If you can't find your spouse and you want to get divorced, the law allows you to do that as long as you follow some rules which are required to show the court that you have done everything you could do to attempt to locate your spouse. Generally, when you file for divorce, you are required to obtain personal service on your spouse by having the Sheriff or a personal process server:
Personal Service When You Can't Find Your Spouse This service requirement can prove to be impossible if you do not know where your spouse is. There are cases where people married without really knowing each other very well and after a short time drifted apart making it very difficult to find them. Or, if your spouse simply leaves and does not want to be found it can be difficult. Does this mean you have to stay married to that person? No, it does not. Attempt to Locate Your Spouse If you want to proceed with a divorce and cannot find your spouse you must first make all attempts to locate your spouse and then file an affidavit with the court detailing all of the ways in which you tried to find your spouse and request that service by allowed by publication. The affidavit must state everything you have done to try to find your spouse. We advise our clients to reach out to their spouse’s relatives to see if they have a contact number; reach out to their friends, people they worked with. Call their last known phone number and their work number to see if they are there. Review Facebook. LinkedIn and other social media channels to see if you can find them. Write them a letter at their last known address to see if it gets forwarded, send them an email. A court will review this affidavit to make sure that you have done everything you can to try to find your spouse. If the court is satisfied that you have met this burden they will allow you to provide service to your spouse of the pending divorce proceedings by publication. Notice Requirements for Divorce If You Can't Find Your Spouse These notices are published in a newspaper where the action is pending and contains the details of the case that has been filed, the title of the court, the title of the case and the exact names of you and your spouse, the case number and the date after which a default may be entered against your spouse. A copy of this newspaper notice must be clipped from the paper and mailed to the last known address of your spouse. This notice is required to be published at least once a week for three consecutive weeks. Once your notice has been published for three consecutive weeks you can request that the court move forward with your divorce proceedings if your spouse does not respond to the notice. A default can then take place and you can obtain a divorce as long as 30 days has passed since the date of the first publication. The court will likely reserve things such as awarding maintenance or dividing property until you find your spouse, however, you can get divorced. Service By Social Media There was a recent article where a woman in Brooklyn tried to get divorced using Facebook as a tool to serve the husband and the Judge would not allow this. In an article written by Julia Marsh, the Judge was not going with the trend that has been seen in the U. S. of service using social medial as opposed to a newspaper publication. Brooklyn Supreme Court Justice Jeffrey Sunshine wrote that he would not grant that application for service via Facebook as it was akin to the court permitting service by ‘nail and mail’ to a building that no longer exists,” referring to serving a summons by tacking it to the person’s door and then mailing them a copy. I have seen service by Facebook be successful as long as you can establish that this was a regular way of communication with your spouse and you can sufficiently authenticate that the Facebook profile belongs to your spouse and he uses it as a way to communicate. It would be prudent to attached copies of Facebook messages that your spouse posted and that of your spouse’s friends. That along with sworn testimony from you may be a way to get service by Facebook. Notice of a pending divorce is very serious and strictly adhered to by the Court. Therefore, you must do all you can to provide the necessary evidence to the Court if you want to get divorced when you can't find your spouse. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/illinois-divorce/divorce-if-you-cant-find-your-spouse/
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A common question when parties are separating into two households is what should they do in regard to finding a new place to live. Divorcing spouses like to know if they have the option to purchase a home rather than rent a home. This question is tricky because the answer to this can vary based upon the state a person resides in as well as how far along they are in the divorce process. For purposes of this article, we are discussing the rules regarding purchasing a home in Illinois during a divorce.
