Everyone wants a speedy divorce. Believe it or not, divorce lawyers want your case to move along smoothly as well. No one enjoys the delay and it is particularly stressful for the attorney in your case when things are delayed and the client is not happy. Is there anything you can do to speed up a Chicago divorce?
A Divorce Attorney's Tips to Speed Up Your Divorce Fighting Prolongs the Divorce Process I will never forget the client who wanted me to argue that the George Forman grill was given to her as a present and it should be awarded to her in the divorce, and not to him. I had to pause for a minute and remind my client how much an hour she was paying me. Sometimes it is not really the possession, but the thought of the other party getting it. Some would rather give it away than let their spouse receive it. You need to let go of those thoughts and feelings if you want to end the case quickly. In almost every family law case, there is room for compromise. If you are not willing to compromise and you just have to have the George Forman grill, your case will not end quickly. Let these negative thoughts go and compromise with the other party. If both people will compromise, the divorce can be resolved fairly quickly. Have a Four-way Conference to Resolve Differences Sometimes a meeting with the other side and their attorney can move things along quicker and speed up your divorce. Typically, if you need or want something, letters or emails need to be exchanged, and then those have to be discussed with you. If the parties can sit in the same room and get results without fighting, then a four-way conference can be beneficial. Before you attend the conference, make a list of what you want to discuss and what you want out of it. Making a list keeps you on point and lets you see what you have achieved. Start out with the easy things first. You want to get a couple of easy things resolved before you start on the harder issues. Being able to check things off your list enables you to feel that you are making progress. Starting with a hard issue and then not resolving it makes you feel defeated too quickly. Remember that the purpose of attending the four-way conference is to finalize the litigation and reach an agreement, so check your feelings at the door and come into the meeting with a positive attitude. You may not like the other party now, but remember, your goal is to finalize the case, so it is imperative that you are willing to compromise. Do not get stuck in the details. Even if you do not resolve everything, resolving some issues has moved your case along. The judge will help decide any remaining issues you have. Be Timely Getting Your Attorney What is Requested of You Some clients provide their tax returns and bank statements the minute I ask for them. Other people have to be asked 5 times and wait until the deadline date. Your attorney is not handing over what you give them blindly. They have to review it so that they know what is being sent out. In some instances, calculations need to be made with the documents you have produced. If you wait until the last minute to produce documents that have been requested from you, you delay your case. Obey Your Court Order Many people think court orders are suggestions. They are not. Judges require you to obey court orders and it does not matter if you like it or not. I do not like everything the judge makes me do either, but obey I must! If you are given an order, you can file motions to undo it, but until the judge changes her mind, you are stuck with obeying the order. Failure to abide by the order leads to contempt. The fastest way to derail your case from moving toward completion is to disobey the court’s order. The other side files a petition to hold you in contempt and a hearing must be heard. If you are found in contempt, then we need to get you out of contempt by meeting the purge that the court set. This process is slow and you have not gained any positive points with the court when you do not obey. Fights for Custody I get a lot of calls from people who do not want the other parent to have parenting time, or want them to have very little time. I hear all kinds of reasons, but adopting this position will definitely place you in a litigated battle that could take years. I am not saying that you do not have a reason or that your reason is not legitimate, but you cannot adopt this position and expect your case to be over quickly. In Illinois, you cannot restrict a parent’s right to spend time with their child unless there is a “serious endangerment.” That is a high burden for you. That does not mean that if the other parent has a different parenting style then you that there is a serious endangerment. Feeding your child pizza for dinner every night (or event for breakfast) does not rise to serious endangerment. The court is not equipped to handle these types of parenting choices. The court handles big issues, like who is the child going to live with. The court does not get into how the child is dressed or what the child eats. Everyone understands that these aren’t necessarily small issues and some can feel very serious to you, but unless you can prove (we are in a court of law) that there is a serious endangerment, you aren’t likely to succeed. Think about that and how long that fight will delay your case. Working with a Skilled Chicago Divorce Attorney Can Make the Difference! A domestic relations attorney bills you for their time. They are not like personal injury lawyers that take a percentage of the amount you win. Anything you can do to make the process go faster, will likely decrease your attorney bill, and move your cases to completion more quickly. Pay attention to what your attorney needs and provide that as quickly as possible. The more you can agree to, or compromise your position, the faster your case will be completed. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/illinois-divorce/ways-speed-up-chicago-divorce/
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The right for one parent to care for the children when the other parent is unavailable during their parenting time to care for the children has developed over time into an actual section of the Illinois Law which provides that, “if a party intends to leave the minor child with a substitute child-care provider for a significant period of time. That party must first offer the other party an opportunity to personally care for their minor child” Oftentimes parents would incorporate this provision into their Joint Parenting Agreements and agree amongst themselves what that time period would be that would invoke the right of first refusal.
