Typically, you’d want to avoid a default when you are going through a divorce in Chicago because if not, then the way your marital estate is divided is out of your hands. Recently a client hired us to help her in avoiding a default in a divorce action.
Case Background Our client’s spouse filed for divorce at the end of 2020. She was personally served with divorce papers a month later but did not see any court date listed on the documents she received. As a result, she didn’t take any action. She was also dealing with a lot of health concerns and thought that she could put everything on the backburner, like everything else, because of COVID-19. Throughout the COVID-19 pandemic, there was a lot of confusion about how certain entities were adapting to our new norm. Our client just assumed that the courts were put on hold, just like everything else around her. Unfortunately, since she didn’t hire an attorney right away, no one was there to tell her otherwise. It wasn’t until she was served with the default paperwork that she realized something was wrong. She immediately hired Anderson & Boback and we explained her situation to her. We went before the Judge and explained that our client has always been ready to participate in her divorce, but now has a better understanding of how to do that and wants a second chance. We explained that the second she realized the Courts were open, she hired an attorney, and we immediately took action. Showing her eagerness, and immediate hiring of counsel, assisted the Judge with determining that her excuses were legitimate and he vacated (terminated) the default against her. Now she can continue with the divorce process and play an active role in the way the marital estate is divided and how that will affect her life moving forward. Extraordinary Circumstances Required to Vacate a Default Judgment Our client was lucky- under Illinois civil procedure rules, a court is able to consider motions to vacate default judgments for up to 30 days after the original judgment is finalized. If it is longer than 30 days, a court may still accept a motion to vacate the judgment. However, you must be able to demonstrate that there were extraordinary circumstances that prevented you from responding to the petition for dissolution in the first place. Those extraordinary circumstances are assessed based on factors established in Smith v. Airoom, Inc. 499 NM.E 2d 1381. In Smith v. Airoom, Inc. the Court determined that the motion to vacate the judgment must show, based on a preponderance of the evidence:
Specifically, the petitioner must show that his failure to defend against the lawsuit was the result of an excusable mistake and that under the circumstances he acted reasonably, and not negligently when he failed to initially resist the judgment. It is a tough burden to meet but typically Judges air on the side of caution to allow complete participation of both parties in their divorce. But as with all things in the law, it is not a guarantee and is very risky. Tips for Avoiding a Default in a Chicago Divorce Some tips to keep in mind to avoid a default in a Chicago divorce would be to first, avoid getting a default entered against you in general. There are specific time constraints, like having 30 days to file your appearance and respond to the petition for dissolution, that are essential in keeping you on track with your divorce. By just meeting these basic deadlines, you can avoid the whole process of trying to vacate the default against you. On that note, be sure to also immediately consult with an experienced attorney. Even if you do not wish to hire an attorney to assist you with your divorce, at least having an initial consultation with an experienced attorney will put you on the right track and make you aware of basic due dates that need to be met. We would also suggest that you do your research. Any document that you receive from a government official, like a sheriff, or even a special process server, has meaning and typically requires action. Read the document you received and do everything in your power to understand it and take those next steps. Although our client was one of the lucky ones and had a strong team of experienced divorce attorneys on her side, there are plenty of occasions where individuals can not vacate the defaults against them, and they have to deal with those repercussions. Don’t put yourself in that risky situation, give our office a call today and schedule a free consultation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/avoiding-a-default-in-a-chicago-divorce/
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Spousal support is often a contentious issue in marriages that are substantial in length, where one spouse has outearned the other spouse. Spousal support (formerly called alimony and often referred to as maintenance) is the payment of money from one spouse to another during and/or after divorce proceedings. How is Spousal Support Determined in Illinois? The first step in determining spousal support or spousal maintenance is to determine if the divorce case qualifies. In Illinois, the divorce court considers many factors when determining if a case is a “spousal support” or “maintenance” case, including the length of the party’s marriage, the income history of both parties, the future prospective income potential of both parties, their health, their need, their education level, their age, and more. Once the case is deemed a maintenance case, there are two different components