DuPage County Divorce Lawyer Blog

Tipping the Scales Between the (In)ability to Have a Genetic Child, Forced Parentage, and its Effect on Child Support Obligations

Published on: September 26, 2023 | Kollias, P.C.

According to the World Health Organization, 1 in 6 people globally are affected by infertility. With increased occurrences of infertility, as well as with the Obergefell v. Hodges decision legalizing same sex marriage nationwide, there exists a demand for the use of artificial reproductive technology (ART).

One common form of ART is In-Vitro Fertilization (IVF), which often requires the creation of embryos (or the use of donated embryos). While people don’t typically foresee their divorce or a breakdown of their relationship while they are actively trying to build a family, the reality is that many couples who undergo IVF (and other forms of ART) and who create or otherwise utilize embryos ultimately do end up going their separate ways.

The disposition of embryos in Illinois has not been addressed by the legislature. If a couple does not properly enter into a contract regarding embryo disposition in the event of their divorce or separation, the fate of those embryos will be left to the courts. In August of 2022, the Second District Appellate Court made a decision in the case of Marriage of Katsap and analyzed the three different common law approaches the courts have employed in resolving disputes over frozen embryos, specifically:

Soberlink vs. BACTrack – an Illinois Family Law Attorney’s Review

Published on: September 15, 2023 | Kollias, P.C.

Under Illinois law a parent has a fundamental right to parenting time with his or her child. The only way that right can be restricted is if the other parent can prove that parenting time seriously endangered the child’s physical, mental, or moral health, or significantly impaired the child’s emotional development. That requires the parent seeking to restrict parenting time to file a petition with the court, alleging what happened and how it affected the child. The parent seeking the restriction bears the burden of proving the acts which endangered the child actually occurred. In that context, allegations regarding a parent’s alcohol abuse present a fairly common issue in family court.

When alcohol abuse has been proven and the court finds that a child has been endangered as a result, Illinois courts will frequently require some form of breathalyzer testing before and during parenting time, to confirm that the parent who previously endangered the child is sober. A well-drafted court order should specify the time and manner of breathalyzer testing, as well as the consequences for a missed test or a failed test.

Two of the leading products and services in breathalyzer testing are provided by Soberlink and BACTrack, and they are remarkably similar. Each of the companies sells smartphone compatible breathalyzer devices. Each of the companies offers multiple subscription plans for testing and reporting. Each of the companies enjoys a good reputation with the family court judges and with family court attorneys, who regularly order parents to utilize one service or the other.

How to Pick the Right Attorney

Published on: June 20, 2023 | Kollias, P.C.

So, it looks like you’re going to have to go to court to deal with a family law issue. Among the very first questions you will need to answer is who the right attorney for your case is. How do you know if any given lawyer is any good? How do you know that any given lawyer is going to have the right approach for your case?

The good news is, unless you have to be in court first thing in the morning, you probably have a little bit of time to be deliberate in the selection process. Many attorneys offer free consultations, which will allow you to speak with multiple attorneys and pick the one you believe is best for your case.

Taking a little bit of time to find the best attorney at the beginning of the process can make a big difference in how you think, feel, and react throughout the process. The right attorney will listen to you, understand your goals, and develop a strategy for how to best achieve them. The right attorney will be honest with you if your goals are unrealistically high, and will tell you if you are selling yourself short. The right attorney will advise you, show empathy, and fight for your rights while providing top-notch legal representation. But most importantly, the right attorney will “feel” like the right choice, and connect with you on a professional level.

The first step in the process is to take a look at the basic factors for evaluating potential lawyers. Here are a few things to consider as you research potential lawyers.

Questions & Answers on the New Rule for Parenting Coordinators Under Illinois Law

Published on: June 5, 2023 | Kollias, P.C.

Effective May 24, 2023, the Illinois Supreme Court adopted Rule 909 which provides procedures, definitions and rules for the appointment of Parenting Coordinators. Here’s what you need to know.

