ill: Supreme Court 1961 Tenants In Common In Illinois If a property is owned by two or more people, property will be held as “tenants in common” unless otherwise stated. All lands “held or claimed under any grant, legacy or conveyance” are held in tenancy in common unless the premises are expressly declared to pass “not in tenancy in common but in joint tenancy” 765 ILCS 1005/1c Holding a property together only lasts as long as both parties want to hold the property together. “In Illinois…the owner of property has an absolute right to dispose of his property during his lifetime in any manner he sees fit” Johnson v. La Grange State Bank, 383 NE 2d 185 – Ill: Supreme Court 1978 When one party dies and the property was held as tenants in common, that party’s share of the property will go to whomever the deceased’s will bequeaths the property to. Joint Tenancy In Illinois Holding a property in joint tenancy allows the property to remain with the surviving joint tenant after the death of the other party without any fear of the deceased’s share being given away. “A joint tenancy is an estate that two or more individuals hold jointly with equal rights.” Gayton v. Kovanda, 857 NE 2d 929 – Ill: Appellate Court, 1st Dist., 3rd Div. 2006 “[A]n intrinsic feature of joint tenancy is the right of survivorship, which entitles the last surviving tenant to take the entire estate” Sathoff v. Sutterer, 869 NE 2d 354 – Ill: Appellate Court, […]

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Divorce lawyers are expensive. What’s worse, you may have to pay for your spouse’s divorce lawyer via court order. You may be ordered to pay attorney’s fees if you are the spouse who controls the marital assets, is earning more or is just taking a principled stand that the court does not agree with. If your spouse’s attorneys do file a petition for attorney’s fees, there are ways you can mitigated the potential fees both in the short term and in the long term. There Are Different Types Of Petitions For Attorney’s Fees Your spouse’s petition for attorney’s fees should state which statute they are basing their petition for fees upon. An Illinois divorce court has broad discretion to award attorney’s fees under 750 ILCS 5/508(a) and 750 ILCS 5/501(c-1). Pre-judgment, these two statutes work in tandem. “The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay a reasonable amount for his own or the other party’s costs and attorney’s fees. Interim attorney’s fees and costs may be awarded from the opposing party, in a pre-judgment dissolution proceeding in accordance with subsection (c-1) of Section 501” 750 ILCS 5/508(a)(emphasis mine) I emphasize the word “may” because these awards are completely discretionary. Divorce judges do not necessarily enjoy awarding interim fees because giving a divorce attorney money can be like giving an arsonist more gasoline. Money for attorney’s fees will inevitably be spent on litigation instead of being divided by the parties at the end of the case. If you see 750 ILCS 5/508(a) cited in a petition for attorney’s fees, they must proceed under 750 ILCS 5/501(c-1)’s rules. “Except for good cause shown, a proceeding for (or relating to) interim attorney’s fees and costs in a pre-judgment dissolution proceeding shall be nonevidentiary and summary in nature.” 750 ILCS 5/501(c-1) Nonevidentiary hearings are based on the written petition and an oral argument alone. There will be no testimony. So, to defend against a petition for attorney’s fees, you must attack the petition. A petition for attorney’s fees must explain certain facts and positions. “All hearings for or relating to interim attorney’s fees and costs under this subsection shall be scheduled expeditiously by the court. When a party files a petition for interim attorney’s fees and costs supported by one or more affidavits that delineate relevant […]