How the Right of First Refusal Works As an example, parents could agree that the right of first refusal would be invoked if one of the parents were gone overnight. They could agree to a period of time. I have worked with parties who agree that the time period could be as long as 12 hours or as short as 4 hours. When the Laws regarding custody in Illinois were changed in 2016, the law incorporated a section called “Care of minor children; right of first refusal” and provides that if a court awards parenting time to both parents the court may consider whether or not to award to one or both of the parents this right of first refusal. If the court is left to make this determination of whether or not to award a right of first refusal, they have to review the best interest factors which are found in the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 602.7). When the court reviews the best interest factors they can then decide if one or both parents will have the right of first refusal and detail the following:
A court may very well make a finding that it is in the child’s best interests to spend time with their parents, as opposed to a babysitter or other care provider if the other parent is available – hence the right of first refusal. However, there are also situations when the parents have a very difficult and strained relationship and the courts determine that it is best to minimize the interactions between the parents so they do not grant either parent the right of first refusal – in this case, the parents have their specific parenting time and if they are unavailable they are charged with the responsibility to find care for their children. Right of First Refusal is Not Automatic It is important to keep in mind that even though the legislature has incorporated this right of first refusal into the statute, it does not mean that it is automatically ordered by the Court. It has to be found to be in the best interest of the children for this provision to be ordered. In addition, the court could award one or both parents the right of first refusal. It is often a mutual provision but the law allows for the court to make this determination on a case by case basis to award this right to one or both of the parents. Important to Detail Notification Requirements If you are going to a wedding during your weekend parenting time and will be gone from noon until 10 p.m. (10 hours) and you have a right of first refusal that is invoked in a 6-hour absence, you would be required to contact the other parent and offer them the 10 hours with the children before you make alternative care arrangements for the children. It is very important to detail the notification (should it be in writing, phone call) and the response time. If you text the other parent that you are going to be away for the amount of time detailed in your parenting order, it is important to also have details in the parenting order as to the response time. If you do not hear back from the other parent within a certain amount of time then you have to be able to arrange for care for the children. It is also important to detail who will provide the transportation for this period. Choose a Reasonable Time Period You want to think about a reasonable time period for this right. I have talked with clients who want a two (2) hour period. This may not be practical since you may need to run to the store or the gym or have an appointment and you are not going to want to call the other parent for all of these routine errands. In addition, in an emergency-type situation, the right of first refusal may not be practical. That is, if something unexpected comes up, the party exercising parenting time may not have enough time to reach out to the other parent to see if they are available. However, a parent cannot use that excuse and it must truly be an emergent situation. In order for the right of first refusal to work best for the children and avoid last-minute changes and arrangements, the parents should let each other know about plans as soon as possible or as soon as they know they will have a conflict. This will allow plans to be made and the children can be made aware that they will be with the other parent and can be a very positive situation when the children see their parents communicating and being able to get along in such situations. It is when parenting exchanges are tense and full of conflict that a right of first refusal may not be best for the children as it can increase stress and tension which would not be in their best interest. An Experienced Lawyer Can Help You with Right of First Refusal in Your Parenting Order It is very important to work with an experienced lawyer to make the right of first refusal and detailed and clear as possible. You cannot think of every scenario but you can make the wording clear enough so that you can follow the agreement without issue. The main thing is that you must have good communication with the other parent and be willing to put in the effort that it will take to make this work. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody-visitation/parenting-time-right-of-first-refusal-what-you-need-to-know/ Parenting is hard work. There is so much to do-always-and it is not any easier now that parents are expected to home school their children. The stress of the added responsibility can be daunting for some, and it does not help when you are parenting with a narcissistic parent. What exactly is a narcissistic parent?