Will my spouse be entitled to 50% of a home purchased during the divorce proceedings? All assets and property acquired during a marriage in Illinois, even if a divorce case is pending, is marital property and subject to division, no matter whose name the property is purchased in. This is very important to understand. Even if you buy a home in your own name, and you have a divorce case pending, you are presumed to be creating a marital property that is subject to a division. Property Division Under Illinois Law It is also important to understand in this analysis that Illinois is what is called an “equitable distribution” state. This means that Illinois is not a community property state or a state where marital property is presumed to be divided 50/50. In Illinois, our Judges are free to award marital property to the parties based upon what they believe is equitable. In determining what an equitable distribution would be, the Court cannot consider items that would be attributed to “fault”. Meaning, a Court cannot consider a history of abuse or domestic violence when deciding what percentage of the property to award to a party. The Court cannot “fault” someone for being a bad husband or wife, and then award them less property. Factors the Court may consider include income level currently, income history, projection of future income earning ability, education, age, health, history of employment during the marriage, and more. Examples of Equitable Distribution in a Chicago Divorce So, for example, let’s say a mother stays home for several years of marriage to raise children and forfeits her own career growth, while the other mother or husband goes to work and advances their career. The mother who stayed home to raise children will not likely “catch up” to the same income earning potential as the parent who worked because they lack those years of employment experience. Or, say someone has a job earning significantly more than the other. The spouse who is at a disadvantage may be entitled to a larger distribution of marital property (perhaps 55% or 60% or even more) based upon these factors. Key Considerations if You Purchase a Home in the Divorce Process So, applying this to a home purchase, there are certain things to take into consideration. First, purchasing a home before a divorce is finalized creates additional marital property which is subject to division in the divorce. All property acquired during a marriage is considered marital unless you can prove that it is non-marital. If it is purchased during the marriage in Illinois, even if you are only purchasing it in your own name, it is presumed to be marital property and will be divided. Further, depending upon your marital facts, the division may not be a 50/50 division, especially if there is a disparity as to health, education, income, employment history, or other factors, between you and your spouse. So, not only will the marital property be divided, but your spouse could end up being awarded more than 50% of the value! That is certainly not anyone’s intended consequence in a divorce case. This is one of many reasons why it would be best to wait until after the divorce is finalized so that you are not creating additional marital property to divide. What if we agree that I can buy a home while the divorce is pending? Now, in certain circumstances, people do purchase homes during marriages while a divorce is pending, and they are fortunate if there is no arguing regarding dividing said property, because their spouse is certainly entitled to make an argument regarding that home purchase. Sometimes the spouses will agree that one of them can purchase a home and that it will be awarded to them in their final divorce decree. In this situation, it is important that their agreement to that purchase be well-documented in a Court Order because people can change their minds. How do I know what I would have to pay my spouse if I do purchase a home during divorce proceedings? This question can often depend on many factors, including how much the down payment was, where the down payment came from, and the value of the home. So, for example, if you put down twenty percent to purchase a home at a purchase price of $200,000, so, $40,000, and the rest of the purchase is through a mortgage, you only put out $40,000 in marital monies to buy it. If the house’s value has not increased from the date of purchase to the date of divorce, then you’d pay your spouse whatever percentage of the $40,000 the Judge decides is equitable. It could be 50%, or $20,000, or it could be more or less. And, you can propose offsetting this sum with other assets, such as offering to take $20,000 less money from a joint savings account since you owe your spouse $20,000 from the home purchase anyway. One issue which could arise is the house could increase in value from the date of the purchase to the date of the divorce. Let’s say using the same math that the house was purchase at $200,000 but now is worth $230,000 at the time of divorce. This property is marital, gains are also marital. So, now you’d owe your spouse a percentage of the equity in the home at the current price. If you put $40,000 down, plus there is now an extra $30,000 in equity, there is now $70,000 that has to be divided between the two of you, and you’d, in theory, have to buy your spouse out of their percentage of the $70,000. Perhaps your estate has other assets you could use to offset this additional equity. But, if it does not, you could be forced to sell the home in order to pay your spouse their share of the full equity. So, purchasing it for the purpose of living in it was all for nothing (except you did obtain some additional cash!). Purchasing a home during a divorce is tricky and there are plenty of unique factors that have to be considered in every situation. No divorce case is the same and no scenario is the same, so if you are considering purchasing a home during divorce proceedings it is imperative that you speak to an experienced divorce attorney regarding the unintended consequences of this purchase and ways in which it can be done which would benefit you. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/property-division/can-i-purchase-a-home-while-going-through-a-divorce/ As soon as you Once you file for Dissolution of Marriage, you can request spousal support. A request is made through a Motion filed with the Court asking for an award of Spousal Support. Generally, the motion is for both temporary and permanent spousal support. You ask for temporary support to get the support payments started during the pendency of the case and ask for permanent support for a final award when the case ends either by Judgement after a trial or Judgement entered by agreement after successful settlement negotiations.
