Some people are often surprised that despite the fact that their spouse has filed a petition for dissolution in court and are in the process of full-blown litigation, they are still required to participate in divorce mediation in an effort to come to an agreement. It seems almost counterintuitive to require mediation when the parties are likely in court because there was no agreement.
Divorce Mediation Helps Parties Reach Agreements However, the more conflicted and litigious you and your spouse are, the less likely the courts are going to entertain the minutia of your life. The large caseload judges have on a daily basis forces them to send out divorce cases to mediation as much as possible. Most courts in the Illinois domestic relations division require all parties with children to attend mediation on all of the issues regarding parenting time and the allocation of major decision-making on behalf of the minor children. The rationale for using mediation is that the parents are in a better position to come to an agreement as to a visitation schedule and other issues relating to their children as a judge as does not know them or their children personally and can make life-altering decisions after a 5-15 minute court-date. If the parties do not come to an agreement in mediation, then the judge will have to make a decision for them. Mediation and Parenting Issues Given the success parties often have in mediation regarding parenting issues, courts have been referring cases out for private mediation on the financial issues as well. Financial issues are more difficult to mediate since everyone has a different opinion on what they are entitled to receive as support or maintenance should they let a judge decide for them. In the long run, however, even if they settle for less or more than they would have obtained after a trial, the parties often spend less money on attorneys fees and come out more amicably than a 3-5 day fully litigated trial. If you and your spouse are already divorced and entered into a joint decision-making agreement with your ex-spouse, there may be a clause in that agreement requiring you and your ex-spouse to attend mediation before you go to court to litigate any issues in the case. This provision again keeps parents out of court if a mediator is able to assist the parties in reaching an amicable resolution. Is Mediation Right for Your Divorce Case? Talk to your attorney if you are required to attend mediation or if mediation is appropriate in your case. In the end, if there is no agreement, a judge will hear evidence in your case and decide either way. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/mediation/divorce-mediation-how-does-it-work/
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There are a number of common issues that arise in guardianship cases. From the termination of the guardianship by a parent who wants to resume responsibility for a child, but the guardian is not in agreement with relinquishing the guardianship to more than one party seeking to be a child's guardian, read on to see how Illinois family courts have addressed these issues.
1. Guardianship Cases When a Party Seeks Termination of a Guardianship Because guardianships are not permanent and can be dissolved, parents often operate under the incorrect presumption that once they say they want the guardianship to end it will be dissolved. Instead, what often happens is that the judge will require the parent who wants to resume care and control of the child to show that they are able to resume that responsibility and that returning the child to the parent is in the child’s best interests. Appointment of a Guardian Ad Litem The judge or an appointed Guardian ad Litem (an attorney who represents the best interests of the child) will consider the parent’s current situation, and the child’s current situation, to determine what is best for the child. That can involve the Guardian ad Litem conducting an investigation and giving a recommendation as to whether dissolving the guardianship is what is best for the child. It is critical for parents to know that even though a guardianship can be dissolved, it does not mean that it will be dissolved. Once the guardianship is in place, the judge will take a hard look at why the guardianship was ordered in the first place, the parent’s involvement with the child since the guardianship was ordered, and whether returning to the parent’s care is what is best for that child. The judge will also consider how long the child has been with the guardian. Judges are significantly less likely to dissolve a long-standing guardianship to avoid instability and disruption in the child’s life, as that is not seen as being in the child’s best interests. Victory for Long-term Guardian Opposing Termination of Guardianship A few years ago, I represented a long-term guardian who was fighting a petition to have a guardianship dissolved. The petitioner was the mother, who had previously agreed to the guardianship when the child was around six months old. The child was thirteen years old when the mother filed her petition. During that time, the guardian and the child had moved to Las Vegas, had lived there for a few years, and was enrolled in school there. Dissolving the guardianship would have meant moving the child back to Chicago to live with a parent who had essentially never cared for him and leaving behind the woman who had raised him. In that case, the Guardian ad Litem and the judge both found that keeping the guardianship in place was in the child’s best interests in order to preserve stability in his life and maintain his bond with his guardian, who had been his primary caregiver throughout his life. 2. Guardianship Cases When More than One Person Seeks Guardianship of a Child Another important issue to consider is how the courts will handle a situation where multiple people have petitioned for guardianship of a child. What that happens, the judge will consider all of the petitions and will make a determination as to who is most appropriately suited for that responsibility. Often, the judge will appoint a Guardian ad Litem to conduct an investigation into the families and assist in selecting one guardian. Alternately, there is also the possibility of dividing up the roles, as happened in another recent case that I handled. A Child is Given Input in the Guardianship Decision In that situation, two sets of grandparents were petitioning for guardianship of their grandson. Guardianship was necessary in this case as the child’s parents had both died, leaving him without a legal guardian or decision-maker. The dispute between the grandparents was largely about where the child lived, specifically whether he would return to the area where he had grown up or continue to leave out of state where he had been placed with an uncle by one set of grandparents. In this case, the judge appointed a Guardian ad Litem who met with the child, who was over fourteen, the allowed the child to have significant input as to where he lived and who he lived with. The child was also given the ability to choose where he wanted to live, as well as who he wanted as his guardian. Ultimately, decided that he wanted one set of grandparents as guardians of his person and the other set of grandparents as guardians of his estate to keep both families actively involved in the child’s life. Both sets of grandparents accepted their respective designations out of a strong desire to honor the child’s wishes and to be sure that the child was able to relationships with both sides of his family, which was especially important in light of the loss of the child’s parents. 