In 2016, the Illinois legislature attempted to create uniformity behind maintenance awards (formerly known as alimony) in dissolution of marriage proceedings by establishing a statutory formula for its calculation.  The theory behind the change to the law was that by instituting the guidelines there would be less variation from judge to judge and county to county than there had been prior to 2016.  The maintenance guideline formula is contained in the Illinois Marriage and Dissolution of Marriage Act, Section 504, and provides for both a guideline amount and duration for spousal support, as well as a percentage cap based upon the spouses combined incomes (the recipient shall receive no more than 40% of the combined total net income).  The current statute (revised most recently in 2019) sets support based on the net incomes of each party (compared to being based upon gross income pre-2019) and the duration is based upon a multiplying factor considering the length of the marriage through the date a petition for divorce is filed.  Specifically, the award is 33 1/3% of the payor’s net income less 25% of the payee’s net income (subject to the same cap from the 2016 version).  Although the court can deviate from these guidelines when they apply, a deviation is rare and there typically needs to be a court-approved basis for doing so; such as one party having a greater capacity to earn income than evidenced on paper or a party having substantial nonmarital assets like an inheritance.  

However, the guidelines set forth in the current statute do not apply in all circumstances.  Specifically, couples with a combined gross income in excess of $500,000 are not subject to the guidelines.  So, if one party earns $450,000 per year and the other earns $80,000 per year, or one party is a stay-at-home parent and the other earns in excess of $1,000,000 per year, the court is not required to follow the guideline formula and has discretion to establish maintenance awards and set the duration of an award, presuming the court first determines that a maintenance award is appropriate under the circumstances.  

Does that mean the court will allocate a greater or smaller percentage than what the guideline formula would have resulted in? Will they use a formula at all?  The statute states as follows: “Any non-guidelines award of maintenance shall be made after the court's consideration of all relevant factors set forth in subsection (a) of this Section.”

Many individuals who are going through a divorce often start dating other people before their case is finalized. While it is great that they feel emotionally ready to take on a new relationship, there could be potential consequences to dating while also unwinding the marriage with their current spouse. Although Illinois law does not prohibit dating during the divorce process, that does not mean that dating will not present its own set of challenges for your case, especially when there are children involved. So, for those who are thinking of dating during divorce, this blog will discuss four important considerations to keep in mind before doing so.

1. The Impact Dating May Have on Your Children

If you have children, dating during divorce can be tricky and sometimes confusing for them. During the divorce process, children often need stability as it is not just a vulnerable time for you, but also for them. For many kids, the thought of their parents divorcing is a difficult pill to swallow because it raises concerns and anxiety over possible changes to their current lifestyle (i.e. which parent they are going to live with, how often they will see the other parent etc.). It can also create feelings of isolation from peers who have intact families or married parents. Therefore, introducing them to a new partner can sometimes make an already difficult time worse. It is important to be sure that the relationship is serious before introducing them to your new significant other. With that said, introducing your children to a new partner may also have a positive impact on them if your children like and trust your new significant other. 

In addition to the emotional impact dating may have on your children, you should also consider the practical consequences it may have on your divorce case. Illinois law requires that a Court allocate parenting time in accordance with the children’s best interest. When determining what is in a child’s best interest, a Court may consider how your new dating relationship affects the children during your parenting time. 

This question is commonly asked by clients and is normally shaken off by attorneys as “unlikely.” Most attorneys will tell their clients that the only way that they can recover attorney’s fees in a parentage action is if one party is held in contempt or is intentionally increasing the cost of litigation. However, the relevant case law says otherwise, and it actually allows for one party in a parentage case to seek “interim attorney’s fees” from the other. “Interim” means while the case is pending.

There are two laws at play in this issue, the Illinois Marriage and Dissolution of Marriage Act and the Illinois Parentage Act of 1984. The Illinois Marriage and Dissolution of Marriage Act incorporates the Illinois Parentage Act of 1984 in its entirety. The Illinois Marriage and Dissolution of Marriage Act refers to divorce cases while the Illinois Parentage Act of 1984 applies to parties that have never been married. This blog will give you a look at when you may be awarded attorney’s fees in your case and what kind of fees you can try and recover.

