Thursday, February 24, 2011

Maintenance (Alimony) In Illinois

What used to be called "alimony" is now called maintenance in Illinois. Maintenance is money paid by one former spouse to his or her former spouse for the latter's support, pursuant to a Judgment or Order. Arguably, based on the newly created civil unions in Illinois, maintenance may be ordered in the future from one former civil union partner to his or her former civil union partner.


Maintenance paid pursuant to an order during the divorce is called "temporary maintenance". It is temporary because it only lasts until the case is over. The case is over by entry of a divorce decree (Judgment for Dissolution of Marriage or Judgment for Dissolution of Civil Union). If the final judgment contains maintenance obligation, then maintenance will be paid in accordance with the terms contained in the judgment (as opposed to whatever was stated in the order requiring temporary maintenance).


A judgment may order maintenance of various durations and various types. Maintenance may be for a specified period of time, say four years, or it may be permanent. Maintenance set for a specific period of time may terminate, without the possibility of extension. Conversely, maintenance may be reviewed at the end of that time, which is discussed more fully below.


Maintenance can be reviewable, modifiable or non-modifiable. Maitenance that is reviewable, often has a set duration at which time it is to be reviewed. For instance: husband shall pay wife $1,000 per month for four years at which time it will be reviewed. At the review the Judge will look at the issue basically anew, addressing all the same factors it would when maintenance was first awarded plus what has occurred since it was awarded.


Modifiable maintenance can be modified upon filing a petition to modify and showing a substantial change in circumstances. Unlike at a review, if the party wanting to modify the maintenance cannot demonstrate a relevant, substantial change in circumstances, the Judge cannot modify maintenance. In addition, the substantial change in circumstances cannot be caused on purpose by the person seeking the modification, for instance, by quitting her job.


Non-modifiable maintenance simply cannot be modified. If non-modifiable maintenance is granted at $1,000 per month for 48 months, the duration, 48 months, and the amount $1,000 per month, cannot be changed. However, if equity necessitates it, allowances can be made. If it would be patently unfair to force someone to make payments, a court can, for example, abate the maintenance. Say the person paying maintenance lost his job because the company went bankrupt. If the Court abates maintenance until the person is able to make payments again, the maintenance continues to accrue at $1,000 per month, and will need to be repaid later.


The above concepts can, and often are used in conjunction. For instance, maintenance can be set at $1,000 per month for 48 months, terminating at the end of the 48th month unless one of the parties files to review maintenance during that 48th month. This means that if neither party files for review of maintenance in time, the maintenance is terminated forever.


In addition, when a provision is silent as to whether maintenance is modifiable, as in the above instance, maintenance is modifiable by default. If maintenance is to be non-modifiable, the provision must state so. In the above example therefore, if a substantial change in circumstances occurred before the 48th month, a party could seek a maintenance modification.


Something to really guard against are unclear provisions. There should be no questions left unanswered after reading a maintenance provision. For example, in the above example, if a petition for review is filed during the 48th month, are maintenance payments due after the 48th month and until the court decides the petition for review? Being unable to answer this question has caused many individuals a lot of time, stress and money for attorneys to argue over the right interpretation.


You can read the relevant statue here for yourself.


To learn more, contact my firm through our website or e-mail me.


PLEASE NOTE: the above is NOT legal advice. It is only a general statement about the state of the law. It is not a recommendation and should not be used to make decisions regarding you specific situation. For such a recommendation, consult an attorney regarding your specific factual circumstance.

Thursday, February 17, 2011

Child Custody in Illinois

In a divorce, custody of a minor child is perhaps the most difficult and important decision that a Judge has to make. Custody can be resolved by agreement, but in Illinois, the court must accept that agreement and incorporate it into a court Order or Judgment. As a starting point, it is important to know what custody is and what it is not. While probably all family law/divorce attorneys in Illinois know the answer, too often their clients seem to be misinformed.


The concept of custody can be separated into two (2) categories: legal custody and residential custody. Legal custody is the the authority to make major decisions about the minor child. Major decisions are those having a significant impact on the child and relating to the child's health, education or religion. Changing schools, having elective surgery or changing churches are examples of such major decisions.


Legal custody can be granted as sole or joint custody. If a parent has sole custody, that parent makes all major decisions on her or his own. If the parents have joint custody, they have to agree on the major decisions about their minor child. If they cannot agree, Illinois law requires them to mediate. If mediation fails, the court will decide based on what is in the child's best interest.


A variant on the typical joint versus sole custody arrangement is where one parent has sole custody, but agrees to not alter something without the other parents permission. For instance, the sole custodian might agree to raise the child in a particular religion, and not change the church without the other parents written consent. Alternatively, the parents may have joint custody, but one of the parents is given much more decision making authority.


Residential custody is sometimes called physical custody. This refers to where the child resides primarily. The parent with whom the child resides primarily is often called the residential parent or the custodial parent. The other parent has parenting time or visitation, and is often called the non-custodial parent. The visitation schedule can be anything the parties agree to (and the court approves), and failing agreement, whatever the court orders based on the best interest of the child.