3. Guardianship Cases When the Notice of Petition for Guardianship of a Minor is in Dispute Another critical issue in guardianship is whether the parent has been provided with notice of the Petition for Guardianship of a Minor. An individual wishing to assume guardianship of a child must provide notice to the parents or provide confirmation to the court that the parent, or parents, are deceased. Notice of a guardianship petition is more informal than service in most family law cases: the petitioner only needs to provide the parent(s) with notice of the time and place of the hearing on the guardianship, either in person or by mail, no less than seven days before the hearing. So, while a petitioner can choose to have the parent formally served with those papers, all the petitioner has to do is mail a letter with the time and place of the hearing to the parent’s last known address seven days before the hearing and that will provide sufficient notice. Failure to notify the parent(s) of the petition for guardianship, however, could be grounds for the guardianship to be dissolved, or even voided. Guardianship Voided When Father Did Not Receive Notice Another guardianship case that I handled for a father was voided for that reason, among others, when the judge ruled that the short-term guardian, the children’s grandmother, and her attorney had failed to provide the father with any notice of the hearing. This was especially damning because the father and grandmother were in daily contact regarding the children. In that case, the father had given short-term guardianship to his young children’s maternal grandmother after the death of his wife to pursue a three-month intensive job training. The training schedule was so long that it would have made it impossible for him to care for his young children as a single father and complete the job training. The father allowed the children to go with the grandmother on a short-term basis, with the understanding that they would move back in with him after he completed his training. Once training was finished, my client contacted the grandmother to let her know that he was ready to resume caring for the children. However, instead of returning the children to their father, the grandmother secretly filed for plenary guardianship and failed to disclose to the judge that the father was willing and able to resume care and control of the children. She also omitted that the father had repeatedly informed the grandmother that he was ready to resume daily responsibility for the children and that he had repeatedly requested that she return them to his care. The grandmother and her attorney also failed to provide my client with any notice of the hearing. Without notice of the hearing, the father was unable to object to the guardianship and inform the court of his efforts to regain care and control of his children, which resulted in the guardianship being granted. Motion to Vacate Letters of Guardianship At a hearing on my motion to vacate the letters of guardianship, these omissions were seen as so fundamental that the judge in that case not only voided the grandmother’s guardianship over the children that the judge ruled that the grandmother and her attorney’s actions and omissions constituted a fraud on the court. Happily, my client was reunited with his children and able to fly home with them the day after the hearing. This case was an important cautionary tale about what can happen when someone wants guardianship of a child, as opposed to the child needing a guardian. Here, the grandmother was motivated by her desire to keep the children, not because there was an actual need for a guardian. When the court realized the grandmother’s true motivation, the guardianship was immediately voiced. Guardianship Cases and Importance of Parent-Child Relationship It is critical when petitioning for guardianship that the potential guardian is making this request honestly, and in good faith, rather than out of a desire to keep the children. The law recognizes the fundamental importance of the parent-child relationship, and guardianship should only be utilized when a child truly in need of a caregiver. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/issues-that-can-arise-in-guardianship-cases/ Divorce attorney's fees can be expensive and is one of the most popular topics for questions we receive from new clients in our Chicago family law practice. Namely, Will I be able to afford to pay for a divorce? Can my spouse pay my bill for attorney's fees?
There are Various Avenues in which Divorce Attorney's Fees Can Be Paid The Illinois statutes (IMDMA-Illinois Marriage and Dissolution of Marriage Act) cover different areas in which fees can be granted. There are interim attorney’s fees under IMDMA § 501(c-1) in a pre-judgment dissolution action, and under § 508(a), a person can seek fees if they cannot afford it but the other side can. There are also fees available under § 508(b), which is essentially a statute used in contempt actions or to penalize a party for unnecessary delays. Contribution to fees from the opposing party may be awarded in accordance with section 503(j) as well. Section 503(j), in turn, provides that an award of fees in response to a petition for contribution to fees and costs shall be based on the criteria for division of marital property set forth under section 503(d)(1)-(12). Id. § 503(j) (West 2018). UNDER ILLINOIS LAW, THE PERSON WHO HIRES THE LAWYER IS RESPONSIBLE FOR THE LEGAL FEES You sign the contract to hire your divorce lawyer, so you are responsible for your own legal bill. However, the court wants to make sure that both sides have access to fees to avoid an unfair advantage. If one side has money for an attorney and the other side does not have the money, then the courts are supposed to “level the playing field” so that there is no unfair advantage. To make the distribution equal between the parties, your lawyer will file a Petition for Interim Attorney’s Fees. Parties can file to have past and future attorney fees paid in part or in whole by the other party. When do Illinois divorce courts grant petitions for interim attorney fees? Illinois divorce courts will grant petitions for interim attorney fees in an amount reasonably necessary to allow a person to participate adequately in the litigation, but only if the person lacks sufficient access to assets or income to pay their fees and the other side has the financial ability to pay them. The goal is to avoid a situation in which one party has a financial advantage in divorce litigation. How do interim attorney fee awards impact asset division in divorce? Interim attorney fee awards are considered when determining the final division of assets and liabilities in the divorce. They act like a down payment toward the final division of property. The more that is awarded in interim attorney fees to one party, the less you are likely to receive when the assets in your case are divided. Each party’s attorney’s fees are considered dissipation and are equalized at the end of the case. For a Party Held in Contempt or if a Party Unnecessarily Delays the Case, 508(b) Fees are Awarded It is important to follow court orders. When there is a finding by the court that a party has not, they generally are required to pay the attorney fees for the other party. That is the purpose of 508(b) fees. If you need to hire an attorney to force compliance, you should not have to pay the attorney to get that relief. It is important however to make sure you seek the appropriate fees under the correct statute and in the Case of Budorick when the court fails to list the statute, it is imperative that you require a ruling from the court about the statute you were awarded