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It is not uncommon for a divorce lawyer to come to the conclusion that their opposing counsel and the adverse party are correct when they say “your client is crazy.” What obligation, if any, does an Illinois divorce lawyer have when they suspect that their client is suffering from a severe mental illness or incapacity. Illinois Divorce Lawyers Must Follow The Rules Of Professional Conduct Illinois divorce lawyers must be thoroughly familiar with The Rules Of Professional Conduct. Those rules govern our duty to out clients. The “Code of Professional Conduct, part of our Supreme Court Rules, have the force of law and embody the public policy of our state.” In re Marriage of Newton, 2011 IL App (1st) 090683, ¶ 40 Illinois divorce lawyers are supposed to treat their clients normally as much as possible under the circumstances. “When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”  Ill. Sup. Ct. R. 1.14(a) If the Illinois divorce lawyer has a reasonable belief that the client cannot make their own decisions. The lawyer may take steps to investigate and possibly appoint a guardian ad litem for their mentally incapacitated client. Note that Rule 1.14(b) says “may”. An Illinois divorce lawyer is not under an obligation to take any further steps to address the client’s mental condition. “When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.”  Ill. Sup. Ct. R. 1.14(b) If the Illinois divorce lawyer does wish to address their client’s mental incapacity, the lawyer must balance the client’s mental issues with the consequences of those mental issues. Just because someone has a mental issue does not mean their divorce will necessarily have a different result. “In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to […]

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When you are married to someone you have a lot of mutual responsibilities to each other. It is up to you both to resolve those responsibilities. If you cannot resolve your mutual responsibilities, you file for divorce and, in Illinois, the Illinois Marriage and Dissolution of Marriage Act outlines what happens as you dissolve your relationship. You or your spouse may, however, have other relationships that invoke mutual responsibilities. If you or your spouse have business partners, there is a fiduciary duty between the business partners. It is not uncommon for a divorce between a married couple to coincide a “divorce” between one member of the couple and their business partner(s). As someone’s personal life crumbles, often their professional life collapses as well. Business Divorce And Fiduciary Duty In Illinois The division of a business by business partners, a “business divorce,” does not follow always follow a  statute, business divorces follow the operating agreement (which is llike a prenuptial agreement for a business). Businesses rarely unwind unless there has been some breach of trust between the parties due to fraud or negligence. After, all, why not keep a good thing going? The operating agreements rarely contemplate a horrendous act of fraud or negligence which would necessitate a business divorce. The common law tort of breach of fiduciary duty allows the aggrieved business owner to identify the fraud and receive compensation from their former business partner. When a business owner breaches “a legal or equitable duty arising out of a fiduciary relationship, a presumption of fraud arises….This type of fraud is called ‘constructive fraud.” Vermeil v. Jefferson Trust and Savings Bank of Peoria, 176 Ill. App. 3d 556, 564 (1988). To prove constructive fraud, a party must demonstrate “(1) a fiduciary relationship; (2) a breach of the duties that are imposed as a matter of law because of that relationship; and (3) damages.” Kovac v. Barron, 2014 IL App (2d) 121100, ¶ 64 (citing Lawlor v. North American Corporation of Illinois, 2012 IL 112530, ¶ 69) Significantly, “[c]onstructive fraud can arise only if there is a confidential or fiduciary relationship between the parties.” Prodromos v. Everen Securities, Inc., 341 Ill. App. 3d 718, 726 (2003). The business partner must establish that there was a fiduciary relationship. “Illinois law recognizes two types of fiduciary relationships—fiduciary relationships as a matter of law and fiduciary relationships as a matter of fact.” Shrock v. Meier, […]

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People get married all over the world and then come to Illinois to live.  Often, along the way, those same people try to get divorced.  So, if you’re married in a foreign country, can you get divorced in Illinois? How do foreign marriages get treated under Illinois divorce law? Firstly, you do not have to get divorced in the country you got married.  If you have been in Illinois for 90 days, you can get divorced in Illinois. Illinois doesn’t really require you to formally prove that you were married in order to get divorced. To request a divorce, you must simply say where and when you were married in your petition for dissolution of marriage. “The complaint or petition for dissolution of marriage…shall be verified and shall minimally set forth: … The date of the marriage and the place at which it was registered” 750 ILCS 5/403(a) That’s it.  The state of Illinois will take your word for it that you were married and will subsequently grant you a divorce and allow you to invoke all the rights of divorce such as child custody, child support, alimony, division of assets under the Illinois divorce law…just because you said you were married. The only problem is when your supposed spouse says you are not, in fact married. Foreign Marriage Certificate In Cook County, Illinois and every other county in the United States, they keep a close record of who in fact is married and who is not.  Showing a marriage certificate from a county in the United States is going to prove you’re married. Does showing a marriage certificate from another country also prove you’re married?  It sure does! “Proof of Foreign Marriage. A marriage which may have been solemnized or had in any foreign state or country, may be proved by the acknowledgment of the parties, their cohabitation, and other evidence. Certified copies of records of a marriage performed in any foreign state or country obtained from an authorized state governmental unit, embassy, or consulate may be admitted as an exception to the hearsay rule.” 750 ILCS 5/409 In Illinois, you don’t need anything to prove the foreign marriage certificate is real beyond the certificate itself. This is important because almost every other document presented in an Illinois court must get around the hearsay rule. Hearsay in Illinois “is a statement, other than one made by the declarant while testifying […]