In 1997, the Illinois legislature created a new procedure for awarding attorney’s fees under the Illinois Marriage and Dissolution of Marriage Act. The legislature amended the law, which now says that “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 accordance with subsection (c-1) of Section 501.” 

While unfortunate, it is extremely common for divorce, orders of protection, and criminal domestic violence cases to be intertwined. In many situations, divorce and/or parentage cases begin with the filing of a civil order of protection, typically an emergency petition and mostly without notice to the other party. Orders of protection are governed by the Illinois Domestic Violence Act of 1986. Orders of protection protect family or household members from the actions of another. In order to obtain an order of protection, the petitioner must prove: a) that the respondent is a relative or household member, b) that the respondent has abused the petitioner, and c) that the Court has jurisdiction of the matter. “Abuse” is a broad term under the Illinois Domestic Violence Act, and is defined as: physical abuse, harassment, interference with personal liberty, intimidation of a dependent, or willful deprivation.  What classifies as abuse under these broad definitions varies case by case and is impacted by both the severity and frequency of the circumstances.

A party seeking an order of protection against a spouse, fiancé, or partner may ask the court to protect not only themselves from the other party, but also the children as well, but only if the children have been subject or witness to the abuse.  To do this, the person seeking the order of protection (the petitioner or victim) must list the children as “protected parties” and state any abuse that the children may have witness or fell victim to by the other party (the respondent or abuser).   As a remedy for an order of protection, in addition to prohibiting contact of any kind between the petitioner and the respondent, the court can also prohibit the respondent from having any contact with the minor children, suspend any and all parenting time between the respondent and the children or establish a supervised or other reasonable parenting schedule. Additionally, the court can grant the petitioner exclusive possession of the shared residence, meaning that the respondent would be prohibited from entering the residence until further order of court. The court also has the authority on a plenary order of protection to order the abuser to attend counseling and turn over any firearms. 

Although many orders of protection are civil in nature, the State’s Attorney’s Office can decide whether or not to prosecute the respondent for the crime of domestic violence as a result of any physical abuse that occurred, provided the victim wishes to press charges. If that happens, the court will set conditions of the respondent’s bond. Most of the time, those bond conditions include no contact of any kind with the petitioner and no contact of any kind with the children. Additionally, the bond conditions can prohibit a respondent from leaving the State of Illinois.

For most parents, the issue of when and under what circumstances they will see their children is of utmost concern in their divorce or parentage case. In fact, the allocation of parenting time between parents can often be one of the most challenging issues for attorneys to address in a case since each family’s circumstances are so unique. For many parents who have been extremely involved in their children’s lives, the hope is for an equal (“50/50” or “shared”) parenting schedule. As lawyers, we are often asked whether a shared parenting schedule is the starting point in Illinois. However, an equal parenting schedule is not the default as it is in some other states. Therefore, it is important to understand when an equal parenting time schedule might be appropriate and what key elements would support the implementation of a 50/50, or shared schedule.  

It used to be the case that Courts viewed equal parenting schedules with extreme caution, especially in cases where the parents do not get along and have too much animosity toward one another that they are unable to effectively co-parent.   However, in more recent times, shared parenting schedules are implemented much more frequently.  In Illinois, the law requires the Court to allocate parenting time in accordance with the children’s best interests. There are many factors that the Court will look at to determine what is in the children’s best interests in a given case, but perhaps one of the most important is “the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” This factor is particularly significant as it relates to a request for a 50/50 parenting schedule, because both parents need to be able to communicate and cooperate with one another in order to make an equal parenting schedule successful. 

Additionally, determining whether an equal parenting schedule is appropriate for you will involve an individual assessment of your family’s unique circumstances. For example, this assessment would take into account things such as each parent’s work schedule, the children’s needs, and the children’s school and extracurricular activity schedules, the children’s ages and the parties’ distance from each other’s homes. For example, if you have a demanding work schedule and the other parent is a stay-at-home parent, it would be unrealistic to expect that a 50/50 parenting schedule would be implemented absent exigent circumstances. 

