LawOfficeofRussellDKnight

Illinois divorces hearings and trials work in a very specific order. The petitioner or the person presenting the motion to be heard calls their witnesses and puts on their case first. The opponent can cross-examine the witnesses the petitioner or movant has presented but cannot introduce independent evidence in the middle of the other party’s case. Likewise, when the respondent to the Petition for Dissolution of Marriage or the motion to be heard puts on their case, the petitioner or movant cannot interject in the middle of their opponent’s case with independent evidence. Both parties must wait for a period called “rebuttal” after they’ve each finished presenting their case-in-chief. Parties typically say “reserve for rebuttal” to indicate they’ve finished presenting their case-in-chief instead of “I rest my case” because of this possibility. “Rebuttal” is an opportunity “given to a party to present contradictory evidence or arguments.” Black’s Law Dictionary (11th ed. 2019) Rebuttal evidence is not only a right, rebuttal is a way to have the last word in a divorce hearing or trial. So, rebuttal witnesses should be called if possible. When Can You Call A Rebuttal Witness In An Illinois Divorce? “`[W]here a [party] introduces evidence of an affirmative matter in defense or justification, the [other party], as a matter of right, is entitled to introduce evidence in rebuttal as to such affirmative matter.'” Flanagan v. Redondo, 231 Ill. App. 3d 956, 967, 172 Ill.Dec. 407, 595 N.E.2d 1077 (1991) (quoting Loftus v. Loftus, 134 Ill. App. 360, 362 (1907)) “Rebuttal evidence is evidence that tends to explain, repel, contradict, counteract, or disprove facts placed in evidence by an adverse party.” McCALEY v. Petrovic, 253 NE 3d 1010 – Ill: Appellate Court, 1st Dist., 1st Div. 2024 There are no surprise witnesses in an Illinois divorce hearing or trial. Rebuttal witnesses have to be disclosed in advance in an Illinois divorce hearing or trial (if an interrogatory asks for the witnesses or a case management order requires automatic disclosure).“All dates set for the disclosure of witnesses, including rebuttal witnesses, and the completion of discovery shall be chosen to ensure that discovery will be completed not later than 60 days before the date on which the trial court reasonably anticipates that trial will commence, unless otherwise agreed by the parties. This rule is to be liberally construed to do substantial justice between and among the parties.” Ill. Sup. Ct. R. 218(c)(emphasis mine) The committee comment to […]

https://rdklegal.com/rebuttal-witnesses-in-an-illinois-divorce/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

Traditionally, men ask women to marry them by buying them a diamond ring. The “rule” is that the diamond ring should be worth two months of the man’s salary. That is a lot of money. If the parties do not get married or get married and get divorced, who gets that engagement ring under Illinois law? Who Gets The Engagement Ring If The Parties Never Married? If the engagement was broken off before the actual marriage occurred, either party can go to an Illinois court with an action for replevin. Replevin is “a lawsuit to repossess personal property wrongfully taken or detained by the defendant” Black’s Law Dictionary (11th ed. 2019) “Whenever any goods or chattels have been wrongfully distrained, or otherwise wrongfully taken or are wrongfully detained, an action of replevin may be brought for the recovery of such goods or chattels, by the owner or person entitled to their possession.” 735 ILCS 5/19-101 Engagement rings are conditional gifts. “[A]n engagement ring is a gift conditional on the subsequent marriage of the parties” Vann v. Vehrs, 633 NE 2d 102 – Ill: Appellate Court, 2nd Dist. 1994 One party, literally, says “Will you marry me” and offers the ring as a gift in contemplation of the marriage. “The law in Illinois appears established that a gift given in contemplation of marriage is deemed to be conditional on the subsequent marriage of the parties, and the party who fails to perform on the condition of the gift has no right to property acquired under such pretenses.” Harris v. Davis, 139 Ill. App. 3d 1046, 1048 (Ill. App. Ct. 1986) (citations omitted) The next question is who removed the condition (marriage). Who broke off the engagement? “In a replevin action involving an engagement ring, the correct inquiry in deciding which party is entitled to possession of the ring is which party’s act conclusively ended the engagement.” Liceaga v. Baez, 126 NE 3d 682 – Ill: Appellate Court, 1st Dist., 4th Div. 2019 It does not matter what happened in the relationship. All that matters is WHO decided that the parties will no longer be getting married. “A court does not consider why an engagement ended, i.e. the underlying fault for the relationship’s breakdown, but only which party performed the act actually ending the engagement.” Liceaga v. Baez, 126 NE 3d 682 – Ill: Appellate Court, 1st Dist., 4th Div. 2019 If […]

https://rdklegal.com/who-gets-the-engagement-ring-in-illinois/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

The Illinois Supreme Court Rules provide a variety of tools by which each party to a lawsuit may request information from your spouse/ex-spouse or third parties who hold information relevant to the pending divorce case. These tools include notices to produce, subpoenas, interrogatories, requests to admit and financial affidavits. These requests can ask for virtually anything. “[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) These various requests go out and almost all of them have to be answered or objected to within 28 days. Failure to comply in whole or in part is common in an Illinois divorce case. During a divorce, you will likely be your spouse’s least favorite person. Your spouse may destroy evidence, “forget” evidence, or simply refuse to communicate. How do you compel full and complete discovery in an Illinois divorce case? While this article focuses on the difficulties of getting complete discovery from a divorcing spouse, I have found in my years of practice that most people have little to hide. The average person has a W-2 job, a retirement account, a house and a car. These spouses turn over what little documentary evidence they have of these items without much fuss. “Discovery is intended as, and should be, a cooperative undertaking by counsel and the parties, conducted largely without court intervention, for the purpose of ascertaining the merits of the case and thus promoting either a fair settlement or a fair trial.” Williams v. A.E. Staley Manufacturing Co., 83 Ill. 2d 559, 566 (Ill. 1981) It is the people that have a variety of valuable assets that obfuscate, evade and refuse compliance with discovery requests. Therefore, it is almost always worth enforcing discovery requests because they are hiding evidence of assets for a reason…they do not want to share those marital assets and income. “For a party trying to obtain legitimate discovery, dealing with disruptive or manipulative conduct can be demoralizing and distracting, and, certainly, has the potential to increase expenses. Also, it often leads to increased tensions and a decay of civility between lawyers. Indeed, unless and until trial judges clamp down on discovery abuses-be it engaging in stonewalling, foot dragging, obfuscation, or any other shenanigans-little incentive exists for the already recalcitrant party to comply.” Locasto v. City of Chi., 6 N.E.3d 435, 440 (Ill. […]

https://rdklegal.com/compelling-discovery-in-an-illinois-divorce/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