What is a Narcissistic Parent? According to the Mayo Clinic, a person with a Narcissistic Personality Disorder, is a mental condition in which people have an inflated sense of their own importance, a deep need for excessive attention and admiration, troubled relationships, and a lack of empathy for others. But behind this mask of extreme confidence lies a fragile self-esteem that is vulnerable to the slightest criticism. That is the hard part when dealing with narcissism. You could learn to live with the parent’s inflated sense of self-worth, but the smallest criticism shuts down all communication. And while you might not care so much about the other parent right now, you have to parent with this person and the choices you make have to be good for your child. When you tear down, purposely or not, the other parent’s fragile self-esteem, you need to make sure that your child isn’t harmed in the process. How Do I Protect My Child? In severe cases involving a narcissistic parent, you will need to take your case to the court and ask the court to suspend parenting time until the other parent gets some help. In Illinois, you would have to prove that your ex presents a serious endangerment to your child in order to get parenting time stopped. It is a high burden and could take a long time to prove. If the case is not that serious, then you will need some coping skills. You also do not want to be the parent who handles the situation wrong and when you are in court, the judge can see that your behavior is just as bad as the other parent’s. How you react will have an impact on your case. The Impatient or Angry Parent Narcissists can become angry or impatient when things do not go their way. Because everything is about them, it is hard to manage when something actually demonstrates that it isn’t about them. Yelling at the other parent “This isn’t about you, it is about our child’s wants/needs,” is not going to solve anything. Knowing that you alone cannot change the behavior is the first step. You will recognize this behavior quickly since your first thought will be getting angry yourself. When you recognize the behavior-impatient and/or anger-take a deep breath. There is no need to engage. My business partner has the best response to a situation like this. She says, “Perhaps you are right.” I did not think it would really work until I was fighting with my husband one day. She took me into her office and said, “tell him 'Perhaps you are right.'” What can someone do with that? Yell back, “No I’m not!” The other person stands there, kind of confused and dazed. They start their next sentence and then realize; she has agreed with me. It stops them in their tracks. What can you possibly argue? Perhaps you are right. You did not say they were right, just perhaps they are. Take Some Time In today’s day and age, everything has to be done right now, right away. This can be a detriment when dealing with a narcissistic parent and actually escalates the problem. Once you’ve gotten angry, just stop. Go pour yourself a glass of wine and turn off your phone. Wait until the morning to answer. It Is One Thing When the Behavior is Exhibited Towards You, But What About When it Starts Toward My Child? Your child will not be immune to this behavior and one of the first things you can do is be mindful of the behavior so you can add that type of behavior to your parenting agreement. You will want to add that there is no yelling or screaming toward the child. The first time you hear about it, you can take action then. Everyone’s agreement has language that says you cannot disparage the other parent in front of the child. The first time you hear it, take action. A narcissist wants control and things spin out of control when they don’t have it. Don’t let their behavior keep you from acting because their rage makes you uncomfortable. Your child’s mental and physical well being is at issue. You might need to file a petition with the court, and the court will likely appoint an attorney for the child. That attorney will speak to your child. The attorney will read the messages between you and your ex. It is important that your messages are calm and rational. That attorney will see the rage and be able to gauge the appropriateness of the responses. When you are calm and in control, you take away the narcissistic parent’s ability to control the situation. At that point, the narcissistic parent will either need to seek help to deal with their range of emotions or they will likely lose parenting time. Seek Therapeutic Help For Your Child Your child only has two parents and no matter how good or bad the parents are, your child has to learn how to deal with them. I’m not saying that your child has to learn how to deal with a parent that belittles them so that the parent feels superior, but your child is going to need to learn how to deal with the parent. You will be there, and possibly the child’s attorney, but your child will need a professional to discuss their own feelings about the situation and to understand it better. The hard part of having a child with a narcissistic parent is that the child mimics the behavior. When you are frustrated, how do you handle it? You do not want the child acting like the narcissistic parent, and if that is what the child sees and there is no correction, it is likely that your child will start adopting some of those behavior traits. You will need to intervene early. Therapy is a good way to educate your child about acceptable behavior traits, and how to deal with other behaviors that are not desirable. Co-Parenting with a Narcissistic Parent is not Easy Co-Parenting with a narcissistic parent is not easy, but it is up to you to take control of the situation. Your child’s health depends on it. There are ways to keep the parent in your child’s life without risking your child’s health. Take control of the situation and if you do not know-how, engage in therapy yourself so that you are making wise decisions. When things become too much for your child however, you do need to file the appropriate motion in court. Consult with us today and we will guide you through dealing with a narcissistic parent. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/protect-your-child-from-narcissistic-parent/ One of the divorce topics we have been asked about recently involves the Illinois requirements for living separate and apart. With Shelter in Place moving into new phases, many individuals are finding that they do not want to remain married to their same spouse during the second wave of pandemic shutdowns. However, there is a lot of information out there regarding separation requirements for getting divorced in Chicago, all of which should be clarified.