If you or your ex-spouse is planning to retire soon, you may be wondering how it may affect your maintenance obligation or award. In general, maintenance is modifiable unless you and your ex-spouse specifically agreed upon divorce that maintenance would be “non-modifiable” which is rare (and actually considered a property settlement). Depending on what the divorce decree says, the payor spouse may still have an obligation to pay maintenance even after they retire. For example, if you were ordered to pay permanent maintenance to your ex-spouse, that obligation would likely continue even after retirement but possibly with a substantial reduction, depending on the circumstances of your case.

Illinois law contains several scenarios in which a maintenance obligation would automatically terminate including the remarriage of the party receiving maintenance, the death of either party, or the cohabitation of the party receiving maintenance with another person on a resident, conjugal basis.  What is important to note is that the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) does not contain a provision that allows maintenance to automatically terminate upon retirement.  Termination is different than modification, however, and the statute does afford the payor spouse the ability to file a petition with the court seeking to modify their maintenance payments based upon their retirement or other reason they are unable to pay the ordered amount.

Section 510 of the IMDMA Act provides that a maintenance obligation may be modified or terminated “upon a showing of a substantial change in circumstances.” When determining whether a substantial change in circumstances exists, the court can consider the change in employment status of either party, such as retirement, or the increase or decrease of either party’s incomes. If, upon your retirement, the payor’s financial circumstances and resources do not change significantly, and their income will be similar to what they were receiving before they retired, then their spousal support payments will likely continue to be the same. By contrast, if the payor can show that their financial circumstances have drastically changed as a result of their retirement, such that they can no longer afford to continue paying spousal support at its current amount, then the court can order that your maintenance payments be reduced or terminated completely. However, whether a modification or termination of maintenance will be granted is highly dependent on the facts of each individual case.

 What is parentage and how is child support established for unwed parents?

Parentage refers to a person who is the legal parent of a child, which may not necessarily be the natural or biological parent. In legal actions where a parent is seeking child support or allocation of parenting time and parental responsibilities, parentage or paternity is the first issue that needs to be determined to establish standing.

 In Illinois, the presumption is that when parents are married or in a civil union within three hundred days prior to the birth of a child they the parents of the child. This presumption does not exist for unwed couples. Therefore, parentage must be established prior to an order for child support, parenting time, or parental responsibilities is entered by the courts.  Under the Illinois statutes, every child is entitled to physical, mental, emotional, and financial support from his or her parents regardless of the legal relationship between the parents.

The parent with the primary responsibility for the child can seek financial support from the other party. In Illinois, if the alleged father is denying paternity, the mother may pursue child support through an administrative paternity order or through an order of paternity in a regular court proceeding.

Selecting an attorney to represent you in your divorce proceedings is undoubtedly one of the most important decisions you have to make when beginning the process of dissolving your marriage. 

In many ways, choosing the right attorney to represent you in divorce proceedings can have a lasting impact on your future and set the foundation for whether or not you will be successful in your matter. At McSwain Nagle Giese & Rapp, P.C., all initial consultations with each of our attorneys are free of charge for the first thirty (30) minutes. To best prepare for your consultation, we have compiled a list of essential questions to ask during your initial consultation in order to choose the best attorney for you.

How long have you been practicing law and what percentage of your practice is family law?

It is important to ask your potential attorney how long he or she has been licensed as an attorney and whether they practice mostly in domestic relations.  This will give you an idea of their level of experience and if she or he can handle the issues your case presents.  Obviously, the more complex the case, the more experienced of an attorney you will be seeking. Although you can probably imagine that with experience comes higher hourly rates. Further, attorneys that have been practicing for a substantial period of time, as well as those who are actively involved in the legal community, are more likely to have worked with the judges and opposing attorneys in your case. 