In Illinois, when parents are unable or unwilling to care for their children, grandparents often step in. But getting legal custody as a grandparent is not automatic, even if the child lives with you. In Illinois, grandparents can seek custody of their grandchildren under Illinois law but there are significant hurdles if a parent challenges grandparent custody. The courts in Illinois are happy to grant a good grandparent (or anyone really) custody of the child but only if the parents are not already exercising custody.  “A proceeding for allocation of parental responsibilities with respect to a child is commenced in the court:…by a person other than a parent, by filing a petition for allocation of parental responsibilities in the county in which the child is permanently resident or found, but only if he or she is not in the physical custody of one of his or her parents” 750 ILCS 5/601.2(b)(3) If the kids are living with a grandparent, but the parent is still in the children’s lives, the parent can object to the grandparent taking legal custody of the children. “When a noncustodial parent has not been found unfit, and has regularly exercised visitation and demonstrated interest in the child, it is proper that noncustodial parent have custody.” In re Marriage of Brownfield, 283 Ill. App. 3d 728, 733 (1996) The test of whether a parent can veto a grandparent’s attempt to establish custody hinges on whether the parent has “physical custody” of the child and when they had that “physical custody.” “Whether a child “is not in the physical custody of one of his parents” is not subject to a clear test. It is clear, however, that physical custody is not determined based on physical possession of the child at time the custody petition is filed. Physical possession of a child does not necessarily translate into physical custody of that child.” In re Custody of MCC, 892 NE 2d 1092 – Ill: Appellate Court, 1st Dist., 1st Div. 2008 A parent’s “physical custody” of a child is better identified as when physical custody does not exist: when a parent has voluntarily abandoned the child. “The determination that a parent does not have physical custody of a child turns not on possession; rather, it requires that that parent somehow has voluntarily and indefinitely relinquished custody of the child.” In re Petition of Kirchner, 164 Ill. 2d 468, 491 (1995), […]

https://rdklegal.com/how-does-a-grandparent-get-custody-of-their-grandchildren-in-illinois/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

When a party to an Illinois divorce has an overseas bank account, that account must be disclosed and, if found to be marital property, equitably distributed by the court. If the overseas account is not disclosed, Illinois divorce courts possess limited powers to investigate bank accounts in other countries. In an Illinois divorce, locating and dividing overseas bank accounts requires a combination of legal strategy, discovery tools, and persistence. Courts may lack jurisdiction over the foreign bank…but not over the spouse who controls the accounts Marital Assets are Divisible In Illinois No Matter Where They Are Located If the foreign bank account can be properly shown to be a gift, inheritance or was completely acquired in advance of the marriage, the foreign bank account will be deemed non-marital property and awarded in its entirety to the party who holds that account. Beyond these exceptions, an overseas bank account will be deemed marital and, thus, divisible under Illinois law. An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d) In Illinois, “’[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage”750 ILCS 5/503(a). Assets held in a foreign bank is no exception to the Illinois Marriage and Dissolution of Marriage’s broad scope which includes “all property” Determining If Overseas Bank Accounts Exist In An Illinois Divorce People who deposit money into foreign accounts are not getting a bank statement mailed to them here in the United States every month from the foreign bank. Determining whether a foreign bank account even exists depends on the disclosures of the party holding the foreign bank account. Every county in Illinois requires that divorcing parties fill out a financial affidavit when the divorce is filed. In Cook County, Illinois the rule is as follows: “(a) Pre-Judgment Disclosure –In all pre-judgment proceedings in which a party is seeking division of the marital estate, to establish, modify or enforce an order for maintenance, child support, or educational expenses pursuant to Section 513 of the Illinois Marriage and Dissolution of Marriage Act, support for a non-minor child with a disability pursuant to Section 513.5 of the Illinois Marriage and Dissolution of Marriage Act, disposition of property in a civil union, retroactive child support in parentage matters, or  attorney’s fees and costs against the other party, each party shall serve a completed  affidavit […]

https://rdklegal.com/how-to-find-and-divide-overseas-bank-accounts-in-an-illinois-divorce/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

In Illinois, if your spouse empties a joint bank account before or during a divorce, you can’t rely on automatic protections but you can file a motion for temporary relief or to maintain the financial status quo. Courts can order the funds restored or award you temporary support. Act quickly and consult an attorney to restore financial security to your household. Can A Spouse Legally Empty A Joint Bank Account Before Or During An Illinois Divorce? Before a divorce is filed, there is no mechanism to prevent anyone from emptying a bank account. The parties are only limited by the rules the bank set for the account. Unfortunately, after a divorce is filed there is no automatic mechanism in Illinois to prevent a spouse from emptying a bank account before or during an Illinois divorce. It may seem ridiculous that one spouse can go nuclear and deprive the other spouse of any money to spend, live on or even eat. Other states have something called an “automatic stay” that prevents bad behavior like emptying/closing bank accounts and failing to pay bills as a divorcing party had in the past. Illinois, however, does not automatically freeze divorcing parties’ financial lives so that both spouses can maintain their standard of living until further order of court. Illinois used to have this commonsense legislation but an Illinois Supreme Court case found the law to be unconstitutional. Messenger v. Edgar, 623 N.E.2d 310 (Ill. 1993) Because Illinois law allows for bad behavior, the victim of financial abuse such as emptying a bank account must act retroactively when the abuse happens in order to preserve their rights. Advising Your Spouse To Not Empty The Joint Bank Accounts In An Illinois Divorce At the beginning of a divorce, a strongly worded letter should go out to your spouse advising them that any failure to pay a current bill, closure of an account, or unnecessary withdrawals from any existing account will have serious penalties. The spouse should be warned that any financial shenanigans will be met with an emergency motion to maintain the status quo, a petition for attorney’s fees to pay the emergency motion and a dissipation of assets claim. Both spouses and/or their attorneys should convene to discuss what the “new normal” should be for the parties finances as the divorce proceeds. Undoing The Emptying Of A Joint Bank Account In An Illinois Divorce If […]

https://rdklegal.com/what-to-do-when-a-spouse-empties-joint-bank-accounts-in-an-illinois-divorce/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

