DuPage County Divorce Lawyer Blog

Grandparents Raising Grandchildren: Guardianship of a Minor in Illinois

Published on: June 27, 2016 | Kollias, P.C.

Most people know a neighbor, friend, or family member who provides full-time care for a grandchild. In fact, grandparents raising grandchildren is a growing trend among families in the US. According to the AARP, nationwide nearly 5.8 million grandchildren live with their grandparents, and it is estimated that over 2.5 million grandparents are raising their grandchildren. Almost 1 million children live in a home where a grandparent and neither of the child’s parents are in the residence.

According to the 2010 U.S. Census, 99,783 grandparents in Illinois are householders who are responsible for the grandchildren that live with them. 7.8 percent of children in Illinois reside with their grandparents in situations where the grandparents are the householders. 109,939 children in Illinois reside in such households where the grandparents are responsible for the children. Of those, 35,583 Illinois children have no parents in the home at all.

In some circumstances, grandparents are obtaining custody or adopting their grandchildren. However, the more common scenario is that grandparents are being appointed as legal guardians over their minor grandchildren.

How a Divorce May Affect Non-Marital Business Ownership Under Illinois Law

Published on: May 31, 2016 | Kollias, P.C.

One thing that occasionally complicates a divorce is when a spouse has an ownership interest in a non-marital business. Countless hours of hard work have gone into the business, there are stocks and ownership interests involved, or perhaps one spouse has control over the business and the other has none. There are several important situations to consider when you are going through a divorce and business ownership is involved. Some of these important implications are addressed below.

Contribution and Reimbursement

All property that is acquired by either spouse during a marriage is presumed to be marital property. This includes income generated during the marriage, even if the income is generated from working at a non-marital business. For example, if a husband is working at his non-marital business and paying himself a salary of $100,000 per year, his salary is marital property.

When a spouse contributes personal effort during a marriage to non-marital property, such as a non-marital business, the efforts may also be deemed a contribution from the marital estate to the non-marital property. The value of these efforts and contributions, if in the form of retained earnings or assets, can be subject to reimbursement to the marital estate, particularly if the contributing spouse has not been reasonably compensated. So, if your spouse is paying him or herself a $50,000 salary, but the reasonable salary for the work he or she does is $100,000, the marital estate has a reimbursement claim for the difference.

Finally, it is important to note that only the appreciation of non-marital property resulting from significant personal efforts of the spouse are subject to reimbursement to the marital estate. This means, for instance, that if one spouse has $100,000 in an investment account before the marriage, and at the time of divorce the account is worth $200,000 due solely to favorable market conditions, the marital estate is not entitled to $100,000 reimbursement even though the appreciation occurred during the marriage.

Custody and Visitation Rights for Grandparents and Non-Parents in Illinois

Published on: May 16, 2016 | Kollias, P.C.

Circumstances can arise when, for various reasons, a child is not in the possession of one or both of his or her parents and certain non-parents might seek to obtain an allocation of parental responsibilities (formerly known as “custody”) and parenting time (formerly known as “visitation”). In Illinois, non-parents can have a difficult time attaining their goals, unless certain specific conditions are met. Generally speaking, section 601.2 of the Illinois Marriage and Dissolution of Marriage Act provides that proceedings related an allocation of parental responsibilities (custody) are allowed:

By a parent filing a petition for divorce or legal separation;
By a parent filing a petition for allocation of parental responsibilities;
By a person other than a parent, only if the child is not in the physical custody of one of his or her parents;
By a step-parent, if certain circumstances are met; or
When one of the parents is deceased, by a grandparent who is a parent or step-parent of a deceased parent, if certain conditions existed at the time of the parent’s death.

This post focuses only on situations that arise under number 3 above, when a non-parent seeks an allocation because the child is not in the physical custody of one of his or her parents.

Imagine that Kourtney and Scott are never married and have three children together. Five years ago, Scott was thrown in jail for crashing his Lamborghini while highly intoxicated, and eventually convicted. While Scott was in prison, Kourtney and the children moved in with Kourtney’s mother, Kris. Kourtney and the kids lived at Kris’ house on and off for the next year or so.

Illinois’ New Rules for Relocating Children In Divorce and Parentage Cases

Published on: May 2, 2016 | Kollias, P.C.

An issue that often arises during or after a divorce or parentage case is the relocation of the children. The parents have separated, and each has their own home and parenting time with the kids. Then, the parent with whom the children reside most of the time (the residential parent) decides that he or she would like to relocate with the kids. Is it permissible? What duties are owed to the other parent? What if the other parent objects?