It’s no surprise that the ongoing COVID-19 pandemic has flooded the domestic relations courtrooms with a flurry of never-before-seen litigation. The courts are dealing with unprecedented issues such as taking parenting time and parental decision-making away from a parent who refuses to get vaccinated or who refuse to vaccinate a child at the age of 12 and older. Specifically, judges have recently ruled on these issues and relied on the “serious endangerment” and “best interest of the child” standard to restrict parenting time and order mask wearing and/or vaccinations of parents and children. Some litigants (and lawyers) argue that judges are forcing their personal beliefs on the parties and/or taking a political stance, while others believe these judges are playing their part in ending the pandemic and keeping people safe.  Regardless of your personal view on the vaccine or mask mandate, the legal question presented is whether the court has the authority to take such action and if so, what is the burden of proof a litigant must meet. 

Under Illinois law, to restrict a parent’s parenting time, the party seeking to restrict the parenting time must show by a preponderance of the evidence, (more likely than not), that unrestricted parenting time presents a “serious and present endangerment” to the child’s emotional, mental, moral, or physical health. If, after hearing, the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the minor child’s emotional, mental, moral, or physical health, the court may enter orders as necessary to protect the child. This means that the court can enter orders to restrict a parent from seeing his or her child, reduce a parent’s parenting time, take away a parent’s right to make significant decisions for the child, and order supervised parenting time, among other relief. The statute also includes a “catch all” provision that states that a court may impose “any other constraints or conditions that the court deems necessary to provide for the child’s safety or welfare.” In order to restrict a parent’s parenting time, the court has to make actual findings that parenting time with a parent be restricted due to a serious and present endangerment to the child.

Recently, Cook County Judge Shapiro came under scrutiny in the media for taking parenting time away from a mother who was the parent allocated the majority of parenting time after discovering that the mother was unvaccinated. This was done by the Judge sua sponte, meaning “on the court’s own motion,” without any hearing (no evidence or testimony was presented).  In that situation, the attorneys in the case had not filed any type of pleading related to restriction of the mother’s parenting time due to her forgoing the COVID-19 vaccine. According to the mother, she was advised by her doctor not to receive the vaccine because she had adverse reactions to vaccines in the past. Despite the fact that the issue was not pending before the Court, the Judge asked the mother if she was vaccinated at a court appearance via Zoom. When she said that she was not, the Judge ordered that custody of the child be immediately turned over to the father and suspended the mother’s parenting time until she obtained the vaccine.  Later, after the issue sparked much attention in the media, the judge voluntarily vacated his own order.

Divorce is not only a legal process, but it is also an emotional process. At times, the divorce process can get extremely hectic and litigious between spouses, especially when they have different parenting styles and disagree on how to raise their children. Sometimes, this tension is enough to create doubt that the other parent is properly caring for the children or result in allegations regarding the same. In severe instances, parents, teachers, neighbors, or family members may even contact the Department of Child and Family Services (DCFS) if they believe the children may be in danger. For parents who are going through a divorce, it is important to understand how DCFS investigations work and how they may impact your divorce case.

In Illinois, DCFS is responsible for investigating any reports of possible child abuse and neglect. These investigations typically take 60 days to complete. Its goal is to protect the health, safety, and best interests of a child in situations where that child may be vulnerable to abuse or neglect. In gathering evidence during their investigation, a DCFS investigator will often visit the family home, meet with the child and the parents, and meet with any other individuals living in the home. The investigator will also make contact with the person who made the initial report, although that person’s identity will remain anonymous.

DCFS findings of abuse or neglect can be used as evidence in a divorce case against the other parent for purposes of determining parenting time and parental responsibilities. For that reason, DCFS investigations should be taken very seriously when you are going through a divorce. If the investigation is “unfounded,” that means that DCFS did not find evidence of abuse or neglect, and the case will be closed. An “unfounded” DCFS report will typically have little to no impact on your ability to have parenting time or make decisions for your children. However, if abuse or neglect is found, the accused parent is then labeled as “indicated.” An “indicated” finding means that DCFS has concluded there is credible evidence that a child has been abused or neglected.

The Graduated Driver Licensing is new to many parents with student drivers since these rules were not in place until around 2011.