To effectively litigate an Illinois divorce court, you must know A LOT: Statutes, case law and the Illinois Supreme Court Rules at a minimum. In addition to these bodies of knowledge, every county court has its own local rules that must be followed. These local rules let local courts govern the way they handle their cases. “Subject to the rules of the Supreme Court, the circuit and Appellate Courts may make rules regulating their dockets, calendars, and business. 735 ILCS 5/1-104(b) “Local court rules are required to be procedural in nature and cannot modify or limit the substantive law.” In re LS, 203 NE 3d 325 – Ill: Appellate Court, 1st Dist., 4th Div. 2022 These local rules must be consistent with Illinois statutes and Illinois Supreme Court Rules. “A majority of the circuit judges in each circuit may adopt rules governing civil and criminal cases, including remote appearances, which are consistent with these rules and the statutes of the State, and which, so far as practicable, shall be uniform throughout the State.” Ill. Sup. Ct. R. 21(a) “Circuit courts possess inherent authority to enact and enforce rules regulating their calendars and dockets as long as those rules do not conflict with statutes or supreme court rules.” In re Marriage of Jackson, 631 NE 2d 848 – Ill: Appellate Court, 4th Dist. 1994 Rules have to be followed. That is why they are “rules”. “A local court rule has the force of a statute and is binding on the circuit court and parties.” In re LS, 203 NE 3d 325 – Ill: Appellate Court, 1st Dist., 4th Div. 2022 “Like supreme court rules, local court rules are meant to be followed, as written, and are not mere suggestions or guidelines from which deviations may be made by the litigants.” VC & M, LTD. v. Andrews, 991 NE 2d 323 – Ill: Supreme Court 2013 Despite the above citations requirement that local rules MUST be followed. Appellate courts recognize that because the local rules are created by the local court, reviewing courts shouldn’t get too upset if a local court decides to break its own rules. “A reviewing court will not interfere with the trial court’s exercise of its authority under the local rules in the absence of facts constituting an abuse of discretion” In re Marriage of Jackson, 631 NE 2d 848 – Ill: Appellate Court, 4th Dist. 1994 Because all […]

https://rdklegal.com/local-county-rules-in-an-illinois-divorce-case/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

An average person’s assets are usually relatively simple.  The average person may own a house, the average person might have a retirement account but the average person almost certainly owns some kind of automobile. So, what happens to a car, truck or motorcycle in an Illinois divorce? Is An Automobile Marital Property In An Illinois Divorce? If a car, truck or motorcycle was purchased prior to the marriage, that automobile will stay with the person who purchased the automobile after the couple divorces.  The date of purchase can be easily proven by a receipt, registration or car title. Any asset that gets purchased during a marriage is presumed to be marital property.  “Purchased during the marriage” means anytime during the marriage.  That period of time where purchased property becomes marital property includes the period after a couple has separated or filed for divorce.  The day the presumption of marital property stops is the day the divorce is finalized and the judgment of dissolution of marriage is filed with the domestic relations court. Marital property is divisible by Illinois divorce courts. But, how do you divide a car, truck or motorcycle in an Illinois divorce? In 95% of all cases, you don’t divide an automobile even if it’s marital property.  There are several reasons why dividing an automobile (the value of the automobile, really) never happens in an Illinois divorce. Automobiles and Secured Debt In An Illinois Divorce Most automobiles are paid for by financing. That is, when the automobile is purchased, the car buyer takes out a loan to pay for the car. This loan is secured by the car itself. So, if the car buyer does not pay the loan in a timely manner, the automobile financing company can pick up the car with a tow truck.  So, there is almost always a loan attached to an automobile.  The loan cannot be separated from the automobile until the loan is paid off. This creates some weird math.  The moment the car is driven off the car dealer’s lot, the car’s value drops…but the loan amount does not.  So, a car is perpetually owned at a value less than the car loan attached to that car. So, in a divorce, a car really has zero net value so long as there is a car loan attached to that car.  If the loan has been paid off, then the car may […]

https://rdklegal.com/cars-trucks-and-motorcycles-in-an-illinois-divorce/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

When adults with children separate, those adults govern their parenting time and parental decision-making with court orders. These court orders tell each parent when they are to pick up their children and what they can do with the children when the parent has custody of the child. When one (or both) parents do not follow custody orders, the other parent has the right to enforce the custody orders. Typically, the court orders will be enforced in a domestic relations court. Outside of court, at pick-up time, the judge is not present. Can the police be called to enforce a child custody order? What Happens When You Call The Police To Enforce A Child Custody Order In Illinois? Either parent can call the police at any time. The police will eventually arrive and talk to each parent. The police will listen to each parent and try to mediate and diffuse the situation. The police will even read the court order (often a multiple page document) and opine and who is supposed to do what. What the police will hardly ever do is enforce the court order. What did you expect? For the police to draw their guns and force one parent to turn the child over to the other parent? If one parent simply takes the child into their home and closes the door, the police are not allowed to go into that house. The Fourth Amendment of the United States Constitution guarantees that “[t]he right of the people to be secure in their . . . houses . . . shall not be violated.” U.S. Const. amend. IV. “At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U. S. 505 at 511 “In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573 (1980) What is transferring a child to another parent if not a “seizure of a person?” The police are never going into a house to get a child…without a warrant. Getting A Warrant To Get A Child In Illinois Issuing a civil warrant is a rarely […]

https://rdklegal.com/can-police-enforce-a-child-custody-order-in-illinois/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

When you get divorced or split up and you have children, there are dozens of little things you have to arrange in order to co-parent effectively. Specifically, you will make a schedule of when your children will spend time with you and when your children will spend time with their other parent. Then, you will need to specifically outline how those children are to get to their respective parent’s homes. Making such a specific schedule for parenting time and transportation to the location that parenting time is supposed to occur is mandatory in Illinois. Arranging Pick-Ups And Drop-Offs By Agreement After An Illinois Divorce Usually, these details regarding transportation of children after a divorce are written in a parenting plan. A parenting plan is “a written agreement that allocates significant decision-making responsibilities, parenting time, or both.” 750 ILCS 5/600(f) “At a minimum, a parenting plan must set forth the following: provisions for the child’s living arrangements and for each parent’s parenting time, including either:(A) a schedule that designates in which parent’s home the minor child will reside on given days” 750 ILCS 5/602.10(f)(2) “[P]rovisions for the exercise of the right of first refusal, if so desired, that are consistent with the best interests of the minor child; provisions in the plan for the exercise of the right of first refusal must include:… iii) transportation requirements” 750 ILCS 5/602.10(f)(14)(iii) The best practice is for the parent beginning their parenting time to pick up the child from the other parent or from school. Otherwise, the parent ending their parenting time will be waiting on the other parent. Waiting for another parent to pick a child can result in the late parent forfeiting their parenting time if so agreed (this is not advisable as life happens and children will be disappointed). Being consistently late for pick-ups and drop-offs can result in a loss of parenting time for the chronically late parent. “[E]vidence favoring [one parent] as [a child’s] custodial parent [can include] the following: [the other parent] was sometimes late picking up the children for visitation” In re Marriage of Marsh, 799 NE 2d 1037 – Ill: Appellate Court, 4th Dist. 2003 Even better is when the parents can begin their parenting time and do their pick-ups from a school, daycare or activity. This limits contact between the parents and eliminates the waiting issue. If the parents cannot agree, the court will decide […]

https://rdklegal.com/pick-ups-and-drop-offs-of-children-in-an-illinois-divorce/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

