Think you’re ready to sign an Illinois Voluntary Acknowledgement of Paternity? If you’re not married and pregnant, establishing paternity for your child is more complicated than for a married couple giving birth. When a child is born to a couple that is married, that child is automatically presumed to be a child of the marriage under Illinois law. This means that the mother’s spouse is presumed to be the child’s father, unless another individual is named and recognized as the biological father under Illinois law (typically by way of DNA testing.) Paternity laws have recently expanded to same-sex couples by case law in Illinois. This means if a child is born naturally to a woman who is married to another woman, the non-birth parent is presumed to be the child’s second parent since the child was born during the parties’ marriage. However, when a child is born to an unwed mother there really isn’t a “presumed” parent. In such situations, some parents wish to legally acknowledge the child as their own upon his or her birth. If that child is born in Illinois, the parents have the option of signing a legal document called a “Voluntary Acknowledgement of Paternity” indicating such, at the hospital, after the birth. Signing an Illinois Voluntary Acknowledgment of Paternity (“VAP”) When a child is born to unwed individuals in Illinois, they can agree to sign a Voluntary Acknowledgment of Paternity or a “VAP.” The VAP is signed at the hospital shortly after the birth of the child by both the biological mother and father. Once signed, a voluntary acknowledgment of paternity is a binding agreement indicating that he fathered the newborn child and acknowledges paternity of the child. Legally, the Voluntary Acknowledgement of Paternity document does the following:
A father’s signature on the VAP acknowledges that he is the biological father of the child and that he is consenting to his name being placed on the birth certificate. The Voluntary Acknowledgment of Paternity also indicates on it that it is a binding legal document. When signed, witnessed and filed with Illinois Health and Family Services, the VAP is essentially the same as a court order determining the legal biological relationship between the father and child. While clearly establishing a legal father-child relationship, the VAP makes it clear that it does not give parental responsibilities (formerly known as “legal custody”) or parenting time (formerly known as “visitation”) to the biological father. Signature of the VAP just gives the biological father the right to request parenting time and/or allocation of parental responsibilities for the minor child. What if the parties signed a VAP at the hospital but later change their minds about signing the VAP? Either party may sign a “rescission of the Voluntary Acknowledgment of Paternity” form. The form has to be signed, witnessed and filed with HFS within 60 days from the effective date of the VAP, or the date of a proceeding relating to the minor child, whichever occurs earlier. Challenging a Voluntary Acknowledgment of Paternity If the VAP is not rescinded, a VAP can only be challenged on the basis of fraud, duress, or material mistake of fact by filing a petition within two (2) years after the effective date of the VAP. The person who is challenging the VAP has the burden of proof and has to prove their burden by clear and convincing evidence. This may include a negative DNA test. What if the alleged Father does not sign the VAP at the hospital? In the event that the person whom the birth mother believes to be the biological father does not sign the VAP at the hospital, there is another option. Either the mother or the biological father may file a “Petition for an Adjudication of Parentage” (and a DNA test may be requested by either party). The Court typically will order the DNA test. If the DNA test results confirm the child’s paternity the court will then enter an order of parentage. Either a biological mother or a biological father can file a motion to establish parentage and request a DNA test. In some situations, if there is no cooperation to take the DNA test, the Court may enter an order of parentage regardless of a DNA test being completed, depending upon the circumstances. Establishing paternity in Illinois can be complicated with lasting consequences for parents and children. Contact us today to speak with our experience family law attorneys when you need to know more about Illinois paternity law or if voluntary acknowledgment of paternity is right for you. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/paternity/illinois-voluntary-acknowledgement-of-paternity-whose-the-daddy/
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Divorces can be complicated and emotional to begin with, dealing with a complex and high-net worth divorce can become even more contentious. When a wealthy couple with high-value assets decides to divorce, the process could become long and drawn out, with possible irreversible ramifications if not handled correctly. Don’t leave your financial future to chance, be sure to work with an experienced high-asset divorce attorney to safeguard the assets you’ve worked so hard to attain and to be sure that your divorce and property division is fair and equitable. Anderson and Boback for High-Asset Divorce Representation Anderson & Boback are high asset divorce attorneys in Chicago with experience in protecting the assets of wealthy couples going through a divorce. We are fearless about protecting your rights and standing up for your interests. High net worth divorces must be approached with a well thought out plan from professionals who have experience in several financial areas. Anderson & Boback provide in-depth experience with proven satisfactory results in helping couples to separate a wealthy estate. We assist with Illinois divorces with complex property division including business income from one or multiple businesses, high value real estate and multiple real estate holdings, retirement accounts, pension and annuity funds, stocks, automobiles and any other valuable items or assets of high value. Our experienced divorce attorneys provide: Real Estate Division – Anderson & Boback