DuPage County Divorce Lawyer Blog

Case Study: Undue Hardship & the Illinois Uniform Premarital Agreement Act

Published on: July 8, 2019 | Kollias, P.C.

Section 7(b) of the Illinois Uniform Premarital Agreement Act states that if a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the prenuptial agreement undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the prenuptial agreement, a court, notwithstanding the terms of the prenuptial agreement, may require the other party to provide support to the extent necessary to avoid such hardship. The following is a case study involving the application of these principles.

In the case of In re the Marriage of Barnes, the Appellate Court for the Fourth District analyzed what constitutes undue hardship and unforeseen circumstances. In that case, Edward was the sole shareholder and chief executive officer of a company. He earned in excess of $250,000 per year. His wife, Sandra, quit her office job where she had been earning $19,000 per year in order to spend more time with Edward. Before their marriage, they signed a prenuptial agreement.

What Is My “Income” for Calculating Maintenance and Child Support?

Published on: March 4, 2019 | Kollias, P.C.

Whether it be maintenance to or from your current or former spouse, or support for your child(ren), your income is relevant in divorce and parentage proceedings. The fact that you are the person obligated to pay or the person who receives money from another does not change the need for your income to be defined before an order for support is entered.

“But what is my income? I am on social security benefits, or I run a business, or my income is constantly in flux. Surely, you cannot expect me to truly define my income. I’m special,” you say. Thankfully for you, the good and wise people of the Illinois legislature have defined what income is, and also what it isn’t, and they’ve done so in a way that isn’t confusing or contradictory at all. Rather than use a single definition for all family law purposes, they instead have defined income in three separate-yet-related statutes: the Uniform Interstate Family Support Act (“UIFSA”); the Income Withholding for Support Act, and the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”).

Equal Parenting Time: House Bill 4113 Returns as Illinois House Bill 185

Published on: February 18, 2019 | Kollias, P.C.

Last year, the Illinois legislature introduced Illinois House Bill 4113, which was the most politically controversial family law bill in a generation. It proposed a statutory mandate requiring a 50/50 shared parenting time schedule in divorce and parentage cases, except under limited circumstances. The legislation was supported by father’s rights groups, among others, who believe that Illinois law contains an unwritten bias in favor of the mother when it comes to parenting time decisions. They believe that the way to effectively address this bias is with a bright line rule.

At the same time, the legislation was vigorously opposed by a wide variety of individuals and organizations which, according to the Chicago Tribune, included the following:

The Illinois State Bar Association
The Chicago Bar Association
The Kane County Bar Association
The Du Page County Bar Association
The Lake County Bar Association
Illinois Chapter of the American Academy of Matrimonial Lawyers
Archdiocese of Chicago Domestic Violence Outreach
Jewish Child & Family Service
The Illinois Coalition Against Domestic Violence

New Illinois Maintenance Guidelines – Effective January 2019

Published on: January 28, 2019 | Kollias, P.C.

It seems like only yesterday that Illinois amended the maintenance statute to put new guidelines in place regarding maintenance, formerly known as alimony. In fact, there were a couple of amendments, one in 2014 and another in 2017, which changed the way the courts calculated the amount and duration which one spouse would have to pay to the other during and after the divorce proceedings. Historically, maintenance paid was tax deductible to the payor and deemed taxable income to the payee.

Then, in 2017, Congress passed the Tax Cuts and Jobs Act, which altered the tax treatment of maintenance payments ordered on or after January 1, 2019. Specifically, under federal law, maintenance would no longer be tax deductible to the payor, and would no longer be treated as taxable income to the payee. This change in federal law made Illinois’ relatively new maintenance guidelines obsolete.

Multi-Family Child Support Adjustments

Published on: January 21, 2019 | Kollias, P.C.