Filing a Motion to Request Spousal Support Once you file your Motion for Spousal Support, your spouse will have time to respond and then the court will schedule a hearing to determine how much support you should receive on a temporary basis. You can expect 7 days to get the motion before the court, 28 days for your ex to respond, and another 30 days for a hearing to be scheduled. It is important to note that once the court has a hearing and awards spousal support, an award can be granted all the way back to the date you filed the motion asking for the support. For this reason, it is important to get the motion on file as soon as you realize you will be asking for spousal support. Your Financial Affidivit In order to file a motion for spousal support, you have to file the motion along with an affidavit setting forth the factual details of your request and produce your financial affidavit and the supporting documents used to prepare your financial affidavit (check stubs, bank statements, tax returns, etc.). A financial affidavit is a snapshot of your financial situation during a period of time and gives the court a benchmark to look at when making a decision about spousal support. The financial affidavit has your income, expenses, assets, and liabilities. Although you have to provide some estimated figures when you are preparing your financial affidavits – such as how much you spend monthly on groceries, household supplies, and gasoline, you must gather the documentation you have for these expenses and provide a good faith-based estimate of the actual amount you spend each month. If a party intentionally or recklessly produces a misleading or inaccurate financial affidavit a court could impose significant financial penalties. Factors Used to Determine Spousal Support Once the Court is ready to have a hearing on your motion for spousal support the first thing the Court has to determine is whether or not an award is appropriate. Some of the factors that a court will look at to determine if an award is appropriate are:
You can see from the factors that court will look at to determine if you are eligible to receive an award of spousal support while your case is pending and if you are a stay-at-home mom or dad the court will take that into consideration. Example Scenario For example, If you have been home with children for several years, the court will not now require you to immediately go out and obtain employment. Some time will be given for any transition back to work that may be required. If you have been a stay-at-home mom but have an advanced degree the court may require you to at some point go back to work, depending on course on your age and health and your degree. If you have been unemployed during a long period of time during the marriage, again, the court will not require you to immediately go find employment but will review any training and education you have as well as your work history and current health conditions. Many things are relevant when it comes to an award of maintenance. Court Determines the Amount of Temporary Support If a court determines that you should receive an award of spousal support based on the factors and review of your motion for support, the parties’ financial affidavits and supporting documents, the court will then proceed to determine the amount of temporary support you should receive during the pendency of the case or if at the end of the case, not only the amount but the duration – how long you will receive the payments. There are guidelines in place for most cases that once you plug in the income of each party and the length of the marriage, an amount of maintenance is calculated. This calculation is often used during the pendency of the case as a good gage of the maintenance amount that is appropriate. The calculator is designed to balance the needs of one spouse and the other spouse’s ability to pay. The Role of Marital Lifestyle in Determining Amount for Spousal Support Of interest is the marital lifestyle. The law provides that a spouse is entitled to continue to live as close as possible to the standard of living established during the marriage. This is not an easy thing to determine since going from one income and one household to one income and two households leaves it likely that both parties will be living a bit under the standard of living they had become used to during the marriage. In addition, one of the goals of maintenance is to allow the spouse needing maintenance to become financially independent. This can be accomplished by going back to school or obtaining other necessary training to get back into the job market or to obtain better employment. This is not always possible. There are cases where the difference in one spouse’s income compared to the other parties is significant or when one party's income or ability to earn an income is far superior to the other spouse. So, although the goal is financial independence, sometimes that is not realistic. Spousal Maintenance is Based on a Formula Set by Illinois Law How much spousal maintenance will you receive is based on a formula that is roughly 33 1/3% of the payor's net annual income minus 25% of the payee's net annual income. This amount, when added to the net income of the spouse receiving the maintenance (if they are working) cannot be more than 40% of the parties combined net income. The maintenance duration is calculated by multiplying the length of the marriage at the time the Petition for Dissolution of Marriage was filed by a percentage based on the length of the marriage. As an example, a marriage of 5 years is multiplied by .24 so the duration is 1.2 years; A marriage of 10 years is multiplied by .44 so the duration is 4.4 years; A marriage of 18 years of multiplied by .76 so the duration would be 13.7 years and for a marriage of 20 years or more, the duration is left up to the discretion of the court to be either the actual length of the marriage (20 years marriage is 20 years of maintenance) or for an indefinite term which means until there is a change in circumstances that requires the maintenance to terminate. If you have questions or concerns about getting alimony, spousal maintenance or another divorce-related issue contact us at Anderson & Boback to schedule your confidential consultation with our Chicago divorce attorneys to learn more about how soon you can get spousal maintenance once you decide to get a divorce. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/illinois-divorce/how-soon-request-spousal-support/ Once a divorce is looming, some people change their spending habits. Some start excessive spending expending money on purchases that they never did before, while others start taking trips or signing up for classes. Is any of this spending appropriate during the time you are going through your divorce?