Illinois used to have a two year mandatory separation period for alleging irreconcilable differences as the basis for divorcing. However, if you alleged grounds, such as mental cruelty or adultery, you could shorten the mandatory separation to six (6) months. This was changed recently in Illinois law. Now, the law states that if you have lived separate and apart for six (6) months or longer, there is a rebuttable presumption that irreconcilable differences have occurred, so as to allow you to proceed with a divorce. Many litigants wonder what a six (6) month separation means, exactly. Can We Be Living Separate and Apart While Living in the Same House? You can live in the same household during your separation. During the last recession, many couples wanted to get divorced but could not afford to live in separate residences. Therefore, they had to live separate and apart under one roof. This is permissible in an Illinois divorce. A divorcing couple can live in the same house but in separate parts (i.e. someone sleeps in the guest bedroom, and the other spouse in the master bedroom or lives out of the basement, etc. It is completely fathomable that two people can live at the same address and be considered separated for purposes of Illinois law. When is our Separation Date? The separation date may not be the same date for both parties in a Chicago divorce. Sometimes, one party may start a new relationship, and to that person, the date that they began the new relationship is the date the marriage first broke down. Other couples may go through a period without any intimacy and the beginning of that time may be the beginning of the separation period. The start date may not be the same for both parties. But, if they can agree on a start date that is more than six (6) months previous to the date the divorce is entered, there won’t be any debate about which separation date is “correct” as it is a moot point, so long as one of the parties truly believed the separation date was more than six (6) months prior and the other person doesn’t object. What About an Attempt at Reconciliation? If parties try to reconcile the marriage while separated, that does not count against the separation date. In other words, attempts at reconciliation do not count “against you” and the date you began living separate and apart. So, let’s say someone had an affair a year ago and the other party found out, and the couple decides to separate. If they go through a month of trying to rekindle their relationship and reconcile their differences, but then decide that, again, it isn’t working out, they could technically still utilize the first separation date. Separation Date is Circumstantial and Varies with Each Case The separation date is completely circumstantial and varies with each case. It is important to consult legal counsel about this issue to avoid any delays in proceedings if there is uncertainty as to when your separation date was and if it has been six (6) months. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/uncategorized/living-separate-and-apart-chicago-divorce/ As a Chicago family law attorney, I am often asked what it takes to get an Illinois Order of Protection. If you need protection from abuse or harassment from someone you have a relationship with then you could qualify for an Order of Protection. However, if you need protection from abuse or harassment from someone that you do not have a relationship with, then you would not qualify for an Order of Protection but would need to proceed with what is called a Civil No Contact Order.
Qualifying for an Illinois Order of Protection Under the Illinois Domestic Violence Act, you have to fall into the category of “family or household member” which include the following individuals:
This definition includes a wide number of persons in a variety of different relationships; however, it does not include friends, neighbors, acquaintances or strangers. Once you have reviewed the relationship status and have determined that you do fit under the category of "family member" and can proceed under the Domestic Violence Act, you can request the court for assistance. The Illinois Court system recognizes Domestic Violence as a serious crime and will provide you with the shield of an Order of Protection. Abuse can be Harassment, Interference with Personal Liberty, or Physical Abuse HARASSMENT: Harassment is something that would cause a reasonable person emotional distress and does in fact cause emotional distress to the person who is requesting an Order of Protection. The law goes on to provide that the following things are presumed to cause a person emotional distress:
INTERFERENCE WITH PERSONAL LIBERTY: Interference with personal liberty is committing or threatening abuse to compel another to do something they do not have to do or keep them from doing something they have a right to do. PHYSICAL ABUSE: Physical abuse includes sexual abuse, use of force or confinement or restraint; sleep deprivation; reckless conduct and creating a risk of physical harm. Illinois Courts Can Protect You from Abuse with an Order of Protection Illinois courts will protect you from the above state abuses and behavior with an Order of Protection which will prohibit the abuse and provide the protective measures to keep you free from the abuse such as not allowing the abuser to come into your home, or come within so many feet of you at any time no matter where you are or providing “no contact what-so-ever” meaning no calls, text, letters, etc. This also includes no contact through a third party meaning the abuser cannot have a friend or someone else contact you. If contact is made under these circumstances, this would be a violation of the Order of Protection no contact provision and could be punishable criminally and result in a jail sentence. This is the benefit of an Order of Protection; it has the teeth of criminal sanctions in the event the abuser violates it. In order to request an order of protection from the Courts, you must be an abused person as defined in the information above. You cannot use the Domestic Violation Act to obtain an Order of Protection if you are not an abused person. If you are being harassed or abused by someone who you do not have a relationship with and do not fit under the definition of a family or household member then you cannot ask the court for an order of protection. Instead, you have to ask for a Civil No Contact Order. Call Anderson & Boback When You Need an Illinois Order of Protection Domestic violence should not be taken lightly. When you need a domestic violence attorney to protect you from harm, call on the knowledgeable and experienced domestic violence attorneys at Anderson & Boback. We help you to gather the critical supporting evidence including police reports, victim testimony, medical records, and evidence of injuries. If you are the victim of abuse and are ready to obtain a legal protective order in Chicago, it is critical for you to have an advocate helping to navigate the process. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/orders-of-protection/illinois-order-of-protection-advice-chicago-family-law/ When it comes to parents involved in child custody cases, everyone wants the most time with the children. In an effort to have the most time, however, some people make big mistakes, ones that hurt their child custody case. Here are a few of the top mistakes I see and my tips to make your custody case go more smoothly and help you gain more parenting time.
