Getting a child support order modified after a divorce can be challenging but not impossible. There are specific legal procedures and requirements to change an existing support order successfully. An Illinois lawyer can help ensure you are going through the process correctly.

Grounds for Child Support Modification in Illinois

Either parent can file a petition to modify child support if there has been a “substantial change in circumstances.” The change must be significant and non-temporary.

Common significant changes that may warrant a modification include:

If you are married to a person who displays strong signs of narcissism, likely you will find yourself in a divorce proceeding at some point in your marriage.  Narcissistic Personality Disorder (NPD) is a mental health condition in which is diagnosed by evaluating the nine criteria enumerated by the DSM-5, the American Psychiatry Association’s manual regarding mental disorders.  The criteria include: (1) inflated sense of self-importance; (2) preoccupation with power, brilliance, beauty or success; (3) belief they are “special” and “unique”; (4) desire to be admired excessively; (5) sense of entitlement and unreasonable expectations; (6) Interpersonally exploitative; (7) Lacks empathy; (8) Arrogant; and (9) Envious of others or believes others are envious of them.  Displaying only one of these characteristics does not necessarily make someone a narcissist, though it is not required that a person display all of these characteristics to be a narcissist either. 

When divorcing someone with symptoms of narcissism, it is important to step back and ask yourself whether this person actually fits the criteria for NPD or whether you are viewing them in that manner due to your current relationship difficulties.  You need to ask yourself whether you thought these things about this person BEFORE you underwent the breakdown in your marriage or relationship.  If not, it is possible that you could be improperly classifying them due to the inherent bias that comes along with divorce.  However, if you believe they have always displayed these patterns, and particularly, if other independent neutral parties also believe they demonstrate these behaviors, then it is likely, or at least very possible, that you are married to a narcissist. 

Narcissists can make the divorce process more difficult than it needs to be.  They can make it emotionally draining for you by gaslighting you, playing victim, and being persistent with their unreasonable expectations.  They often think they are smarter than the professionals, including psychiatrists, attorneys, and even the judge, making settlement challenging.  They also can prolong the divorce by continuing to fight battles that are effectively over.  This can often leave you feeling hopeless and financially strained. 

Often as parents, we are faced with the difficult question of how to best discipline our children. This issue becomes even more complicated when parents are navigating a divorce or other court proceedings. Today, many people view physical discipline, specifically spanking, as a form of outdated punishment and accordingly parents do not allow caretakers to use physical discipline on their children. However, there are still some parents who view spanking and other physical discipline as permissible and appropriate forms of discipline for children. In order to avoid a negative impact on parental rights during a court case, or even an indicated finding by the Department of Children and Family Services (DCFS), it is essential that parents are advised correctly as it relates to disciplining children with corporal punishment.

The Illinois Marriage and Dissolution of Marriage Act outlines the factors the court considers when determining parenting time and decision-making responsibilities for parents.  These factors, commonly known as the “best interests” factors, include whether physical violence is present as well as whether there is any abuse against the child.  The Abused and Neglected Child Reporting Act defines “abused child” as “a child whose parent or immediate family member, or any person responsible for the child’s welfare, or any individual residing in the same home as the child, or a paramour of the child’s parent… inflicts excessive corporal punishment.” 325 ILCS 5/3. Unfortunately, the term “excessive” is not defined under the act which leaves room for question and doubt for parents who choose to use corporal punishment.

The law on corporal punishment is somewhat vague and requires that each scenario be decided based on its own distinct set of facts and circumstances. For example, in Illinois, while parents are not legally prohibited from spanking their children, depending on the circumstances, certain forms of corporal punishment can be considered child abuse.  Since the term “excessive” is subjective, it is ultimately up to the trier of fact, the judge, to determine whether or not a parent’s use of corporal punishment rises to the level of child abuse. In determining what factors may be considered excessive, courts have found that corporal punishment that uses items like a belt or wooden spoon, or leaves bruises and/or welts are more likely to be considered excessive than those with the hand only. However, in one case, a plaintiff was indicated by DCFS under the abuse allegation for cuts, bruises, welts, abrasions, and oral injuries where she used a wooden paddle to discipline the child resulting in bruises the size of a 50-cent piece on the left thigh, right forearm and another bruise on the child’s lower lip. Yet, the evidence established that the parent administered corporal punishment, not in a vengeful manner, but as a punishment for the child’s behavior, which she intended to be a learning moment for the child. Therefore, when taken up on appeal, the court found the harm suffered by the child was not actually considered abuse.  Even though the use of the wooden paddle resulted in two bruises to the child, because the parent used the paddle as a form of punishment, she did not use it excessively, the court did not deem it to be harmful.  Marchant v. Illinois Department of Children & Family Services, 2012 IL App (1st) 103747-U.  That said, this case may be the minority and any time an object is used for corporal punishment or an injury is inflicted on the child, there is cause for concern from the court’s perspective. 

When parties begin to negotiate the division of their marital assets and debts, the issue of how a business interest will be treated or divided arises. Owning a business can be stressful, and often times requires years of sacrifice, so making sure that your business interest is protected, is extremely important to many business owners.  Conversely, those spouses who have supported their spouse in the growth of their business, or even have directly contributed to its value (working for the business, using marital funds to purchase items for the business, etc.), feel a sense of ownership or entitlement to the business despite whose name is on the ownership paperwork.  This begs the question, how is a business interest viewed in a divorce and am I/is my spouse entitled to a monetary value for it? 

The first question that needs to be resolved in any divorce case involving a business is: When was the business started? In order for the business to be considered a marital asset subject to division, the business must have been formed during the marriage. If you are a business owner and you know you started the business before the marriage, it’s important that you retrieve any documents that prove you started the business interest prior to the marriage, as the burden of showing that the business is non-marital falls upon the business owner. Documents such as the letters of incorporation, tax returns, or a contract showing the purchase of the business, are examples of documents that can be used to establish that your business is non-marital. Having the court declare that your business is non-marital, means that your spouse won’t be entitled to a portion of the value of the business. However, the value of the non-marital business may still be relevant as if the court finds the value is substantial, then the court may consider the value of it when determining what an “equitable” division of the marital estate will be.  For example, if you have non-marital assets in the amount of $1 million, and your marital estate is $2 million, the court may award you less than 50% of the marital assets (the division could be 60-40 or otherwise disproportionate).  

If the business interest was formed during the marriage, the next question that needs to be answered is: What is the business worth? Due to the complex nature of how a business should be valued, generally, an expert that specializes in valuing businesses should be retained to determine the value of the business. These experts often have a background in forensic accounting, business valuation, and financial consulting in order to ensure that the business interest is thoroughly evaluated.  There are many methods in which a business can be valued, including market capitalization, time revenue method, earnings multiplier, discounted cash flow, book value and liquidation value.  Which method or methods of valuation are appropriate is typically determined by the business valuation expert depending on the nature of the business.  During this part of the process, the business owner will be required to provide the expert with financial statements, ledgers, and any other documents that are relevant to the business.  Business owners are also likely to be interviewed by the valuation expert via a management interview.

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.