Posted on January 13, 2021 in Divorce

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.

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 Posted on January 05, 2021 in Divorce

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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 Posted on December 08, 2020 in Family Law

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.

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 Posted on November 12, 2020 in Divorce

When 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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 Posted on November 12, 2020 in Family Law

Probate 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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 Posted on October 01, 2020 in Divorce

Starting 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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 Posted on October 01, 2020 in Family Law

On 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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 Posted on September 09, 2020 in Family Law

Discussing finances might be just about the least romantic part of any prospective marriage. It is certainly not ideal to start a marriage planning for what happens in the event of divorce. However, it is an unfortunate reality for many couples, with some statistics showing over fifty percent (50%) of marriages end in divorce. Many divorces are caused by disagreements over finances. However, being able to communication maturely about financial issues and your concerns is actually a very responsible way to start a new marriage.

There are many reasons couples seek prenuptial agreements, among them are the following:

1. One party owns a business, real estate, or other asset they wish to protect as separate property;
2. One or both parties have been divorced or have children from other relationships and want to make sure those children are taken care of financially;

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 Posted on September 09, 2020 in Divorce

Does your Judgment of Dissolution of Marriage reference an annual or quarterly true up calculation for support? Are you unclear on what that means and confused on how it is calculated? It is common for you to feel overwhelmed and uncertain about your obligations or what you are entitled to from your ex-spouse when these clauses are incorporated into your Judgment.

In many cases, temporary or permanent support orders for both maintenance (formerly known as alimony) and child support, include provisions for what’s known as a “true-up.” This includes final divorce decrees, either after the court’s ruling or more commonly via a Marital Settlement Agreement. A true-up is designed to capture income for support purposes that was not factored into the monthly support obligation. It also ensures that all income for statutory purposes is considered and equitable support amounts are being paid. 

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 Posted on August 17, 2020 in Family Law

Section 505 of the Illinois Marriage and Dissolution of Marriage Act obligates both parents to provide support for their minor children.[1]  In some family law cases, enforcing child support payments can be difficult, particularly if the parent who owes support is not generating steady income but may have assets from which to pay child support.

Protecting the best interests of the children and ensuring that they receive enough support is one of the most important goals of the court system.  As such, many states, including Illinois, authorize a court to impose a child support trust, for the benefit of the children.  A child support trust is a way to make sure the children are always supported finically.

Section 503(g) of the Illinois Marriage and Dissolution of Marriage Act states:

“The court if necessary to protect and promote the best interests of the children may set aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, physical and mental health, and general welfare of any minor, dependent, or incompetent child of the parties.”

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