Child support arrears refers to the amount of unpaid child support owed to a custodial parent. You fall into “arrears” when you fail to pay the full amount ordered. When you have a child support order, it is not a suggestion of how much to pay, but the amount you must pay. Following a court order is important, and especially when dealing with child support since the arrears grow with a 9% interest rate.
How are Child Support Arrears Calculated? Nothing can be worse than getting behind in your child support. Once the support obligation becomes due, even the judge cannot modify the financial obligation. It is imperative that you pay child support on time and never fall behind since the judgment (and each individual support obligation becomes its own judgment) grows at 9% interest. A smart parent who is holding the judgment, and believes that there is some collectability from the obligor, can sit on that judgment and let it grow into an incredible amount of money. These days, what investment is grows at a 9% interest rate? Virtually none. Current child support arrears are calculated by determining the difference between what the noncustodial parent owes and what they have paid. Even if the court later approves a new child support order with a smaller child support obligation, it can only be applied to the date that you filed a motion to modify the support. It will not affect the arrears balance. I recently took a case where the obligor had not paid support to his ex-spouse for a number of years. The arrears owed was one thing, but the 9% interest made catching up and being current on the support obligation impossible. Although he was paying $200 a month on the arrears he owed, the money was being applied to the interest and he was essentially never going to pay down what he owed. This type of scenario is the worst case possible and although of course, it was his fault for not paying the support in the first place, it seems unfair to have a life sentence of payments that he can never get rid of no matter how long he pays. I Could Not Pay my Child Support Because I Lost My Job. Now What? It is imperative that you file a motion with the court to tell the court that you have lost your job. The judge could abate your support for a while, or could modify the support obligation altogether. But, the last thing you want to do is pay nothing since that is how you accrue arrears. Some obligors borrow money from friends and/or family for their own living expenses to get by, and do not pay any support obligation. This is where you can fall not only into an arrears situation, but you could also be held in contempt of court for failing to pay the support. Failure to Pay Child Support Illinois will assess interest on unpaid child support, but you can also be required to pay the custodial parent’s attorney fees. Your ex can also ask that you be held in contempt, which can be avoided if you can demonstrate that the loss of your job was not your fault. If you do lose your job, make sure you are taking all steps to gain some sort of employment and keep track of your efforts. You will want to file for unemployment and once you receive it, you need to make it known to the court. Your support obligation will be modified to the amount received from unemployment and you will avoid the arrears problem. If you still fail to pay, the court can take other punitive measures against you. Your driver’s license could be suspended, the state of Illinois can garnish any tax return or asset you have, like bank accounts, and can even take your home if you own it. Any asset you have can be accessed to pay back the child support amount. Your wages can be seized and other collection procedures could be started against you. I Owe Too Much Money Now; Can I File for Bankruptcy? Unfortunately, the answer is no. Child support is not something you can file bankruptcy for, but there are other options for you. First, you can ask the judge for a reasonable payback schedule so that you are not held in contempt. That gives some comfort, but the interest on unpaid child support will keep going and you find yourself never being able to pay it back. Second, you can always try and get an agreed order from the parent you owe the support to and see if an arrangement can be made. If you can pay a lump sum, the other side might be willing to reach a deal with you to pay less, knowing that they will get a lump sum amount. Lastly, make sure you calculate the support and interest you owe and do not rely solely on the other’s side’s calculations. A miscalculated support obligation can be very costly, so it is necessary to have someone on your side do the calculation to catch any errors. Seek Legal Help If You Are Facing Unpaid Child Support Running from unpaid child support is a losing battle. No one wants to continuously appear in court to avoid contempt. The best course of action is to explain to the court what happened and demonstrate that you want to make amends. A payment plan is your best option unless you can convince the other parent to make an agreement with you on the amount you need to pay. This obligation can haunt someone for years, however, so your best course of action is to remain current on your support obligation, and the minute you see that you cannot, file your motion in court and ask for relief from the court-ordered amount. Contact Anderson & Boback today for a consultation with our experienced child support attorneys and get your questions answered about child support arrears. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-support/child-support-arrears/
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Alimony – or maintenance as it is now referred to in Illinois – is spousal support payable from one spouse to the other in a divorce case. Under Illinois law, the right to receive this spousal maintenance terminates if you “cohabits with another person on a resident continuing conjugal basis.” There is no definition of “cohabitation” in the statute, so this section of the law has been litigated leading to the definition of cohabitation being developed over time by the outcome of these cases. These cases are important because once your spousal maintenance terminates due to cohabitation, it ends forever – even if the relationship ends you can never get your spousal maintenance back.