According to Illinois Law, the purpose of the Graduated Licensing Program is to develop safe and mature driving habits in young, inexperienced drivers and reduce or prevent motor vehicle accidents, fatalities, and injuries by providing for an increase in the time of practice period before granting permission to obtain a driver's license, strengthening driver licensing and testing standards for persons under the age of 21 years, sanctioning driving privileges of drivers under age 21 who have committed serious traffic violations or other specified offenses, and setting stricter standards to promote the public's health and safety. See 625 ILCS 5/6-107.

In other words, Illinois’ Graduated Driver Licensing Program allows teen drivers to gain experience on the road and prove they are good drivers before they “graduate” to fewer restrictions and more driving privileges.

When you are arrested or charged with an offense, a criminal record is created, even if the case is dismissed or you are found not guilty. Unless you take the steps necessary to petition the court, the record of the arrest and/or the charges remain on your permanent record. In fact, sometimes these criminal records can be accessed by the public, including your family, friends, employers, trade organizations, banks, and credit agencies. To have your record erased or hidden you must file a Request to Expunge and/or Seal Criminal Records with the court and have a judge approve your Request. There are 3 ways to clear your criminal record: (1) expungement, (2) sealing, or (3) clemency.

An expungement essentially “erases” arrests and court supervisions from your criminal record so it is as if they never happened. Once an expungement is granted, all records of your arrest and charges will be removed from public criminal records and are destroyed. No one, not even law enforcement, will be able to access the expunged records and use them against you. This can be extremely beneficial when you apply for a job, an apartment, a professional license, or any other application that requests information regarding whether or not you have ever been charged or arrested for a criminal offense. In fact, after your record has been expunged, you can answer “no” to any such questions on these types of applications.

However, it is important to know that not all offenses are eligible for expungement and certain things in your history could make you ineligible for expungement.  Specifically, if you have any pending criminal charges that will prevent you from being eligible for having a prior arrest or charge expunged. In addition, any sentences that you have not yet completed, including parole, probation, or court supervision will also make you ineligible for expungement. In addition, there is either a two or five-year waiting period from the date of satisfactory termination of eligible court supervisions and qualified probations.

In some instances, a party files for divorce and then decides that reconciliation may be possible and wishes to stop the divorce proceedings.  It is important to know that just because you have filed a case, does not mean that you are required to get divorced and if you and your spouse decide you wish to attempt reconciliation, you do have options.  At McSwain Nagle Giese & Rapp, P.C. we believe in making all efforts to preserve the family unit and we always encourage parties to pursue their options for reconciliation in safe and healthy marriages.

If the case is being dismissed entirely, there are procedural requirements that must be followed.  The party who files the initial Petition for Dissolution of Marriage is known as the Petitioner in the divorce case. The other party is known as the Respondent. The Respondent can file a counter-Petition in which case they are also known as the Counter-Petitioner.  This is relevant because if you are the Respondent in the case, the Petitioner must agree to the case being dismissed.  If you are the Petitioner, and the Respondent does not agree, you may still be able to withdraw your Petition and close the case, as long as no Counter-Petition or custody proceeding has been filed and you pay the filing fees of the other party. 

Oftentimes parties who are attempting reconciliation are not certain that their attempts at saving their marriage will be successful but do wish to try.  In those instances, the parties may not want to dismiss their case entirely, but rather wish to put it on hold.  Frequently, marriage counseling is being attempted during this hold period and the parties do not wish to continue the litigation process while actively trying to salvage their marriage.  Litigation is by definition adversarial and typically not conducive to reconciliation.    

In many divorce cases, one spouse knows very little about the family finances, assets and debts, or the other spouse’s income and employment. There are many reasons why that could be the case, but often times it is because the other spouse was responsible for handling all of the financial aspects of the parties’ lives while they were married. Even in situations where the parties believe they are familiar with the other party’s income and assets, confirming that full disclosure has been made under oath is critical for diligence purposes.  Further, the exchange of financial information of both parties is necessary in order to reach a fair resolution in the case, whether through trial or settlement. Therefore, attorneys always recommend that the parties participate in full discovery during the divorce process.