Under Illinois law, a parenting coordinator is a qualified third party who is appointed by the judge to address and resolve parenting conflicts on an out-of-court basis. The idea is to create a mechanism for the resolution of parenting disputes in high-conflict cases more quickly and inexpensively than going through the court system. Specifically, they are required to make recommendations within 14 days, and the cost is typically split between the parties by court order, though the court can may one party responsible for the entire cost. One way to think of a parenting coordinator is as a referee to address parenting disputes on an expedited basis.

What is parenting coordination? Supreme Court Rule 909 defines the term as:

a child-focused alternative dispute resolution process
conducted by either a licensed mental health or a family law professional
which combines assessment, education, case management, conflict management, dispute resolution, and decision-making functions.

Why Do I Need a 604.10(b) “Custody Evaluation”?

Published on: March 20, 2023 | Kollias, P.C.

Toxicity can exist in every case, particularly when it comes to cases involving children and the vindictive ex-spouse you share those children with. As one may imagine, or may have experienced, the vitriol exchanged between two parents can boil over to the point of being detrimental to the children. And themselves. And everyone else around them. Questions can then be raised as to the psychological state of the parents, in general. Why do they criticize the other parent? Can’t they see the children are being affected noticeably, possibly endangering their mental, moral, or physical health, or impairing their emotional development? Who is mostly responsible for the breakdown in co-parenting, and what is the best interests of the children from a medical standpoint?

A Doctor of Clinical Psychology may have the answers to these questions, and the Court may seek that doctor’s opinion to get to the bottom of these questions before the case goes to trial. Section 604.10(b) of the Illinois Marriage and Dissolution of Marriage Act governs the processes of interviewing, evaluating, and investigating children as well as parents and other collateral witnesses in cases that demand special attention due to the overwhelming prevalence of confrontation. Known as the “court’s professional,” otherwise referred to as a “604.10(b) evaluator,” this clinical psychologist is specifically tasked with offering an opinion as to the legal outcome which would be in the best interests of a child. The evaluator’s opinion is above and beyond the recommendations of a guardian ad litem, who is typically appointed prior to the retention of the evaluator. The guardian ad litem often provides the Court with an opinion as to whether to appoint an evaluator to provide a further opinion on the issues that may seem unresolvable.

Commingled Property & Contribution / Reimbursement Claims Under Illinois Law

Published on: March 6, 2023 | Kollias, P.C.

Perhaps no issue is the source of greater confusion among divorce lawyers than the issue of commingled property and contribution claims. That confusion is compounded by the fact that in practice, judges have differing opinions on when a contribution claim is appropriate and when it isn’t. Thus, outcomes vary greatly from one judge to another.

It may be helpful to start by defining what a contribution claim is not. It is not an assertion that an asset is the non-marital property of one spouse or the other. Rather, a contribution claim begins with the undisputed common understanding that marital property and non-marital property have been commingled together, and we need to figure out who is entitled to what.

Marital and non-marital property are defined by statute under 750 ILCS 5/503(a). A contribution claim is essentially a claim for reimbursement. The statute sets forth the rules as follows:

Beyond Bitcoin: Finding, Valuing, and Dividing Cryptocurrency in a Divorce

Published on: April 1, 2022 | Kollias, P.C.

In just a few short years, cryptocurrency has moved from the fringes of the technology and finance worlds into the mainstream. According to a Pew Research Poll conducted in November 2021:

86% of Americans had heard “at least a little” about cryptocurrencies,
24% claimed to know “a lot” about them, and
16% had personally invested or traded in them

Among those who had invested or traded cryptocurrencies, the largest cohort was men between the ages of 18 and 29, of whom 31% had personal experience. All of those statistics were significantly larger than what Pew found in its study that was done back in 2015.

If you or your spouse own crypto assets (or if you suspect your spouse does, but you aren’t sure), what should you do in the event of a divorce? How do you go about finding the assets, valuing them, and dividing them?