Parents can share custody. In a shared custodial arrangement, the parents are often live close to each other, even in the same school district, and the child lives about half the time with each parent. The child might live with each parent for two (2) weeks at a time. If the parents live far apart, the child might spend longer in each residence, perhaps as long as six (6) months at a time with each parent. Shared custody is not typical, but has become more common in recent years.


There are variants of the above possible. Everything depends on the particular individuals involved. What is very important to remember in all cases is that having sole custody has nothing to do with the other parent's access to the child or day-to-day decisions affecting the child. You can have authority over all the major decisions retarding your child, but the other parent may have extensive parenting time, bordering on shared residential custody even. Likewise, regardless of legal custody, each parent makes day-to-day parenting decisions while the child is with that parent.


You can read the relevant statute here for yourself.


To learn more, contact my firm through our website or e-mail me.

PLEASE NOTE: the above is NOT legal advice. It is only a general statement about the state of the law. It is not a recommendation and should not be used to make decisions regarding you specific situation. For such a recommendation, consult an attorney regarding your specific factual circumstance.

Thursday, February 10, 2011

Child Support in Illinois

Child support in Illinois is typically paid by the non-custodial parent (the parent not residing with the child or children) to the custodial parent (the parent residing with the children). The payor (parent paying) pays a percentage of his or her income based on the number of children:


1 child = 20%
2 children = 28%
3 children = 32%
4 children = 40%
5 children = 45%
6 or more children = 50%


Net income is income from all sources minus federal and state taxes paid, health insurance premiums and mandatory retirement contributions. There are other factors, especially for those that are self-employed or own their own businesses, but this is generally the rule for most payors.


Unless the parties agreed or the court ordered otherwise (which is unusual), child support includes all contributions of the payor for the support of the child with the exception of: child's health insurance premiums; uninsured medical expenses for the child; daycare expenses for the child necessitated by the custodial parent's employment. Extracurricular activities, school supplies, etc., are generally included in child support.


What is important from the standpoint of the custodial parent? Mainly to know all income received by the payor from all sources. You might need to dig deep, especially when dealing with someone running their own business. For instance, if the business claims the payor's home mortgage as an expense, that amount should be included in payor's income.


What is important from the standpoint of the non-custodial parent? Mainly to be sure to get all your deductions before arriving at your net income for child support. For instance, if you are paying for a loan that was incurred so that you could do your current job, that should be deducted. In addition, if you are paying child support, you should get at least half of the exemptions (split the children, or alternate years for claiming the one child).


More and more parents share residential custody, each parent having the children about half the time. In such cases, the only fair thing to do is to offset child support. For instance, in the case of one minor child, the parties should calculate 20% of each of their net incomes to arrive at their respective child support amounts. Then, the person earning more should pay the difference between the child support amounts to the person earning less.


You can read the most relevant statute yourself, here.



To learn more, contact my firm through our website or e-mail me.

PLEASE NOTE: the above is NOT legal advice. It is only a general statement about the state of the law. It is not a recommendation and should not be used to make decisions regarding you specific situation. For such a recommendation, consult an attorney regarding your specific factual circumstance.

Wednesday, February 9, 2011

Civil Unions in Illinois

Civil Unions in Illinois give rights provided by marriage to same-sex couples, but also to unrelated folks that want same benefits without necessarily being homosexual or even same-sex. Protections to marital property and receipt of maintenance (support for the other spouse, or what used to be called alimony), etc. should apply to parties to a civil union. I say "should" as this law was only passed this month and its interpretation will be up to the courts.


Nevertheless, based upon the statutory language, it appears that civil unions can benefit (or suffer, depending on your viewpoint) from prenuptial agreements, postnuptial agreements, and all dissolution of marriage (divorce) procedures applicable until now to Illinois recognized marriages. For instance, marital property may be protected by a prenuptial agreement. It may be distributed by a Judge upon dissolution of a civil union. Maintenance (what used to be termed, alimony) may be awarded from one partner to the other. The list goes on.

In addition, folks in many different situations may benefit from this law. For instance, heterosexual friends (same sex or opposite) that are residing in a retirement home, with no intention of marrying each other can share hospital visitation or decision making rights. Previously, such individuals would be excluded from entering the other person's hospital room if the patient is less than able to fully communicate, even if their relationship was decades long.

Now, such individuals can enter into a civil union and upon one of them falling ill, can visit each other in the hospital or make healthcare decisions in the event the other is unable to do so. Very importantly, unlike in marriage, this can all be accomplished without affecting each person's pension or social security.

Civil Unions go into effect in Illinois on June 1, 2011. This is a "new day" for Illinois indeed. It will be years before we understand the repercussions. Overall, the law seems very beneficial as it offers more avenues of protecting intimate relations between adults.


Feel free to read the law's full text yourself, here.


To learn more, contact my firm through our website or e-mail me.


PLEASE NOTE: the above is NOT legal advice. It is only a general statement about the state of the law. It is not a recommendation and should not be used to make decisions regarding you specific situation. For such a recommendation, consult an attorney regarding your specific factual circumstance.