fees under to avoid having the appellate court reverse your award. In Budorick, 2020 IL App (1st) 190994, the trial court and the appellate court wrote about the husband’s legal maneuvering that led to excessive delays in the divorce litigation. At one point, the husband filed suits in federal court, which also delayed the trial court’s divorce trial. The federal court eventually sanctioned Mr. Budorick, but that did stop him. Days before his divorce trial was to begin, he filed bankruptcy, and that led to another delay. Delays lasted over four years and after four continuances, the divorce trial finally began and the trial court granted the divorce. The wife filed her petition for fees over the delays and the judge granted the wife $50,000 in fees. It is important to note that under 508(b) it does not matter if the other party can afford them or not. When the court ruled on the fees, there was no indication as to which statute the fees were awarded under. The wife could have received attorney fees under 508(b), but she expressly denied bringing her fee petition under subsection 508(b) of the Act, and the court did not award fees under subsection 508(a) because it explicitly stated that the award was “not based on the ability of the parties to pay.” The court’s ruling stated that the fees were not based on either subsection 508(a) or subsection 508(b) of the Act. It is hard to fathom then just what statute the court used then, and because the order was not clear, the appellate court concluded that the court abused its discretion in ordering the husband to contribute $50,000 to his wife’s legal expenses. That part of the trial court’s order was reversed. CONCLUSION There are many Illinois laws available to litigants to receive attorney’s fees. By working with an experienced Chicago divorce attorney, you will review the differences to see which statute best applies to your situation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/attorneys-fees/divorce-attorneys-fees-in-illinois-what-you-need-to-know/ With the recent development of the COVID-19 vaccinations and distribution underway, we are anticipating some questions and co-parenting issues relating to this vaccine. As Chicago family law and divorce attorneys, we are making sure we can address any co-parenting disagreements that come up when we are faced with parents who disagree about vaccinating their children. This type of disagreement is not new, there are parents who have different views on childhood vaccinations, but COVID-19 had added an extra layer. Even if you are or have been against vaccinating your children, are you going to allow the COVID-19 vaccine?
Are COVID-19 Vaccinations a "Substantial Change in Circumstances"? In the event you have an Allocation or Custody Judgment that provides that one parent makes the medical decisions, and that parent has chosen not to vaccinate the children, COVID-19 raises the issue of a substantial change in circumstances where you may want to ask the court to modify that provision and allow discussion about the COVID-19 or allow the other parent, who does want to have their child receive this particular vaccination, make medical decisions. Parents may ask if they can modify their agreement to carve out specifically the issue of vaccines, and I say that is possible and may be the prudent thing to do. COVID-19 Vaccine Not Yet Approved for Children At this point, because the COVID-19 vaccine has not yet been approved for children, there is no rush to have anything modified but it is time to talk with the other parent about your thoughts and concerns about the vaccine. If you are in the process of negotiating a parenting agreement you can anticipate this and talk with your attorney about adding a provision about the vaccination. If you already have a parenting order in place you should review it and read the language regarding medical decisions. If you feel that you may need to ask the Court to modify the terms of the medical decision provisions, you will have to take all steps necessary per your agreement before you file something with the court. Often that is a communication requirement that you communicate your concerns to the other parent and if that does not resolve the issue then you move to mediation. Discuss Your Position on Coronavirus Vaccinations with the Other Parent Putting your concerns in writing to the other parent addressing your thoughts and beliefs about the COVID-19 vaccine is a good first step. You may receive confirmation from the other parent with the same beliefs and concerns. If they have other beliefs and feel differently then it is a good time to get into mediation to discuss with a neutral party who will assist you in discussing this. If mediation fails to result in an agreement, then you may have to file a motion asking the Court to assist you with a modification of the terms due to this substantial change in circumstances. There was a report done in Chicago by the Stanley Manne Children’s Research Institute in November of 2020 that revealed that nearly 7 in 10 parents said they were very likely or somewhat likely to get a COVID-19 vaccine for their children if one became available. The study also revealed that the pandemic on its’ own has not been a sufficient reason for parents to have their children vaccinated against the seasonal flu – if parents regularly provided their children with a flu vaccine it seems they may be more likely to agree that their children receive the COVID-19 vaccine. However, if the parents did not take their children for an annual flu vaccine, COVID-19 has not changed their minds. Dealing with the COVID-19 Vaccine and Moving Forward The harsh reality is that we are going to be dealing with COVID-19 for a long time. It may not only be through the next year 2021 but may be for years. The COVID-19 vaccination may have to be given every year like the seasonal flu vaccine. Most of us are following the guidelines of the Central for Disease Control by staying home, washing our hands, wearing masks, and not gathering in groups. All of this helps keep the spread of the disease down. The vaccine would be another tool to control the spread of this disease. The more people that are vaccinated the closer we get to Herd Immunity. Herd Immunity curtails the spread of the disease when a high proportion of the population is immune to the disease. The more people who are immune to the disease the less it spreads. The COVID-19 vaccine is more than 90% effective in preventing the disease - a disease that has ravaged this country. Moderna has announced that it will begin testing its coronavirus vaccine in children between the ages of 12-17. It is also in the works to require a COVID-19 vaccine to fly – it may be that your passport will have a label or other indication that you have in fact been vaccinated. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/coronavirus/covid-19-vaccinations-when-parents-disagree/ Unhappily married people with children will often contemplate if there is a “correct” age their children should be when they decide to get divorced. A lot of parents will wait until their child is older, or even grown, prior to obtaining a divorce because they feel that it will be easier. While divorcing with adult children does get rid of the component of potentially co-parenting with an ex-spouse, it is no easier for the children. When parents go through a divorce, it is hard for all children, even adult children. Regardless of age, having to navigate family events and milestones, holidays and celebrations with parents who are no longer married can be painful and difficult. This is particularly true when the divorce was less than amicable.
