A postnuptial agreement is a legal document that explains and designates how property will be divided in the event of a divorce. It is very similar to a premarital (or pre-nuptial) agreement, except a premarital agreement is signed prior to the marriage and a postnuptial agreement is signed after the marriage has already occurred.
While a post-nuptial agreement is enforceable if properly executed, there is often a “dark cloud” over post-nuptial agreements. whereas they are more easily overturned than a premarital agreement, especially if there are assets that have been comingled already during the marriage or received during the marriage. Any income earned during a couple’s marriage and any property or money accumulated during a marriage is presumed to be marital property unless otherwise allocated (such as in a premarital agreement). Once the money or property is considered marital in nature, someone agreeing to waive their right to something that is legally marital is a more difficult argument to make, than say, property that the spouse had prior to the marriage occurring. In the latter scenario, the property or money was always non-marital and the agreement keeps it non-marital. In a postnuptial agreement, some parties take marital property and try to label it as non-marital property. The fact that a postnuptial agreement may be more difficult to enforce than a premarital agreement does not necessarily mean that they are bad or unenforceable, it simply means that extra care has to be taken to ensure they are extremely clear, as well as drafted and executed meticulously to ensure that every precaution has been taken to make them enforceable. Common Scenarios for Postnuptial Agreements Some scenarios where a postnuptial agreement is common or necessary are as follows:
Save Your Marriage with a Postnuptial Agreement? Postnuptial agreements have to be for the purpose of saving or preserving the marriage, which may be contrary to why people believe they are needed. The purpose of a post-nuptial agreement is not to contemplate a divorce. In fact, the public policy argument behind why post-nuptial agreements exist is for the purpose of trying to save marriages. For example, if someone is in a marriage and they are not happy and are thinking divorce is a possibility, they may be more inclined to try and get out of the marriage quickly. This might be because the longer they are married, the larger a spousal support obligation they’d have to their current spouse. Or, the longer they are married, the larger a share of the property could be awarded to a subsequent spouse. Some of the laws that govern parties in a divorce case, especially when there is a disproportionate share of earned income, can be looked at as “favoring” the lesser-earning spouse. However, if the parties can agree to a postnuptial agreement, whereas they determine exactly what would be paid out in the event of a divorce, it gives both parties reasonable reassurance of what would happen in the event they choose to pursue one. This takes the “unknown” out of the equation, and the thought is that people would be less likely to file for divorce and to work to save their marriage if they are no longer concerned about what the financial picture and financial security would look like in the event of a divorce. Post-nuptial agreements are arguably designed to save marriages, not to contemplate divorce, nor to break up marriages. When looking at them through this lens, it actually can be a very useful tool in trying to salvage a marriage and avoid divorce. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/post-nuptial-agreement/postnuptial-agreements-what-you-need-to-know/
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So, you just got served with Illinois divorce papers or a child custody action. Now what? Whether you suspected this legal action might happen, once you’ve been served there is no time to waste taking necessary steps to protect yourself.
First of all, do not ignore the fact that you have been served. Be forewarned! If you have been served with a Petition for Dissolution of Marriage or a Petition for Allocation of Parental Responsibilities you only have so much time to alert the court that you intend to be involved in the legal proceedings. The way you do this by filing your “appearance” in the matter which means filing and Answering the Petition for Dissolution (or Petition for Allocation of Parental Responsibilities It’s important to understand that once you have notice of the legal action, the filing party can usually move forward without your involvement even if you fail to file your appearance in the matter. How Do Family Law Court Proceedings Begin? When family law cases are initially filed in Illinois, the filing party must provide the other party with notice. This is called the Service of Process. This is done by serving the other party with a Summons and a copy of the document that was filed. A Summons is