I often run into clients who have been counseled to spend a lot more, apparently to show what that person’s needs are and to validate the request for more money. I think it is fair to say that this is an emotional time for everyone, and some people are not acting in the right way. You shouldn’t be spending any differently during a divorce then you would typically The law in Illinois-domestic relations division, wants everyone to maintain the status quo. If you always spent $400 a month getting your hair done, then it is not a problem. But if you never used to go and now you start, the court is going to look at the reasonableness of what the person is doing. Spending in Ways Not Beneficial to Your Marriage? If you believe that the excessive spending your spouse is doing is not beneficial to your marriage, you might have a claim for dissipation. When the court divides the marital property in your divorce case, dissipation is something that is considered by the court. What exactly is dissipation? Is it the Dissipation of Marital Assets? Dissipation is the spending of marital monies for the benefit of one spouse for purposes unrelated to the marriage while the marriage is undergoing an irreconcilable breakdown. The party alleging dissipation must first demonstrate that dissipation has occurred, and once that hurdle is met, the burden shifts to the other party to prove the money was used for a legitimate purpose. Illinois law requires that you file a document, called a Notice of Intent to Claim Dissipation. That document must be filed 30 days after discovery closes and no later than 60 days before the trial. The notice has to tell the court when the breakdown in your marriage occurred. This is an important element that many people overlook. People are allowed to spend money however they like, and just because you did not like it that your spouse spent $45,000 on a race car, does not necessarily mean it is dissipation. Is the Marriage Irretrievably Broken? The first question you need to ask is whether your marriage has irretrievably broken down. Although you might not have been happy with the expenditure for the car, were you still a couple? Were you still going out with friends or going out to dinner together? I have had a couple of divorce trials that had to examine the sexual nature of the relationship. Are you still engaging in marital relations? Share the same bedroom? These all need to be examined if your spouse indicates that you were still a couple and there was not a breakdown. Without a break down in the marriage, an irretrievable breakdown, you cannot allege dissipation. But let us say you can prove that your marriage underwent an irretrievable breakdown. You can prove that your spouse has been living in the basement for a year, you never go out together, you take separate vacations and you have different friends. Then you have made it through the first hurdle and an examination of the spouse’s expenses needs to be looked at. One thing the court always asks is “how long has this been going on?” I once had a case in trial where the wife claimed that the husband’s weekly bowling was dissipation. My client testified that he had been bowling weekly for over ten years. The continuation of his bowling habit continued while they were married and after they separated. The judge did not find dissipation. Spouse Commits a Criminal Act? What about when a person has a spouse who commits a criminal act? The spouse is arrested and spends money on a lawyer? Loses his job? The money the spouse spent on a lawyer could be considered dissipation. Is there an Extramarital Affair? What about a claim for dissipation filed by the wife when she found out her husband had had an affair and was paying child support to the other woman? Or if the wife found out that her husband had been cheating on her for the past 5 years? If the family continued to go on vacation and act like a couple, and their marriage had not broken down, then no dissipation. I remember when golf pro Tiger Woods was going through a divorce and his wife found out about his extramarital affairs and the money spent on them. There could not be a claim for dissipation because her marriage had not broken down, but you have to wonder if it would have broken down a lot earlier if she knew. We can speculate as to the answer and it seems unfair that if your spouse hides something from you, that it cannot be dissipation. If you had known, you would likely have broken up. But that is not the way our law works -- you have to be irretrievably broken in order to claim dissipation. I have had trials where the parties had been separated for 20 years, but neither had gotten around to filing for divorce. Each side made claims of dissipation going back 10 years or more. These types of cases resulted in a change to our statute and now you have a time limit on the claim for dissipation. No dissipation shall be deemed to have occurred prior to 3 years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5 years before the filing of the petition for dissolution of marriage. Watch Your Marital Finances for Excessive Spending Marriages require some trust between the two, so it is hard when your spouse ruins the trust you placed in them. But if you do not pay attention to your finances, or what is on the credit card statements, you could be in a position where dissipation cannot be claimed by you for the excessive spending in the event of a divorce. If you decide to go to trial on the issue, then you will need to establish which expenditures are dissipation. Is paying the mortgage from the spouse’s retirement account dissipation? Typically, you would not think so. But each case is fact-specific. Seek Advice from an Experienced Chicago Divorce Attorney If you are facing concerns about dissipation, Anderson and Boback can help. For more than 20 years, our experienced divorce attorneys have been representing Chicago clients with a wide range of family law and divorce issues, including divorcing over 50. Contact us today for a confidential consultation to get your questions answered about excessive spending during divorce and find out if you have a case for