Waiting Until Your Child is Older – or the ‘Right’ Age There is no ‘right’ age for parents to divorce when they have children, but there are specific things to consider depending upon the ages of your children. Divorce with Infants and Babies Co-parenting an infant or a baby with an ex can be anxiety-provoking, especially for first-time parents. Infants and babies thrive with structure and schedules. They cannot articulate to their parents what their wants and needs are, other than to cry. Some mothers will choose to breastfeed, which can make parenting time difficult, or the breastfeeding can be inadvertently cut short if a Judge orders the parents to also bottle feed so as to effectuate parenting time. Different households are run in different ways, and the back and forth with a baby can be disruptive for naps, feedings, and the like. Additionally, it can be difficult to not have a helping hand living in your household when raising an infant or a baby. Additionally, if one parent has been the primary caretaker of the infant for some time and the other parent waits to try and obtain parenting time, the Court may hesitate to give a liberal and frequent parenting time schedule including overnights to the parent who has not had such a strong relationship. One positive about separating when children are this young is that babies and infants do not know any different than having two separate households and two separate parents, so the separation of the parents will always feel “normal” to the child. If divorcing or separating makes both parents happier, they will know two happy, separate parents. Divorce and School-Age Children Co-parenting school-age children can be harder in some ways than co-parenting a toddler or baby. If the children are old enough to truly understand their parent’s divorce or separation, they will likely feel sad and mourn the loss of having both parents around 24/7, which is something both parents will need to work with the children on. They may need to talk to a therapist or join a peer group for other divorced children through their school to help them adjust. They may refuse to go to parenting time with one parent and may be used to “their house”, making it challenging for them to go back and forth between the parents’ separate households. Depending on how young the child is, the parents will need to be vigilant about making sure their school work is completed and that they have everything they need at each house for their activities. They go through clothing quickly and need new items such as winter coats, backpacks, school clothes, and the like, every year, and then they need to make sure they are keeping track of everything between two households. There is a lot of communication between parents of young children, even if they don’t have joint custody or joint allocation of parental responsibilities (decision making). There are sporting events, school events, school activities, parent-teacher conferences, and many other activities or events where both parents will be present, sometimes with new significant others, or with in-laws that the other party doesn’t care for. However, again, staying in an unhappy marriage means setting an example of unhappiness for these children, which they also will observe and internalize. The balance and weight between the good and the bad is up to personal discretion. Divorce and Teenagers Parenting teenagers is HARD no matter if you are married or not. The best-case scenario with a teenager is that the divorcing or separating parents communicate well and stay on the same page regarding curfews, cell phone usage, driving, etc. That way neither parent is the “cool parent” and the teenager is less inclined to gravitate towards wanting to be in one household due to looser rules. One consideration when divorcing with teenagers is that often times teenagers don’t really care to spend time with their parents, whether they are divorced, separated or together. They often want to spend time with their friends. That may mean that if you have a parenting time schedule, the teenager will often ask to deviate from it. Or, that you may end up seeing your teenager just to drive them from point A to point B and before bed at night. It is harder to have voluntary, quality parenting time with a teenager, and that is no easier if you are divorced than if you are married. The good news about teenagers, though, is they can (usually) credibly articulate to you any issues that occur during parenting time or any concerns that they have, so the worry of safety significantly diminishes with older children. Timing and Divorcing with Children These are just some of the thoughts one must consider when divorcing with children. The truth of the matter is that being able to choose what age your children are when divorcing is a rare situation. Usually, a situation becomes unmanageable and stressful, or the other parent will file, or there are factors outside of your control that lead to a divorce. There is never a “good” time to get divorced. There are certain things that can be easier with kids when they are of a certain age, but generally speaking, the divorce is hard, regardless. The only thing that matters is if your children are happier in the end, and most children are happier when their parents are happier. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/should-you-wait-until-your-child-is-older-to-divorce/ The parties signed an agreement that the husband would pay non-modifiable maintenance but then he quit his job. Husband sought to modify the maintenance agreement then, stating that the agreement was required to expressly include the terms “amount, duration, or both” were non-modifiable, and since it did not, he was allowed to modify. The appellate court found that the argument had no support in the statute.