an official notice that a legal proceeding was filed and that you are a named party. Who Serves an Illinois Summons and Petition in a Family Law Case? Under most circumstances, the appropriate Illinois County Sheriff’s Department or a private process server will serve the Summons, along with the document that was filed. When serving a family law or divorce papers it’s common for service attempts to be made at a party’s residence or at their place of employment. What Information can be found in the Summons? The Summons states what type of proceeding has been filed. The Summons explains that you must file a written Appearance and an Answer in the Circuit Clerk’s Office within a certain number of days, often within thirty (30) days. What if I Do Not Want to Accept the Summons? We’ve all seen it. On television shows and in movies, the drama unfolds with the person about to be served with a lawsuit Summons cleverly hiding (or attempting) to avoid the process server. While it is not unusual for someone to not want to accept the summons, it is important to understand it will not make the Petition go away. In Illinois, “Service of Process” is considered completed when the process server hands the Summons and the filed legal document to the other party. As stated above, service is usually attempted at a party’s place of employment or last known address. And if you’re not home, that may not be a problem for the process server. if someone you live with IS home. If you live with someone over the age of thirteen (13), you need to be aware that Service of Process can also be completed when the sheriff or process server hands the Summons and filed legal document to anyone who lives in your home as long as the recipient is over the age of 13. Alternate Methods for Service of Process In addition to personal service by the Sheriff or a private process server, the court is able to make it possible for litigants to serve the other party by granting permission to use alternative means for service. This typically happens when someone is attempting to avoid service. In those situations, there are occasions when service is completed by sending the Summons and filed documents through the mail and by publishing a notice in the newspaper. What is a Default Order? After you’ve been served, it’s crucial you respond by filing your written “Appearance and Answer” by the deadline. Filing your Answer lets the Court know you are participating in the legal proceedings. Do not ignore the fact that you have been served. The clock is now ticking. If you do not file your Appearance and Answer by the established deadline, the filing party can seek relief by from the Court by making a motion requesting that the Court enter a Default Judgment. This means that the filing party could be granted the relief requested in the Petition without you even participating in the case. Unless you have no opinion about the relief requested, it is not a good idea to ignore the case as the Court will enter orders whether you agree or not. Can a Default Order be Vacated in Illinois Divorce or Family Law Case? Yes. In Illinois, Section 1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2) provides a possible way to vacate a default order in a Chicago divorce or family law case. However, before the Court enters a default order, one must show that they have a meritorious reason for not participating in the litigation. In the end, the decision to vacate a default order is really up to the Judge. And understand, they are rarely impressed when they hear that a court proceeding was ignored. Be Proactive and Participate in Your Case If you have the opportunity to be involved in a case and that case has the potential to impact your present life and future, then be proactive. Protect yourself, and be involved in your case. Getting the court to “throw out” or vacating default orders can sometimes be an uphill battle depending on the circumstances. The best way to avoid this all is to simply respond to the lawsuit by filing your written Appearance and Answer in a timely manner. If you’ve been served with divorce papers or any other type of family law-related documents, do not hesitate to get trusted input from an experienced divorce and family law attorney. The clock is ticking and your future could be negatively impacted if you wait too long to respond appropriately. Contact Anderson & Boback when you’re facing a family law-related matter or have questions or concerns about being served with divorce papers. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/illinois-divorce/served-divorce-papers-now-what/ Karyn Aspan was granted maintenance from her husband Thomas Aspan. Shortly after the divorce was granted, Tom filed a motion to terminate the maintenance award. In the motion, Tom argued that Karyn was living with a man, Ronald Hessa, and because of that living arrangement, his obligation to pay her maintenance should end. The court granted his motion.
