People have heard of prenuptial agreements; those have been common for some time. People are frequently considering postnuptial agreements as well. Whether you are considering a prenup or a postnup, you might want to consider adding your pets to it. People who have pets are now including pet-nuptial provisions within their agreement that address what will happen in the event of a divorce. For those couples who are not married, a simple contract that addresses what to do with their pet in the event of a breakup can be beneficial as well. After all, pets are a part of your family.
If you had to decide this issue in court, the judge is likely to award your pet to just one of you, without addressing any specific parenting time for the other. Judges are busy and especially those judges without pets, just do not seem very sympathetic. Even sympathetic judges do not want to be bothered with figuring out how much time each person should have with their pet. Judges historically do not want to be bothered with the division of personal property, and your pet falls right into that category. To avoid having this litigated in court, it is best to decide this issue amongst yourselves while you are still getting along. I have not seen judges enter orders that allow both sides “parenting time” with the pet; there is just a court order for one person to receive ownership. If you are seeking the pet exclusively in court, you will want to gather information or documents that support who initially paid for the pet, who takes care of the pet primarily, including taking the pet to the veterinarian. Although you might have been doing the primary caretaking, can you afford to continue caring for the pet? Horses, for example, can be very expensive to board and maintain. If you cannot afford their care and upkeep, then the other party may be awarded the pet. Another consideration will be the living arrangements for the pet. If you have a high-energy dog and live in a condominium and work 16 hours a day, it might be best for the pet to live with the other party. To avoid litigation altogether though, an agreement between the two of you can cut out the costly litigation. The court does not allow parents to put custody or child support provisions in their prenuptial or postnuptial agreements for their children, but with pets, although you feel like they are your children, they are still considered property and can be included. What types of things should be considered when looking for your pet nuptial agreement? What is a Pet-Nuptial Agreement? A pet-nuptial agreement is an agreement between the parties that address all aspects of your pet’s ownership and care. You can add provisions that address your pet in your prenup or postnup, or you can generate a free-standing document that addresses your agreement. This document allows you to agree beforehand on where your pet will live and how pet ownership will occur in the event of a divorce or breakup. This type of agreement can be applicable even to parties who are not married. Arranging for this document before there is a breakup can save you a lot of time and money later. What to Consider for Your Agreement Probably the most important aspect would be pet-time. Who is getting possession of the pet during specific times? At Anderson & Boback, we have dealt with this issue many times. One couple had show horses and it was important to them to be able to take the horses to particular shows and parades. It is important your attorney understands what is important for you when it comes to your pet so they can determine what time each of you needs with your pet. If there is not a special reason to have the pet on any particular day and time, you can work out a standard “parenting agreement.” You will need to be very specific as to days and times, and do not forget about transportation. Who will be responsible for transporting the family pet at the beginning or end of the parenting time? Although there is not a “best interests” standard like there is with children, keep in mind that some pets adjust differently to new households. If you have a slightly neurotic animal, even though you may love having the pet in your house, it may not be good to change the animal’s environment. Don't Forget the Financial Aspects of Pet Ownership Pets can be costly and you should address the cost of pet ownership in your agreement. There are annual examinations, medications, and in some instances, emergency surgeries. Your discussion should include just what types of emergencies surgeries you can both agree to, and if agreed, those costs should be split between the two of you. If the other party has significantly more income, you can pay a disproportionate amount based on the amount of money you each make. How to Create a Pet-Nuptial Agreement If you and your partner are looking to create a pet-nuptial agreement, please give us a call so we can counsel you and draft the agreement. To prepare for making your pet-nuptial agreement, you and your partner should:
Agreements Made When While You Get Along are Always Best No one wants to think about entering into agreements during a breakup. It is always best to have this conversation while you are getting along and are more reasonable. If you need advice on pet-nuptial provisions for your prenup or postnup, please give us a call. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/prenuptial-agreements/pet-nuptial-agreements-dont-forget-pets-when-planning-your-marriage/
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Wonder if there is a way to "fast track" your divorce? Many clients beginning their divorce proceedings want to know how long the process will take. The truth is, a lot of factors contributing to how long the divorce will take are up to the individual parties themselves. As a general rule, the more cooperative the spouses are with each other and the legal process, the faster their divorce may become finalized, and the less expensive the process will be. Of course, the opposite is also true! The less cooperative the parties are with one another and the legal process, the slower the divorce may become finalized, and the more expensive the process will be.