Discovery is the process by which parties in a court case can obtain information and evidence that may be relevant to the specific facts or allegations in their case. Discovery is also commonly known as the “information gathering” stage of a case.  In a divorce case, typically all income and financial assets are relevant, even if they are non-marital, and at least 3-5 years of information is requested. It can be time consuming to prepare and gather as well as for the recipient to review and parties often spend many hours sorting through PDF’s or bankers boxes of documents in order to comply.

To begin the process, parties typically issue various requests including a Notice or Request to Produce and Interrogatories. A Notice to Produce requests that the other party produce any and all documents they have, or can reasonably obtain access to, in response to the specific requests set forth in the notice. For example, a Notice to Produce in divorce cases typically contains requests for financial documents such as paystubs, tax returns, bank account statements, and/or retirement plan statements.  While a spouse may not physically possess every bank statement for the last 3 years, the documentation is in their control and therefore they are obligated to reach out to the financial institution and request the information.  Interrogatories, on the other hand, are requests that ask the other party to answer, in written format, specific questions that may be relevant to the divorce case. For example, Interrogatories typically contain a request for the other party to list information such as their employment history, income, bank accounts, and/or retirement assets. The Supreme Court Rules contains the standard Interrogatories that must be used in a divorce proceeding unless a party is permitted by the court to ask for different information. 

After a divorce, many people want a “fresh start,” and hope to find that by moving to another location. Sometimes, their move is prompted by a better job opportunity, a new significant other or family members, or better housing and school opportunities. Regardless of the reason, parents who share parenting time with their children cannot simply up and move. Rather, Illinois law requires that parents abide by certain rules and procedures for relocation with the children. 

Under Illinois law, the term “relocation” is defined as follows:

“(1) a change of residence from the child’s current primary residence located in the counties of Cook, DuPage, Kane, Lake, McHenry, or Will to a new residence within this State that is more than 25 miles from the child’s current residence, as measured by an internet mapping service;

The world as we knew it has been forever changed by the COVID-19 pandemic, and that includes how domestic relations court proceedings are being handled. After initially halting court proceedings in March and April of 2020, courts in most counties in the state of Illinois have now mastered dealing with the pandemic restrictions and have implemented remote procedures, including those for statuses, pre-trials, settlement conferences, temporary hearings, prove-ups, and even multi-day evidentiary trials.

In some ways, the pandemic has made the domestic relations process easier for families. For example, litigants do not have to deal with the hassle of driving to court, parking, going through security, or finding the right courtroom. Instead, litigants can attend court from the comfort of their own home or office. For example, in DuPage County, the court currently allows individuals who have entered into a complete agreement with their spouse to get divorced without ever having to come to court at all.  Instead, they can simply submit affidavits to the court along with their proposed agreements.  

However, when a case is contested and parties are unable to resolve their differences amicably, there is still a need for regular and sometimes frequent court appearances.  Since courts have moved to largely a remotely operated system, it’s important to understand the rules and expectations of the process.  Almost every county in Illinois is operating using the Zoom video platform. To be prepared, you should have this downloaded onto your computer or phone well in advance of your scheduled court date. It is also important to become familiar with the Zoom platform beforehand.  In particular, become familiar with the video and audio settings, so that you are comfortable using it and the Judge and attorneys can see and hear you when your case is called. This will save a significant amount of time. To obtain the zoom login information for your case, visit the county clerk of court website.

Since 2019, Illinois has utilized an income shares model for calculating child support.  The income sharing model considers the combined net income of both of the parents and the number of children in calculating the amount of child support. Each parent is then required to pay a percentage of the total obligation that is proportionate to their percentage of the combined income.

Most of the time, the parent with the majority of parenting time, even if they earn more than the other parent, will receive child support payments. The amount of support, however, changes substantially in a shared parenting scenario where the minority parent has at least 146 days with the children during the year. In this situation, the amount of support substantially decreases as the number of overnights above 146 increases.

How does remarriage affect my child support payment?