Case Background On August 18, 2017, the circuit court entered an order for the dissolution of the marriage between Karyn and Tom. The order required Tom to pay Karyn maintenance for ninety-six months at an annual rate of $24,280. Karyn also received approximately $53,000 on October 16, 2017, from the sale of the marital home. In May 2018, Tom filed a petition to terminate temporary maintenance, alleging that Karyn was cohabitating with her boyfriend, Ron. He also alleged that their relationship started in June 2017. In February 2019, the circuit court held a trial on the petition. The evidence at trial was as follows. Karyn testified she met Ron in or after August 2016 through his daughter, Tabitha. Karyn and Tom separated around the same time. She then changed her Facebook status from “married” to “in a relationship.” She testified that the change was accidental and that she meant to put “it’s complicated.” In September 2016, Karyn and Ron attended a NASCAR race. She then moved into a mobile home in Gardner, Illinois, where Ron lived full time. Occasionally, Tabitha and her daughters stayed with them. But most of the time, it was just Karyn and Ron at the address. When she moved in, Karyn brought with her nine dogs. At times her son Michael, who was on parole, stayed with Karyn and Ron. Michael used their address as his parole address. Ron called him “the drifter” and testified that Michael agreed to pay $200 per month in rent but never did. Michael is the sole beneficiary on Karyn’s life insurance. In November 2017, he was involved in an accident with Karyn’s car, causing total loss of the car. Ron purchased a replacement car that Karyn used exclusively. Karyn initially stated she did not know the purchase price but that she paid $100 per month. She later clarified that the purchase price was $3,500 and that she agreed to make payments until she reimbursed Ron for the car. Ron testified differently, stating that he purchased the car with a down payment of $800 and that he had an oral agreement with Karyn regarding reimbursing him for it. In December 2017, Ron purchased a house in South Wilmington, Illinois, which is titled solely in his name. Karyn moved into that house immediately after Ron purchased it, and he joined her after he sold the mobile home in February 2018. Karyn and Ron have lived together in the Wilmington house since that time. Michael also lived there with them for several months. Karyn brought four dogs into the house, while Ron brought two dogs. Each cared for all the dogs. Prior to Ron purchasing the Wilmington house, Karyn went looking at homes with him. Karyn stated that she intended to purchase a home for herself around the same time. She provided emails from November 2017 to the realtor Sara Powers, indicating she was still searching for a home. She also submitted a lease she allegedly signed on December 23, 2017, on the Wilmington house and a copy of another email she sent to Powers expressing her continued interest in looking for home. She viewed the Wilmington house both with Ron and by herself. She did not recall looking at any other houses with Ron. Karyn told a Grundy County Deputy on January 11, 2018, that she had purchased a home in South Wilmington, using a realtor named “Sara Powers.” Karyn attended the home inspection with Powers, but Ron did not attend. The Wilmington house was purchased with funds from an account held by Karyn and Ron in joint tenancy, with the right of survivorship. Karyn stated that she had opened the account and had later given the bank oral permission to add Ron as a joint tenant because he needed to have an account for 60 to 90 days before purchasing the house. Ron testified that he did not know how much money Karyn had in the account and that he never touched any of it. On October 30, 2017, Karyn transferred $23,000 into the account. On December 21, 2017, she withdrew $12,305 from the account to purchase the Wilmington house. The issuing bank disbursed the money as a cashier’s check, with the memo line stating, “Karyn and Ronald Aspan.” Karyn also paid for the house appraisal with $415.00 from the account. She testified that Ron gave her cash for the appraisal. After closing on the house, Karyn and Ron went to Red Lobster with a gift card from Powers. In February 2018, Ron and Karyn began living together full time at the Wilmington house, performing basic home keeping tasks, sleeping there every night, and sharing a single bathroom. Karyn painted the living room; she arranged to add a back door to the home and for a fence to be put up. She posted a warning on social media, alleging the individual who put up the door and fence was a thief. At trial, she stated that Ron told her to post the warning. In April 2018, Karyn paid $345.60 for some plumbing work. She later paid $123 to get the carpets cleaned. Karyn and Ron shared payment of the bills at the Wilmington house, but the utility, garbage, and water bills are in her name only. After purchasing the house, Karyn and Ron began spending more time together. They went boating together and traveled to Matthiessen State Park in Ottawa, Illinois. Karyn attended Ron’s granddaughter Emma Lynn’s third birthday party, posting videos of the event on YouTube. Late in 2017, Karyn took Ron’s five-year-old granddaughter, Annabelle, to see the Nutcracker in Bloomington. She paid for the tickets and posted on social media that she took her “granddaughter to her first ballet.” In January 2018, Karyn took Annabelle and Emma Lynn to Disney on Ice. In March 2018, Karyn again attended a show with Annabelle and Emma Lynn. She paid for all the events they attended. In April 2018, Karyn took a vacation to Orlando where she visited SeaWorld with a man she called “Ron,” but she denied