Defining “Cohabitation” The word “cohabits” is defined in the dictionary as a verb: “living together without being married” The word “resident” is defined in the dictionary as a noun: “a person who lives somewhere permanently or on a long-term basis” or as an adjective meaning living somewhere on a long-term basis. The word “continuing” is defined as without a break in continuity and ongoing. The word “conjugal” is an adjective defined as relating to marriage or the relationship of a married couple. Putting these definitions together you are left with this: YOUR MAINTENANCE WILL TERMINATE IF YOU LIVE WITH SOMEONE WITHOUT A BREAK IN CONTINUITY AND ONGOING AS IF YOU WERE A MARRIED COUPLE. The rationale behind this law is that the person paying maintenance to their former spouse should not have to also support another person who would be living with and sharing expenses with the former spouse and it is presumed that the legislature did not want to discourage marriage between two people who could simply live together if one of the parties were receiving maintenance from a former spouse. The person who wants to terminate their maintenance payments due to their suspicion that their former spouse is now cohabitating with another person on a “resident, continuing and conjugal basis” has the burden of proving such a relationship exists. It is often necessary to retain the services of a private investigator to obtain evidence that the former spouse and the significant other’s lives are intertwined in such a way that mirrors a marriage. Meaning they live together, have shared accounts, joint bills, travel, together, celebrate holidays together is important to show these factors mirror a marriage as it is not likely that you can meet your burden to terminate maintenance simply by showing that your former spouse and a significant other spend nights together. You are certainly entitled to move on with your life and have new relationships and date and travel with another, however, living together is often the trigger to terminate maintenance. Evidence of Cohabitation It is important to gather all the evidence you can and talk with an attorney about the information that you have to determine if it is enough to move forward with a motion to terminate the maintenance. It is important to look at how long your former spouse has been in this new relationship. If the relationship is one month or one year, that difference will be significant. Another factor is how much time they are spending together and how you know how much time they are spending together.
Each case will be determined based on the specific facts of that case so there is not one checklist that will work for every case. However, it is often cited that, “Courts must look at the totality of the circumstances to determine whether the new relationship functions practically and economically in a marriage-like way.” Marriage of Miller, 2015 IL App (2d) The factors in the recent case law seem to turn on not just staying overnight at the house but actually living at the house. Often times the significant other will maintain their own apartment where they get mail and it is sparsely furnished but they do not spend any time there and courts see through this and have found that even though a separate apartment exists the parties are living together. The courts want to know where you keep your clothes, wash your clothes, cook your meals, care for your children, and other everyday necessary tasks. Doing all of these things at your significant other’s home is beyond normal dating behaviors. Tips to Avoid Termination of Your Spousal Maintenance If you want to keep your spousal maintenance in place and not risk your former spouse filing a motion to terminate your maintenance, here are tips you need to follow:
Addressing Maintenance Termination in Your Marital Settlement Agreement You can also deal with spousal support or maintenance in your Marital Settlement Agreement and agree to something other than termination upon cohabitation. I have worked with clients who do not want to discourage their ex-spouse from getting married – they welcome it. So, they have made provisions for the payment of much less maintenance but agreed to continued paying whether they were married or not. This takes away the incentive to just remain single to keep the maintenance and allowed the payor to pay less even though his former spouse remarried. The Marital Settlement Agreement is a contract between two parties so as long as the terms are reasonable and not unconscionable the court should approve and you can be creative with a solution to what may happen. Speak to a Chicago Divorce Attorney About Cohabitation and Its Impact on MaintenanceIf you suspect that your ex-spouse to whom you are presently paying maintenance is in a serious live-in relationship, you should talk to an experienced Chicago divorce attorney about what evidence you will need to terminate maintenance due to cohabitation. Contact Anderson & Boback today for a free consultation for questions about cohabitation and its impact on spousal maintenance. Keeping children uninvolved in any divorce or family law proceeding is important to minimizing the difficult nature of these legal disputes. The Family Law Courts in Illinois believe that it is generally not in their best interests for them to be involved in litigation between their parents. Children should be involved in parenting time or visitation cases as little as possible. Going to Court can be terrifying and/or intimidating for a minor child. Being asked specific questions by a Judge or an attorney regarding their preferences as to where they will live places the children directly into the middle of a conflict which is between their parents. The parents, often so entrenched in their positions, think that the children should be able to voice where they want to live, or complaints that they have about a parent. In certain circumstances, they may be correct. However, this is generally the exception and not the rule.