Generally, when a party paying support remarries, his or her new spouse’s income will not change the amount of support due to the recipient parent. The same goes for the reverse situation: even if the recipient party remarries someone with a significant income, the obligor’s monthly child support will not decrease. The income of the obligor’s spouse is not factored into child support calculations because the new spouse has no legal obligation to financially support the obligor’s child. However, new spouse income can still be considered in the context of child support (and sometimes maintenance) modification proceedings or in rare instances the initial setting of support with unusual circumstances. Even though a new spouse doesn’t have any legal obligation for the support of his or her stepchildren, when one or both parties have since remarried or is living with someone in a committed long-term relationship, the income of the new spouse or cohabitant can be relevant.

One of the most commonly asked questions during a divorce is if you are required to live in the marital home with your spouse during the pending divorce case. The short answer is that it depends on the circumstances, and particularly whether there are minor children involved and any issues of support. Another commonly asked question is, “If I move out of the marital home, is it considered abandonment?” The answer to that question is also no as Illinois is a no-fault state that does not have grounds for divorce such as abandonment. However, there are some things to know about cohabitating with your current spouse during your divorce proceedings, how it can affect your children, and what you can do if things start to become contentious.

Some couples going through a divorce are amicable and are able to live under the same roof during divorce proceedings. Often times, couples will stay together in the marital home because they cannot afford to support two households or because they want to present as least disruption in their children’s lives as possible.  The courts generally prefer that the status quo is maintained during the pendency of the divorce, meaning that parties continue to operate their day to day living as they did prior to the filing.

However, sometimes that is not possible and couples cannot live together during a divorce case because their situation is so volatile that it negatively impacts their own or the children’s health and wellbeing. If this is the case, it’s best if the parties can agree that the arrangement is not ideal and determine a plan for parenting time for the children and how finances will be handled.  If, however, one spouse moves out of the marital home without an agreement on these issues, it can lead to litigation. In that case, the party remaining in the marital home would want to file a petition asking the court for temporary relief as it relates to support or household expenses. If the children have been removed from the home, the issue becomes even more imminent and the spouse who remains would likely file a petition asking the court to order the return of the children or at minimum to set a parenting schedule. Given that the court greatly prefers the status quo be maintained, it is not looked up favorably if one party unilaterally leaves the home with the children.

Interest on Divorce Judgments

The question of whether interest applies within the context of a domestic relations proceedings depends on the nature of the obligation—whether it be child support, maintenance, or a property obligation. The Illinois Code of Civil Procedure provides that judgments recovered in any court shall draw interest at the rate of nine percent per annum from the date of the judgment until satisfied. But does this apply to your divorce decree?

Interest on Child Support and Maintenance

While it wasn’t always the case, in 2000, Illinois clarified its legislation by requiring mandatory statutory interest on all missed child support payments. Specifically, the law states that a support obligation, or any portion of a support obligation, which becomes due and remains unpaid at the end of each month, shall accrue simple interest. Later, in 2006, this same principle became the law  for maintenance as well. The law provides that any maintenance obligation including any unallocated maintenance and child support obligation, or any portion of any support obligation, that becomes due and remains unpaid shall accrue simple interest. In other words, 9% interest is mandatory for unpaid child support and/or maintenance obligations.

Courts generally prioritize child-related issues over financial matters, which is why the Illinois Supreme Court rules require mediation as the first step in a contested case involving minor children. If mediation fails, and there is no agreement on any child-related issues (parenting time, decision making, etc.), the Court may on its own motion, or at the request of the parties, appoint a Guardian ad Litem (GAL) to represent the minor child(ren)’s best interests. A GAL is a third-party attorney that is trained in child-related matters and appointed by the Court as the Court’s witness to act as the “eyes and ears of the court” on behalf of a minor child or children.  Their role is to conduct an investigation and report to the court with recommendations. The Court typically appoints attorneys who they respect and trust their judgment, and therefore the GAL plays a crucial part in the outcome of the case, so it’s imperative you understand their role and your responsibilities related to it.

Part of the GAL process includes interviewing both parties and meeting with the child(ren) on at least one occasion. It can be intimidating to have someone interview you and your children, so you should prepare for your first meeting with your attorney. Here are some important things you should know if a GAL is appointed to your case.