Mistake #1 - WORKING MORE, PARENTING LESS I know, it is easy for me to say, I’m not paying your mortgage. But people who can put in more time with their child will be awarded more time in the event you end up in a custody dispute. In order to have the most parenting time allocated to you, you have to be the person that spends the most time with the children. That doesn’t mean taking them to the park necessarily, but doing what needs to be done. Fathers are always asking me how to gain more time with their children, and I first want to know how much time they are spending working and how much time being a coach for his daughter’s baseball team? Or helping their son with his homework? Parents who put in 60 or more work hours a week want to know how to keep in contact with their children. In all honesty, if you cannot change your work hours somewhat, it will be hard to ask for a lot of parenting time, let alone the majority of it if there is a custody dispute. One of the biggest mistakes a person can make when seeking the majority of the parenting time is working too much. I have seen working fathers gain the majority of the parenting time however, even though they work. Working parents absolutely have the ability to gain the majority parenting time, but you need to make time for the children. After all, many households have two working parents. The real question is who is doing most of the parenting? Mistake #2 - DOING THE FUN STUFF AND NOT THE HARD STUFF It’s easy to be the fun parent. Taking the kids out of ice cream, to the ball game, and pizza for dinner. But when you are at home with the children, who do they go to when they are hurt? When they are sick? If you aren’t the person that they cling to, you likely are not the parent who is doing the most for them. Are you the person that gets out of bed in the middle of the night to change diapers? Or for feedings? These are critical times in child bonding and you have to want to do those jobs if your goal is to have the majority of the parenting time. If you can work and have flexible hours that will allow you to go to your son’s baseball game, or go on the school field trip, that will help your case. Being there to go to the doctor, see the child’s school teacher, and helping with the homework-these are things that enable you to secure the majority of the parenting time. Mistake #3 - SPEAKING BADLY ABOUT YOUR EX Some people are so used to speaking badly about their ex that they do not realize that they are doing it after a while. If you truly want to do what is in your child’s best interest, you have to stop talking badly about the other parent. First, doesn’t it look bad to your child? This is their parent and regardless of how you feel about that person, this is still the parent of your child. For a man to talk in a derogatory manner about their ex-wife in front of his son, what exactly is that man teaching his young son? It surely isn’t that he should respect women. And when women complain loudly on the phone about the lack of money they have while her ex-husband gets to go on vacation, what exactly is she teaching her child? This is the most disturbing part of a domestic relations practice. Time and time again we see children in the middle of such vicious behavior and although you can understand the anger, it is hard to see these children torn apart by their parents. Instead of speaking negatively, why don’t you take your son out and pick out a present for his mother? Bake a cake with your son for his mom’s birthday? Draw dad a picture for Father’s Day. There are all kinds of nice things you can do. Sure, you don’t feel like doing it, but your child sees you acting respectful, even when they have to know their parents don’t really like each other. In a custody case, to be the “custodial parent” you have to facilitate a relationship between the kids and the other parent. If you cannot do that, you will likely lose the majority of the parenting time, even if you do most of the work for the child. It can never hurt your case to be nice to the other parent and expect your child to be respectful as well. Mistake #4 - MOVING OUT OF THE HOUSE Unless there is domestic violence in the home, do your best to stay in the home until there is a court order for parenting time. The parent who moves out of the house suffers for it typically. Temporary orders for parenting time will most likely turn into a permanent order. If you are given every other weekend and everyone seems to be doing well with that schedule, why would the court change it? If there is no agreement about parenting time, then the courts order mandatory mediation. That takes a couple of months. Still no agreement? Then it is possible that the child will be appointed an attorney. That will take 6 or more months and if no agreement, then a custody evaluator could be appointed. I have a case now where there is no parenting order yet and they are in their fourth year of litigation. Who do you think will be awarded the majority of the parenting time in that scenario? Unless there is something seriously wrong with the parent who has had the child during four years of litigation, then that parent is likely to keep the majority of the time. You have to stay in the house if you can. Women know this too and will do all sorts of dastardly things to make the men move out, some even resorting to making up abuse to get orders of protection. If you are involved with a person like that, then you do need to get out-custody or not. Since you cannot have the majority of parenting time if you are sitting in jail. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/top-mistakes-hurt-child-custody-case/ When it comes to filing for divorce, sometimes I see a rush to the courthouse. The client insists on getting things ready to file first. Should there be a rush to the courthouse when filing a Chicago divorce? If you both reside in the same general area, the answer is no. There is not any real significance to who filed first when you are both would file the case in the same court.