Petitions for orders of protection can be heard with only one person’s testimony. Furthermore, the standard of proof to grant an order of protection can be absurdly low, as only “abuse” in almost any form, can be established by one person’s biased description.   When an order of protection is granted by an Illinois court, one party to an intimate relationship (often a marriage) is left out of the house and may even be barred from seeing their own children. At this moment, all may seem lost. The order of protection is entered, the judge’s mind is made up and the Respondent has been labelled an “abuser.” While there may be little to no chance of undoing an order of protection in its entirety, an order of protection can always be modified in order to allow a party back into their house, to see their children or even vacate the order of protection. “A court’s authority to dissolve or modify a previously entered injunctive order exists in a dissolution proceeding just as in other civil proceedings.” In re Marriage of Fischer, 228 Ill.App.3d 482, 488, 170 Ill. Dec. 168, 592 N.E.2d 604, 608 (1992) Modifying an order of protection in Illinois usually depends on what kind of order of protection is currently in place. “[T]he Domestic Violence Act…provides for the entry of (1) an emergency order of protection (2) a 30-day interim order of protection; and (3) a plenary order of protection” In re Marriage of Gordon, 599 NE 2d 1151 – Ill: Appellate Court, 1st Dist., 6th Div. 1992 Modifying An Emergency Or Interim Order Of Protection In Illinois Emergency and interim orders of protection are, by their nature, temporary until a full and final hearing can determine if a long-term, plenary, order of protection should issue. Because of this, it is almost as easy to petition to modify an emergency or interim order of protection as it is to issue an emergency or interim order of protection. “Upon 2 days’ notice to petitioner, in accordance with Section 211 of this Act, or such shorter notice as the court may prescribe, a respondent subject to an emergency or interim order of protection issued under this Act may appear and petition the court to re-hear the original or amended petition. Any petition to re-hear shall be verified and shall allege the following:(1) that respondent did not receive prior notice of the […]

https://rdklegal.com/how-to-modify-an-order-of-protection-in-illinois/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

When parents split up they must immediately make arrangements to keep the children’s lives and schedules as stable as possible. Maintaining a consistent schedule for the children is difficult in the opening phases of a divorce. Typically, one parent disappears from the home at the initial stages of the divorce and is absent from the children’s lives until further orders are made for temporary visitation and then final custody. What happens to visitation and custody at the beginning of a divorce or parentage action before any orders are entered? It first has to be determined whether the courts even consider the parents to have any rights over the child. Determining Who Is A Parent When There Is No Court Order In Illinois If the parties are not married, the father is not deemed to have any presumptive rights until a court has adjudicated him to be the parent. To adjudicate Is to “rule on judicially” Black’s Law Dictionary (11th ed. 2019). “An individual may not be adjudicated to be a parent unless the court has personal jurisdiction over the individual” 750 ILCS 46/603(b) The father will not be deemed a parent with rights until an order is issued by the court confirming they are the father. Until the unmarried father of a child declares himself the father via court order…he has no rights to that child. Declaring yourself the father is as simple as signing the Voluntary Acknowledgment of Paternity. “Voluntary acknowledgment. A parent-child relationship may be established voluntarily by the signing and witnessing of a voluntary acknowledgment” 750 ILCS 46/301 Mothers (due to biology) are automatically conferred rights to the child. “The parent-child relationship is established between a woman and a child by:(1) the woman having given birth to the child” 750 ILCS 46/201(a) Married parents are presumed to be the parent of the child even without a court order. “A person is presumed to be the parent of a child if:(1) the person and the mother of the child have entered into a marriage, civil union, or substantially similar legal relationship, and the child is born to the mother during the marriage, civil union, or substantially similar legal relationship” 750 ILCS 46/204(a) If the parties are married…nothing happens before an order is entered. If the parents are married, the court presumes both parents have their children’s best interests. The court won’t intercede regarding a married couple’s parenting time […]

https://rdklegal.com/who-has-custody-of-a-child-if-there-is-no-court-order-in-illinois/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

Defending against an Order of Protection In Illinois is not easy. Illinois law makes Orders of Protection relatively simple to secure. An Illinois court need only find that abuse occurred to issue an order of protection. “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 (emphasis mine) The legal standard for determining whether abuse occurred is “the preponderance of the evidence” whether it was more than 50% likely that the abuse occurred. “The standard of proof in such a proceeding is proof by a preponderance of the evidence” 750 ILCS 60/205(a) “[T]he preponderance of evidence, otherwise referred to as the ‘more probably true than not true’ standard.” Holton v. Memorial Hosp., 679 NE 2d 1202 – Ill: Supreme Court 1997 Any instance of abuse that is more likely to have occurred than not will result in an order of protection being issued in an Illinois court. The respondent in an Petition for Order of Protection will, of course, tell their own version of events but the respondent will also do their best to keep the petitioner’s proposed evidence out of court. After all, if there’s no evidence, there can be no preponderance of evidence. The Petition for Order of Protection is a clunky, one-size-fits-all form. The form is mostly checklists. This is hardly the best way to describe a, presumably, horrifying incident of abuse. Specifically, Page 4, Paragraph G gives the Petitioner exactly 6 lines to describe an incident of abuse with a maximum of 4 instances (unless you want to attach your own additional description). The respondent to a Petition for Order of Protection may cleverly use the form’s limitations as a denial of due process (but it shouldn’t work, as I’ll show later). No one shall be “deprived of life, liberty, or property, without due process of law” U.S. Const. amend. V, § 1, cl. 1 “The essence of procedural due process is meaningful notice and a meaningful opportunity to be heard” Trettenero v. Police Pension Fund, 333 Ill. App. 3d 792, 799 (Ill. App. Ct. 2002) How could those 4 sets of 6 lines on the form be “meaningful notice” or the full allegations of a Petition for an Order of Protection. A respondent will be quick to object to any testimony that describes anything not written 4 […]

https://rdklegal.com/the-four-corners-defense-to-a-petition-for-order-of-protection-in-illinois/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