that the man was “Ronald Hessa.” From Orlando, Karyn drove to Talladega to attend a NASCAR race. She testified that Ron was not with her on this trip. The circuit court found that Karyn and Ron were in a resident, conjugal cohabitation, which started in December 2017. The court stated that Karyn and Ron presented a common “narrative” on their living arrangement, but that “they also contradicted each other.” It found that they went on a vacation to the Talladega Racetrack in Alabama. It also found the claim of a landlord-tenant relationship to be incredible because Karyn could not produce evidence of any rent payment to Ron. Finally, the court concluded that Karyn’s relationship with Ron’s granddaughters was that of family members. The circuit court terminated Karyn’s maintenance effective December 2017. Karyn has appealed that decision. Case Analysis Karyn argues that the circuit court erred in finding that she and Ron cohabitated in a resident, conjugal relationship. She contends that Ron was nothing more than the father of a friend and the landlord from whom she was renting space in the Wilmington house. She also contends that Tom failed to present any evidence supporting the assertion that she was in a relationship with Ron. Terminating Maintenance in Illinois Illinois law provides “the obligation to pay future maintenance is terminated *** if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” 750 ILCS 5/510(c) (West 2018). The burden of establishing the cohabitation is on the party seeking termination of the maintenance obligation. In re Marriage of Walther, 2018 IL App (3d) 170289. To satisfy that burden, the party seeking termination “must make a substantial showing that the former spouse is involved in a de facto husband and wife relationship with a third party.” In re Marriage of Thornton, 373 Ill. App. 3d 200, 208 (2007). “Each case for termination of maintenance must rest on its own facts, given the unique nature of personal relationships.” In re Marriage of Lambdin, 245 Ill. App. 3d 797, 801 (1993). Illinois courts no longer require “proof of sexual conduct,” so long as the party seeking termination can establish “facts which would lead a reasonable observer to believe that the individuals were [living as] husband and wife.” Id. This Court has recognized six factors as relevant in finding a de facto husband and wife relationship: “(1) the length of the relationship; (2) the amount of time the couple spends together; (3) the nature of activities engaged in; (4) the interrelation of their personal affairs; (5) whether they vacation together; and (6) whether they spend holidays together.” Snow v. Snow, 322 Ill. App. 3d 953, 956 (2001) (citing In re the Marriage of Herrin, 262 Ill. App. 3d 573 (1994)). This list of factors is non-exhaustive; the ultimate decision must be based on the totality of the circumstances. Herrin, 262 Ill. App. 3d at 577. Evidence Showing Change in Relationship Status The evidence presented shows that Karyn and Tom separated in August 2016. Around the same time, Karyn met Ron and changed her relationship status on Facebook from “married” to “in a relationship.” She then moved into Ron’s mobile home in Gardner, Illinois, living with him full time. Her son, Michael, stayed with them, using Ron’s address on his official parole documents. During his stay, Michael never paid rent. In the meantime, Karyn began spending time with Ron’s granddaughters. She took them to ballet performances and other theatrical events. She even posted on social media about those events, referring to the girls as her granddaughters. Karyn and Ron each owned several dogs that lived with them both in the Gardner home and the Wilmington house, with each caring for the dogs indiscriminately. Almost immediately, Karyn and Ron began pooling their financial resources in managing their daily lives. When Michael crashed Karyn’s car in November 2017, Ron bought her a car for her exclusive use, putting down $800 on the price. Ron stated that he had an oral agreement with Karyn that she would reimburse him, and Karyn stated she paid $100 per month on the car. Despite their testimony, there is no evidence of any money paid by Karyn to Ron for the car. Beyond this purchase, the intermingling of their financial resources dramatically increased in late 2017. During that time, Karyn put Ron’s name on her bank account, which they began holding in joint tenancy with the right of survivorship. In October 2017, she transferred $23,000 into the account. Then in December 2017, she withdrew $12,305 from the account in the form of a cashier’s check disbursed to “Karyn and Ronald Aspan” for purchasing the Wilmington home, which the evidence shows was and remains in Ron’s name alone. Karyn also paid the house appraisal with $415 from the account. She then paid for plumbing repair and carpet cleaning in the Wilmington home and kept the utility, garbage, and water bills in her name only. During that time, she also began performing basic housekeeping tasks. When Ron closed on the Wilmington home, he and Karyn celebrated together at Red Lobster with a gift card from the realtor. While living full-time in the Wilmington home, Ron and Karyn shared a single bathroom and slept in the house every night. They also began spending a significant amount of time together, beyond their shared housekeeping duties. They went boating together and traveled to Matthiessen State Park in Ottawa, Illinois. In April 2018, Karyn took a vacation to Orlando, where she visited SeaWorld with a man she called “Ron.” From Orlando, Karyn drove to Talladega to attend a NASCAR race. De Facto Husband and Wife Relationship A trial court’s finding of a de facto husband and wife relationship will not be reversed unless it is against