Follow These Tips to Keep Children Uninvolved in Family Law Issues Here are a few reasons why you should avoid involving your minor child in your divorce process as well as areas that often become problematic for parents: 1. Don’t Talk to Children About Money Talking about money issues with your kids causes unnecessary stress. You may think that you are letting your child know something that they have “the right to know” when you tell them that their other parent is behind on child support. Or, when you tell the child to ask the other parent to buy them something, because you do not believe you are receiving enough child support or maintenance. Or, you tell them to ask the other parent because “that is what child support is for”. You may feel like you say these things because you cannot afford the request, or because you want the child to know that the other parent has more money than you do so that they can ask the other parent to contribute. The truth is, you’re putting them in the middle, and making them feel bad. They are simply a ball bouncing back and forth between the two parents, and their needs are not being met. You are entrenching them in your issues with your ex-spouse. How to avoid this? Don’t tell your child to go ask the other parent. A proper response would be “let me talk to mom/dad about it and get back to you”. Have the argument regarding an expense with the other parent directly – do NOT tell the child to go talk to the other parent. If the parents cannot work out the expense, then turn to your attorneys, mediation, or the Court to help you adjudicate the issue. At all costs, though, do not bounce your child back and forth like the proverbial “ball” when trying to figure out who pays for what. 2. Don’t Talk to Your Children About What to Say to a Guardian Ad Litem or a Child Representative. Children often have to meet with a Child Representative or a Guardian Ad Litem as part of a divorce. When parents try to “prepare” their children for these meetings if often backfires. Young children are too honest and will tell the attorney that their parent told them to say “XYZ”. Older children won’t be able to properly justify their positions or will repeat something that sounds like it came out of the mouth of an adult. So, how do you handle this? Tell your child to be honest and tell the truth. Don’t try to pre-plan what they will say and don’t tell them what to say. Encourage them to be truthful, forthcoming, and honest. These attorneys can tell when children have been “prepared” and that is not good for your case, or for your children. 3. Don’t Let your Children “Drive the Bus” with Parenting Time. Children do not want to go back and forth between their parents' homes. That is understandable. They adjust to “their house” and “their room” and they usually feel as if one home is more their “house” than another house. That might be due to where they grew up, or remarriage, or for a variety of other reasons. However, they should not be in control of where and when they go for parenting time. Keeping children uninvolved with the implementation of parenting time is vital. Stick to the schedule and encourage them to go to the other parent’s home. Give them ideas of things to do there, or things to look forward to, to prepare them for the visits. Don’t have a negative attitude or show them that you are sad that they are leaving, either. 4. Don't Avoid Seeking Family Therapy – for Everyone. It is a good idea to engage a therapist for yourself as well as your children both during and after the divorce process. Divorce can bring a lot of feelings up for children and adults, and having a healthy outlet with a professional to address these feelings is always a good idea. It also helps to ensure someone is listening to your children (as they may not want to tell you everything) and that you have someone to listen to you, too, so that the children don’t end up enduring hearing about your problems, as those will also stress them out. Involving Your Child in Family Law Proceedings Can Be Damaging Most parents who have an Allocation or Custody Judgment of some sort address the issue of not talking to the minor children regarding court proceedings or financials, such as child support. However, during the process of many family law and divorce cases, people who do not have such orders will sometimes engage in these behaviors. This can be very damaging to their children as well as to their case, for the following reasons:
Keeping children uninvolved in your divorce, custody or other family law proceeding can have a lasting impact on both your child and your case. Working with a skilled and experienced Chicago divorce attorney can help improve the process for you and your children. Please contact our family law attorneys today to schedule a confidential consultation if you have concerns about your ex is alienation your children and how to prove. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce-litigation/keeping-children-uninvolved-in-domestic-relations-proceedings/ When it comes to evaluating income for support in Illinois family law cases, questions about money received from reverse stock splits, gifts and loans can be answered by looking at what case law has dictated.