The law is full of buzzwords that further qualify other legal concepts. One of the most common terms found throughout law in general and family law in particular is “due diligence.” Due diligence is “[t]he diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation” Black’s Law Dictionary (11th ed. 2019) The requirement of due diligence is effectively the court system telling litigants to “keep it moving or you’ll lose your rights” which exists in addition to statutes of limitations and other deadlines. Failure to act with due diligence means justice is delayed to the point of denial: evidence goes missing, witnesses forget (or worse, die). So, while the divorce litigation process feels like a series of delays and continuances, the courts can say “Sorry, it’s been too long. Hurry up and get to it or I’ll cancel your case” Due Diligence And Service In An Illinois Divorce Starting a divorce case requires filing a petition for dissolution of marriage and then serving the summons on the opposing side. “If the plaintiff fails to exercise reasonable diligence to obtain service on a defendant prior to the expiration of the applicable statute of limitations, the action as to that defendant may be dismissed without prejudice.”  Ill. Sup. Ct. R. 103(b) Service requires due diligence because, as a society, people need to know if they are, in fact, being sued. Otherwise, they’ll just keep doing whatever bad act is being complained of (even if it’s being a bad spouse). “Due diligence in serving process is essential to this purpose, for it is the sole legally sufficient means of alerting defendants to the pendency of a civil suit. In addition, service with due diligence, by promptly placing defendant on notice of a pending action, shortens the time needed to investigate, prepare and litigate the issues raised, thereby allowing the court to proceed expeditiously to a just resolution of the matter before it. Where a plaintiff (1) fails to exercise due diligence….justice is truly and unnecessarily delayed.” In reality, due diligence for service is rarely an issue in an Illinois divorce. Illinois divorce courts generate automatic status dates for the court to inquire what is happening in each particular case. Failure to serve the summons should result in the court allowing for service via email, social media or text message. If service is […]

https://rdklegal.com/due-diligence-in-an-illinois-divorce/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

As a Chicago divorce attorney who speaks three languages, the issues of immigration and divorce intersect constantly. Understandably upset, clients believe they can solve all of their problems by having their immigrant spouse deported as well as divorced. The reality is that it is extremely difficult to get the Department of Homeland Security to act on their limited authority to deport an immigrant spouse without extreme circumstances.  The possibility of deportation depends on the spouse’s status. If the spouse has no status (they’re undocumented) or the immigration status they once had has expired, then there is no deportation trigger. You could call the Department of Homeland Security’s tip line at 866-DHS-2-ICE and report the person. But DHS is looking for information relating to crimes like fraud, human trafficking, and gang-related crimes. Simply being undocumented is not something their tip line is looking for. I have never heard them acting on a tip of a merely undocumented person. Scheduling an appointment with a USCIS field office to meet in person would probably be more productive. My advice to anyone in this situation is to let bygones be bygones. If the spouse has a conditional status – that is, the 2-year conditional status granted before the marriage will be reviewed for validity – this involves providing DHS with evidence of shared expenses, cohabitation, and, in this day and age, lots and lots of Facebook photos. If, during this 2-year period you believe that your marriage was a fraud, you can bring this to the attention of DHS. Immigration law INA 237(a)(1)(G) specifically provides that: “An alien shall be considered to be deportable as having procured a visa or other documentation by fraud (within the meaning of section 212(a)(6)(C)(i)) and to be in the United States in violation of this Act (within the meaning of subparagraph (B)) if – (i) the alien obtains any admission into the United States with an immigrant visa or other documentation procured on the basis of a marriage entered into less than 2 years prior to such entry… unless the alien establishes… that such marriage was not contracted for the purpose of evading any provisions of the immigration laws, or (ii) it appears… that the alien has failed or refused to fulfill the alien’s marital agreement which… was made for the purpose of procuring the alien’s admission as an immigrant.” The definition of “fraud” for these purposes […]

https://rdklegal.com/can-i-get-my-husband-or-wife-deported/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

Too many family law attorneys treat trial like a school project—summarize the facts, cite the law, hand it to the judge like a term paper. But Illinois divorce trials don’t grade on neatness and organization. Illinois trials require evidence, foundation, and admissibility. Evidence must be admitted consistent with the Illinois rules of evidence. Every little item you want the court to take notice of must be properly admitted which requires laying foundation and establishing authentication while being free from evidentiary objections (or subject to an exception to an objection). In a divorce, if the marital estate includes assets and sources of income beyond the usual set of issues: house, 401k and W2s the process of admitting evidence can become overly tedious for everyone…especially the judge. Beyond creating a balance sheet of a multitude of accounts, assets and debts, divorce cases can involve complicated dissipation allegations, commingling and tracing of marital or non-marital contributions. The more detailed the case, the more likely it is that the divorce judge will allow a summary of the evidence in lieu of individual admission of each piece of original evidence. Getting Exhibits Into Evidence In An Illinois Divorce Trial Financials rarely come into evidence via testimony alone. For the court to adequately tabulate who owns or owes what, the court needs exhibits which are almost writings. ““Writings” and “recordings” consist of letters, words, sounds, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.” Ill. R. Evid. 1001(1) Ideally, the writing observed will be an original. “To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.” Ill. R. Evid. 1002 Duplicates are perfectly okay so long as they are truly exact copies. “A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” Ill. R. Evid. 1003 The problem is when there are dozens to thousands of documents for the court to consider. This process of introducing each individual document becomes untenable. In situations with “voluminous documents” the courts can allow summaries in lieu of actual admission of the underlying […]

https://rdklegal.com/charts-summaries-and-calculations-in-an-illinois-divorce-trial/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

I have told clients for years that the family law system is slow, but it is fair. There is one part of the system that is rapid by design…and has instant results to the benefit of one parent and the detriment of the other parent: orders of protection. Orders Of Protection Lead To Immediate Temporary Custody Orders In Illinois  Orders of protection happen fast. In fact, orders of protection are usually always initially filed as emergencies and heard the same day or the next day. “If the court finds that petitioner has been abused by a family or household member or that petitioner is a high-risk adult who has been abused, neglected, or exploited, as defined in this Act, an order of protection prohibiting the abuse, neglect, or exploitation shall issue” 750 ILCS 60/214(a) “’ Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1) Once a finding of abuse is made an order of protection SHALL be granted. “[If an order of protection is granted] the remedies to be included in an order of protection shall be determined in accordance with this Section” 750 ILCS 60/214 The remedies listed in the Illinois Domestic Violence Act include immediate rulings regarding the parenting time and parental decision-making (formerly known as “custody”) of the children. “Physical care and possession of the minor child. In order to protect the minor child from abuse, neglect, or unwarranted separation from the person who has been the minor child’s primary caretaker, or to otherwise protect the well-being of the minor child, the court may do either or both of the following: (i) grant petitioner physical care or possession of the minor child, or both, or (ii) order respondent to return a minor child to, or not remove a minor child from, the physical care of a parent or person in loco parentis.” “Temporary allocation of parental responsibilities: significant decision-making. Award temporary decision-making responsibility to petitioner in accordance with this Section, the Illinois Marriage and Dissolution of Marriage Act, the Illinois Parentage Act of 2015, and this State’s Uniform Child-Custody Jurisdiction and Enforcement Act.” 750 ILCS 60/214(b)(6) An Illinois domestic violence court can provide a parenting schedule for the respondent and the child after an order of protection is entered.   “Parenting time. Determine the parenting time, if any, of respondent in any case in which the […]

https://rdklegal.com/custody-of-children-and-orders-of-protection-in-illinois/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