Non-Modifiable Maintenance Case Background The parties entered into a marital settlement agreement in which Husband agreed to pay his wife maintenance in the sum of $5,000.00 per month for four years. Neither the marital settlement agreement nor the judgment for dissolution of marriage set forth any facts as to the amount of either party’s income at the time. They expressly agreed that the maintenance payments “shall be non-modifiable pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act.” When the husband stopped paying, the wife filed a petition for rule to show cause, claiming that between May 2017 and October 2017 her ex-husband had paid only $700 in maintenance payments instead of the $30,000 he was required to pay. The trial court entered an order finding the husband in indirect civil contempt for failure to make $43,800 in maintenance payments as of the date of the order, plus statutory interest. At the next court date, the trial court entered an order requiring Husband to complete a job diary, as well as to remain current on his maintenance payments. The husband then filed a petition to modify the judgment, claiming that he did not have the financial resources to comply any longer since he was earning less than $3,000 per month working as a “management consultant” and had withdrawn all funds from his 401(k) to make his maintenance payments. He asked that he be allowed to terminate or modify his maintenance obligation. While the marital settlement agreement provided that the maintenance payments were “nonmodifiable pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act,” the husband claimed that the maintenance obligation was not truly nonmodifiable because it did not specifically provide “that the non-modifiability applies to amount, duration, or both.” In essence, his argument was that the agreement had to claim all three (amount, duration, or both) were non-modifiable, and expressly state that in the agreement. Otherwise, he should be allowed to modify. The failure of the agreement to specially state that all three were non-modifiable then meant that he could modify the agreement. In order to modify a court order, Husband would need to have a change in circumstances which necessitated the modification of his maintenance obligation, and since he had been without steady income for several years and he had liquidated all of his retirement accounts and savings, Husband argued he met the threshold for a change in circumstance as well. He argued that the maintenance obligation as written was impossible for him to perform and that his ex-wife had substantial assets and is well able to earn an income to support herself.” HUSBAND USED TO BE A BANKER MAKING $140,000 A YEAR BUT QUIT TO PURSUE A JOB IN PASTORAL COUNSELING Husband provided this financial affidavit from before the judgment, which demonstrated that he was earning $140,000 as a banker. He testified that he learned that his job was in jeopardy and that he feared he was to be fired. Since he had a master’s degree in pastoral counseling, he believed his “best move forward was to develop a career in pastoral counseling.” He left his job at the bank in April 2015 and then earned less than $3,000 a month. In the wife’s responsive pleading, she claimed that the terms of the maintenance obligation were expressly made nonmodifiable in the marital settlement agreement. Wife claimed that her ex-husband quit his previous job voluntarily because he was unhappy with it, and denied that he was about to lose his job. She also argued that contrary to her ex-husband’s assertion, she suffered from a variety of health issues that made it difficult for her to earn an income; she was considered disabled by the State of Illinois and received employment assistance from the Illinois Department of Rehabilitation Services. She had never been employed on a full-time basis. COURT FIRST LOOKED AT WHETHER AGREEMENT COULD BE MODIFIED Before the court would look into the husband’s motion in-depth, it first set a hearing on whether the agreement could be modifiable at all. After hearing the parties’ arguments, the court found that it “does not have the ability to modify husband’s obligation to pay maintenance as set forth in the parties’ Judgment for Dissolution of Marriage entered on February 8, 2016, pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act.” Accordingly, the court denied Husband’s motion, further finding that there was no just reason to delay enforcement or appeal of the order. Husband's Appeal Only one issue was presented on appeal, which was whether the maintenance obligation in the marital settlement agreement is modifiable or not, even when the husband claims he cannot pay through a change in circumstances. Husband argued that the language in the marital settlement agreement was insufficient to render the maintenance obligation nonmodifiable under the Act. The parties may provide that maintenance is non-modifiable in amount, duration, or both and if the parties do not provide that maintenance is non-modifiable in amount, duration, or both, then those terms are modifiable upon a substantial change of circumstances. Otherwise, the terms of an agreement set forth in the judgment are automatically modified by modification of the judgment.” 750 ILCS 5/502(f) (West Supp. 2015). The marital settlement agreement, in this case, provided that the husband agreed to pay a certain amount of money per month, $5,000 and he agreed to pay it for 48 months. Said maintenance payments shall be non-modifiable pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act. Husband argued that because the marital settlement agreement did not expressly state that his maintenance obligation was “non-modifiable in amount, duration, or both” (750 ILCS 5/502(f) (West Supp. 2015)), then it was modifiable, despite the fact that the agreement expressly states that the obligation is nonmodifiable. In other words, the respondent’s argument is that the words “amount, duration, or both” must appear in the agreement in order to render the obligation nonmodifiable. THE APPELLATE COURT WAS NOT CONVINCED BY HUSBAND’S ARGUMENT The appellate court was not convinced. The new statute, 750 ILCS 5/502(f), does allow parties to make maintenance as a whole nonmodifiable or to select a single aspect of the obligation to make nonmodifiable. In the case at bar, the clear language of the marital settlement agreement shows that the parties intended that the husband’s maintenance obligation be nonmodifiable under section 502(f). The agreement set forth a schedule of payments to be made over eight years, and expressly provided that “[s]aid maintenance payments shall be non-modifiable pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act.” The appellate court indicated that it could find no clearer expression of an intent to make the obligation nonmodifiable—not only did the agreement expressly provide that the obligation was nonmodifiable, but it cited the applicable provision of the Act. The trial court’s denial of the husband’s motion to modify the dissolution judgment was affirmed, where the language of the marital settlement agreement provided that the maintenance obligation was non-modifiable under section 502(f) of the Act, and where there is nothing to suggest that the non-modifiable maintenance provision was intended to apply to only one aspect of the maintenance obligation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/spousal-support/husband-appeal-non-modifiable-spousal-maintenance-unsuccessful/ When Guardianship May Be Necessary for a Child