Illinois Case Marriage of Anderson Defines Income for Support Specifically, In re Marriage of Anderson, 405 Ill.App.3d 1129, 938 N.E.2d 207, 344 Ill.Dec. 938 (3d Dist. 2010), provides a remarkably expansive look, as well as a retrospective, as to what other than earned income may or may not be income for purposes of child support. In the Anderson case, the former wife, in a post-judgment support modification case, claimed that the trial court erred by ignoring three sources of income:
Reverse Stock Split Do Not Qualify as “Net Income” The wife first claimed that the reverse stock split’s net proceeds her husband received should be treated as income subject to child support. The court held that the proceeds from the reverse stock split of her husband’s AEC shares did not involve a gain or recurring benefit or employment compensation. Her husband received the proceeds as a result of an involuntary purchase of stock he owned, which resulted in a capital loss. In reality, the forced sale reduced her husband’s wealth because he no longer received the yearly dividends that the stock generated. The court went on to say: In reaching our conclusion, we note that the distribution of stock may constitute income for child support purposes if the stock is sold pursuant to an employment bonus-based option. See Colangelo, 355 Ill.App.3d 383, 290 Ill.Dec. 986, 822 N.E.2d 71. Here, however, the sale of [her husband’s] stock was necessitated by the company’s decision to implement a reverse stock split of minority shareholders, a decision over which [her husband] had no control. He then used the proceeds to purchase other investment assets. Under these circumstances, the proceeds do not qualify as “net income” under section 505(a)(3) [of the IMDMA]. 938 N.E.2d at 2013. Monetary Gifts and “Loans” Considered Income The second argument by the wife was that the trial court erred as a matter of law in failing to include gifts that her husband might receive from his family as income under 750 ILCS 5/505(a)(3). The reviewing court stated, “the trial court is required to include all income, regardless of its recurring nature, in calculating net income.” Einstein v. Nijim, 358 Ill.App.3d 263, 831 N.E.2d 50, 294 Ill.Dec. 527 (4th Dist. 2005). The relevant focus under Statute 505(a)(3) is the noncustodial parent’s economic situation at the time the child support calculations are made. If a parent receives payments that would qualify as “income” under the IMDMA, these payments may not be excluded on the basis that they might not be received in the future. See In re Marriage of Rogers, 213 Ill.2d 129, 820 N.E.2d 386, 391, 289 Ill.Dec. 610 (2004). In re Marriage of Rogers case, the noncustodial father received yearly gifts and loans from his parents totaling more than $46,000, which he had never been required to repay. The court concluded that the annual gifts were income for purposes of determining child support because they represented a valuable benefit to the father that enhanced his wealth and facilitated his ability to support his son. Id. Bonuses or Commission Included as Income The third argument made by the wife in Anderson, supra, was that the trial court improperly computed her husband’s net income by failing to include any future bonuses or commissions that he might earn. The reviewing court held “as with [her husband’s] gifts, the trial court’s refusal to include 28% of [her husband’s] bonuses in its calculation of net income was an abuse of discretion.” 938 N.E.2d at 214. In Einstein, supra, the court held that the bonus payment received, although possibly not recurring, should be included for support purposes. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-support/reverse-stock-splits-gifts-loans-considered-income-for-support/ Is Your Ex Not Allowing Parenting Time with Your Child?
If your ex is not allowing parenting time your child, can you hold them in contempt? The short answer is yes. Everything in the field of family law often draws a response from the lawyer which sounds like “it depends.” The reason for the “it depends” relates to the parenting order itself and whether clarity exists. One cannot be held in contempt if there is not a clear order lacking ambiguity. There was a time in court that we would enter orders that would allow the parents to set the schedule themselves. Something like “Mary and Jack shall facilitate parenting time in the best needs of the child.” Well, what exactly did that mean? And if Mary thinks it is in the best interests of the child to see Jack once a week (or less) and Jack thinks he should see his daughter every day, then clearly, we have a problem. Every one of these cases came back into court to have the judge decide what was in the child’s best interest regarding parenting time, so the court changed the rules and now everyone is required to provide a very detailed parenting schedule. When Problems Arise Look to the Parenting Agreement Parenting agreements today are different. They are very specific, setting out days and times, detailing each holiday, and essentially every detail of parenting. It seems overwhelming at first and if parents are getting along and able to work things out, then great, you are not required to follow the parenting plan. There is no “parenting plan” police that goes around and monitors whether you are following the drafted plan. But, if a problem arises, then everyone can fall back on the parenting schedule like a roadmap, and then it must be followed. Is There a Clear Order Detailing the Behavior Required of a Parent? Parents who cannot see their children when they want, oftentimes come back into court and ask the judge to hold the other parent in contempt. The judge will do that, but only if there is a clear order detailing the behavior that the other parent violated. What does that mean? For instance, if your parenting plan does not say how Henry comes into dad’s possession at the start of dad’s parenting time and dad thinks that mom should drive Henry over, and mom thinks dad should come and pick up Henry, then there cannot be a violation if mom refuses. There is no clear order stating how Henry comes into dad’s possession. Assessing Whether There is a Violation Think about the problem and assess whether there is an actual violation (is there a court order, clearly written), or does the parenting agreement not address the issue at all? One problem that came up this past summer was the COVID problem. Kids weren’t necessarily going to school, so when the parenting agreement says that dad picks up Henry from school on Friday, some parents relied on a strict interpretation of the parenting agreement and wouldn’t