Follow These Tips to Fast Track Your Divorce There are specific things you can do to try and ensure that your divorce is on the “fast track”. As a busy Chicago divorce attorney, I've found the following tips to most helpful when if you're motivated to make progress and keep your divorce on the fast track. 1. Communicate with Your Attorney This is perhaps one of the biggest issues divorce attorneys have when trying to push forward a divorce matter. It is imperative that you stay in quick and consistent communication with your attorney. Oftentimes attorneys will be backed up on other matters. When they reach out to you with information that requires a response, a timely response is key. Your failure to respond to an email or return a phone call in a timely manner could result in deadlines passing, court dates approaching and needing to be reset, and more. It is extremely important that you communicate timely and efficiently with your attorney. 2. Comply with Deadlines If your attorney tells you they need documents by a certain day, or that the Judge expects an update on something by the next court date, do it as soon as possible. Pull the documents and send them back that same evening. Answer the email with the Judge’s question right away. This is always true, but even more so with document production. The failure to produce documents in a timely manner will cause delays. Yes, your attorneys really do need three full years of statements when they are requested by your spouse's attorney (unless your attorney advises you to object to the production). Be sure to log in to your online bank portal, grab what you can and call the bank, and order the remainder, as soon as possible. Not producing these documents on time will cause many delays. Extremely long failures to provide request documents can result in sanctions, attorney’s fees, orders barring you from presenting evidence or testimony at a trial, and more. It is imperative to timely comply with these deadlines. 3. Always Tell the Truth It is imperative that you tell your divorce attorney the truth, which includes not lying “by omission”. If your attorney is hearing something for the first time from your spouse’s attorney, in front of a judge, that is likely going to mean trouble for you, and possibly even a continuance to find out what happened. It is imperative to be open and honest with your attorney, even if something doesn’t shed you in a favorable light. Your attorney can always work with you if they know the truth about something, but lying to them and putting them in a position without knowledge, especially in court, can cause delays and can be problematic for your credibility in your case. 4. Explore Alternative Dispute Resolution, such as Mediation. Mediation is not always necessary in cases where the parties communicate well and the attorneys can work together well. However, if one spouse hesitates to work together or if one attorney is overly aggressive, exploring the possibility of divorce mediation is a good option. This removes the proceedings from the Judge and attorneys and the terms are negotiated instead through a neutral third party. This can cut down the expenses and help the parties come to an agreement quickly, without having to go through several months of discovery and a trial. 5. Treat Your Divorce as a “Business Transaction” and Remove the Emotion when it comes to Personal Property. Now, not everything in a divorce case can be treated as a “business transaction”, clearly, especially with child-related issues. But, for purposes of financial issues and division of marital property, it is easy to get caught up in the sentimental value and to think “it’s the principle!” when it comes to dividing items in your household. This is a way to delay, delay, delay, and cause additional expense when it isn’t needed. Absent family heirlooms or irreplaceable items, divide your stuff and move forward! There is no need to pay attorneys hundreds of dollars per hour to fight over the bigger television set because, by the time you are finished, you could have bought a new one. Also, don’t ask for items you know your spouse wants, just out of spite. They may really fight you for them – costing both of you more money than a lot of common items are worth. Treating it without emotion as a “business transaction” can help you shift into the right mindset when negotiating these terms and keep your divorce on the fast track to being final. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce-tips/5-ways-to-fast-track-your-divorce/ Since the revising of the Illinois Marriage and Dissolution of Marriage Act the state of Illinois no longer uses the term “custody”. Previously, a parent with sole custody could make decisions about religion and religious training for their minor child. Now, Illinois has what is referred to as “allocation of parental responsibilities” and one of the “parental responsibilities” a parent can be allocated is religious decisions for a minor child. Decisions about religion can be made jointly, where the parents try to work together to make the decision for their child and attend mediation if they are unable to do so.