In an Illinois divorce, you can lose a lot.  You can lose your assets and you can lose time with your kids.  In the end, you can make more money but you can’t get back time with your kids. For most parents, the most parenting time they can ever hope for is a 50/50 joint custody arrangement with the other parent.  So, how do you get a 50/50 joint custody order in Illinois divorce? 50/50 custody is not the default in Illinois but it can be achieved. “[C]ourts have traditionally viewed 50/50 joint parenting time with caution” and “[i]n cases where the evidence clearly showed that parents had too much animosity to be able to cooperate, 50/50 arrangements have been set aside.” In re Marriage of Virgin, 2021 IL App (3d) 190650  Understanding Custody In An Illinois Divorce. There is no custody in Illinois.  At least not since when the Illinois legislature changed the law to eliminate the word “custody.” The Illinois legislature did the right thing, the word “custody” is simply too charged with meaning in our society.  There is almost no greater taboo in America than for a woman to “not have custody” of her kids.  This leads to an all-or-nothing confrontation between moms and dads when it comes spending time with their children, as both parties want “custody.” In lieu of custody, we now have the twin concepts of “parenting time” and “decision-making responsibilit.y” Parenting time is the parenting schedule, who has what time with what child. Decision-making responsibility is who gets to make what decisions for the children. Both of these matters, if not agreed, are decided by the Illinois family law court based on the “best interests of the child.” “The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 5/602.7(a) “The court shall allocate decision-making responsibilities according to the child’s best interests.” 750 ILCS 5/602.5(a) It’s all well and good to have a specific schedule with your children and to make specified decisions for your children.  But, kids are kids.  Things will change dramatically and sometimes the spirit of the final agreement is more important than parsing out each parent’s individual responsibilities.  Often, you just want to know that, no matter what happens, you’re going to effectively have 50/50 joint custody. I think this is a fine goal, and I suggest you read below on how to get 50/50 […]

https://rdklegal.com/how-to-get-50-50-joint-custody-in-an-illinois-divorce-or-parentage-action/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

When two people are married and buy real estate, there are incredible incentives to hold the property jointly. Jointly held property has the right of survivorship. If one spouse dies, the entire property passes to the other spouse without the hassle of probate court. “[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, 5th Dist. 2007 Furthermore, married people in Illinois, if they buy the home they’ll live in, they are automatically deeded the home as a tenancy by the entirety, which further protects the home from creditors. “Whenever a devise, conveyance, assignment, or other transfer of homestead property maintained or intended for maintenance as a homestead by both husband and wife together during coverture shall be made and the instrument of devise, conveyance, assignment, or transfer expressly declares that the devise or conveyance is made to persons, named and expressly identified in that instrument as husband and wife, not as joint tenants or tenants in common but as tenants by the entirety, the estate created shall be deemed to be in tenancy by the entirety.” 765 ILCS 1005/1c Joint real estate, however, must be unwound in an Illinois divorce as the parties divided their marital property.   When there is marital real estate in an Illinois divorce, there are three options: sell the house and split the proceeds, one spouse keeps the house, or the other spouse keeps the house. If one spouse transfers their interest in the property to the other spouse, they do so by preparing a quit claim deed.     What Is A Quit Claim Deed Any transaction involving real estate must be made by a deed. A deed memorializes the transaction between the parties. A quit claim deed is a deed that transfers ALL of one party’s interest to another party. “A quit claim deed conveys only the grantor’s interests in the property described therein,” Hulke v. International Mfg. Co., 142 NE 2d 717 – Ill: Appellate Court, 2nd Dist. 1957 Illinois has a very specific statute that outlines what a quit claim deed must say to be effective. “Quitclaim deeds may be, in substance, in the following form:    The grantor (here insert grantor’s name or names and place of residence), for the consideration of (here insert consideration), convey and quit […]

https://rdklegal.com/quit-claim-deeds-and-divorce-in-illinois/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

Indemnification is an important concept in contract law. Most divorces are finalized by a contract which divides assets AND debts. Indemnification provides the functionality of how those debts are paid back and by whom. Debts, Divorce And Indemnification In Illinois Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 503(d) “”[M]arital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 503(a) (emphasis mine) “It is well settled that marital debts as well as marital assets must be distributed equitably.” In re Marriage of Lees, 224 Ill. App. 3d 691, 693 (Ill. App. Ct. 1992) The parties can agree on this division of debts or the court can order the debts to be divided equitably. Courts and parties have a great preference for assigning the responsibility for a party’s debts to the party themselves. This is because of the logistical nightmare that is required for one party to be responsible for the debts of another party. In fact, courts are inclined to order assets sold in order to pay off joint debts or debts that the other party would, alternatively, be responsible for. Parties to a divorce do not have to allow a judge to carve up their debts. They can come to mutual agreements regarding their debts and who will be responsible. This mutual contracting for debt responsibility is called “indemnification.” To indemnify is “[t]o reimburse (another) for a loss suffered because of a third party’s or one’s own act or default; [to] hold harmless….To promise to reimburse (another) for such a loss.” Black’s Law Dictionary (11th ed. 2019) The responsibility for those debts may be allocated by the final Marital Settlement Agreement but the third-party creditor does not care. The third-party creditor just wants their money. The third-party creditor does not care who they get their money from, the third-party creditor just wants their money no matter what the parties’ Marital Settlement Agreement says. Indemnification solves the “third-party creditor doesn’t care who it collects from” problem by creating an agreement between the parties that promises to reimburse the other party if a third-party creditor collects from the other party. Upon receiving a bill for a debt that was properly indemnified, the party should inform their indemnifier to pay the debt per the agreement. Failure to pay the debt per the agreement, will result in a […]

https://rdklegal.com/indemnification-and-divorce-in-illinois/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