Guardianship for a child generally becomes necessary when the child’s parents are no longer able to care for their child on a long-term basis. When a child no longer has a parent who can make decisions for them, an adult needs to be appointed as the caregiver and decision-maker for that child to ensure that the child is cared for in the absence of their parents. Without the authorization granted by a guardianship, caregivers can often find they are unable to access medical care, enroll the child in school, or make other critical decisions for that child. There are also times when the parent cannot be physically present to the care for the child, and may not be an appropriate caregiver, as when a parent is incarcerated. The purpose of guardianship is to ensure that the child has an appropriate and willing caregiver in the absence of their parents. Unlike adoption, guardianships are not permanent. They do not dissolve the parents’ parental rights, and they can be dissolved if the parent, or parents, are able to make a showing that they are now able and willing to care for the child and would be an appropriate caregiver. Additionally, guardianships end when the child turns eighteen and do not convey any inheritance rights, unlike an adoption. How to Establish a Guardianship for a Child For every child, there are two guardianship roles: guardian of the person and guardian of the estate. One person can hold both roles, but those roles can also be divided between multiple adults. The guardian of the person is responsible for making decisions for the child in the areas of care, support, education, and medical treatment. The guardian of the estate is responsible for any money or property belonging to the child. Generally, guardians are family members or friends of the child who have an already established relationship with the child. In some circumstances, the guardian may already have been acting as a caregiver for the child and is seeking to formalize the situation by seeking guardianship. Petition for Guardianship of a Minor In order to become a child’s guardian, for either the person and/or the estate, the adult seeking guardianship must file a Petition for Guardian of a Minor stating both why the child needs a guardian and why this particular adult, or adults, would be an appropriate as guardian(s) for the child. The petitioner(s) must meet the following qualifications in order to be appointed:
There are three types of guardianships: plenary, standby, and short-term guardians. Plenary Guardian A plenary guardian is someone who assumes that role for the long-term and will only occur under certain circumstances. A plenary guardian can only be appointed by a judge, and only under the following circumstances:
Once a guardian is appointed, that person cannot give up that role unless a judge rules: 1) that there is a parent willing or able to resume caring for the child; or 2) another individual is willing to assume guardianship of the child. Once the child turns eighteen, the guardian no longer has a formal responsibility or authority for the child. The individual petitioning for plenary guardianship must provide information to the court about the whereabouts of the parents. The guardian must also provide the parent(s) with notice of the time and place of the hearing to appoint a guardian so that the parent(s) can object to the guardianship if they choose to do so. In the even that there is an able and willing parent whom the court deems appropriate, guardianship should not be granted because the guardian has not made a sufficient showing that guardianship is necessary. Standby Guardian A standby guardian is someone selected by the parent to become a guardian if a parent or current guardian is unable to care for the child due to illness, death, or long-term separation from the child. A standby guardian does not require a judge’s approval, but there must be a written designation of a standby guardian witnessed by two other people. A standby guardian must meet the following requirements:
Short-term Guardian Finally, there is a short-term guardian. A short-term guardian can be appointed when a parent knows they will be unable to make daily decisions for their child for a finite period and that parent is willing and able to resume responsibility for the child when that time expires. One example would be a parent in the military who is going to be deployed. That parent could name a short-term guardian for the duration of their deployment, which would expire once the parent returned home and could resume responsibility for the child. Like a standby guardian, the short-term guardianship does not require a judge’s approval but must be in writing and witnessed by two other people. The short-term guardianship should include an end date and generally should not last longer than a year. The short-term guardianship will also expire when the parent returns home and is able to resume responsibility for the child. Children Age 14 and Over It is important to note that children over the age of fourteen are to receive notice of when someone is seeking guardianship of them and can provide input to the judge and, if appointed, a Guardian ad Litem regarding who they want to as their caretaker. This can play an important decision in who is appointed as guardian if there are multiple individuals petitioning for guardianship of the child. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/guardianship-for-a-child-what-you-need-to-know/ Thinking of representing yourself in a Chicago divorce or custody case? Divorce and Custody (or Parentage cases) are some of the areas of law where people often feel that they can adequately represent themselves and that they may not need an attorney. Family Courts will provide “do it yourself” or “uncontested” divorce packets which make it seem simple. You just complete the paperwork, submit it, go to Court and then you will be divorced! Simple enough, right?
In reality, however, it is not so simple. There are many pitfalls when you try to “go at it alone” in a Chicago divorce or custody case. Being aware of those pitfalls may convince you that retaining an attorney is necessary. Knowledge is key to making the decision that is best for you. Here are some reasons why hiring a divorce attorney is essential to your case: 1. You will be held to the same standard of knowledge as an Attorney. Litigants who choose to represent themselves “Pro Se” are expected to know all of the same rules, case law, statutes, and procedures that divorce and attorneys do. This is next to impossible unless the Pro Se litigant has attended law school and practices law. Even attorneys who practice a different area of law, though, are unfamiliar with Family Law and Domestic Relations rules, case law, and the like. As such, they will often hire a family law attorney for their divorce, despite the fact that they are licensed attorneys! You will be expected to understand discovery rules, deadlines, how to conduct a trial, the rules of evidence, and much, much more. Being your own attorney truly becomes a full-time job, especially if you plan to do so thoroughly. However, the daunting task of figuring out how the legal system works, and doing the research required to adequately represent yourself is likely not going to be up to par with the quality an attorney would be able to provide. 2. Your Spouse or Ex may hire an attorney. Representing yourself in a divorce or custody battle is not easy, especially when your spouse or ex has hired a skilled attorney. Going “pro se” against an attorney comes with its own unique set of problems. First, the attorney cannot give you legal advice or assist you in representing their spouse. Second, the attorney is to assume, per rules, that you know and understand all of the rules, laws, and procedures. To say that a pro se litigant is at a disadvantage when they go up against an attorney is an understatement. The Judge is also required to assume the pro se litigant knows the rules, the law, etc. 3. The “forms” provided by Courts for “do it yourself” or “pro se” divorces are not all-encompassing for every situation. The “uncontested” or “simplified” divorce forms make it seem like obtaining a pro se divorce is very simple. In some cases, it might be. However, if you or your spouse/ex own any property together, or if you are awarding someone something titled in the other’s name, or if you are changing the beneficiary on a life insurance policy, for example, these documents are inadequate. The language is too simplistic to account for every possible scenario which could arise. For example, on one of these forms, you could award your spouse the 2010 Nissan Armada. What if the car is titled in your name? How long does the party have to re-finance the vehicle? How do you effectuate all of these things? On one of the simple forms generated by the court for simplistic divorces, these issues are not covered. The same goes for dividing a retirement account. If the retirement plan requires a Qualified Domestic Relations Order or a QILDRO, these forms usually don’t give that information or instructions on how to do that. Many parties are surprised to find they were awarded half their spouse’s pension, and then, when their spouse retires, they don’t receive anything from the retirement account. That is because the simple divorce forms are not all-encompassing and do not deal with the more advanced issues relative to property division like diving a retirement account. In these scenarios, it is best to have an attorney to ensure every element of your divorce is done correctly. 4. Things do not always mean what you think they mean in legal documents. Legal jargon can be very confusing. Even if you have a document drafted by an attorney for your spouse, you should still retain counsel to review the document with you, at a minimum, even if you are hiring them for full representation. In the legal world, the plain meaning of certain words is different than the legal meaning. So, you may think you understand what you are reading, only to learn later that you actually did not understand what the document meant. Hiring a divorce attorney can help decrease the likelihood that this will happen. 