Recent Blog Posts

Relocation: When Can a Custodial Parent Move With Their Children?

 Posted on March 05, 2021 in Divorce

DuPage County parental relocation attorneysAfter 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;

(2) a change of residence from the child’s current primary residence located in a county not listed in paragraph (1) to a new residence within this State that is more than 50 miles from the child’s current primary residence, as measured by an internet mapping service; or

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Family Law During COVID-19: Tips for Participating in Remote Court Appearances

 Posted on February 23, 2021 in Family Law

DuPage County remote court appearancesThe 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.  

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How Remarriage, Cohabitation and Children of Other Relationships Affects Support Obligations

 Posted on February 09, 2021 in Divorce

Wheaton lawyer for support obligationsSince 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.

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Am I Required to Live With My Spouse During Our Divorce?

 Posted on January 13, 2021 in Divorce

Wheaton attorney for divorce living arrangementsOne 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.

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How Interest Affects Your Divorce Judgment, Maintenance, and Child Support Obligations Including New HFS Procedure as of January 1, 2021

 Posted on January 05, 2021 in Divorce

Wheaton attorney for divorce interest

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.

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How to Navigate the GAL Process in Your Case

 Posted on December 08, 2020 in Family Law

Wheaton family law attorneyCourts 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.

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The Cost of Getting Divorced and How to Keep Fees Down

 Posted on November 12, 2020 in Divorce

Wheaton divorce lawyerWhen parties have a completely uncontested (agreed upon) divorce, our office McSwain Nagle Giese & Rapp, P.C. may handle those cases on a flat fee basis, where no hourly charges are incurred. Unfortunately, even in situations where spouses are somewhat amicable, it is often very difficult to reach an agreement without legal guidance and some negotiations or litigation, particularly if there are minor children involved or substantial assets. In those cases, it is necessary to hire an experienced divorce attorney who is going to get you the best possible outcome while being cognizant of the cost to you

Since every family’s circumstances are so different, it would be nearly impossible to predict the cost of a divorce, which is why most divorce attorneys bill at an hourly rate. Hourly rates can vary from firm to firm but typically are based upon the experience of the attorney and the reputation of the firm. Paralegals and law clerks bill at a lower hourly rate and therefore can be used as a cost-saving tool. In addition to paying an hourly rate, most reputable law firms will require a retainer fee, which is an upfront lump-sum payment in order to secure the attorney’s services for your case. The retainer is placed into the lawyer’s trust fund/IOLTA account (an account that holds money on behalf of clients) and when the lawyer generates an invoice, the retainer is applied to the amount owed prior to the client having to pay additional funds. Family law attorneys in Illinois are required to generate and tender fee statements at least every 90 days, however many law firms, including ours, issue them every month.  

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Estate Planning 101: How to Avoid the Probate Process

 Posted on November 12, 2020 in Family Law

Wheaton estate planning lawyerProbate refers to the legal process by which a court administers the estate of a person who has passed away. This process can be long, costly, emotional, and confusing, especially for those who are not familiar with the legal system. For this reason, it is important to establish an estate plan while you are still alive, to spare your family members the hassle of dealing with the probate court in the aftermath of your death.

Perhaps one of the most difficult scenarios is when a person dies without having a will (legally referred to as dying intestate). When this happens, the assets of the person who died are essentially tied up until the probate court goes through every detail of that person’s estate. When someone dies intestate, there is a complicated procedure that must be followed, including providing notice to heirs and creditors and publishing notice to the general public. Ultimately, the court will distribute assets according to the line of succession set forth under the Illinois Intestacy statute.

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My Ex Lives With a Significant Other - Do I Still Owe Spousal Support?

 Posted on October 01, 2020 in Divorce

Wheaton divorce lawyerStarting on January 1, 2015, the Illinois maintenance statute changed to provide a formula that calculates a party’s maintenance obligation to the other party in a divorce.  The change was meant to provide more certainty with respect to how much maintenance someone will be paying and for how long. However, one thing that did not change the fact that maintenance will not be awarded and can be terminated if the party receiving maintenance “cohabits with another person on a resident, continuing conjugal basis.” 750 ILCS 5/510. What does that mean you ask? The answer is not as straightforward as you might imagine and can lead to uncertain results.

Assume John married Annie in 2008 and recently decided that he wants to get a divorce because he believes that Annie has taken up with a lover in the past couple of months. On November 1, 2014, she moved out of the marital residence and into the home of her long-time friend, Al. However, before she left, she asked John if he would help her get her own apartment to live in while the divorce was pending. John refused to give her a dime and she has nowhere else to go.  John believes that Annie may be having an affair with Al because he saw a picture of him kissing her on the cheek on Facebook and he’s always suspected that she had feelings for him. Annie, however, denies that she is in a romantic relationship with Al, has only lived in his house for about a month, spends a few nights each week with Al, sleeps in a separate room than Al, does not contribute to bills, and does not have any joint accounts with him.  Annie has, however, gone on a weekend trip to Lake Geneva with Al, and has spent Thanksgiving with him. With these set of facts, would Annie be entitled to maintenance from John?

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Same-Sex Adoption: How It Works and Why Same-Sex Couples Should Do It

 Posted on October 01, 2020 in Family Law

Wheaton adoption lawyerOn September 18, 2020, the nation was devastated with the announcement of one of the U.S. Supreme Court’s most prominent Justices, Ruth Bader Ginsburg’s, death. Justice Ginsburg was a voice for many marginalized groups in America, especially the LGBTQ community. Among her most recognized endeavors, was her supporting vote in favor of granting same-sex couples the right to get married in all 50 states. Justice Ginsburg’s death has undoubtedly caused civil unrest and has potentially placed LGBTQ rights at risk as a seat on the Supreme Court is now vacant for the President to fill. With the legalization of same-sex marriage came the legalization of LGBTQ adoption in the United States. However, there are still many countries that do not recognize equality amongst the LGBTQ community, and given the controversial political climate, it is important for same-sex couples to understand their rights when adopting a child.

When most people think of adoption, they think of a typical scenario in which the biological parents give up their rights to their child and another couple is granted parental rights to that child through the adoption process. However, same-sex adoptions work much differently. While it may seem obvious, the biological parent automatically has rights to the child by virtue of giving birth to that child. But, in a same-sex relationship, the other non-biological parent’s parental rights are not absolute. Therefore, adoption is necessary to safeguard those rights in countries or within institutions that may not recognize same-sex rights or in the event that same-sex rights are ever nullified or modified to impact parental rights.

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