A subpoena is “[a] writ or order commanding a person to appear before a court or other tribunal, subject to a penalty for failing to comply.” Black’s Law Dictionary (11th ed. 2019) Before email subpoenas really would make people come into court (or the lawyer’s office) with all the documents requested and then the lawyer who issued the subpoena would question the producer under oath. Today, most subpoena’s just request documents to be emailed with a certification by the custodian of records. People respond to subpoenas because if they do not reply to the subpoena as requested, the subpoena issuer can ask that the deponent (person who got the subpoena) be held in contempt of court. “The service of the rule to show cause or order of contempt upon the nonparty, except when the rule or order is initiated by the court, shall include a copy of the petition for rule and the discovery order or subpoena which is the basis for the petition for rule. The service of the rule to show cause or order of contempt upon the nonparty shall be made in the same manner as service of summons provided for under sections 2-202, 2-203(a)(1) and 2-203.1 of the Code of Civil Procedure.” Ill. Sup. Ct. R. 204(d)(2,3) If the deponent does not live in Illinois and doesn’t plan on visiting Illinois any time soon, then they might not care about getting held in contempt of court by an Illinois court. You will recall on the Dukes of Hazzard that the Duke boys would simply cross the state lines to avoid the Sheriff as the Sheriff had no jurisdiction to enforce the law in the other state. Illinois contempt orders are similarly toothless in other states. Therefore, in order to ensure cooperation from an out-of-state deponent, an Illinois subpoena issuer must hire local counsel in the deponent’s state to register the Illinois subpoena in the county where the deponent lives under the Uniform Interstate Depositions and Discovery Act. The Uniform Interstate Depositions and Discovery Act is a statute that 47 states have enacted. I’ll be citing the Act under the Act’s Uniform Illinois citation for clarity. Obviously, you’ll need to refer to the citation of whatever state you’re registering your subpoena in. “To request issuance of a subpoena under this Section, a party must submit a foreign subpoena to a clerk of court in the county in which […]

https://rdklegal.com/how-to-issue-a-subpoena-outside-of-illinois-for-an-illinois-divorce-case/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

A closing argument is “[i]n a trial, a lawyer’s final statement to the judge or jury before deliberation begins in which the lawyer request the judge or jury to consider the evidence and apply the law in her or her client’s favor” Black’s Law Dictionary (11th ed. 2019) In an Illinois divorce hearing or trial there is no jury. “There shall be no trial by jury” 50 ILCS 5/103. In an Illinois divorce, the closing argument is solely for an audience of one: the judge. The closing argument should apply the evidence presented to the law and present the judge with an obvious and fair conclusion based on the evidence and the law. The judge is not dumb. The judge already heard the evidence. The judge knows the law. The judge has already come to an approximate conclusion. The judge may have even told you what conclusion they are considering. In light of the fact that the judge probably has already made up their mind, you want to be sure that your closing argument is as obvious as possible based on the evidence you presented. Ironically, when preparing for a divorce hearing or trial, the first thing you should do is prepare the last thing that happens in the case: the closing argument. Using Your Closing Argument To Organize Your Entire Trial For the person who is going to give a closing argument, the closing argument’s first draft should be written like a wish list. Don’t worry about the “argument” part. Just focus on the evidence you hope your argument might apply to. Under Illinois family law this is very easy because the statute is so clear. Use the below bullet points as a checklist to determine what is the evidence that you need to present to make a closing argument. I’ve divided the checklist into sections because some subject matters may not be relevant to your trial. Note: After every item of evidence you hope to present, you should also present some corroborating evidence verifying that evidence. That’s why I remind you “How do we know that?” after every statutory factor (more on this later). Division of Assets What property is non-marital? 750 ILCS 5/504(a) How do we know that? What property is marital? 750 ILCS 5/504(b),(c) How do we know that? What contributions did each party make to the marital property? 750 ILCS 5/504(d)(1) How do we know that? What […]

https://rdklegal.com/closing-arguments-in-an-illinois-divorce/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

When your child’s parent is not allowing parenting time, you can always call the police and show the police officers the court order. If the police are willing to read a 12 page Allocation of Parenting Time and Parental Responsibilities and then interpret that language based on the facts in front of them…then the police will force the other parent to turn over the child. Often, Illinois parenting plans are not crystal clear and the police will simply tell you to “go to court.” More likely, you will not want to begin every visitation with your child by calling the police. In lieu of the police, you can go before an Illinois court to enforce your parenting time. In Illinois, when a temporary order awarding parenting time is entered or an allocation of parenting time or parental responsibilities is entered, those orders have the full authority of law. Illinois parents must follow those parenting time orders (within reason). When a parent does not follow the parenting time orders, there can be severe consequences…but only if the other parent demands consequences. Is Denial Of Parenting Time A Crime In Illinois? Illinois has an unlawful visitation interference statute with noble goals. “Visitation is a right or permission granted to a noncustodial parent to visit with his or her child. The welfare of a child usually requires that a parent who does not have custody of their child be given liberal visitation rights in order to assure that the child will not be estranged from that parent. The purpose of the unlawful visitation interference statute is to provide a remedy for and to deter violations of interference by any person, including the child’s custodial parent, with a noncustodial parent’s right to visitation.” People v. Warren, 671 NE 2d 700 – Ill: Supreme Court 1996 Withholding a child from another parent in violation of a court order is a crime in Illinois. “Every person who, in violation of the visitation, parenting time, or custody time provisions of a court order relating to child custody, detains or conceals a child with the intent to deprive another person of his or her rights to visitation, parenting time, or custody time commits the offense of unlawful visitation or parenting time interference.” 720 ILCS 5/10-5.5(b) Withholding parenting time is a petty offense in Illinois. “A person committing unlawful visitation or parenting time interference is guilty of a petty […]

https://rdklegal.com/withholding-or-denying-parenting-time-in-illinois/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