Who Files First Matters When Spouses Live in Different States If you and your spouse are living in different states – then a rush to the courthouse is critical. You can file for divorce in any state where you meet the residency requirements. So if you live in Illinois and your spouse lives in California, you should file first so your spouse has to come to Illinois to participate in the case. If your spouse files first in California, then you are going to have to go to California to participate in the case. Talk to Divorce Lawyers in Each State About Your Situation It is a good idea to talk to lawyers in the competing jurisdictions to find out the laws relevant to the issues in your divorce proceedings to find out if there is a benefit in one state over the other. Either spouse can file for divorce in this example in either state. This means that if Husband finds out that Illinois would be a better state to determine property division or spousal support then although he lives in California, may choose to file in Illinois. Where the Children Reside Controls Parenting Time and Custody The one thing to be aware of is if there are children, only the court where the children reside will have jurisdiction to determine parenting time and parental responsibilities for the children. You could potentially have a divorce in California if a spouse who lived there filed there and child “custody” determined in Illinois if the children and the other spouse are in Illinois. Absent the considerations if you live in two separate states or jurisdictions and you both live where you would file in the same court there is no rush to the courthouse. The Divorce Filing Process The first to file for divorce is called the Petitioner, they are named first in the case. The other spouse who responds is called the Respondent; they are the 2nd named person in the case i.e. first spouse v second spouse. Does the court take into consideration or make any determination based on whether the party is the Petitioner or the Respondent? NO. The case involves two parties who were married on the same date for the same length of time and a request to terminate their marriage was filed by one of them – to the court, they are on equal footing and who filed first does not make any difference to the Court. Illinois no longer has grounds for dissolution of marriage. Illinois used to have an option when you filed for divorce to allege grounds such as adultery, mental cruelty, and habitual drunkenness. In those instances, someone may want to be the petitioner and make these allegations as a basis for requesting a divorce. This did not give the Petitioner an advantage as far as property division or any other different treatment – it was simply a mechanism to prove the grounds as alleged for purposes of dissolving the marriage. Illinois has since done away with “grounds” so you could have been the best spouse or the worst, and the court just cannot take that into consideration. Although it does not matter who files first, there are some things to consider and be aware of if you are the Petitioner and if you are the Respondent. What You Need to Know If You File First in Your Divorce If you are the Petitioner, it is your case. Your spouse files a response and you move through the process, have temporary hearings, temporary orders in place, proceed with discovery and potentially spend several months or years in the court system working through the process. Because it is your case, you can dismiss it, as long as you provide notice and reimburse your spouse the filing fee (not their attorney fees just the filing of the case fee) the court will likely grant your motion since it is your case. All temporary orders go away and if and when you re-file you have to start over. Beware of a Counter-Petition to Dissolve the Marriage If you are the Petitioner and it is your case, your spouse can file a Counter-Petition to Dissolve the marriage along with the Response to your Petition to Dissolve the marriage, and then you are both Petitioners – meaning that one party cannot dismiss the entire case. They can dismiss their own petition but since there is another petition, or counter-petition, on file, the case remains intact and proceeds. You should always talk to your attorney about filing a counter-petition for dissolution of marriage if your spouse files first. Importance of the Date of Filing In Illinois, the date of the filing signifies the end of the marriage for calculating the maintenance period. If you are going to be receiving maintenance the longer you hold off filing – the higher the award could be and if you are going to be paying maintenance the sooner you file the sooner you set the end date of the marriage for purposes of calculating maintenance. Filing Divorce First Impacts When You Begin a Trial The only other time it becomes a factor is when you begin a trial. If your case proceeds all the way to trial which it will if you are unable to resolve all matters of property division, parenting time, allocation of parental responsibilities, maintenance, and support, then you will go to trial and present evidence to the court who will make the decisions for you that you were unable to resolve. At trial, the Petitioner goes first and presents their evidence. When they have presented all their evidence and witnesses, the Respondent takes their turn and presents their evidence and witnesses. There are cases when it is good to go first and cases when is better that the other side goes first. Either way, you are not at any disadvantage or advantage, but it is a consideration attorneys’ take note of once a case is filed. Consult With an Experienced Chicago Divorce Attorney About Filing First If you are thinking about filing for divorce, be sure to speak with an experienced Chicago divorce lawyer. For a free consultation, contact Anderson & Boback to discuss your situation and help you determine whether it is best for you to file first for divorce. You should have a lawyer – even if you agree on everything. You want to make sure that your divorce is done properly and completely so you don’t have any surprises or unexpected issues come up at a later date if something was forgotten or left undone. Often, I am asked, can we use the same lawyer – and the answer to that question is, No. Even though you agree on everything, it is still an adversarial situation and one lawyer cannot advise both of you about the terms and consequences of the agreement. Each party should have their own attorney to provide independent advice about the terms of your agreement.