1. Fees – The Court assigns a retainer fee for the Guardian ad Litem and allocates the GAL’s fees. In many scenarios, the retainer and fees will be split 50/50. However, that is not the situation in every case. For example, if one party makes significantly more than the other, the Court may allocate the higher-earning party to be responsible for a large portion or all of the GAL fees. Some judges also require the party requesting the GAL to pay a larger portion of the fees. GAL fees are usually considered “without prejudice and subject to reallocation.”  This means that the Court’s order regarding fees is not final, and you can have your attorney file a motion to reallocate the fees at a later time for a number of reasons. For example, if your ex is being especially difficult, not cooperating with the GAL, and incurring many fees, the Court can consider their actions when reallocating fees. Most often however—absent egregious conduct—the courts allocate fees based upon income or each party’s respective financial position.  GAL’s typically invoice the parties similarly to private counsel and are required to submit their billing statements to the court every 90 days.
2. The GAL Order – The GAL appointment order will set forth the GAL’s contact information, the contact information of both parties, the retainer and fees, the date for status on the GAL report, and what issues the GAL is appointed to explore. The Order will also say whether the GAL will make a written report or just an oral report to the Court. Most of the time, the Court will reserve the issue of a formal written report to save time and money. In the event of a trial, the Court may ask the GAL to prepare a written report and disseminate it to the parties and the Court ahead of the trial.
3. Initial and subsequent meetings with the GAL – Each GAL has his or her own standard procedures, so your attorney cannot predict exactly what will happen at the first meeting. Some GALs require that you personally call their office to set up your initial appointment. Other GALs or their staff may reach out to you directly. Usually, the GAL will send out an initial letter explaining the process and enclosing an initial parental questionnaire for you to fill out.  Sometimes they can also include releases or criminal background checks. Prior to your meeting, you should complete and review any and all forms with your attorney. You should be dressed appropriately, on time, and prepared for your meeting. Either during your first meeting or a subsequent meeting, you will need to provide evidence and information to support your position and claims. This should always be reviewed with your attorney prior to submitting it to the GAL. For example, if DCFS has been involved in the past, you will want to have all of the paperwork you received from DCFS ready for the GAL to review. The more prepared and organized you are, the more likely the GAL will be able to retain the information you provide. One way to do that is to provide them with a tabbed binder with all supporting documentation and a summary for each section. 
4. Meeting with the children – The GAL will meet and speak to your children (if they are of the appropriate age) at some point in their investigation. Sometimes this is done at your home, the GAL office, or a public place. It’s important that you do not coach your children prior to the meeting with the GAL or interrogate them afterward. You can, however, age-appropriately explain the GAL and tell your children to be open and honest with them. Most times, it is very obvious when a child has been told what to say by a parent, and it does not reflect positively upon you. If your children have a counselor or social worker, the GAL may also ask for a release to speak with that person.
5. Home visits – GALs have different procedures regarding home visits. Some GALs will automatically do a home visit, and other GALs may not do a home visit unless the state of one party’s home is in dispute. You do not need to have a cleaning crew come to your house prior to the meeting, but your house should be tidy and child-friendly. The GAL will mostly want to know that the children have adequate and safe living conditions as well as observe their comfort level in the home. The GAL may also want to meet other third-parties who live in the home.
6. Third-parties – In addition to interviewing you and your child(ren), the GAL will likely speak to at least some collateral witnesses. Depending on your case, this may include medical providers, teachers, extended family members, counselors, or neighbors. Typically, the GAL will request you provide the contact information for third-party witnesses, and you should discuss this with your attorney before providing those names.
7. Recommendations and settlement conferences – After the GAL has finished his or her investigation, they will circulate their recommendations to the Court or sometimes to the parties through their attorneys ahead of time. The GAL role also includes helping to facilitate settlement, so if it is possible for them to assist you in reaching one, they may schedule additional meetings or prepare proposed orders or allocation judgments. The GAL will stay on your case until the court discharges them, likely when a final order has been entered.

The GAL plays a critical role in your case and the process can be invasive and costly for many families.  Accordingly, it’s important that you communicate regularly with your attorney regarding your contacts with the GAL and you work with your attorney to develop a strategy for the GAL process.