are experienced at separating real estate and all implications that go along with real estate properties. Whether vacation homes or rental properties, we analyze all aspects of current and future financial implications from dividing properties including all income generating property and tax implications. Business Division and Valuation – It is vitally important to obtain an accurate business valuation when dividing business interests. This is a complex process requiring the assistance of an industry professional to accurately value all company shares in addition to any tax implications. Retirement Accounts and Investments – When a wealthy couple separates one of the greatest concerns is how to split investments and retirement accounts, especially when one spouse may have been the major income earner. Speaking with an experience high asset divorce attorney is critical to your financial future and security in retirement. Anderson & Boback are experienced in Illinois divorce law and preserving your family assets to protect your financial future. We partner with you to support you throughout the entire process to ensure you receive a fair settlement. Contact us today for confidential consultation to learn how we can strategize together for the divorce settlement that you deserve. If you think it may be time to modify child support ordered by an Illinois court, here’s what you need to know. Child support amounts are determined based on the Illinois Child Support Guidelines. Guideline child support is calculated by first determining the parties’ combined net income. This model of calculating support is referred to as “income shares.” That is because our State believes children should be entitled to the same standard of living that they would have had if their parents stayed together. Once the amount for child support is figured out an order is entered with the Court. However, financial situations may change after the support order is entered. As we know, life tends to happen. The paying parent’s income could significantly increase after the order is entered or the child’s expenses could increase. The possible changes are endless. Illinois Child Support Modification Pursuant to Section 510 (a) of the Illinois Marriage and Dissolution of Marriage Act , “an order for child support may be modified upon a showing of a substantial change in circumstances.” (750 ILCS 5/510) Whether you are the parent paying or the parent receiving support, financial circumstances may arise that make it necessary to revisit the amount of child support being paid. What happens if your financial situation changes after the original child support is ordered A few of the most common examples of substantial changes in circumstances are when the paying parent loses their job or when they are injured and can no longer work. If your income changes and you are no longer able to make your ordered support payments, it is in your best interest to take action right away. You are obligated to make your support payments, as ordered, until a new court order is entered. Therefore, it is very important to file a petition with the court asking for appropriate relief. The alleged change in circumstances must first be proved before a court will entertain modifying the obligation or determining a new support amount. It is unlikely that a court will modify support if the change in income was done voluntarily or if the change was made in bad faith. It is not uncommon to hear that a paying parent decided to voluntarily quit their job. Sometimes people decide to go back to school. A person might decide to make a career change. Maybe the stress of their job was too much. Maybe they wanted more flexible hours. There are a lot of reasons why people change jobs or make career moves but you have to remember that the State and the courts are concerned with what is in the best interests of the children. Generally, it is not wise to leave a job without another source of income lined up but there are also cases when the payor had good reason to do so. When a person tries to modify their support obligation after voluntarily leaving a job the outcome in court is a toss-up. It all comes down to the facts of the case. Every case has a unique set of facts. What about when you lose your job due to no fault of your own? When people lose their job and it was beyond their control they usually have a better case to argue for child support modification in court. Unfortunately, businesses close, people get laid off, and people are injured on the job. These examples are usually proven to be substantial changes in circumstances that warrant a modification of the payor’s support obligation. However, the modification may not be permanent. A Judge could order a support obligation to be temporarily modified. In these situations, judges often order the unemployed party to keep a job diary during their employment search. The judge can order a party to apply for a specific number of position per day, per week, per month, etc. When the unemployed party finds employment the support obligation will need to be recalculated based off the new income. Petition to Modify Child Support After a party files a petition to modify their support obligation the parties will be required to exchange updated financial information. Discovery may end up being issued to uncover the reason behind the change in income. If the parties are unable to reach an agreement, then the court will schedule a hearing to determine if a substantial change in circumstances necessitates a new child support order. If you’ve experienced what you believe may qualify as a “substantial change of circumstances” since an Illinois court issued your child support order, don’t delay seeking legal assessment. Contact our office to schedule a confidential consultation with our experienced child support lawyers to help you determine if it’s time to modify child support. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-support-modification/modify-child-support/ The Divorce Discovery Process, in General