the manifest weight of the evidence. In re Marriage of Sunday, 354 Ill. App. 3d 184, 189 (2004). Considering the evidence presented, we cannot say that the trial court erred in concluding that Karyn and Ron were in a de facto husband and wife relationship, despite the lack of any direct evidence of a sexual relationship. In Thornton, we found no conjugal cohabitation where the respondent denied she had an intimate, sexual relationship with the brother of her former spouse. Thornton, 373 Ill. App. 3d at 210. The respondent had testified that she had allowed the brother to live in the basement of her house because he was essentially homeless. Id. at 209. We found nothing in the record—beyond the petitioner’s bare allegations— to the contrary. Id. at 210. Summarizing the evidence, we stated: “There is no evidence of the amount of time, if any, [the respondent] spends with [her ex-spouse’s] brother; the nature of the activities, if any, they engage in together; the interrelation, if any, of their personal or financial affairs; whether they vacation together; or whether they spend holidays together. In short, there is no evidence relating to five of the six factors that are to be used as the basis for determination.” Id. Karyn cited Thornton for the proposition that merely living with Ron does not meet the requirement for termination. However, as the evidence before shown, Karyn’s case is unlike Thornton. The evidence presented supports a finding that at least four of the six factors generally considered by the trial court were found satisfied. Karyn also contends that she paid rent and was still searching for a home while she lived in the Wilmington home. The trial court found this testimony—taken with Ron’s supporting testimony—was nothing more than a story the parties tried to present as true and was not credible. We give great deference to the circuit court’s factual findings because it stands in the best position to weigh the credibility of all witnesses. Herrin, 262 Ill. App. 3d at 577. In this case, Ron and Karyn failed to present any evidence at trial that could rebut the evidence presented by Tom and compel a conclusion that the trial court erred in its factual findings and its credibility assessments. Case Conclusion For the foregoing reasons, the Court of Appeals affirmed the judgment of the circuit court of Grundy County. This case review is based on the original appellate court decision published at https://law.justia.com/cases/illinois/court-of-appeals-third-appellate-district/2021/3-19-0144.html THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/spousal-support/termination-of-maintenance-case-in-re-the-marriage-of-aspan/ As Chicago family law attorneys, we are often asked by clients if a 50/50 parenting plan is possible for children following a divorce. Recently, the Appellate Court reversed a trial court’s ruling giving the parents a 50/50 schedule in the case In re Marriage of Rachael Virgin and Justin Virgin [2021 IL App (3d) 190650]. The case is an interesting read because one justice dissented from the ruling and the pros and cons of a 50/50 parenting plan are discussed in great detail. Case Background The parties each filed a motion against the other after their marriage. Justin filed a motion for modification of his parenting time and Rachael filed a petition to hold Justin in contempt for failing to provide medical insurance per the terms in the divorce decree. Parents Were Given Equal Parenting Time In November 2016, the parties were divorced. The judgment provided that Justin would maintain medical insurance and both parents were allocated joint decision making of their child, who was three years old at the time. Rachael was allocated the majority of the parenting time (she was given more overnights than Justin was), but the custody judgment stated that Justin was the custodial parent with the majority of the parenting time for purposes of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/606.10 (West 2016)). The judgment was clear that the parties had equal parenting time. Father files for a Modification of the Parenting Schedule After the judgment was entered, Justin filed various motions, including one to modify the parenting time. Justin alleged that there had been significant changes since the judgment was entered, and essentially accused Rachael of many inappropriate behaviors that was not conducive to providing a safe environment for their child. Attached to his petition were communications between the parties concerning a variety of subjects, including their child’s sleep patterns, letters about the child’s dentist and other areas of concern. The Court Appoints a Guardian Ad Litem for the Child In cases where there is a conflict between the parents, and the judge cannot necessarily tell who is relaying accurate information, the judge will often appoint a representative for the child. In this case, the court-appointed a GAL, or guardian ad litem. The GAL is charged with investigating the complaints of the parents and if the child is old enough, discusses certain aspects of the case with the child to flush out how the parent’s issues are impacting the child. Since the GAL is the “eyes and ears” of the court, the GAL is a very important part of any case. By the time the case went to hearing, the minor child was over six years old. Guardian Ad Litem Testifies on Best Interest of the Child At trial, the GAL testified about the best interests of the minor child. The GAL testified about the high conflict that continued to plague this family and that there had been 6 orders of protection, investigations by the Department of Children and Family Services (DCFS), criminal proceedings, and mutual restraining orders. The GAL stated that the lack