Can Decisions About Religion Be Allocated to One Parent? The responsibility to make decisions about religion also can be allocated solely to one parent. This is going to depend on many factors, including but not limited to, what the status quo has been regarding these decisions during the parties’ marriage as well as what the minor child’s religious upbringing has been, as well as if the parties are part of the same religion or different religions. Every situation is unique and with the “unbundling” of “custody” decisions in Illinois, it is now easier to give decision-making authority to only one parent in a specific area when the situation is warranted. When the parties are from the same religious background, or otherwise agree to no religion in their children’s lives, the religious parental responsibilities and decision making are somewhat easy to adjudicate. Usually, when parents agree, there is no need to “divide” up this area of allocation. When the parties have a difference of opinion on religion or come from different religious backgrounds, that is when things become tricky. Religious Decision-Making Should Not Impact a Parent’s Access or Parenting Time Generally speaking, the allocation of religious decision-making shouldn’t impact a parent’s access or parenting time, unless there is something in the parties’ Allocation Judgment that explicitly limits the ability of a parent to do something having to do with religion during their parenting time. For example, you may have a situation where one parent is Jewish and another parent is Christian. The parties may have agreed early on to raise their children as Christian, but now they are divorcing. The Court could, theoretically, find that the children have been exposed to both religions and have no formal religious training. And, accordingly, the children should continue to be exposed to both religions. Or, the court may look at the status quo and say, that while the children have celebrated religious holidays with both sides of the family, the parties have started religious training for a specific religion already, and that will continue. Of course, generally speaking, children can still continue to attend religious milestone events with their parent who is of a different religion. However, a child who is not being raised Jewish will not be permitted to be enrolled in Hebrew school, and a child who is not being raised Catholic will not be permitted to be enrolled in CCD classes. Parental Cooperation with Child's Religious Training The Court may also require that the parents comply and cooperate with the minor child’s religious training. That may mean the non-Christian parent driving the children to CCD classes during their parenting time, or the non-Jewish parent driving the children to Hebrew School classes during their parenting time. This doesn’t mean the parent has to practice what the child practices, but they may be required to contribute to the driving and facilitate the religious training. Religious Training Decisions With Young Children In some scenarios, particularly when children are very young, they may not have started religious training at all, and the parties may disagree regarding how they want his pursued. In these scenarios, where there really isn’t a “status quo” the Court might enlist the assistance of a Guardian Ad Litem to help determine what the proper course of action should be as to religion going forward. A Custody Evaluator could also be appointed pursuant to 750 ILCS 5/604.10(b) to assist with these sorts of allocations. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/how-does-religion-impact-child-custody-and-access-decisions/ In re Marriage of Bychina, 2021 IL App (2d) 200303 (June 18, 2021), Elena, the Petitioner in this Illinois divorce case, had recently come to this country from Russia. On her immigration form, Boris, her husband, indicated a promise to support her if she came to this country. When Elena wanted to come into the United States, she had to prove she could support herself. Under section 213A of the Immigration and Nationality Act, Boris filled out the Department of Homeland Security United States Citizenship and Immigration Services Form I-864 (Affidavit of Support), which essentially said he would be financially responsible for her.
The reason for this contract between Boris and the U.S. government is to prevent immigrants from coming to this country and then requiring the government to financially support them. Boris promised with the execution of this form, that Elena would not need government assistance because he promised to pay for her as an immigrant to this country. Then came the divorce and now of course he does not want to be financially responsible for her. When Elena filed for divorce, she included in her petition, a count for breach of a federal contract under which the husband had promised to support her. The trial court acknowledged that it could reach the merits of the breach of contract count but declined to do so and directed Elena to seek relief in federal court. The couple first met in Russia Elena was thirty-two years old when she met Boris in Russia, who was then fifty-five years old. Boris returned to the United States, but they continued their relationship. The parties continued their relationship long-distance until Boris proposed marriage. Elena was able to come to the United States under a K-1 visa, which is known as a “fiancée visa.” Immigration Services Form I-864 The couple was married on March 9, 2015. After the marriage, Boris executed a Department of Homeland Security United States Citizenship and Immigration Services Form I-864 (Affidavit of Support) under section 213A of the Immigration and Nationality Act. Pursuant to that contract, he promised to support her at an income level of at least 125% of the federal poverty level and to reimburse any government agencies for certain means-tested benefits paid to Elena. 