Discovery in divorce is the legal process in which parties can “discover” information regarding the financial information of the other party. Because an overwhelming amount of people going through the divorce process have little understanding of what marital assets they have, what marital debts they have, what their spouse’s income is and other financial information, discovery is very important and relevant to the divorce process. In parentage cases, it is expected that the vast majority of the parties involved with each other romantically do not know their ex-significant other’s financial situation. So, what does one do who has no idea what the financial status is of the person they are suing? In matters such as divorce, or support related matters, financials are relevant, and the information needs to be transparent regarding the parties’ respective financials. In situations where the parties have an agreement as to support, they may not need to do a whole lot of discovery. However, in other situations, such as when a case will be set for trial, discovery is critically important, and, many Judges will not set a trial date until discovery is substantially done and complied with. What Types of Discovery are Used in Divorce Cases? There are quite a few different ways to issue discovery. There are several types of written discovery as well as oral discovery, also called a Deposition. This blog is intended to outline the most popular types of discovery one may encounter in an Illinois divorce or family law matter. Exchanging Financial Disclosure Statements Any case in Illinois which requires the financial information of both parties typically begins with the exchange of Financial Disclosure Statements. This discovery document is a sworn affidavit which outlines a partie’s expenses, income, debts, and assets. The document must be filled out truthfully and completely, or the party completing the document could be subject to punishment or sanctions by the court. It is also encouraged that substantiating financial documents are attached to the Financial Disclosure Statement, such as pay stubs, bank statements, tax returns and W-2s/1099s. In Illinois, each county has its own rules regarding when the disclosure statements must be exchanged, and what substantiating documents must be included with it, if any. Sometimes the disclosure statements are enough and are acceptable to two parties to move towards resolution of a matter. In those scenarios, parties don’t necessarily have to complete further discovery, but they move forward at their own risk. However, if the matter is set for trial, typically additional discovery will be required. Written Discovery: Notice to Produce Documents There are two standard types of “written discovery” issued in family law cases. One document is called a Notice to Produce Documents. This is a written request served upon a party or their counsel requiring them to respond within 28 days. In an illinois divorce, the Notice to Produce Documents asks for years of:
Written Discovery: Interrogatories The scope of document production requests can be extremely wide in terms of what is requested, and can seek documents that go back many years (typically 3-5, but sometimes shorter, or sometimes longer). The party who is served discovery must also respond to the actual notice, indicating what documents they are enclosing, what does not apply to them, what documents may not be in their possession or control, and the like. This helps the attorneys and parties to the case know what documents actually exist and can be subpoenaed or what they can compel the party to produce. Interrogatories are a series of questions that the party who is served must answer, typically about their finances and if in a divorce case, about marital versus non marital property. In a parentage case, they may be asked specific questions relative to parenting time and allocation of parental responsibilities. These also have to be responded to in 28 days. Depositions Depositions are a question and answer session attended by the parties, their attorney’s and a court reporter. In most family law cases, depositions last up to three (3) hours but can be extended for good cause. The scope of what can be asked in a deposition is large. Not every question asked in a deposition will be relevant at a trial. The deposition questions can be anything that may lead to relevant information or documents in a case. It is a time to ask the party questions, and typically there are a lot of questions about a party’s financial documents. This is the time to ask those questions. Thus, typically, but not always, depositions are done after formal written discovery is complete. Requests to Admit Facts or Genuineness of Documents “Requests to Admit Facts” and “Requests for Genuineness of Documents” are specialized discovery instruments are not often used in family court, but appear from time to time. They are described as follows:
Subpoenas Subpoenas are a formal request for documents or other forms of discovery from a specific person or entity. For example, let’s say someone has a bank account at Chase bank and they produce six months of statements, but the request for production of documents asked for five (5) years of statements. A subpoena can be issued to Chase Bank requesting the additional statements. Subpoenas can be sent to employers, banks, credit card companies, retirement account administrators and more. Subpoenas can request production of documents, or, production of a specific person so that the attorney can take their deposition (i.e. the parties’ accountant, etc.) Subpoenas are typically used after discovery is issued and not complied with, unless there is a specific reason the parties wish to send one out prior. Discovery is a very important part of the divorce process and should not be taken lightly. Contact our office today to schedule a confidential consultation about your family law matter or questions about discovery in divorce. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/what-is-discovery-in-divorce/ I seem to get a lot of questions like this lately. When people are seeking out a divorce attorney, they always want to know what they can do with their money. Can they take all of their money out of the bank? Can they take half of it and secrete it from their spouse? Can they spend it?