The first thing you should do is hire an attorney who has personal, first-hand experience investing or trading in cryptocurrency. As the Pew Research Poll cited above shows, while a large majority of people have heard a little about Bitcoin, Ethereum, Solana, NFT’s (non-fungible tokens) and others, only a small minority of those people have actually dealt with them. The concepts, terminology, and mechanisms for buying, selling, and trading are completely foreign to most Americans, and that includes most divorce lawyers. At Kollias, P.C., we have not only handled numerous cases involving crypto assets, but our firm has also accepted payment in Bitcoin and other cryptocurrencies since 2019.

QILDRO’s Under the Illinois Municipal Retirement Fund – Settlement Agreements Might Not Mean What They Say

Published on: January 21, 2022 | Kollias, P.C.

Throughout Illinois, thousands of municipal employees have pension benefits through the Illinois Municipal Retirement Fund (abbreviated as “IMRF”). To the extent those pension benefits are earned while the employee is married, those pension benefits can be divided in a divorce case by way of a special court order known as a Qualified Illinois Domestic Relations Order (abbreviated as “QILDRO”). A QILDRO is separate from a judgment for dissolution of marriage or a marital settlement agreement, which specifies the rights of each of the parties. Rather, it is an order directing the IMRF to split the pension benefits in accordance with very specific instructions.

The Illinois Pension Code contains very specific instructions as to what information a QILDRO must contain in order for the IMRF to comply with the court’s order to divide pension benefits. In fact, the Illinois Pension Code even includes a sample fill-in-the-blanks form containing pre-printed language and boxes to check. The IMRF uses the form as specified in the pension code.

Because a QILDRO is a fill-in-the-blanks form, it does not allow many options for the parties to customize the way they divide pension benefits in a divorce case. Thus, it is possible for there to be a conflict between the terms of a judgment for dissolution of marriage and the terms of the QILDRO that the IMRF must process. In the event of such a conflict, which terms would control?

Is There A Procedural Deadline for Mental Health Examinations?

Published on: July 20, 2021 | Kollias, P.C.

This article should be read in conjunction with our May 2015 article on Mental Health Examinations.

There any number of child related issues that may arise in a divorce or parentage matter. Frequently, the most intractable issue are those which pertain to the mental or physical fitness on the part of a party to the case. Illinois Supreme Court Rule 215 permits opposing parties and even the trial court may seek to discover relevant facts about the condition of an adverse party by requiring them to participate in an evaluation with an impartial medical professional. The evaluator may conclude and report to the court whether the party is either mentally and physically fit to function around their children without adversely affecting the children’s mental, moral, physical, or emotion well-being, or even their best interests.

If you are subject to a Rule 215 evaluation you may ask yourself, are there any limitations to evaluations if your case has concluded? Can a court abuse its discretion by ordering an evaluation? The answer, maybe a surprising, “yes.”

Trial by Combat under Illinois Law?

Published on: February 26, 2021 | Kollias, P.C.

“I will sue you!” is a common phrase meant to inform someone that you will seek legal recourse in order to settle your dispute in court. In the alternative, “I will meet you ‘on the field of battle where I will rend [your] souls from [your] corporal bodies’” is not a common phrase, nor is it a means by which people typically settle their disputes. However, one Kansas man was mad enough to invoke an age-old form of dispute resolution against his former wife and her attorney in a post-divorce case, which was, of course, a motion for trial by combat.

On January 2, 2020, David Ostrom, 40, of Paola, Kansas, filed a motion for trial by combat with the Iowa District Court in Shelby County alleging, in part, that his ex-wife, Bridgette Ostrom, 38, “destroyed (him) legally.” Such legal destruction being resolved by the possibility of death would seem hardly reasonable to the common layman. However, “to this day, trial by combat has never been explicitly banned or restricted as a right in these United States,” Mr. Ostrom would go on to say that trial by combat was used “as recently as 1818 in British Court.” Not surprisingly, shortly after filing his motion, Mr. Ostrom was quickly faced Ms. Ostrom’s Motion to Suspend Visitation and Motion for Psychological Evaluation.