The law used to distinguish between relocating the children within Illinois and moving out of state. Those distinctions have been eliminated. The term “relocation” is now defined in Section 600 of the Illinois Marriage and Dissolution of Marriage Act as:

A change in residence from the child’s current primary residence located in the county of Cook, DuPage, Kane, Lake, McHenry, or Will to a new residence within this State that is more than 25 miles from the child’s current residence;

A change of residence from the child’s current primary residence located in a county not listed in paragraph (1) to a new residence within this State that is more than 50 miles from his or her current residence.

A change of residence from the child’s current primary residence to a residence outside the borders of the State that is more than 25 miles from the current primary residence.

The New Illinois Family Law Vocabulary: What Ever Happened to the Words “Custody” and “Visitation?”

Published on: April 18, 2016 | Kollias, P.C.

Until January 1, 2016, Illinois law addressed disputes regarding child-related issues in divorce and parentage cases in terms of “custody” and “visitation.” The term “custody” referred to both decision-making authority regarding the children (called legal custody), and where the children lived the majority of the time (called residential custody). The term “visitation” referred to the time the parent who did not have residential custody had with the children.

If parents were required to consult with one another before making decisions regarding a child’s education, religious upbringing, extracurricular activities, and healthcare, they were said to have “joint legal custody.” If, however, one parent had decision-making authority over these areas, he or she was said to have “sole custody.”

If the children resided with one parent a majority of the time, that parent was said to have “residential custody” of the children. The other “non-custodial” parent had “visitation” rights. However, if the parents had reached an arrangement wherein both had time with the children exactly 50% of the time, then the parents were said to have “split custody” or “shared custody.”

As of January 1, 2016, that terminology has changed. Illinois no longer recognizes the terms custody or visitation whatsoever when referring to a parent’s rights. Those legal concepts no longer exist, though the term “visitation” does survive in the context of third-parties, such as with regard to “grandparent visitation.” Having said that, those words have been commonly used for so long that many people, attorneys and judges among them, will have a hard time eliminating those words from their vocabulary.

The Illinois Parentage Act of 2015: Gender Equality

Published on: February 28, 2016 | Kollias, P.C.

For over thirty years, child-related issues of unmarried parents had been governed by the Illinois Parentage Act of 1984. However, on July 21, 2015, Governor Bruce Rauner signed the Parentage Act of 2015 (the “Act”) into law, which revamped the old version by updating outdated terminology and concepts. These changes mirror the changes in families and culture over the course of the last three decades.

As a brief summary of some of these changes reflected in developments in Illinois law, on June 1, 2011, Illinois established civil unions that allowed same-sex, as well as opposite-sex couples to form unions that were recognized by the state. Then on June 26, 2013, the U.S. Supreme Court ruled that the United States Constitution allowed for same-sex couples to marry. The Court ruled that the Defense of Marriage Act, which denied federal benefits to same-sex couples, was unconstitutional in that it defined marriage as between one man and one woman. See United States vs. Windsor, 133 S.Ct. 2675 (2013).

On June 1, 2014 a law took effect that allowed for same-sex marriage in Illinois, and Illinois became one of thirty-seven other states and the District of Columbia to legalize same-sex marriage. The Illinois General Assembly had proposed same-sex marriage legislation every session from 2007 to 2013, however it was not until November 2013 that the law was passed. Between November 2013 and the effective date, a court ruled that same-sex couples in Cook County could marry immediately and need not wait for June, which was later extended to other counties. Parties that had previously entered into a civil union were also able to convert their civil unions in to marriages without a new ceremony or paying a separate fee within the first year. If the union was converted in that time period, the date of the marriage would be retroactive to the date of the civil union. Now, both same-sex civil unions and marriage are legal in Illinois.

In Illinois, When Is a Reduction in Income Sufficient to Reduce Child Support or Maintenance?

Published on: November 19, 2015 | Kollias, P.C.

Imagine the following scenario: Donald and his wife Melania decide they want to get a divorce. Donald has been employed as the President of the United States for the past two years, where he earns a salary of $400,000, and receives travel, expense, and entertainment perks. Melania mostly spends her days shopping on QVC, pampering herself at the spa, and taking tennis lessons while the nanny watches their son, Junior. In the judgment of dissolution of marriage, the court orders Donald to pay Melania $20,000.00 each month for child support until Junior attains the age of 18.

Two years pass after the divorce, and Donald finds himself running for reelection. However, because the stress of the first presidency took its toll on Donald, he goes to the barber and gets a buzzcut, in a vain attempt to assert some semblance of control over his life. Without his signature hairstyle, his polling numbers plummet, and he loses the election in a landslide so dramatic that even Walter Mondale has to laugh.