Under the law, when a party in a divorce case takes money and spends it, it can be considered dissipation. The money must have been taken during a time when the marriage was undergoing an “irretrievable breakdown” and must have been spent on something not of a marital purpose. Most marriages start breaking down long before the first divorce petition is filed, so spending the money a month before you file for divorce will still be considered dissipation. There is no bright line to figure out what is dissipation and what is not. If the money was taken and spent on gambling, I believe that would be considered dissipation. If the money was taken and used to pay the mortgage, it might be considered dissipation, or it might not. The facts of each case are different, and no hard line rule applies. When you are undergoing a divorce, all of your financial records will be scrutinized. It’s important that you are able to document and account for all expenditures. If you take cash out of your account, and have no records demonstrating what it was spent on, your spouse may allege that you have dissipated those monies. If you can demonstrate that the money was used for a legitimate marital purpose, then it is not dissipation. Poor record keeping can lead to a claim of dissipation. To make your case run smoother, I would recommend that you do not remove monies from your accounts. It only scares your spouse and makes them believe that you are going to spend it. That leads to unwarranted court attention and a waste of everyone’s time. Instead, speak to your spouse about dividing the money and placing it in separate accounts. That way, both of you feel comfortable that the money won’t be spent by the other, and each of you has a heads up about the withdrawal. Communication about the money can save a lot of unnecessary hours in court. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/is-it-okay-to-spend-a-relative-large-amount-of-money-before-getting-a-divorce/ Are my IRA Distributions considered income to be considered for calculating child support?5/23/2018 Courts have included individual retirement accounts (IRA) disbursements representing deferred employment earnings, receipt of company stock from employment stock options, workers’ compensation awards, and the proceeds from pensions as income under the Illinois Marriage and Dissolution of Marriage Act“(IMDMA”). See In re Marriage of Lindman, 356 Ill.App.3d 462, 824 N.E.2d 1219, 291 Ill.Dec. 969 (2d Dist. 2005); In re Marriage of Colangelo, 355Ill.App.3d 383, 822 N.E.2d 571, 290 Ill.Dec. 986 (2d Dist. 2005); Illinois Department of Public Aid ex rel. Jennings v. White, 286Ill.App.3d 213, 675 N.E.2d 985, 221 Ill.Dec. 561 (3d Dist. 1997); In re Marriage of Klomps, 286Ill.App.3d 710, 676 N.E.2d 686, 221 Ill.Dec. 883 (1997).
However, using the same statutory definition, other courts have determined that withdrawals from self-funded IRAs and proceeds from the sale of residential property do not constitute income under 750 ILCS 5/505(a)(3). See In re Marriage of O’Daniel, 382Ill.App.3d 845, 889 N.E.2d 254, 321 Ill.Dec. 350 (4th Dist. 2008); In re Marriage of Baumgartner, 384Ill.App.3d 39, 890 N.E.2d 1256, 322 Ill.Dec. 337 (1st Dist. 2008). In O’Daniel, supra, the appellate court determined that the father’s IRA disbursements did not constitute income because IRA accounts are narrowly or self-funded by an individual account holder. The court noted that “when an individual withdraws money he placed into an IRA, he does not gain anything as the money was already his. Therefore, it is not a gain and not income.” 889 N.E.2d at 259.In reaching its conclusion, the court reasoned that the only gain of the IRA that would constitute a gain for the individual — and therefore income for purposes of child support — would be the interest or appreciation from earnings from the IRA. See also Baumgartner, supra, 890 N.E.2d at 1272 – 1273(when parent sold home and used proceeds to purchase new home, proceeds were not actually available as income). Cf. In re Marriage of Eberhardt, 387 Ill.App.3d 226, 900 N.E.2d 319, 326 Ill.Dec. 683 (1st Dist. 2008). The Eberhardt court concluded that in determining whether IRAs should be considered as net income, courts must examine the situation of each case to determine whether an inequity would result. Because the former husband’s testimony had been found not credible due to his evasiveness and nondisclosure of his finances, the trial court did not abuse its discretion by treating his withdrawals from IRAs as income in denying his motion to modify child support 900 N.E.2d at 326. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/property-division/are-my-ira-distributions-considered-income-to-be-considered-for-calculating-child-support/ There are quite a few variations of attorney’s fees in divorce cases and how those fees get paid during and after a divorce. Generally, there are Interim and Prospective Attorney’s Fees and Costs, contribution due to inability to pay (or if a spouse has a greater ability to pay) as well as contribution to attorney’s fees because someone was found in contempt of court. Additionally, attorney’s fees may be paid as a sanction for discovery violations or non-compliance, as well as a monetary sanction for an improper or untrue filing. What Exactly are Interim and Prospective Attorney’s Fees? Interim fees and prospective fees are fees one can obtain while a case is ongoing to “level the playing field”, so to speak. They are more commonly awarded in pre-decree dissolution of marriage actions, where there is a marital estate consisting of money and property that will be divided in the Court in a final dissolution order. This is because