dissipation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/illinois-divorce/excessive-spending-during-divorce/ New relationships are typically inevitable after a divorce is finalized. However, someone who is divorced or getting a divorce re-emerges into a completely different dating world. A lot of the time this person will have feelings they still need to work through relative to their divorce. There may be children from a previous marriage or relationship who are now involved. The dating world and all that comes with it certainly will be different from the dating world was prior to the person’s marriage. So, what factors does someone need to consider when exploring a post-divorce or post-break up relationship? Tips for New Relationships During the Divorce Process 1. If Dating While the Divorce is Pending, Be Careful About Spending Money Using money that is “marital” (money earned during the marriage) then you could be charged with dissipation in your divorce case for spending marital money on a non-marital purpose. This may include vacations with a significant other, expensive meals, lavish gifts, and other spending of marital funds for a non-marital purpose. It is important that you do not spend marital monies on a significant other. Otherwise, you may have to pay it back into the marital estate. 2. If Dating While the Divorce is Pending, Be Careful About Introductions to your Children Every dating situation is different and highly dependent upon the parties involved. However, introducing a new significant other to your children while a divorce is pending could come back to bite you. Now, if you have been living separate and apart for many years and you are in a serious relationship that you think will be moving to the next level, where you are moving in together (making it nearly impossible for the minor children not to meet the significant other) or getting married, it could backfire to wait too long, because then it looks as if you were keeping a big secret from your children. The best way to approach this is to assess your own family’s needs and ability to adapt by talking to professionals about when the time is right to make the introduction. This might mean talking to the children’s teachers, doctors, therapists, or a Guardian Ad Litem/Child Representative who is working on the case. You should talk to your divorce attorney first to design a plan as to who to consult about the introduction. In many cases, talking to your ex about the introduction before it happens is also recommended, but it is entirely situation-dependent. 3. If Dating While Your Divorce is Pending, Be Careful About Introductions to your Children It is just as important to make sure that you are making a proper introduction to your minor children after the divorce is finalized as it is to do so during the pending divorce matter. Your divorce decree or Allocation Judgment might have very specific rules regarding when to make these introductions, if there is a waiting period of dating prior to making an introduction or if there is a qualifying event that allows an introduction such as an engagement or moving in together. It is important to make sure you are abiding by the terms of your Allocation Judgment or divorce decree when making this introduction. Again, even though the divorce is finalized, it is still important to consult professionals who work with your children regarding if the introduction is a good idea, and it may still be a good idea to talk to your ex prior to the introduction. Many people can assist you in talking to your ex and making this introduction to your children, including your attorney or therapist. It is important that any introduction is done in a calculated manner to avoid issues later. 4. Date Someone Who is Like-Minded Regarding Your Other Relationships As mentioned above, a big issue with dating after or during a divorce is the complication of children being involved. It is very important to make sure that whoever you are dating is on the same page as you regarding the children’s involvement. For example, if both parties have children from a prior relationship, the parties need to discuss many issues regarding the introduction of the minor children to one another and to the other’s children. Children tend to always want to feel as if they are being put first above a new party who is introduced, and it is important that the other party and you share the same ideas about how this will work. It is also important that you know that the time you spend with your children should not always be with the new significant other. Perhaps the significant other can join for weekly dinners, but will not be a part of weekend parenting time. The quality time between parent and child should be free from the new significant other to preserve the parent and child relationship. It isn’t just the children who the new significant other must be “like-minded” regarding, but also your ex. If your new significant other is going to insert themselves into arguments you have with your ex or get insecure and upset if you and your ex have a good friendship, then the new relationship may not work out. And, it is a two-way street. You need to be prepared for your new significant other’s relationship with their ex when children are involved. Everyone needs to be on the same page regarding what will be appropriate since the interaction is bound to happen. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/caution-new-relationships-during-divorce/ The quarantine memes all over the internet have spoken. Once quarantine life and shelter in place is over, bathing suit season may be canceled, but the divorce season is coming in full force. People are growing tired of the mundane day to day routine, the pressures of distance learning and homeschooling, running a household, putting in a fully remote workday, and trying to balance it all with self-care. Tensions are running high and attitudes are at large. Financial insecurity is problematic. Perhaps you or your spouse is furloughed or lost your job and the stress of mounting bills and providing for your family is taking its toll. Everyone is tired of being home, and the uncertainty of when this will end is anxiety-inducing, creating short tempers.