It is great if you and your spouse are able to agree on the terms of your divorce, but when you review your agreement with your lawyer, your lawyer will make sure that you have not forgotten anything that should be addressed in your agreement. When spouses reach a divorce agreement without the guidance of divorce attorneys, these are the things I have seen overlooked. Think You Agree on Everything in Your Divorce? Don't Overlook These Issues Agreements Regarding the Marital Home: If you and your spouse agree that you will sell your marital home and each of you will receive 50% of the profits – you must not forget to address the following:
Addressing Life Insurance: If you are receiving child support or maintenance you want to include a provision that your spouse holds life insurance with you as the beneficiary in the event they pass away and can no longer pay the amounts. If you agree that the spouse should maintain life insurance – you must not forget to address the following:
Agree to Share Retirement Accounts: If you have agreed to share equally the retirement accounts it is important to know what type of accounts they are and understand that all retirement accounts are not created equal. Some accounts cannot be treated as equal and are more like comparing apples to oranges than apples to apples – you must not forget to address the following:
Agreements Regarding Division of Debts: If you have agreed that you will each pay your own debts – you must not forget to address the following:
The Marital Settlement Agreement In addition to coming to an agreement on the terms of your divorce, the legal documents necessary to obtain a divorce must be properly drafted. Your lawyer will make sure that your marital settlement agreement is drafted in the appropriate form so that you end up in the situation that you intended. In addition to making sure you have all of the terms identified and you understand the consequences of your agreement, you have to get your case before the Judge. This can be tricky and is best handled by a divorce lawyer to make sure you end up in the correct court with the correct paperwork. Agreeing on Everything in Your Divorce Has Its Benefit The good news with having an agreement when hiring a divorce lawyer is that the costs are kept in check. The lawyer you hire will review your agreement and make sure you understand that terms and certainly discuss with you anything that may be missing or overlooked or not completely thought through. In addition, a lawyer will let you know specifically the potential consequences of your agreement. The lawyer will make sure the agreement is drafted and presented to the court and finalized. This will provide the reassurance you need to move forward after the divorce and not have to hire a lawyer after the divorce in the event something comes up that is unexpected or could have been avoided. When you need an experienced divorce lawyer in Chicago, you can count on Anderson and Boback Family Law Attorneys. For more than 20 years, our divorce attorneys have been representing Chicago clients with a wide range of family law and divorce issues, including helping clients that come agree on everything and just need guidance to finalize their divorce. Contact us today for a confidential consultation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/divorce-lawyer-if-agree-on-everything/ The “waiting period” and other jurisdictional issues can be very confusing when a couple is contemplating filing for a divorce. When it comes to a waiting period for filing for divorce in Chicago, there are generally two separate questions or issues that arise in these discussions.
Waiting Period Question 1: Do I have to wait to file for a divorce in Illinois after I move there from another state? That depends. The relevant statute requires that a party reside in the state of Illinois for ninety (90) days prior to filing for a divorce. So, you technically should reside in the state of Illinois for at least ninety (90) days prior to filing for a divorce, and you should maintain that residence for 90 days prior to the divorce being entered. The Judge’s prove-up form in Cook County even has a check box to check off on it asking whether the person resided in Illinois for 90 days prior to filing and if they have resided in Illinois for 90 days as of the date of entry of the divorce, seemingly meaning either or would be acceptable (however, technically, both are required.) In a situation where someone is concerned about a competing jurisdiction (i.e. one spouse wants to file in Texas and one spouse wants to file in Illinois) it is plausible that the argument that the person has not resided in Illinois for 90 days prior to filing likely would help them get the Illinois action dismissed. This is definitely something to be mindful of when considering filing. Waiting Period Question 2: Is there a required “separation period” (and do I need a legal separation) prior to a divorce being granted? Illinois used to have a mandatory two (2) year separation period prior to a divorce being entered by no fault, unless you alleged grounds for divorce, such as mental cruelty, in which case the waiting or separation period could be six months instead. This has long been abolished. Now, parties have to allege that they have been separated for six (6) months prior to the divorce being finalized and a six (6) month separation period presumes irreconcilable differences have occurred (it creates a rebuttable presumption). A formal legal separation is not required. Living in separate residences for six (6) months prior to filing is not even required. What is required, however, is a breakdown in the marriage occurring six (6) months prior to the divorce being entered. Attempts at reconciliation in Illinois will not count against the six (6) month waiting period, so as not to encourage people to keep from reconciling. Speak with a Trusted Divorce Attorney in Chicago Before Filing for Divorce in Illinois These two waiting period issues definitely can apply to different cases with different facts in different ways and it is always worthwhile to talk to a divorce attorney regarding the facts in your specific case before making a decision regarding where to file for divorce. Choosing a jurisdiction where there is no personal jurisdiction over your spouse, for example, has certain implications regarding spousal support. Military retirement division may also be dependent upon where an action is filed and filing in certain places can cause issues. It is important to consult an experienced divorce attorney to discuss jurisdictional issues prior to filing so that you can make an informed decision on the same. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/illinois-divorce/waiting-period-filing-divorce-in-chicago-illinois/ You want to divorce your financially abusive spouse. So, what exactly does that mean? Some people do not realize that they are victims because they have always let their spouses handle the money. Your spouse controls everything, from how much you are allowed to spend on groceries, to how much money is spent on the house. Your spouse convinces you that “he is only trying to help,” or “she was saving for our future.” A financially abusive spouse is one that controls you with your money. It is a person who hides assets or financial accounts, all with the primary goal of keeping what rightfully belongs to you.