that factor into the calculation or formula for spousal support. The first factor is the “length” of the maintenance award, and the second being the calculation of the actual dollar amount of the award. The length of the marriage is determined from the date of the marriage through the date the divorce is filed (so, once the case is filed it “stops the clock” from ticking on how long the marriage is for purposes of maintenance only). And the longer you are married, the longer the maintenance duration will be, with increases in duration as the marriage goes on for longer. The dollar amount is mostly formulary, with limited exception for judicial discretion in higher-income divorce cases. Generally speaking, if a receiving spouse is employed, it can reduce the amount of maintenance that a spouse would have to pay to them as a portion of their income is used as a deduction in the formula. 5 Ways to Minimize or Avoid Spousal Support So, if you are facing a divorce in Chicago how do you prevent yourself from paying maintenance, or otherwise lessen your maintenance obligation? Here are a few ways: 1. Avoid Spousal Support With a Prenuptial Agreement. It is entirely possible for someone to agree not to receive maintenance in a prenuptial agreement prior to entering into the marriage. While there are limited exceptions where maintenance could be awarded regardless, for the most part, a properly drafted and executed premarital or prenuptial agreement could bar the recipient from receiving maintenance, no matter the duration of the marriage. 2. Already Married? Sign a Postnuptial Agreement. A postnuptial agreement is essentially the same thing as a premarital or prenuptial agreement, except it is executed after the marriage takes place. These are sometimes less enforceable than a premarital or prenuptial agreement simply because they are signed after the marriage took place. Public policy provides that the postnuptial agreement’s intent must be to salvage the marriage and not to contemplate a divorce. Further, some aspects of a postnuptial agreement might take away property or monies that a spouse is already entitled to, since they are already married. A prenuptial agreement is a little bit different, as it contemplates the future and typically one is not signing away something, they already have a right to. Still, a properly executed postnuptial agreement could ease the burden of maintenance by eliminating it all together or setting what it would be in the event of a divorce. 3. Encourage Your Spouse to Stay Employed. Parties who have young children often will have one parent who has to ease up on their work obligations due to childcare restrictions, which is understandable. In those scenarios, someone exiting the workforce for a period of time could be deemed to be at a disadvantage as to their future earnings. However, if the spouse stays employed or quickly becomes re-employed, it shortens two factors the Chicago courts may consider:
4. If Your Spouse Refuses to Become Employed, Look Into a Vocational Expert. Vocational experts are a useful tool at trial in the appropriate cases. They can evaluate whether or not a person is underemployed or purposefully unemployed and can testify regarding the person’s income earning potential. In some scenarios, the income-earning potential could be imputed to the recipient of maintenance, which serves as a deduction in the maintenance formula, lessening the burden of what the paying spouse would have to pay. However, if it is clear someone could only earn minimum wage, you don’t typically need a vocational expert to come in and testify that the person can go work a minimum wage job. Courts will entertain that argument without an expert. A vocational expert is used when, for example, someone who has the degree and education to be an RN refuses to work, or works a part-time job at a clothing store, and says that they couldn’t get a job as an RN for a variety of reasons. A vocational expert could be used to “bump” up the person’s earning potential in the eyes of the Court. However, it is only appropriate for very narrow scenarios. 5. End the Marriage Immediately. If you fear divorce is coming and you desperately do not want to avoid spousal support, or you do not want to pay as much spousal support as you would have to, it might be a good idea to file a case for a divorce. Filing a case does not necessarily mean you have to go through with it (though if your spouse decides they want a divorce, it will be eventually granted). You can dismiss the case at any time. But, since the date of filing determines the “end date” for the length of the marriage, filing sooner rather than later could mitigate how long you will have to pay maintenance for, so long as your marriage is less than twenty (20) years. Once you hit the twenty-year mark, the maintenance could be indefinite in duration. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/uncategorized/top-ways-to-avoid-spousal-support-in-a-chicago-divorce/ There is a lot of disagreement about vaccinations for children and the argument between parents with differing views on this subject is not a new one. Illinois family law attorneys representing parents in this type of disagreement have worked throughout the years to avoid the problem in its entirety by addressing the issue of vaccination in the parenting agreement, now called an Allocation Judgment. A prior agreement on how to handle vaccinations will give clarity as parents deal with the COVID-19 vaccine.