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As a divorce attorney, I have been told many times by potential clients that “my spouse is crazy.” Are all these spouses really mentally ill? We can always find out if a spouse has mental health issues using Illinois law. “Information is obtainable as provided in these rules through any of the following discovery methods: …physical and mental examination of persons.” Ill. Sup. Ct. R. 201(a) A motion can be filed for a mental examination of a party to a divorce under Illinois Supreme Court Rule 215. “In any action in which the physical or mental condition of a party or of a person in the party’s custody or legal control is in controversy, the court, upon notice and on motion made within a reasonable time before the trial, may order such party to submit to a physical or mental examination by a licensed professional in a discipline related to the physical or mental condition which is involved.” Ill. Sup. Ct. R. 215 The point of a 215 examination is to discover what is true. “The purpose of…rule [215] is to allow discovery that will assist the trier of fact in reaching its determination.” In re Estate of Silverman, 628 NE 2d 763 – Ill: Appellate Court, 1st Dist., 2nd Div. 1993 “Rule 215 is a rule of discovery, the purpose of which is to permit the discovery of facts which will assist the trier of fact to reach a correct determination of the issues before it. This rule does not permit unlimited and indiscriminate mental and physical examinations of persons but by its terms gives a trial court discretion to order such examinations only when certain requirements are met. The person sought to be examined must be a party (or a person in his custody or legal control), the physical or mental condition of that person must be in controversy, and good cause must be shown for the examination. Then, and only then, is discovery of that person’s physical or mental condition authorized by this rule… Rule 215 contemplates that the trial court in its discretion may order the physical or mental examination under appropriate conditions when all requirements of the rule have been met, irrespective of who has raised the issue of the person’s physical or mental condition.” In re Conservatorship of Stevenson, 256 NE 2d 766 – Ill: Supreme Court 1970 Once discovered, that information can be […]

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For forty years it was simple to get your spouse off your mortgage so you could keep the marital home after an Illinois divorce. The spouse that kept the marital house would refinance the mortgage. Some of the debt would have been paid off and mortgage rates were typically lower than they were when the mortgage was set or last refinanced. So, even if you had to pay your spouse their marital share of the equity in the home, the ongoing monthly payments post-refinance were usually lower. Then came 2022! Mortgage rates are now climbing. A spouse cannot simply refinance the mortgage to a lower rate and pay out the equity in the home. The new monthly payment is simply too high. For example, a $ 400,000 mortgage at 3.25% is $1740 a month. A $ 400,000 mortgage at 6.25% is $2,462.87 a month. A divorce spouse on a single income may simply not be able to pay the $720 a month to refinance the mortgage. This new refinanced mortgage presumes there’s no additional equity in the house which your spouse needs to be compensated for…which is unlikely for any house bought before 2020. Most ex-spouses who are willing to let their ex-spouse keep the marital home want their share of the house’s equity. This makes a higher-interest mortgage even more expensive. In lieu of refinancing the mortgage for the marital home in an Illinois divorce, one spouse can assume the mortgage. Assuming A Mortgage During Or After An Illinois Divorce To assume a mortgage is to “acqui[re ] real property coupled with the assumption of personal liability for debt secured by that property.” Black’s Law Dictionary (11th ed. 2019) When one spouse assumes the mortgage they get the whole house…and the whole mortgage. The other spouse’s name is removed from the deed to the house via a quitclaim deed and removed from the mortgage via a new contract with the lender. Lenders are not thrilled about mortgage assumptions. A mortgage assumption after a divorce is two working adults liable for one mortgage going to one working adult liable for one mortgage. Why would a lender want to allow that? Some government subsidized mortgages through the FHA, VA or FDA require that loans be assumable. Private lenders would prefer you refinance the mortgage at the new higher rates or pay off the loan if both parties are no longer willing to […]