7 Quarantine Tips from a Divorce Lawyer However, there are ways to manage the chaos and uncertainty of quarantine so as to ensure that you won’t be spending your money on divorce court when all of this is all over. Tip #1: Communication is key. A significant number of divorcing couples have issues with communicating properly, even without an international pandemic. If you don’t communicate your needs to your partner, they likely will not read your mind. Tell your partner what you need. Do you need dedicated time in the mornings to answer emails? Maybe it is time away from the house to run or exercise. Perhaps you need some downtime to relax and read a book, or you are growing frustrated daily by the pile of laundry no one else seems to ever touch except you. Communicating with your partner is the key to letting them know what they can do to make you happy and feel more at ease. Sitting down with your partner and discussing these things, or sending an email if direct communication is an issue, Tip #2: Make time for self-care. Get outside and go for a walk. Exercise. Start a new book. Clean out a closet. Take a class online (photography class, a cooking lesson), Join a virtual trivia team. Make plans with friends to have a virtual poker night or a girls’ night. Do something that is for you, every day. There are plenty of free online streaming exercise classes right now. There are meditation apps, and more. Trying something new you haven’t done before can be empowering, and taking time for yourself is key. Tip #3: Plan an Agenda for your days. If both you and your spouse are working from home, it can be complicated. Perhaps you are in a small apartment where it is difficult to be away from each other. Perhaps you have children who are loud, making it difficult for you to do your Zoom conferences. At the beginning of each week, it is helpful to talk to your partner about the week ahead -- when your calls are scheduled, when you need to be at your desk, any meetings, etc. Even having a shared calendar and putting your work commitments on it lets each other know what the plan is. If you have small children and are without childcare, plan out who will watch the children at which time, and who will switch. Who will wake up with them and make breakfast? Who will handle bath time? If your children have e-learning, look at that schedule, and divide the work by agreement. Structure is the key to this time at home. Tip #4: Carve out time for you and your significant other. There are plenty of things that couples can do to spend time together, even when sheltering in place. Have a happy hour together. Order in dinner, or rent a movie. Do a household improvement project together, or organize something together. It is important to spend time together as a couple, not only when engaging with work or children. Tip #5: Divide the chores. The household chores simply cannot fall on one person, period. Even a parent who is unemployed has e-learning to handle, which constitutes a full-time job. We are all now workers, teachers, house cleaners, parents, babysitters, and more. These jobs are separate for a reason, it is incredibly stressful to do it all. So, divide the housework. Young children can put their clothes in a hamper and help load and unload the laundry machines. They can feed a pet and put their dishes in the sink. Older children can load and empty the dishwasher, help with vacuuming, and help with laundry. Perhaps one person does dishes and the other person is in charge of laundry. (Note that laundry folding parties while watching tv shows together can count as both a chore and time together as a couple!) If these things fall on only one person, they will become resentful and it can cause a rift in a relationship. Tip #6: Re-work your budget together. Changing times calls for reworking finances. Much of the funds that were previously spent on transportation, dining out, or for entertainment can be saved or put to other uses, like the growing grocery bills due to quarantine. Now is a great time to sit down and re-evaluate your budget. If someone is spending too much money on movie rentals or Amazon, set a budget. Make sure both you and your spouse understand the financial arrangements and plan for the future, together. Money is one of the number one things that divorced couples don’t see eye-to-eye on so discussing it and being open about this hot topic it is helpful in avoiding conflict. Tip #7: Set Boundaries and have a plan regarding your children. Perhaps you find yourself growing more and more impatient with your children as you try to juggle working and e-learning at the same time. Perhaps you cannot work because your young child is craving your attention. It can be easy to become impatient and lose your cool. Some couples set up a code word for when they need a break. The rule can be that you can walk away for five minutes to cool down if you say the code word and the other party knows you are about at your breaking point when you say it. It could be something as simple as “Tag! You’re it!” and set rules for what happens when someone says the code word, and then respect those rules. These times are different than anyone has ever seen before and it is trying the patience of married couples around the world. Making sure that you have a plan to manage quarantine life and are on the same page will ensure that your marriage survives this situation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/coronavirus/how-to-avoid-a-coronavirus-quarantine-divorce/ There is so much information now about the Coronavirus, that it is hard to wade through it all. With so many news stories, some true and some that stretch that truth, it is hard to know what is correct. As a Chicago family law attorneys, we are fielding many calls about the coronavirus and how it affects our clients’ cases. These are some of the most common questions I receive:
1. What is happening to my divorce or family law case now that the Courts are closed? While the court is closed to the public, and you cannot walk in the door like you used to, the courts are still working. The Illinois courts are not closed. The procedures are different, but the courts are still open for business. Last week, I had several hearings that were conducted by Zoom. Some judges are only hearing the attorney’s arguments, and that might be done only with a phone call. In other instances, the lawyers and their clients are signing on to Zoom and a hearing with the client’s testimony is occurring. Our firm has also finalized quite a few cases this past week and clients have received their divorce. This is a good time to gather documents for discovery issues as well. New petitions are being presented to the court and hearings are being had to those issues. You can file for divorce now and you can also have your emergencies heard by the court. Mediation is still possible, but again, it is done differently now. The court’s hearing or the mediations could be done with a phone call or conducted through Zoom. In sum, the courts are up and operating, and issuing rulings on a wide range of matters. 2. My child should stay at home. Do I have to transfer my child to the other parent for parenting time during the coronavirus pandemic? Except in some extraordinary situation, the general consensus is YES. The courts are making it clear to the attorneys that they expect court orders to be followed even during the coronavirus pandemic. There are times when you would not transfer your child-such as when your child is sick, but other than that, the court expects your parenting orders to be followed. Our family law firm has had a couple of hearings on the subject and the judges have made it clear that they want the custody orders followed. This issue becomes more complicated when the other parent lives out of state. If your child used to get on a plane to go for parenting time, this is more worrisome for parents. If you cannot convince the other parent to accept some kind of make up time, then you’ll be required to follow the parenting order you have in place. The courts where I have had a hearing on this very issue, are not persuaded that parenting time should be canceled if it involves extensive travel. All you can do is work with the other parent to do what is in your child’s best interests. 3. I received $500 from the government for my child. Do I have to share it with the other parent? We have received a lot of questions about this issue over the past week. There is no set answer, but one thing to consider is your child’s expenses. If the money is being spent on your child in some way, there is a likelihood that this becomes a non-issue. You could spend the money on your child’s extracurricular activity or in the fall when it is time to sign your child up for school. Why not use it on your child and avoid the fight about who gets the money? However, if you are a parent that is owed past-due child support, I would think you could keep the money without too much argument. In the end though, if you had to take the matter to court to fight about it, your attorney’s fees will make this fight inequitable for you. 4. Does the coronavirus pandemic affect my child support obligation? If you are working and still receiving compensation, the coronavirus pandemic does not affect your child support obligation. Others, however, can run into a problem paying child support if they are in a position where their income has decreased or their jobs have been eliminated. If you have lost your job, or your employer has forced you into limited hours which reduce your paycheck, it is imperative that you file a motion with the court asking for some relief. If there is a child support order and you do not file a motion asking to change the amount owed, you will have to pay the full amount. The court’s hands will be tied if you do not file a motion. While having a conversation with your spouse about your new financial situation is important, it will not keep you from owing the entire amount at a later time if you do not file the motion. The court is likely going to allow you to pay less money in child support if your employment position has changed. Make sure you make the court aware of the change in your employment. 5. The other parent isn’t practicing social distancing. What can I do? Since the court is expecting you to follow the court order in place, you have to follow it. But if you can see that the other parent is not practicing social distancing correctly, your first course of action should be to speak to the other parent about your concerns. And be sure to put those concerns in writing. Depending on the answer from the other parent, you might need to file a motion with the court asking that parenting time be suspended at this time. The law in Illinois presumes that parents act in their child’s best interest. You have to overcome that presumption with facts if you go to court. A parent’s admission that the child was out playing with kids in the neighborhood could be enough evidence to hold that parent accountable. If you are receiving information from your child about events that your child is involved in, that becomes harder since your child is now the witness. Speak to your family lawyer about these events. Sometimes a letter to your spouse’s lawyer can resolve matters, but other times you will need the court to intervene. In closing, we try to have our clients address parenting concerns with the other parent. We encourage them to try and work things out. Sometimes we will suggest mediation and sometimes we will suggest court intervention. It is important though to talk these things out with your family law attorney when no agreement is reached. All the staff at Anderson & Boback hopes that you are weathering this pandemic without too much turmoil and remember we are here for you, in whatever manner is needed to help you through this coronavirus crisis. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/coronavirus/5-family-law-faq-coronavirus-pandemic/ If you were at a point where you were ready to finalize your divorce before the COVID-19 pandemic and shelter-in-place order, and now feel unsure about how to move forward, schedule a remote prove-up hearing. Although courts are primarily closed to non-emergency matters, the courts are still running. Judges are still conducting hearings, issuing rulings, and entering orders. They are just working remotely like most of the rest of us. Don’t think that just because a shelter-in-place order has been issued, that your case cannot move forward and that you cannot actually finalize your divorce. In fact, you absolutely can move forward with finalizing your divorce by setting up a remote prove-up hearing. If anything, these virtual hearings may prove to be a more convenient and easier process than an actual in-person hearing. Remote Prove-up Hearings are Available by Mutual Consent In order to move forward with a remote hearing, both parties must consent to have the hearing done remotely. Your attorney or your spouse’s attorney will need to draft an order saying that both parties agree to have the hearing conducted remotely -- rather than in person. Once the order is entered and forwarded to the judge, then the judge will set the date and time for the hearing as well as let you know they would prefer to conduct the hearing. Technology: Zoom, Video, and Telephone Conferencing It seems to be that judges prefer to see the parties and their attorneys so that they feel a little more confident in their rulings and issuing orders. That being said, teleconferencing and telephone hearings are definitely available. So if that is the only technology you have available to you and you do not have access to a computer, smartphone, or a data connection that would allow you to download and participate in a Zoom hearing, let your attorney know. Your attorney would communicate that to the judge, and the hearing would be scheduled accordingly. Advantages of Participating in a Remote Prove-up Hearing Remote Hearings are Quick, Easy and Convenient For one, remote hearings are very focused and very quick. Because there is nothing else going on in the courtroom, and no other cases are being called, it means that you will have the judge’s full attention. You would be able to conduct the prove-up without any interruptions or distractions. As a result, the hearing and the testimony will most likely be done in approximately fifteen minutes. This ultimately is an excellent use of everyone’s time. For those of you who have been in the midst of a long divorce case, been to other court dates, and participated in other hearings, you will really appreciate how nice it is to have the matter heard on time without having to wait for other cases to be called. In fact, a remote prove-up hearing will arguably be the most convenient hearing that you will ever participate in. You will not have to worry about the hassle of driving to court, parking, or getting to the right courtroom. With a remote hearing, all you need to do is make sure you have access to Zoom at the scheduled time and get logged in when your attorney asks you to do so. Remote Hearings are Still Formal Judicial Hearings When you see the judge, they will be wearing their robe. Your attorney will be dressed professionally. You, yourself, should also dress the way that you normally would if you were going to an in-person hearing. Just be cognizant of the fact that the judge can see you throughout the proceeding. The judge will swear you in and you will give a formal testimony in order to finalize your divorce. Testimony at a Prove-up Hearing is Straightforward Typically, when we prepare our clients for prove-up hearings, we give them a script of questions to review so that they are familiar with the questions that they will be asked. However, if that is not an opportunity that you have with your attorney, just remember that you are going to be testifying to the information you know really well. You are going to be testifying to your marriage, to information about your spouse, as well as the terms of your settlement agreements. Lastly, you will be asking the judge to finalize your divorce. It really is not anything to be terribly nervous or concerned about. Preparation Tips For Participating in a Remote Hearing Get comfortable with Zoom or other technology before the hearing. Our biggest suggestion is to download Zoom well in advance and give yourself a chance to become familiar with the software. You want to feel comfortable with the software because it is actually time for the hearing. We also recommend signing on early so that it gives you and your attorney a chance to figure out technical difficulties should they arise. Everything should be resolved so that by the time the judge signs on, the parties and attorneys are all ready to go. Find a quiet and private space to participate in your remote hearing. You will need to be able to focus and hear the questions that are being asked of you. You want to be able to think about your answers without any distractions or interruptions. If you are the respondent, do you have to be at the hearing? If you are the respondent in your case, and not the petitioner, like in-person court appearances, you do not have to be present or participate in the remote prove-up hearing. If you are represented by an attorney, an attorney can appear on your behalf. Or, in the agreed order, you can request to be excused and explain that you do not want to participate in the hearing. You absolutely do not have to be present and participate just because this is a remote hearing. If you do not wish to be present at the court date, you do not have to be. Remote Prove-up Hearings Allow You to Move Forward with Your Case As you can tell, remote hearings come with many advantages. They are quick, easy, and incredibly convenient. There is no need to wait any longer. If you are ready to move forward with your divorce now have questions about scheduling a remote prove-up hearing, the Chicago divorce attorneys at Anderson and Boback can help. Contact us today for a confidential consultation and get answers to your questions about divorce including remote options for finalizing your divorce during the COVID-19 pandemic. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/illinois-divorce/remote-prove-up-hearings-during-covid-19/ |
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