of communication and inability to reach an agreement worked to the detriment of the child. There could be no agreement on simple things like the child’s counseling, school matters, or even health care. The GAL recommended that the child continues in counseling at least once a week and that both parents get into counseling so that they could improve their communication and hopefully resolve their issues for the best interests of their child. The GAL also recommended a change in the minor’s parenting schedule. Although the GAL found Justin to be aggressive and often times did not act appropriately toward Rachael, Justin was the parent that was able to provide a better atmosphere for the minor’s sleep habits and the parent coordinating with the doctors and school. A recommendation was made that the minor spend most of the week with Justin and then transfer over to Rachael’s house over the weekend. The Family Court’s Ruling The court awarded each parent 50% of the time with their child, contrary to the GAL’s recommendation. The court ordered both parents to attend counseling to work on their communications and required the parents to keep the minor child in therapy as well. The court imposed a $300 penalty for instances where either party was guilty of harassing, threatening, or demeaning the other parent in a communication with or to each other. For Rachael’s petition to hold Justin in contempt, the court granted that motion. Neither party was happy with the court’s ruling and an appeal followed. The Case Appeal The reviewing court stated that parenting time may be modified upon a showing that a substantial change has occurred in the circumstances of the child or of either parent and modification is necessary to serve the child’s best interests. 750 ILCS 5/610.5(c) (West 2018). Upon such a showing, the court must allocate parenting time according to the best interest of the child. 750 ILCS 5/602.7(a) (West 2018). In allocating parenting time, the court shall consider all relevant factors of the statute. Justin argued that the court’s order of 50/50 joint parenting time was against the manifest weight of the evidence. Justin stated that he recognized that a 50/50 parenting arrangement can be appropriate, but in this case, a 50/50 arrangement was not in the best interest of their child. Did the Parties’ Animosity Toward Each Other Cause the Court to Award a 50/50 Parenting Schedule? The court has acknowledged that courts have traditionally viewed 50/50 parenting time with caution where the evidence clearly showed that parents had too much animosity to be able to cooperate, and 50/50 arrangements have been set aside. See In re Marriage of Drummond, 156 Ill. App. 3d 672 (1987); In re Marriage of Bush, 191 Ill. App. 3d 249 (1989); In re Marriage of Swanson, 275 Ill. App. 3d 519 (1995). However, where the record shows that the parties are reasonably loving and capable parents who are sufficiently able to cooperate even though each party attempted to prove the other was less capable, the 50/50 arrangement could be upheld. See In re Marriage of Hacker, 239 Ill. App. 3d 658, 661 (1992); see also Perez, 2015 IL App (3d) 140876 (the parties were cooperative and could reach shared decisions together in the best interest of the child). In this case, the court continued to name Justin as the custodial parent but established a truer 50/50 schedule where the child would move between Justin and Rachael’s homes midweek and every other weekend. Under the circumstances presented, the reviewing court found that the alternating schedule was not in the minor’s best interest. The appellate court that the evidence presented showed that the parties had too much animosity to sufficiently cooperate with each other. The GAL testified that this case presented one of the highest conflict cases he had ever seen in his experience as a GAL and attorney. The GAL also described the parties’ communication as unproductive, which is clearly supported by the record. While the court believed that both Justin and Rachael parented well, it acknowledged that they did not co-parent well. Additionally, the Appellate court found that the alternating schedule failed to address the minor’s needs and health. The minor child suffered from anxiety, asthma, and upper respiratory issues. There were struggles and conflicts between his parents, and the child had behavioral problems as well as sleep issues. The reviewing court agreed with the GAL’s recommendation. The Appellate court reversed the trial court’s order regarding the regular parenting schedule and remanded the case back to the trial court to provide Justin with the majority of the parenting time. The dissent Not all the justices agreed that the trial court’s ruling should be reversed. Justice Lytton disagreed with the reversal of the parenting time. He cited multiple cases which demonstrated that equal parenting time is generally not a good idea for the kids, but in certain cases, it is necessary. For instance, in the case of Divelbiss, 308 Ill.App.3d 198 (1999), the father was given five months out of the year due to the mother’s alienating behavior. Further, if the parenting plan is designed to maximize the involvement of both parents, then a 50/50 parenting plan should be encouraged. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/when-is-a-50-50-parenting-plan-in-the-best-interests-of-the-child/ Electronic parenting time has remained consistently included in parenting agreements for some time in Illinois. Usually, the electronic parenting time is in the format of video chat, via an application such as FaceTime, Skype, or Zoom, to name a few. Parenting time via electronic means can still, however, be a bit controversial, depending on each individual situation.