an interim and prospective attorney’s fee award is usually awarded to someone as a pre-distribution from their marital estate. It is, essentially, some of the money you will get in your divorce paid to you up front to help you with your attorney’s fees and costs. Interim fees are fees that you may have paid your attorney already and are seeking reimbursement for, from your marital estate. They are generally awarded if one party has more control over the marital estate than the other, or in situations where the parties’ assets are frozen due to a court order. Generally, to receive interim fees the money has to exist somewhere in the state, and it cannot be in a 401(k) account. Under current law, a party cannot be ordered to draw down a 401(k) and incur taxes and penalties for same to provide another party with interim fees. However, if the money is sitting in a checking account, savings account, money market, etc. and is liquid, it is fair game for interim fees. Prospective fees are similar, but they are fees that the party expects to have to pay later during the divorce process. It serves as an additional retainer for that person. Parties may ask for interim fees, prospective fees, or both, during the pendency. Who Pays Attorney’s Fees in Divorce in Illinois? What if my Spouse or Ex has a greater ability to pay attorney’s fees than I do? There is an area of the law in Illinois which provides that a party may receive a final award of contribution to attorney’s fees due to their inability to pay their own fees. These awards are sometimes called “508(a)” fees. These fees are not an advancement or pre-distribution from the marital estate, they are a final fee award awarded based upon someone having an inability to pay their fees, or one party having a greater ability to pay their and their ex’s fees. Court-ordered Attorney’s Fees in Illinois What if my Spouse or Ex Violates a Court Order? There is a specific section under Illinois law which would require someone who is found in contempt of court to pay the other party’s fees. After all, had the person not violated the court order, there wouldn’t be a need for the non-violating party to go to court and incur fees, so this makes a lot of sense. However, for someone to be found in contempt, there has to be a willful violation of a court order. If the person has a reasonable explanation for why they violated the court order and they subsequently try to rectify it, or, if they rectify it prior to the court date on the contempt petition, they may not be found in contempt, and there may not be a fee award. However, in the event that there is a willful violation, the fees are essentially mandatory but are subject to whether or not they are reasonable. So, even if a person is found in contempt and the other person is entitled to fees, the Court still can determine what a reasonable amount of fees are for that person to pay. So, What if I Want my Spouse to Pay my Attorney’s Fees? Clients and potential clients ask regularly for their spouse to pay their attorney’s fees and costs. Despite the fact that this is a popular request, there are generally only two ways that your spouse would be ordered to pay or contribute to your attorney’s fees in an Illinois divorce proceeding. The first scenario where it would be appropriate for the court to order your spouse to pay your attorney’s fees and costs is where your spouse has a greater ability to pay both your fees and their attorney’s fees than you do to pay your own fees and costs. Sometimes there is a large income discrepancy. Sometimes this occurs if only one party has access to assets within the marital estate. This happens in many different scenarios. The second scenario occurs when your spouse willfully and without compelling cause or justification violates a court order. This might be relative to a discovery order that wasn’t followed, or even a visitation order is not being followed properly. You can also obtain attorney’s fees and costs for non-compliance with discovery, which also falls under the “violation of a court order” scenario. Clients can also ask for a fee contribution hearing at the end of their divorce case. In this situation, the court will look at the fees incurred as well as the income and property awarded to each spouse and make a fee allocation. This type of hearing doesn’t happen until the end of a case. Clients often ask for their spouses to pay their attorney’s fees and costs up front when they retain their attorneys, including their initial retainer. Unfortunately, an award of attorney’s fees is never guaranteed. If faced with divorce, you will quickly find you still need to pay a retainer up front to your lawyer and try to obtain the fees as a reimbursement to you later in the case. Anderson & Boback are highly respected and skilled family law attorneys serving clients in the Chicago and surrounding counties. If you’re faced with divorce or family law related issues, contact us to schedule a confidential consultation and learn more about attorneys fees in divorce cases. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/types-attorneys-fees-divorce-cases/ What happens when parents do not stay together, and disagree on child related issues? When a child is brought into the world there is no guarantee that the child’s parents will stay together, whether they are married or not, at the time of the birth or adoption. If someone takes action in court, then a Judge will decide what is in the child’s best interests based on Illinois child custody laws if the parents are not able to come to an agreement on their own. In this article, we discuss what to expect in a typical child custody process in Illinois.