Let’s examine the hypothetical case of Karl. Karl is going through a divorce from his second wife, with whom he has two minor children. Karl also has two children that he is legally obligated to support from his first marriage, pursuant to a court order. Karl wonders his obligations to pay support to one wife will be taken into account when calculating how much he has to pay in child support to the other. The answer in Illinois is yes. On July 1, 2017, changes to the Illinois Marriage and Dissolution of Marriage Act have added the multi-family adjustment to Section 505. The language of Section 505 regarding the multi-family adjustment provides as follows:

Correcting a Child’s Birth Certificate

Published on: August 20, 2018 | Kollias, P.C.

When a child is born, the biological mother’s name is listed on the child’s birth certificate. In most situations if the mother is married, her spouse will be listed as the child’s father. However, that is clearly not necessarily always the case. And sometimes, for a variety of reasons, a child’s birth certificate needs to be corrected.

Today, a large percentage of children born today are not born to married parents. In fact, according to the Center for Disease Control and Prevention – National Center for Health Statistics, the percentage of all births to unmarried women in 2015 was 40.3%.

Grandparents Raising Grandchildren: Illinois Law on Legal Standing

Published on: August 6, 2018 | Kollias, P.C.

In society today, how we define what makes up a family is extremely diverse. Many children today are born and raised in unmarried or single-parent households. Often, extended family members, including grandparents, aunts, uncles, and adult siblings, raise and even adopt children. Courts previously made rulings and upheld laws in family cases based on what a “traditional” family looked like and to protect children who grew up in families outside that perceived norm.

However, in 2000, the U.S. Supreme Court acknowledged that what was once considered a “traditional” family was outdated and inaccurate. In the 2000 case of Troxel v. Granville, Justice O’Connor noted, “The composition of families varies greatly from household to household. While many children may have two married parents and grandparents who visit regularly, many other children are raised in single-parent households.”

Equal Parenting Time Under Illinois Law

Published on: July 9, 2018 | Kollias, P.C.

Some may rejoice, and some may cringe at the notion that parents might be required to metaphorically “split the baby” under Illinois House Bill 4113, which is currently sitting in committee. Effectively, if passed, House Bill 4113 would represent a dramatic change in how parenting time is allocated among parents.

The applicable statute currently in place, 750 ILCS 5/602.7, requires parenting time to be allocated according to the best interests of the child. As set forth in the current statute, there are numerous factors that are considered in determining what the best interests of the child are. The courts consider facts and evidence relevant to the best interests to shape a parenting time schedule for the parents to follow.

Medical Marijuana and Parenting Time

Published on: June 25, 2018 | Kollias, P.C.

The best interest of the child, as defined by Section 602.7 of the Illinois Marriage and Dissolution of Marriage Act, governs parenting time in divorce or parentage proceedings. In some cases, if it has been proven that a parent has abused alcohol or other substances, it is not uncommon for the court to impose certain restrictions to ensure that a parent’s substance abuse issues will not endanger the children. For example, if a father has problems with alcohol abuse, the court may order him to take a breathalyzer test before parenting time to ensure that the children are not being placed in a bad situation. When a parent’s substance abuse involves illegal drugs, the court’s concerns are even greater, as there is a strong legal presumption that children should not be present while crimes are being committed.

However, Illinois’ legalization of medical marijuana has complicated the issue. While legal in Illinois, medical marijuana is still not condoned by the federal government. As such, medical marijuana use presents new questions, particularly if the non-using parent alleges that the other parent’s medical marijuana usage endangers the children.

Case Study: Are Illinois Orders to Pay College Expenses Still Constitutional?

Published on: June 11, 2018 | Kollias, P.C.

In Illinois, divorced and never-married parents may have an obligation to contribute to post-high school expenses for their children once they emancipate, or “age out” of being a minor child under the law. This typically happens when the child turns 18 or graduates from high school, whichever happens last. At that point, many children will go on to attend college, trade schools, and various other types of career training. Section 513(a) of the Illinois Marriage and Dissolution of Marriage Act is the relevant statute on this issue, and it provides:

“The court may award sums of money out of the property and income of either or both parties or the estate of a deceased parent, as equity may require, for the educational expenses of any child of the parties.”