Pros to Electronic Parenting Time Electronic or virtual parenting time can be very beneficial for families where the minor children might not otherwise see the other parent in person. Phone calls can be impersonal, especially for a young child, and they are not as engaging as seeing someone face to face on a screen. Some pro’s of electronic parenting time include:
Cons to Electronic Parenting Time
Virtual Solutions During Covid At the beginning of the pandemic, when parents were apprehensive regarding allowing their minor children to go back and forth between their residences, electronic parenting time proved to be useful and a good alternative to exchanging the children. As more has been understood about covid, most families have resumed in-person parenting time. Additionally, the emergence of Zoom as a platform for video calls within schools for e-learning as well as other platforms has made minor children and their parents much more comfortable with video chats, on an expedited basis, whereas they may not have become so comfortable so quickly had they not been forced to learn to navigate these platforms. Now, people are much more open to electronic/video parenting time than they were before, especially those who are technologically adverse. Electronic Parenting Time Controversies There are, as expected, several potential controversies with electronic parenting time, as outlined herein. Some parents are not comfortable with their children having/working devices that allow for electronic parenting time, based upon their age and maturity. Sometimes, there are issues with using electronic devices to discipline minor children and how that can impact their scheduled electronic parenting time. Additionally, Illinois courts have found that electronic parenting time does not replace in-person parenting time in situations where a party is seeking to relocate minor children. Despite all of these controversies, a lot of people stand to benefit from using electronic parenting time. Having a carefully drafted order in which parameters both parents are comfortable with is key to ensuring the success of utilizing this helpful tool. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/uncategorized/electronic-parenting-time-what-you-need-to-know/ Child support agreements addressing requests for “other expenses” can help avoid trips back to court. There is often a lot of litigation over setting a child support amount, mostly because the obligor claims he cannot afford it. What often comes as a shocker is when non-custodial parents realize financially supporting a child involves more than just “child support”. Per 750 ILCS 5/505, Illinois law provides that the non-custodial parent is also responsible for 50% of other expenses, including but not limited to: uncovered medical expenses, child care, education, and extracurricular activities.
Child Support Agreements and Non-Custodial Parent’s Responsibility for 50% of Other Expenses As child support lawyers, we work to protect our child support clients from the abuse of the “other expenses” provisions in support agreements. We try to word agreements and court orders in a way that gives the non-custodial parent more say in a situation before he or she is stuck with the bill. For example, adding a child to your medical insurance does not always mean that the premium will increase. For family plans, the amount will often be the same. If you are able to include the child in your health insurance, the entire amount for health insurance can be included as a deduction for child support purposes thus lowering your child support obligation. Addressing Educational Expenses in Support Agreements For education, if both parties have joint decision-making, then both parties would need to approve the school before the child is enrolled. If worded correctly, you should not be stuck with a private school bill if you did not agree to it. You may still be responsible for all other school expenses such as books, registration, and any other school-related expenses. Be Reasonable with Extracurricular Activities For extracurricular activities, we often include that the parties must agree to that activity, and not unreasonably withhold their consent before they are responsible for paying 50% of the said expense. That prevents one parent from enrolling the child in several activities without the other parent’s consent and then expecting the other parent to foot half the bill. The parent must not unreasonably withhold their consent, however. So not agreeing to any activity in order to avoid paying for any expenses would not fly. Consult a Legal Advice to Avoid Problems with a Child Support Agreement Seeking advice from an experienced child support lawyer can be critical. It is important to incorporate the proper language in court documents when addressing these issues in order to prevent an excessive amount of additional expenses that you cannot afford. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-support/other-expenses-child-support-agreements/ |
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August 2022
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