1183a. Requirements for sponsor's affidavit of support (a) Enforceability (1) Terms of affidavit No affidavit of support may be accepted by the Attorney General or by any consular officer to establish that an alien is not excludable as a public charge under section 1182(a)(4) of this title unless such affidavit is executed by a sponsor of the alien as a contract- (A) in which the sponsor agrees to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable; (B) that is legally enforceable against the sponsor by the sponsored alien, the Federal Government, any State (or any political subdivision of such State), or by any other entity that provides any means-tested public benefit (as defined in subsection (e) 1), consistent with the provisions of this section; and (C) in which the sponsor agrees to submit to the jurisdiction of any Federal or State court for the purpose of actions brought under subsection (b)(2). (2) Period of enforceability An affidavit of support shall be enforceable with respect to benefits provided for an alien before the date the alien is naturalized as a citizen of the United States, or, if earlier, the termination date provided under paragraph (3). (3) Termination of period of enforceability upon completion of required period of employment, etc. (A) In general An affidavit of support is not enforceable after such time as the alien (i) has worked 40 qualifying quarters of coverage as defined under title II of the Social Security Act [42 U.S.C. 401 et seq.] or can be credited with such qualifying quarters as provided under subparagraph (B), and (ii) in the case of any such qualifying quarter creditable for any period beginning after December 31, 1996, did not receive any Federal means-tested public benefit (as provided under section 1613 of this title) during any such period. (B) Qualifying quarters For purposes of this section, in determining the number of qualifying quarters of coverage under title II of the Social Security Act [42 U.S.C. 401 et seq.] an alien shall be credited with- (i) all of the qualifying quarters of coverage as defined under title II of the Social Security Act worked by a parent of such alien while the alien was under age 18, and (ii) all of the qualifying quarters worked by a spouse of such alien during their marriage and the alien remains married to such spouse or such spouse is deceased. The Divorce Case and Promise to Support The trial court wanted Elena to pursue the contract between Boris and the government in federal court. But the statute clearly says that the sponsored immigrant may seek enforcement of the sponsor’s promise to support through the filing of a civil action in any appropriate court. Boris’ obligation ends if he or Elena dies. Further, the sponsor’s obligations end if the sponsored immigrant:
Wife's Divorce Petition Alleged Breach of Contract In Elena’s divorce petition, she included a count for breach of contract, alleging that Boris breached his promise to her, as a third-party beneficiary, under the Affidavit of Support, where he canceled her medical insurance and had failed to financially support her. Elena pled that she was a full-time student at the College of DuPage, was not employed, and did not expect to gain full-time employment at any point in the near future. Boris, on the other hand, worked as an independent contractor truck driver for an interstate transportation company. Elena said that she would not be able to become a United States citizen until the end of 2022 or later, and then only if she gained the requisite knowledge and command of the English language. Husband Asserts Affirmative Defense of Fraud Boris answered the petition for dissolution and raised the affirmative defense of fraud. Boris claimed that he had been fraudulently induced into the marriage, stating Elena only sought to be a U.S. citizen. Boris said that Elena never intended to live as husband and wife with him, have children, or remain married once she became a permanent U.S. resident. A Judgment of Dissolution is Granted On May 8, 2020, the trial court dissolved the parties’ marriage but would not grant Elena’s breach-of-contract count and directed her to seek that relief in federal court. In extensive written findings, the court noted that the parties’ marriage was of short duration, there were no children and virtually no assets, and there was modest debt; the central issues were maintenance and the Affidavit of Support. Since the marriage was short in duration, Elena did not qualify for maintenance. Wife Argued She Was a Third-party Beneficiary of the Affidavit of Support The trial court noted that Elena had argued that the court had jurisdiction to decide the contract count, because she was a third-party beneficiary of the Affidavit of Support, however, the court stated that the issue before it was not whether the court “could” decide the issue but whether it “should” do so. The trial declined to decide the issue and felt that the federal court was more appropriate to decide the issue. The Appeal Elena appealed and the only issue of her appeal was the trial court’s refusal to hear her contract claim. The appellate court reversed the trial court’s ruling and remanded it back to the trial court with directions to review the merits of her claim. Elena, and people in similar situations, are not high-income earners, and to require them to start two separate cases in two different courts would be very costly, and as a result, they likely would not be able to pursue the second claim. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/illinois-divorce/illinois-trial-court-address-immigrant-spouses-promise-to-support-claim/ |
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