Donald now finds himself out of work, and struggles to find a suitable career in which to apply his unparalleled talent for bombast and bluster. He applies for a slew of entry level positions on monster.com, to no avail. Every prospective employer tells him that he’s overqualified. Destitute and feeling like he’s run out of options, Donald decides to start an extermination business called “Cockroach, You’re a Loser.” Donald exhibits a newly-discovered knack for the entrepreneurial, and nets a tidy profit of about $25,000.00 in his first full year of business. Because it is a far cry from his former earnings, Donald files a petition to reduce his child support obligation based on an involuntary reduction in income. Fearing a drastic reduction in her own standard of living, Melania asks the court to deny Donald’s request.

The New Illinois Marriage and Dissolution of Marriage Act Effective January 1, 2016

Published on: October 30, 2015 | Kollias, P.C.

Divorces in Illinois have been governed by the Illinois Marriage and Dissolution of Marriage Act, originally enacted in 1979. Since then, changes in family dynamics, including recent developments in Illinois law related to same-sex marriage, parentage, adoption, and in areas of embryo preservation and rights, rendered the law outdated and in need of an update. For years, Illinois legislators, judges, and prominent practitioners in the field have pushed for a revised version of the Act, but only recently has this been accomplished.

The revised law, which will become effective on January 1, 2016, has been updated in several significant ways that impact how divorces and related issues will be addressed. The law will apply to new and pending cases and will change the way that divorcing parties navigate the process of divorce.

The following is a brief summary of some of the important changes to the Act:

Grounds:

Presently, a person seeking a divorce must allege “grounds” for the divorce. Most commonly, people cite “irreconcilable differences” as the reason for a divorce. To prove irreconcilable differences have arisen to cause a marriage to fail, the party filing for divorce must prove that the parties have lived separate and apart for a continuous period of in excess of two years, or agree with the other party to waive the separation period if they have lived apart for six months. The must also prove that the marriage is over and not salvageable. The other fault-based reasons include: impotency, adultery, desertion, habitual drunkenness, excessive use of addictive drugs, poisoning, extreme and repeated physical or mental cruelty, one party being convicted of a felony or other infamous crime, or infecting the other spouse with a sexually transmitted disease.

The revised law eliminates all of the fault-based grounds for getting divorced, leaving the only grounds of irreconcilable differences. Further, instead of having to prove a statutory period of separation, the new law eliminates the separation period as well. These changes shift the focus away from having the parties blame one another for the divorce in order to allow them to proceed as amicably and quickly as possible.

The Indian Child Welfare Act: Child Custody, Adoption, and Guardianship

Published on: October 7, 2015 | Kollias, P.C.

In most child custody, adoption, and foster care placement cases, Illinois state law governs. However, Congress passed a federal law in 1978 called the Indian Child Welfare Act, also known as “ICWA,” which creates a different burden of proof and set of standards for Native American children in child custody, adoption, and foster care placement cases. ICWA sets forth the guidelines for removal of an “Indian child” from his or her Indian family, which imposes a significantly higher burden.

ICWA guidelines are not necessarily focused on the best interests of the child. Rather, ICWA was passed “to protect Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.”

The federal government recognized the large-scale break-up of Native American families, as Native American children were systematically being removed from their homes and placed with families who had no connection to the particular Native American culture. Essentially, Congress passed this law to protect the culture and family unit of Native Americans, setting a higher burden for removal of Native American children from their families. ICWA also has a jurisdictional component such that if ICWA applies to a case, it may be transferred out of the state court and into tribal courts. The tribal courts are perceived as a preferable venue for Indian families determined to combat the removal of children. Finally, ICWA allows for the appointment of an attorney for the Native American parent, something not typically provided for in custody cases, aside from juvenile abuse and neglect proceedings.

Family Law Issues Concerning Military Service Members and Their Spouses

Published on: September 23, 2015 | Kollias, P.C.

Divorce matters can be complicated, regardless of the employment status of the parties. But when one or both of the spouses is a member of the military, several issues come into play. This article will address health benefits, retirement pay available to spouses of military service members, and child support.

Military Benefits Available to Former Spouses:

In most divorces, upon the entry of a judgment for dissolution of marriage (a final divorce decree), a spouse is no longer eligible to be covered under the other spouse’s medical benefits. However, for military divorces, there are special rules.

“20/20/15 Spouses”: A military member’s former spouse qualifies for medical benefits for a full year, beginning from the date of the divorce so long as all of these are true:

The parties were married for 20 years or more (from the date of marriage to the date of entry of a divorce decree or annulment),
The service member performed 20 years or more of military service which entitles him/her to retirement pay; and
There is a 15 year or more overlap of the marriage and military service.

If the 20/20/15 former military spouse has employer-sponsored medical insurance, he or she is not eligible for the one-year transitional care. If that employer-provided plan is optional, the former spouse can opt out of that plan and choose to participate in the one-year military benefit pan.