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.

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.  

In addition to attorney’s fees, there are also costs associated with the divorce that are not paid to the attorney. Basic examples include filing fees, service fees, subpoena fees, and costs associated with a deposition (court reporter and transcript). Other larger costs include the cost of mediation, a guardian ad litem, evaluator, or business valuation/accounting services. Since these fees are often also based upon hourly billing, they can be unpredictable and sometimes substantial.

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.

This situation is difficult for the family members of the deceased because someone is responsible for stepping up as the administrator of the estate, which is a great deal of work and responsibility. That person is then in charge of paying any outstanding debts or taxes and distributing the deceased person’s assets while being supervised by the court. Gathering assets and paying off debts is often expensive and time-consuming, which delays distributions of property to your loved ones and can deplete assets meant to go to beneficiaries on legal fees.  However, this situation is easily avoidable through proper estate planning tools.

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?

Under Illinois law, before awarding a party maintenance in divorce proceedings, the court must consider factors listed in Section 504 Illinois Marriage and Dissolution Act providing for initial maintenance awards in addition to those listed in Section 510, providing for modification and termination of maintenance awards. This means that even if you are still married if you believe your spouse may have moved in with a significant other, you should tell your attorney so that they can determine whether a basis to negate any maintenance award exists.  After an initial maintenance award is made, however, the court will then consider only the factors listed in Section 510 to determine whether the award should terminate.

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.

Same-sex adoption or “second parent adoption” are terms that refer to the same thing: the rights of a second parent (the non-biological parent) to adopt a child and formally obtain parental rights. A same-sex adoption, therefore, creates a legally binding relationship between the second parent and the child. The process begins with the filing of a Petition for Adoption with the Court. During the adoption proceedings, the Court will appoint a Guardian Ad Litem and require that the prospective adoptive parent undergo a criminal background check. Once all of the necessary requirements are met, the Court will then enter a final Judgment Order of Adoption formalizing the second parent’s rights to the child.

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;
3. One party earns substantially more income than the other party;
4. One party is the beneficiary of a trust or expecting a sizeable inheritance;
5. A party’s family wants them to have a prenuptial agreement to protect family assets; or
6. The parties have heard horror stories about the cost of divorce attorneys and want to keep things amicable “just in case.”

Prenuptial agreements can address a variety of financial issues, including maintenance (formerly known as alimony), attorneys’ fees, division of assets and liabilities, and the definition of marital or nonmarital property. Many are unaware that in the State of Illinois, the way assets are titled is not the deciding factor of their classification as marital or non-marital. For example, just because you have a retirement account or pension in your sole name, even if you had it before you were married, does not mean your spouse has no claim to the asset in the event of divorce. A prenuptial agreement, however, can specify that these assets are to remain your sole property and not subject to division by the court in the event of divorce if you and your spouse so choose. However, a prenuptial agreement cannot address any child related issues including parenting time or child support. 

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. 

A true-up is often appropriate in situations where the payor’s income is more complicated than standard base pay. If both parties have only a base salary or base hourly wage and set hours (their incomes do not vary week to week or month to month), a true-up is not necessary, as the amount of support paid should be consistent from month to month and match up with the year-end numbers. However, if a payor receives a varying bonus or bonuses throughout the year, is entitled to commission pay, receives other incentive compensation, has overtime or fluctuating hours, or has a side job earning other income, then a true-up is often beneficial to both parties. For example, if support were set on a prior year’s total income where a payor had many commissions, and there was no true-up, the payee would have been substantially underpaid and vice versa. True ups solve this problem by ensuring the correct amount of support is paid.

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:

When a party has violated a court order, there are several remedies the aggrieved party can request from the Court, one of which is that the violating party be held in contempt of court. There are four types of contempt: Direct Criminal Contempt, Indirect Criminal Contempt, Direct Civil Contempt, and Indirect Civil Contempt. So what do each of these types of contempt mean and which is appropriate for your situation? 

Generally speaking, the primary difference between civil and criminal contempt is the purpose for which the contempt sanctions are imposed. Civil contempt proceedings are designed with the intention of compelling the violating party to comply with the court order (“the contemnor”) or, more specifically, to perform a particular act required in the order. Criminal contempt proceedings are instituted with the purpose of punishing a person for their past misconduct. Criminal contempt is a much more extensive proceeding which requires a greater burden of proof, which is why generally in domestic relations proceedings contempt petitions are brought as civil actions.

Civil contempt proceedings have two key components. First, the contemnor must have the ability to take the action sought by the aggrieved party. Second, no further contempt sanctions will be imposed once the contemnor complies with the pertinent court order (outsides of attorneys fees which are awarded when there is a contempt finding). This means that the contemnor must have the opportunity to purge himself of contempt by complying with the pertinent court order without further penalty being imposed. In civil contempt proceedings, the petitioning party needs only to prove by a preponderance of the evidence that a contemnor has violated a valid and clear court order.  The burden then shifts to the violating party to prove that the violation of the order was not willful of contumacious.  For example, in a domestic relations case where a parent has failed to comply with a child support order, the parent owed support may bring a Petition for Indirect Civil Contempt against the non-complying parent. Usually, in these proceedings, the contemnor has the ability to purge themself of contempt by paying the outstanding child support owed without further penalty.  However, a party can be found to have violated a court order, yet not be in contempt of court because their conduct had a justifiable reason. 

The “traditional” American family is changing, and assisted reproduction techniques are consistently advancing. Egg donation is the process by which a woman donates her eggs to a recipient through the Vitro fertilization process. The eggs are then fertilized with sperm and implanted into the recipient.

Currently, no statutory law exists in Illinois that governs egg donation. However, egg donors and recipients commonly hire attorneys to represent each of them in drafting an Egg Donor Contract or Egg Donor Agreement. Some doctors actually require a written agreement before beginning the egg donation process. Egg donors may choose to remain anonymous if they so desire.

Since there is no egg donor legislation in Illinois, the Egg Donor Agreement governs the rights of each party involved in the egg donation process. There are important provisions that should be implemented into the Egg Donor Agreement. The following questions should be addressed by the parties prior to egg donor services being initiated: 

 It’s no secret that gender identity issues are highly controversial, especially with children. Gender identity issues have received increased visibility and recognition in recent years. Popular television shows like I Am Jazz, Transparent, and Pose have shed light on the reality of gender identity struggles that individuals face. The Texas case of James Younger made national headlines when his parents were unable to agree on medical care related to his transgender identity.

Many children struggle with gender identity from an early age, with some studies showing that gender identity formation is possibly as early as between ages 2-5. If your child is struggling with gender identity issues, you may wonder how it will impact your divorce or parentage case, particularly if you and the other parent have different views on the issue. For a little bit of background, you should be familiar with the following gender identities, which include but are not limited to the following:

·         Transgender – a person whose gender identity differs from the sex they were assigned at birth. For example, an individual who is biologically born a female may actually identify primarily as a male.