COVID-19 Vaccine Questions from Divorced Parents There are a number of questions and co-parenting issues surrounding the COVID-19 vaccine. Here are five of the most frequently asked questions we are seeing in our Chicago family law practice: 1. What If the Other Parent Will Not Get the COVID-19 Vaccine? We just saw a judge in Cook County strip a mother of her parenting time because she had not received the COVID-19 vaccine. The parents were before the court on a child support matter and the judge asked the mother if she had been vaccinated. When she replied that she had not, the court on its own volition ordered that custody be transferred to the father. In that particular case, I believe that the judge’s ruling will be overturned because of what we call “subject matter jurisdiction.” There was no motion pending concerning the child’s best interests, they were in court about child support. But the father’s attorney surely realizes this and is likely filing a motion as we speak to modify custody. Once the appellate court reverses the trial court’s ruling, the trial judge will have the opportunity to rule that it is in the child’s best interest to have a vaccinated parent. If the mother still refuses to vaccinate, she will likely lose custody of her child. I am surprised that there have not been more motions filed in court about one parent’s refusal to vaccinate. I personally have had many questions posed to me concerning one parent’s actions and refusal to wear masks and social distance. Early in 2021, since children seemed to be affected very little by COVID-19, I advised parents that I did not think the judge would do anything about a parent’s refusal to social distance or wear a mask themselves. But now the COVID-19 vaccine is here and available and a parent’s refusal to vaccinate is leading to a different result. 2. Is There a Way to Ensure My Child Will Be Vaccinated? If you don’t currently have a parenting agreement with the other parent, the drafting of this agreement will be very important when considering the COVID-19 vaccine for your child. Typically this provision will fall under medical decisions for the child and it is common that both parents have equal decision making when it comes to the child’s medical needs. But spelling out exactly how each parent feels about vaccinations can be helpful to avoid future litigation. If you have the agreement written that vaccinations are considered “routine” decisions, then you would not have a violation of the agreement by getting your child vaccinated. You rarely have to make a joint decision about routine matters, you are allowed to do them unilaterally. But it is all in the drafting of the agreement. Major decisions will require the consent of the other parent, routine decisions do not. 3. When the Other Parent Will Not Agree to Vaccinate our Child, What Can I Do? On March 6, 2021, I discussed this exact problem regarding the COVID-19 vaccine. See https://www.instagram.com/tv/CMGHo1opjEn/. I have not seen a parent win the refusal to vaccinate their child argument in court. Everything before the court is based on the “best interests of the child” and in my opinion, there is very little disagreement amongst the justices on this issue. They always want the child vaccinated. Going down this slippery slope with the newest vaccine is not going to be treated any differently. The parents can vaccinate now, and once the children are allowed to be vaccinated, this argument will come front and center before the courts. I would be surprised if the justices decide that the parent refusing to vaccinate their child prevails. I do not think a change of custody will necessarily ensue, but I do believe the justices will decide that the parent wanting the vaccination will be allowed to vaccinate their child. Even against the wishes of the other parent. 4. What If I Already Have a Parenting Agreement In Place And I Need the Other Parent's Permission To Vaccine and They Refuse? If you already have a parenting agreement in place, and you need the other parent’s agreement to vaccinate, the only thing you can do is file a motion to modify that provision in your agreement. Everything about the children will be decided in the best interests of the child, so if you can convince the court that the vaccine is in your child’s best interest, then the judge will likely modify your agreement. 5. I Have Heard of People Talking About "Parens Patriae." What Is That? This is a doctrine that grants the state the right to protect people who are not able to act on their behalf. It is a very old doctrine, but one I still see argued in court. Once parents put their child in front of the judge, the judge is going to do what the judge feels is in the child’s best interest. Sometimes over the objections of the parents. But this is an issue that has very little middle ground. It is not like deciding if your pick-up time will be 9:00 AM or 10:00 AM. You and the other parent are either in favor or vaccination or you are not. It is hard to mediate that issue since both parents will have very strong feelings on the subject and it is hard to reach a compromise on the issue. If you cannot agree and it goes before the Court, I think the judge will rely on what the pediatrician has to say on the subject. If the pediatrician is stating that there is no reason for the child not to receive the COVID-19 vaccine, then I believe the judge will rule in that manner and require the child to be vaccinated. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/when-divorced-parents-disagree-about-the-covid-19-vaccine/ |
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