In general, it is best when parents can come to an agreement regarding their child. Who is to make the big decisions relating to the child’s education, healthcare, involvement in extracurricular activities, and religious upbringing? Where will the child attend school? How will the parents share time with the child? What about holidays and vacations? There are several items to address when resolving child custody issues that need to be considered while drafting any sort of agreement relating to your child. It’s always best when these issues are figured out in a timely-fashion. Once the child custody process begins in court, the clock is ticking. If parents cannot come to an agreement, then orders will be entered and eventually there will be a hearing, at which time the Judge will decide what is in your child’s best interests. Temporary Orders to Resolve Immediate Child Custody Issues When parents are having trouble reaching an agreement about their child they may need some sort of temporary relief. The court may temporarily allocate parental responsibilities before the entry of a final “Allocation Judgment.” This means that the court can temporarily allocate what parent makes what major-decisions. The court may temporarily allocate parenting time and may enter a temporary parenting schedule. The court will enter temporary orders that are in the child’s best interests based on Illinois child custody laws. Mediation in the Child Custody Process One of the first steps of the child custody process is for the parents to attempt mediation. In Cook County specifically, parents are typically ordered to attend mediation through the County. Parents can also be ordered, however, to attend mediation through a private mediator. As you can imagine, there is usually a cost associated with mediation, especially if ordered to a private mediator. There are some situations where the court will not order mediation, such as cases of domestic violence. Knowing that mediation is likely once you are in court, remember that mediation can always be attempted prior to initiating court proceedings. You will likely save time and money resolving child custody issues with little to no court involvement. Appointment of Attorney on Behalf of Child If mediation fails during the child custody process, there is a possibility that an attorney will be appointed on behalf of your child. Either parent can motion for this to happen, but the court can also order this on its own motion. The attorney will serve in one of the following capacities: “child’s attorney,” “guardian ad litem,” or “child representative.” The court will define what issues need to be addressed by the appointed attorney. In my experience, the appointed attorney usually serves as a guardian ad litem or child representative when resolving child related issues. Guardian ad litems give their recommendations as to what is in the child’s best interests by either testifying or submitting a written report to the court. The report is available for the parents to examine. The guardian ad litem investigates the facts of the cases and interviews the child and the parents prior to making their report. If the parents still cannot reach an agreement after receiving the appointed attorney’s recommendations then the guardian ad litem can be called as a witness, so that the parents can cross-examine, or ask questions, about their report. A child representative is a little more involved, as they are appointed to advocate what they believe to be in the child’s best interest. They do not submit a report with their recommendations, as guardian ad litems do. The child representative will review and investigate the facts of the case. The child representative will meet with the child and with the parents and they will encourage settlement. The child representative considers the expressed wishes of the child, but they are not bound by just those wishes. A child representative discloses to the parents, their position, by way of a pre-trial memorandum. Child Interview with the Judge Children need to be protected during the child custody process when their parents are involved in child-related disputes. Generally, you do not want the child to know what is really going on in court. Saying it is frowned upon to discuss court proceedings with your child, is an understatement. However, there are certainly times when a child wants to be heard and wants to be involved. Sometimes a child does not feel like the Judge is really hearing what is best for them and they want to tell the Judge themselves. Depending on the child’s age and other factors, the court may interview the child privately in the judge’s chambers. Typically, the attorneys for the parents will be present in chamber during the interview but either way, the interview is recorded by a court reported, so that the judge has a transcript of the interview to look back at later in the proceedings, if necessary. Professional Evaluations During the Child Custody Process If no agreement is reached, even after an attorney being appointed on behalf of your child, either parent is able to request appointment of a professional evaluator pursuant to Section 604 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/604). This should not be taken lightly. Evaluators are usually psychologists or psychiatrists and they investigate by digging deep. They will interview the parents, the child with the parents, and collateral contacts. These collateral contacts could be a relative, a friend, an adult child, a daycare provider, etc. There will also be psychological testing, the extent