5. Post-Decree Litigation may be much messier when the initial divorce was completed Pro Se. To build on what was mentioned above, post-decree litigation can be much messier when the parties were self-represented and completed their own forms. For example, let’s say the martial settlement agreement signed by the parties says: “Spouse 1 claims the minor children on their taxes in Even years.” Does “even years” refer to the tax year on the form you are filing, which is actually filed in odd years? Or does that mean the actual even tax year in which the documents are filed? This sentence could be subject to more than one interpretation. Another mistake commonly made is that the holidays will be divided, but with no exchange times or locations, and no details about who is doing the transportation. So, for example, Spouse 2 has Christmas Day in odd years. There is no time or location. Don’t be surprised when Spouse 2 shows up at midnight on December 25th to pick up the children as a result of this – to be clear, we don’t recommend doing this, but it happens! 6. Objective legal advice can be extremely helpful when dealing with a deeply personal scenario. Finally, the separation of two parents or a married couple is a deeply personal and emotionally driven situation. It can be hard to think rationally, and it can be costly for your time and effort (for example, fighting over personal property of nominal value). Skilled divorce attorneys can shed light on what Judges will likely do in certain scenarios and help you to focus on the big picture and the goals which you have set, and not to get tied up in every single issue. This is generally in the client’s best interest and a more cost-effective approach. It is nearly impossible to counsel yourself objectively and step outside of your own shows when you are in such a difficult situation. Hiring a divorce attorney can help. If you are thinking about representing yourself in a Chicago divorce or family law dispute, consider seeking advice from an experienced divorce attorney before making a final decision. Your future may depend on it. For a free consultation with the Chicago family law attorneys at Anderson & Boback, schedule a meeting today! THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/six-benefits-of-hiring-a-divorce-attorney/ Is it time to file a contempt petition in Illinois family court? When you have an Illinois Court Order that is incorporated into a Judgment for Dissolution of Marriage it details the provisions that are required for each party to follow. But if a party fails to follow through with the terms of a Parenting Agreement, Allocation Judgment or Marital Settlement Agreement, the Illinois Marriage and Dissolution of Marriage Act provides a process for bringing that party back to court to enforce what the judgment requires them to do, or in some cases, not do.
Parenting Agreement/Allocation Judgments and Marital Settlement Agreements are extremely detailed documents, which makes it easy for someone to inadvertently violate the order, at some point in time. Inadvertent violations are typically easily resolved without court intervention because once the violation is pointed out by one party to the other, it is quickly resolved. When a Judgment or Marital Settlement Agreement is violated purposefully or willfully, it is a whole other story. However, when an order is violated purposefully or willfully without cause or justification, it is a whole other story. Indirect Civil Contempt for Refusal to Abide by a Court Order In scenarios where someone is willfully refusing to abide by a court order, the Court has the power to hold that person in indirect civil contempt of court. The procedures to follow in contempt proceedings differ according to the type of contempt at issue. Contempt can be either direct (in the presence of the court) or indirect which is when something happens outside the presence of the court. Because Indirect contempt is alleged to have happened outside the presence of the court proof of willfully disobeying a court order is required for a finding of indirect contempt. In addition, civil contempt is a penalty given to compel future compliance with a court order which is coercive in nature rather than a punishment for past conduct. Civil Contempt Proceedings When you ask the Court to hold someone in contempt for non-compliance with a court order, the person you want to be held in contempt must be able to do what the court order requires them to do and have the opportunity to comply with the order. For this civil contempt proceedings, the person alleged to have not followed a court order is entitled to notice and an opportunity to be heard and it is initially the burden of the person bringing the action to court to prove by a preponderance of the evidence that the order has been violated. Once the court finds that there is evidence that the court's order has been violated, the burden shifts to the person who is alleged to have violated the order to show why they should not be held in contempt by showing that either they did not violate the courts order or the violation was not willful and there was good reason for such violation or non-compliance with the court order. Criminal Contempt Actions On the other hand, there is criminal contempt which is punitive and used to punish the person who has violated the court’s order. For criminal contempt proceedings the person alleged to have not followed a court order is entitled to:
It is important to cover all of your bases when filing a contempt petition to create a rebuttable presumption of contempt, upon the review of the pleading. This also means you should execute your contempt petition and make it verified (which is required for all pleadings in Cook County). These tips assist in getting the motion before the Court and avoiding any situations where a Judge can say that something should have been done prior to filing the contempt petition. Contempt Petitions During COVID-19 During 2020 we have brought and defended many contempt petitions for the failure to abide by a parenting time order during COVID-19 and the stay-at-home orders. These were taken on a case-by-case basis with different facts for each case as a global pandemic was not contemplated by anyone. The parenting time orders require the children to be with one parent on a certain day and with the other parent on certain days, but what do you do when there is a stay-at-home order? Do courts find it to be contempt if you keep your children from going to the other parents’ home? Court’s have definitely found this to be contempt in some cases and not in others. The court will look at how far the parties live apart, how they travel from one home to the other, are the parents working from home or are they essential workers going out into the community, do either parent live with an elderly person or are the children immuno-compromised? All of these things are taken into consideration when a contempt petition is filed during COVID-19. Contempt Petitions Related to School In addition, many contempt petitions were filed relating to school. If the children were going to go back to school in person or change schools; vacations were another area of many contempt petitions. For example, one party has a two-week vacation per court order and plans to take the children on an airplane or another state during COVID-19. The other parent feels that would not be best for the children and refuses to allow the children to go. The court will look at all factors and they will either rule that this is a violation of the court order and contempt, as there is no good cause or justification for keeping the children away from the other parent or they, may say that it is a violation of the court order but no contempt because COVID-19 is a justifiable reason to keep the children home. Contempt requires detail and proof of any violation and a finding that the violation was willful. Each case has different facts and proof available and should be reviewed with an attorney for an evaluation. For guidance with a potential contempt petition or compliance with a family court order, contact Anderson & Boback today for a free consultation. Our experienced family law attorneys are here to help! THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/illinois-divorce/bringing-a-solid-contempt-petition/ If the other parent will not vaccinate, will the courts stop parenting time?