When people get divorced they move on. Some parents really move on…to other states. When a parent chooses to move to another state during or after the divorce, they’ll need to make a parenting time schedule and parental decision-making order (formerly known as custody) to accommodate that move and their children’s best interests.  Illinois Divorce Judgments and Out-Of-State Parents In Illinois A divorce will begin in the most appropriate venue (state and county of the divorce court). The most appropriate venue is always the venue where the children live and will continue to live. Wherever the children have been living over the past six months will determine which state will determine their custody pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) “[A] court of this State has jurisdiction to make an initial child-custody determination only if:(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State” 750 ILCS 36/201 Additionally, the parent who lives with the children can say file a Motion For Forum Non Conveniens claiming that the children live in their venue so the divorce (and all the non-child related matters in a divorce) should proceed in that venue.   In a Motion For Forum Non Conveniens for an Illinois divorce, a court will consider “[T]he convenience of the parties; the relative ease of access to sources of testimonial, documentary, and real evidence; the availability of compulsory process to secure the attendance of unwilling witnesses; the cost of obtaining the attendance of willing witnesses; the possibility of viewing the premises, if appropriate; and all other practical considerations that make a trial easy, expeditious, and inexpensive.” Kuhn v. Nicol, 2020 IL App (5th) 190225 – Ill: Appellate Court, 5th Dist. 2020 An Illinois court, once it has jurisdiction, can begin making decisions about the children’s parenting time and the parent’s decision-making responsibilities. It must be noted that Illinois domestic relations courts strongly prefer that parents come to an agreement on parenting time and parental decision-making. Especially in cases where a parent moves out of state. The courts will even preserve Illinois jurisdiction in order to further such an […]

https://rdklegal.com/illinois-child-custody-orders-when-parents-live-in-different-states/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

Living with someone is hard. It’s even harder to live with someone while you’re in the process of divorcing them. Sooner or later, someone has to move out of the house. How do you get exclusive possession of the marital home in an Illinois divorce?  Temporary Exclusive Possession Of A Marital Home During An Illinois Divorce During the pendency of an Illinois divorce either party can ask an Illinois divorce court to evict the other party from the home. There must be an allegation that the “physical or mental well-being of either spouse or his or her children is jeopardized” in order for an Illinois divorce court to evict a spouse in such a summary fashion. “Where there is on file a verified complaint or verified petition seeking temporary eviction from the marital residence, the court may, during the pendency of the proceeding, only in cases where the physical or mental well-being of either spouse or his or her children is jeopardized by occupancy of the marital residence by both spouses, and only upon due notice and full hearing, unless waived by the court on good cause shown, enter orders granting the exclusive possession of the marital residence to either spouse.” 750 ILCS 5/501(c-2) The “physical or mental well-being of either spouse or his or her children” need not be “jeopardized” by violence alone.  “[A] situation need not rise to the level of physical violence before [the remedy of exclusive possession] may be granted…A lack of physical violence or abuse between the parties does not warrant reversal of the trial court’s decision [to grant exclusive possession] where the evidence otherwise shows a spouse or child’s mental wellbeing was being adversely affected.” In re Marriage of Engst, 2014 IL App (4th) 131078, ¶ 28.   It does not matter whose mental or physical well-being is threatened by continued cohabitation. What matters is who can manage to live outside the home. When evicting someone on a temporary basis, “the court shall balance hardships to the parties.” 750 ILCS 5/501(c-2) That means whoever would have the hardest time moving out…will likely not be the one to move out. Whomever is caring for the children the majority of the time is almost assured to get exclusive possession of the marital home. “It is true an award of the marital home in favor of the custodial parent is normally preferred.” In re Marriage of […]

https://rdklegal.com/exclusive-possession-of-the-marital-home-in-an-illinois-divorce/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

Child support in Illinois is always owed from one parent to another when they are no longer parenting together or haven’t come to some kind of agreement that waives child support. When does the obligation of child support begin and how does the obligor parent pay the back child support owed? Back child support (also known as retroactive child support) can be a thing whether an existing Illinois child support order exists or not. If a child support order already exists, it is easy to calculate the back child support owed:  Compare what was supposed to be paid to what actually got paid. The difference is the back child support owed. Note that while it is presumed that the father did at least something for the child (ex: bought diapers, paid rent) before the motion for child support was filed. These contributions are nice but they don’t count towards back child support. “The general rule is no credit is given for voluntary overpayments of child support, even if made under the mistaken belief that they are legally required. ” In re Marriage of Tollison, 208 Ill. App. 3d 17, 19-20 (Ill. App. Ct. 1991)  To calculate back child support in a fresh divorce or parentage case is a more complicated endeavor that a court is empowered to order…to an extent. “The decision to award retroactive child support rests within the sound discretion of the trial court.” In re Marriage of Sawicki, 806 NE 2d 701 – Ill: Appellate Court, 3rd Dist. 2004 “Retroactive allowance of support in a dissolution proceeding is within the discretionary power of the trial court if such allowance is deemed fit, reasonable and just.” In re Marriage of Rogliano, 198 Ill. App. 3d 404, 410 (Ill. App. Ct. 1990) Back Child Support When The Parents Are Not Married. No one has ever filed for child support before the child was born.  Yet, the child needed to be fed, clothed, and housed before a child support order was ever entered.  Whose responsibility was it to provide for the child before the matter got to court? It was both parents’ responsibility. The Illinois statute recognizes this mutual responsibility in both the present and the past for unmarried parents. The Illinois Parentage Act of 2015 handles issues between parents who are unmarried.  While the Illinois Parentage Act points unmarried parents to the exact same laws for calculating child […]

https://rdklegal.com/back-child-support-in-illinois/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

When a child support order is entered in Illinois, that order is either written on a self-composed order by the child support receiver (or their attorney), or that child support order is the county’s Uniform Order For Support.  Either order is supposed to include an end date for child support. “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) If the self-composed order has an end date for child support or if the Uniform Order For Support has the termination box checked with a date of final child support, no child support is owed after that date. Few divorced parents apply proper attention to that date as the termination of child support date is far in the future. In the meantime, the child support receiving parent will garnish or withhold child support from the child support paying parent’s check. “[E]very order for support entered on or after July 1, 1997, shall…[r]equire an income withholding notice to be prepared and served immediately upon any payor of the obligor by the oblige” 750 ILCS 28/20(a) “The income withholding notice shall: … direct any payor to withhold the dollar amount required for current support under the order for support;” 750 ILCS 28/20(c)(2) Child support in Illinois stops once the child has reached the age of 18 and graduated from high school or has reached the age of 19. “[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) Income Withholding Orders do NOT include a termination date reflecting the child’s 18th birthday or graduation date.   If the child support is being withdrawn by the State Disbursement Unit (it almost always is), the child support will be terminated by the State Disbursement Unit according to the termination date in the underlying order. Otherwise, a parent must go to court to […]

https://rdklegal.com/overpayment-of-child-support-in-illinois/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

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 […]

https://rdklegal.com/failure-to-compromise-in-an-illinois-divorce/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

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 […]

https://rdklegal.com/what-a-real-estate-agent-needs-to-know-in-an-illinois-divorce/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com

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 […]

https://rdklegal.com/determining-a-business-owners-income-in-an-illinois-divorce/

via Russell D. Knight | Family Lawyer Chicago https://rdklegal.com