Common Questions About a Financially Abusive Spouse HOW CAN I GET MONEY TO DIVORCE MY SPOUSE IF I’M ONLY GIVEN A SMALL ALLOWANCE? Under Illinois law, each person is to receive the same amount of money in a divorce case. If your spouse has $5,000 to retain his lawyer, then you are also entitled to $5,000 for your lawyer. It is called “leveling the playing field.” One person is not allowed to use all of the parties’ funds just for his lawyer, essentially keeping you penniless. Your lawyer can file a petition with the court to argue that you are entitled to funds for a lawyer in the same amount that your spouse has spent on his lawyer. HOW CAN I HAVE MONEY TO LIVE ON IF SHE CONTROLS ALL OF THE MONEY? It is important to let your divorce attorney know about your financial situation. If you do not have money to pay basic necessities, then you will need to have a petition for maintenance (alimony) filed. Under Illinois law, the word “alimony” was changed, and we now refer to it as “maintenance.” It is the same thing, but it now has a different name. In order to get spousal maintenance, you still have to need it. Your spouse might be making twice as much as you, but if your employment maintains your lifestyle, then you may not be a candidate for maintenance. There is still a requirement that you need the money. If you do qualify for maintenance, then we look to the Illinois guidelines to calculate the amount and duration. Maintenance is now calculated using a formula, much like child support is calculated. Each case is calculated by a formula called “guidelines.” It does not mean that the judge cannot give you more, or even less, but it is a guideline to start the calculation. If you need more than the guideline amount, you will need to demonstrate why you need more than the guidelines are recommending. The same holds true for the length of time. If you need two more years of maintenance to finish your college degree for instance, that could be a motivating factor to the court. You will want to go through everything financially related with your attorney to make sure that you are receiving everything you are entitled to receive. WHAT CAN I DO IF HE IS HIDING MONEY? Most of the time, money can leave a trail. Cash is harder to trace, but an extensive review of all financial documents can be reviewed by professionals to figure out where money has been transferred. You should look through the mail, and if the mail is sent somewhere else, pay attention to the junk mail. Even if statements from a Chase account are taken by your spouse, if you receive junk mail from Chase, you can issue a subpoena to that bank to see if there are accounts there. Junk mail can sometimes show you where accounts are held. If you see statements sitting on the kitchen table, take a picture of them. Pay attention to the paperwork in your house and see where the paperwork is kept. You might not be able to open mail addressed to you, but you can sure take a picture of the envelope. Review your tax returns closely. If there is property purchased, it will show up in the tax return. The tax return will give you the address of that property and how much money was spent on it. There is a wealth of information out there if you are looking for it. When I worked at Pinkerton private investigation agency right after law school, I would ride along with some of the investigators for “dumpster dives.” It is amazing what people will throw in the trash. People rarely threw their bank statements in the garbage, but they would throw promotional material from the same establishment in the garbage. No one bothers to shred promotional material. Why is Citibank sending you a flyer for a home mortgage? They might be sending it to everyone, but they also might be sending it to you or your spouse because you have an account there. Looking through the garbage can tell you a lot about a person. YOU OWN THE HOUSE OR ANY OTHER ASSET ACQUIRED DURING THE MARRIAGE EVEN IF YOUR NAME IS NOT ON THE ASSET. I see this question come up in many cases. One spouse believes that they do not own an asset if their name is not on it, which is not true. Under Illinois law, anything acquired during the marriage is marital. It does not matter if the asset was purchased after you moved out. Anything acquired by either spouse, from the date of marriage and up until the day of divorce, is called marital property. Even if the asset is in someone else’s name. Anything acquired during the marriage is marital unless the asset falls into an exemption. For instance, if you inherited money during the marriage, and did not deposit it into a joint account with your spouse, then this money would be deemed your non-marital monies. There are other instances as well, but as a general rule, it does not matter that your name is not on the asset. YOU ARE ENTITLED TO PENSIONS, PROFIT SHARING, AND 401(k)S Again, if this money was acquired during the marriage, it is marital. Your spouse’s name is on the asset, but you will be awarded a percentage of this asset. It may be 50% of the asset or some other percentage that the two of you can agree to, but never walk away from this type of asset just because it isn’t in your name and your spouse tells you that you are not entitled to this asset. If your spouse was working at the company five years before the marriage, then this asset has marital and non-marital monies in it. Your spouse will be awarded five years’ worth of the asset without any of those monies going to you, but you will have an interest in the marital portion. Ready to Divorce a Financially Abusive Spouse? Time to Get a Chicago Divorce Lawyer Whether you want or need a divorce, it will empower you just by consulting with a skilled divorce attorney. Most lawyers will give you free advice on the phone, so take them up on it, If you are in Illinois, contact us at Anderson & Boback and we'd be happy to discuss your situation. Our Chicago divorce attorneys have extensive experience helping our Illinois clients with a wide range of complex divorce matters including divorcing a financially abusive spouse. While it will be difficult to divorce a financially abusive spouse, once done, you will be glad you did. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/divorcing-a-financially-abusive-spouse-in-illinois/ |
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