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A divorce represents a complete breakdown of trust between the two parties in a marriage. Due to this lack of trust, the parties involved in a divorce often need to verify information through third parties. The information requiring verification might include the parties’ income, assets, or even late-night activities. The requests for information are allowable so long as they have some relevancy to the divorce. “[A] party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action” Ill. Sup. Ct. R. 201(b)(1) In order to get a third party’s cooperation in providing documents to a litigant in an Illinois divorce, any Illinois lawyer can issue a subpoena at any time. “An attorney admitted to practice in the State of Illinois, as an officer of the court, may also issue subpoenas on behalf of the court for witnesses and to counties in a pending action.” 735 ILCS 5/2-1101 “[S]ubpoenas may be issued by an attorney admitted to practice in the State of Illinois who is currently counsel of record in the pending action. The subpoena may command the person to whom it is directed to produce documents or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted under these rules” Ill. Sup. Ct. R. 204(a)(1) While the other party in the divorce is not receiving the subpoena, they must receive notice of the subpoena via a “Notice of Filing.” “[A] copy of any discovery request under these rules to any nonparty shall be filed with the clerk in accord with Rule 104(b)”  Ill. Sup. Ct. R. 201(o) “Filing of Documents and Proof of Service. Pleadings subsequent to the complaint, written motions, and other documents required to be filed shall be filed with the clerk with a certificate of counsel or other proof that the documents have been served on all parties who have appeared and have not theretofore been found by the court to be in default for failure to plead.” Ill. Sup. Ct. R. 104(b) The other party may not want the third party to disclose the requested information. However, the other party to an Illinois divorce does not control the third party and the third party’s ability or desire to produce the requested documents. In order to stop a third party from complying with a subpoena’s request, a motion to […]

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An Illinois divorce divides a couple’s property. Property is either deemed “marital” or “non-marital” by an Illinois court in order to determine whether a court can distribute that property between the parties. In an Illinois divorce, non-marital property automatically goes to the spouse who owns that property. “[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d) Marital property, however, gets distributed by an Illinois divorce court. An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d) Some parties to a divorce do not want any property, they just want the money. There is no faster way to resolve the distribution of marital property than selling the property. A temporary motion to sell an asset can begin the process of liquidating the marital estate. During an Illinois divorce, an Illinois divorce court is allowed or order “appropriate temporary relief including, in the discretion of the court, ordering the purchase or sale of assets and requiring that a party or parties borrow funds in the appropriate circumstances.” 750 ILCS 5/501(a)(3) Illinois divorce courts are reluctant to begin selling a couple’s assets before a final distribution of those assets. “[S]ection 501 authorizes the sale of an asset prior to final dissolution, but that is appropriate only in extraordinary circumstances, where such a sale is required to otherwise maintain the status quo prior to final dissolution.” In re Marriage of Gabrys, 2023 IL App (1st) 221763 In the final adjudication of an Illinois divorce, an Illinois divorce court can be convinced that selling marital property is the fairest way to determine that property’s value. “[O]rdering the properties sold and the proceeds split [is] the only realistic way to divide the parties’ assets in an equitable manner.” In re Marriage of Hamilton, 128 NE 3d 1237 – Ill: Appellate Court, 5th Dist. 2019 A sale of marital property also makes distributing the proceeds easier and probably fairer. Otherwise, a divorce court may estimate that a wife is entitled to the house, while the husband is entitled to the retirement accounts…when the two assets have totally different values. While an unequal division of marital assets is allowed, an inequitable division of assets is not permitted under Illinois law. “The [Illinois Marriage and Dissolution of Marriage] Act does not require an equal division of marital property, but an equitable division” In re […]

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