based on the allegations and facts in the child custody case. The evaluator will give the court a written, detailed, report. In the report, the evaluator will present their recommendations as to the best interests of the child and the facts that they relied on to make those recommendations. Child Custody Hearing This is when you and your child’s other parent will present evidence and exhibits. You will give testimony and witnesses will be called to the stand. This is where everything else mentioned-above comes into play. Maybe the court interviewed the child at some point, that will be something the judge takes into consideration when making a final decision. The guardian ad litem may be questioned at the hearing. The child representative may examine and question the parents at the hearing. If there were any professional evaluations during the proceedings, the evaluator will likely testify, and the court will usually weigh their recommendation heavily. This is your shot to argue your side of the story and to express what you believe is in your child’s best interests but remember that the other parent also has this opportunity. If you and the other parent cannot come to an agreement regarding your child, then the judge will make the final decision as to what is in your child’s best interests based on the facts presented. Anderson and Boback are experienced family law attorneys in Chicago, with a focus on Illinois child custody laws. Contact us today for a confidential consultation and for skillful legal representation throughout the entire child custody process. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/child-custody-process/ Protecting the best interests of the child is paramount in child-related cases. In most cases, the child’s best interests are usually protected by at least one parent or by both parents. In the case where neither parent can agree on what is in the best interest of their child, the court on its own motion or that of a party may appoint an experienced family attorney to serve as either a Child Representative, a Guardian Ad Litem or an Attorney for the child (750 ILCS 5/506).
The two most commonly appointed by the court to represent the child’s best interests are either a Guardian Ad Litem or Child Representative. Both the Child Representative and Guardian Ad Litem are similar in that both are granted investigative powers and can interview the child, both parents, and any other interested party to the case. They both also submit a written report to the court regarding their recommendations based on the child’s best interests. What is a Child Representative A Child Representative is an attorney that is most often appointed in contested parental responsibility allocation cases. Their role is to advocate what is in the best interests of the child after reviewing all the facts and circumstances of the case. The Child Representative is required to meet with the child and talk with each parent to assess and investigate the circumstances. After the Child Representative meets with all parties including the child they will consider but are not bound by, may express the wishes of the child. The Child Representative’s job is to represent the child and be able to help the judge make a determination in contested custody matters. For example, in a relocation case where the mother wants to relocate to another state with the child and the father is opposed to the child leaving the state, the court may appoint a Child Representative to help the court in deciding if the mother should be allowed to take the child out of the state. The Child Representative’s recommendation is very important because the judge uses that recommendation as a way to make their decision. The Child Representative is viewed as the court’s eyes and ears into the family dynamic. They are able to interview the child who is at the center of the relocation case, unlike the attorneys for the mother and father. The Child Representative in this situation is more like an investigator, who investigates the reason why the mother is relocating, how much involvement the father has in his child’s life. At the end of it, all the Child Representative gives the court their recommendation which may include the child’s wishes on whether it would be in the child’s best interests for the child to relocate to a different state with the mother. Guardian Ad Litem vs. Child Representative Although both the Child Representative and Guardian Ad Litem share a common goal of being an advocate for the best interests of the child, there is a difference between the two. The primary difference between the Child Representative and Guardian Ad Litem is that the Guardian Ad Litem acts more of an expert witness. When the Guardian Ad Litem gives the court their recommendations, they give it in the form of a testimony, and they are subject to cross-examination by the parties attorneys related to their testimony. The Guardian Ad Litem directly represents the child as a client. The Child Representative, on the other hand, acts as a separate party in the case. Unlike the Guardian Ad Litem, the Child Representative does not directly represent the child as a client, rather they represent the child’s best interest. Anderson and Boback are experienced family law attorneys in Chicago, with a focus on divorce, child custody, and representation involving child-related issues. Contact us today for a consultation when you have questions about the best interest of the child, guardian ad litem or child representative. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/illinois-family-law/need-guardian-ad-litem-child-representative/ Different states have different methods to determine divorce property division when two parties decide to divorce. Some states, such as “Community Property” states, divide the parties’ assets 50/50, no matter what. Illinois is not one of those states. Illinois is what is called an “Equitable Distribution” state. That means that the Court decides who gets what in a divorce based upon what they believe is equitable, and the Court is allowed to consider particular circumstances when determining what is equitable. Illinois is a “No Fault” State Illinois is a “no-fault” state. That means that no matter how terrible one spouse is to the other, no matter what the reasons are for the divorce, the state of Illinois will not “fault” someone for wanting or causing the divorce to occur. The most common example of this is when one spouse has an affair. The other spouse often times wants vindication, and they mistakenly believe that the Court can provide vindication by giving them more of the assets because the other party was “at fault” or caused the divorce. This simply is not the case. The court cannot “fault” one of the parties for the divorce and punish them by giving them less during the divorce property division. The Dissipation Exception While generally the Court cannot “fault” a party for the divorce and cannot award the party who is not at fault more property based upon fault, the Court can look at dissipation. Dissipation is money which is spent after the parties’ marriage broke down, for a non-marital purpose. Examples of this could include, “revenge shopping”, i.e. buying lots of luxury goods in hopes that the other party will have to pay for it; lavish vacations, a new car (if it is not something a party would have purchased during the normal course of the marriage, such as a BMW as opposed to a Kia, etc.), jewelry or other expensive gifts for a significant other, and more. If a party spends money on these things and the court finds that it is dissipation, the spending party could be ordered to reimburse a percentage of all of these purchases back to the spouse. So, if the Court finds that an equitable distribution of a couple’s marital estate is 50/50, then the party who committed dissipation would have to pay 50% of what they spent on dissipation back to their spouse. The same would occur on a 60/40 equitable distribution, or a 55/45 equitable distribution. However, this is not really due to “fault”, it is due to the mismanaging of marital funds. Both parties have a right to their marital property and an equitable distribution of same. The Court can consider dissipation in this realm. What Factors Can a Judge Consider to Determine What is Equitable and Who Gets What in a Divorce? Different Judges have a lot of discretion in determining divorce property division to what they believe is equitable, but they all generally look at the same factors in making this determination. They look at factors, including, but not limited to: the income earned by each party during the marriage, the length of the marriage, the parties’ respective ages, health, and education levels, the parties’ potential income earning capacity, the parties’ marriage’s length, any pre-marital property of the parties, the contributions the parties made to the marriage and marital estate, the dissipation the parties made against the marital estate, and more. These are all factors that the Court can consider and weigh when deciding how to divide marital property. The Court, however, cannot consider conduct, adultery, the cause of the marriage’s breakdown, domestic violence, or abuse when trying to decide what would be an equitable distribution, because Illinois is a “no fault” state. So, What is Considered Equitable? While Judges have an immense amount of discretion when considering what an equitable divorce property division of a marital estate would be, there are certain patterns that are generally followed. For example, the longer the marriage is, the more likely the Court will deviate one way or another from a 50/50 division. Short-term marriages are generally a 50/50 division, with some exception. Additionally, in longer-term marriages, Judges tend to award the party who does not earn as much as the other party more of the marital estate, when there is a large income discrepancy. For example, a 20-year marriage where one party stayed at home with the children and the other party earned all of the income is a good scenario for the Court to award a larger share of the property to the non-working spouse. Some of the reasons this happens includes that the party who stayed home with the children likely will not have the same potential earning ability as the party who worked for 20 years, and they won’t ever “catch up”. For that reason, the Court may give them more property, as the working spouse will continue to earn at the same income level after the marriage ends. However, in a 20-year marriage where the parties earn the same amount, the Court would be more likely to do a 50/50 division. Ultimately, the Court has a lot of discretion when dividing marital property and these are just general examples. All Judges see things differently. If you are wondering how it is determined who gets what in a divorce, contact Jessica Marshall and the experienced divorce attorneys at Anderson and Boback for more information on divorce property division in Illinois. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/divorce-property-division-equitable-distribution/ |
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