We have been waiting for the vaccine to the coronavirus for a long time. Now, today the first COVID-19 vaccination administered in the U.S., we know it will soon be distributed. Most people are waiting anxiously for this vaccine, but there are individuals that do not want to be vaccinated. For parents that are divorced or no longer together, the question of vaccination can become a point of contention. If you get your vaccination, and the other parent will not will the court allow parenting time with your child to continue? If the other parent is employed, won’t they have to get the vaccination to keep their job? Personally, I do not know any judge that allows for a child to go unvaccinated. Parents have tried to convince the courts that they have religious freedom not to vaccinate, and I have seen judges remove custody from that parent. The court is concerned with the best interests of the child and judges believe that it is the child’s best interest to be vaccinated. In a toss-up between a person’s religious beliefs and a child’s health and safety, religion loses. Will a Judge Order a Parent to be Vaccinated? Requiring the child to be vaccinated and requiring a parent to be vaccinated are two different things, however. Many parents argue to the court that the other parent should do things to make them a better parent, arguments wrapped up in the “child’s best interest” standard. Some arguments work. Judges have ordered a parent to engage in anger management classes, to be drug tested before they pick up their child, and engage in other safety measures to ensure the child is safe with that parent. But can a judge order a parent to be vaccinated themselves? I recently saw an article concerning employers requiring employees to be vaccinated as a condition of employment. I am curious to see what legal theory the employers would use to ensure that their employees were vaccinated. Will employers be able to mandate the COVID-19 vaccination for their employees? I spoke to an excellent labor lawyer I know, Laura A. Balson, a partner at the law firm of GOLAN | CHRISTIE | TAGLIA LLP to get her advice on the subject. Laura wrote, “Unless an employee is given a written contract that guarantees employment for a specific period of time, all employees are employed “at-will.” What that means is that any employer can fire any employee, with or without notice and with or without a reason, so long as the employer doesn’t do so on an illegal basis. Given the highly contagious nature of COVID-19 and the obligation that employers have to keep their worksites safe for all employees, many employers will expect or even mandate that employees get vaccinated once the covid-19 vaccine is widely available. While your employer can’t force you to get vaccinated, they can fire you for failing to do so, which means you’ll have to choose between getting vaccinated or no longer having a job. Even if you work for yourself, as a sole proprietor or independent contractor, it is likely that many large customers will also require any vendors or consultants who work on-site with the customer’s employees to provide proof that they are vaccinated as well. Some people have asked whether it is an invasion of privacy for an employer to ask an employee or an independent contractor whether they have been vaccinated. In some cases, the answer may be yes. However, what we have seen already since the COVID-19 pandemic began, is that many of the standard privacy rules related to health information have exceptions when there is a public health concern or a potential risk to the safety of other employees. We should expect that the same will be true of being asked whether you have received the covid-19 vaccine.” If the other parent is employed then, it seems that vaccinations will be required in order to keep their job. If we draw an analogy to Laura’s comments about employers to parents, I see an argument being made that the judge should force the other parent to vaccinate. If employers can fire you for failing to vaccinate though, it seems that a parent who does not want to vaccinate, will either need to choose between getting vaccinated or no longer having parenting time. Parents may allege that it is an invasion of privacy for the other parent or even the court to ask if they have been vaccinated. I guess that is true, but since the covid-19 pandemic began, many of the standard privacy rules related to health information have exceptions when there is a potential risk to the safety to your child. For those parents that are just now entering parenting agreements regarding their children, it would be wise to insert a paragraph related to vaccinations, and specifically the COVID-19 vaccination. If You Live in a State that Does Not Mandate Vaccinations, Does that Help or Hurt Your Argument? In August of 2020, Anthony Fauci, an infectious disease expert, said that the vaccine will not be mandated, but encouraged. When it comes to public health, states are generally in charge of this decision. If Illinois does not mandate the COVID-19 vaccination for its citizens, can a parent opposed to vaccinations use that fact in support of their unwillingness to vaccinate? Sure. A parent can argue anything they want, but judges (in my opinion) do not care what parents want. Once a parent is before the court, the court cares about the child, not so much about the parent. The child will always come first. Start Discussing the COVID-19 Vaccination with the Other Parent Now Start having a discussion now about the vaccine with the other parent. Parents already differ about social distancing and in general, how much activity outside the house is wise. Some parents do not want the other parent traveling now and taking the child to restaurants. If the child is exposed, the child can go home to the other parent and expose that entire household. A lot of family law litigation already exists about activities outside the home, so I can only imagine that the vaccination argument is right around the corner. While you are negotiating your parenting agreement, try and include a provision about the vaccination requirement for parents. It will be easier to resolve the issue now before the vaccination becomes available. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody-visitation/the-covid-19-vaccination-is-here/ |
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