let dad pick up from their home, since the agreement said the pick up was “from school.” Is that petty? It sure is, but it is not uncommon. A parent filing a contempt petition over that set of facts would likely be unsuccessful. The judge of course will make arrangements for a different order stating how dad will pick up Henry from mom’s house but cannot really hold mom in contempt because the order was not violated. Another problem during COVID was when one parent would not turn over the child for the other’s parenting time. They were either afraid of either leaving their house because of the coronavirus or felt that the transfer of the child increased their child’s risk of exposure to the virus. The parent was not necessarily being vindictive, just scared. Which brings us to the second part of holding a person in contempt. Was Parent Willful in their Failure to Comply? You first must have a clear order that establishes the violation, and the second part is whether the parent was “willful” in their failure to comply. The first element is your burden of proof and the second element is the other parent’s proof. Once the court finds that there is a clear and unambiguous court order, the burden switches to the other person to show that they essentially had a good reason for violating the order. If the court believes there was a good reason, then no contempt, even though the order was violated. If the court does not believe that the violation had a good faith basis for failure to comply, then contempt. Even before COVID, there were parents who did not “force” their child to go on parenting time because the child did not want to go. Absent some serious problems on behalf of the child, this excuse does not work. When did kids get to decide what they want to do and what they did not want to do? The parent who does not want to force their child to go on parenting time has a hard time keeping out of contempt for not following a parenting plan. Can you imagine a parent’s day going like this? Parent: “Do you want to go to school today?” Kid: “Nah, I think I’ll stay home.” Parent: “Ok, I’ll let the school know.” Does that work in real life? Of course not. Your child must do many things that they do not want to and are forced to do it by their parents.
Of course, you do! If you must force your child to follow the parenting plan and go on parenting time with the other parent, then I guess you will have to force them. Kids do not get to decide what goes on in their life. You are not their friend; you are their parent. Enforcing Your Parenting Plan with a Contempt Action Parenting times must be complied with and it is interesting how some judges do not hold a parent in contempt for it. It only sets up the non-complying parent to keep doing it and eventually, the other parent has no parenting time. But if you want to fight for your rights, unfortunately, the only way to do it is in court. Some parents are successful in getting the police involved to force court orders and although the family law court frowns on having the police at the door for parenting exchanges, sometimes it is the only way. Keeping a log of missed parenting time helps when asking the court for contempt, but do not wait too long before bringing it to the court’s attention. You need to act when it happens, not a year later. The court would be hard-pressed to do something after a lot of time has passed. When a violation has occurred, always write the other parent about it so you have a record. If the other parent responds, you will have a fairly good idea of their excuse when it gets into court. If they ignore the text or posting on a parenting app, you can at least show that you sent it. Above all, try and maintain a cool head and if you keep missing parenting time, file a petition with the court asking to change or the parenting schedule altogether. If you are having problems picking up from the other parent’s home at 6:00 on a Friday evening, a change to picking up the child from school will cut the other parent out altogether. A skilled family law lawyer can assist you in creative ways to obtain your parenting time so that the other parent has little or no way of interfering. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody-visitation/contempt-for-not-following-a-parenting-plan/ The beauty of a parenting agreement is that the parents can fashion the agreement to fit the specific needs of their family and individual circumstances. As long as the family court finds the provisions are in the best interest of the children then it should be approved. There are many different issues and areas of importance that are unique to each family (and parent). From discipline style and religious upbringing to participation in high-risk activities and diet choices, parents have a wide range of concerns when it comes to raising children. This is where unique parenting agreement provisions can set forth the required needs and make everyone feel comfortable and provide guidance about a topic.
Examples of Unique Provisions in Parenting Agreements Here are some examples of creative solutions to creating unique provisions in parenting agreements that work for families: Discipline Provisions Parents may have different discipline styles, or they could have had a family dynamic where one parent was the disciplinarian and the other did not participate much in the discipline area. This was found while they were together but when the parents are no longer together and need to create a parenting plan, they may want to talk about how discipline will work in a way that will provide consistency and comfort to the children to know that their parents remain a united front when it comes to what is best for them. As an example of parents who want to remain a strong unified team as far as discipline goes with their children, I have seen the following provision used: Each parent shall be responsible for discipline during their parenting time, however, if any significant discipline problem arises that requires further or ongoing attention, the parent who was first made aware of the problem shall contact the other parent and discuss the matter in order to agree on the necessary course of action. There are times when the parents agree to put into a parenting agreement that neither party will use corporal punishment or physical discipline of any kind on the child or for those parents who do believe in spanking or other types of physical discipline they may agree that neither party will permit any third party to use corporal punishment or physical discipline on the child. High-Risk Activities and Safety Provisions In situations where one parent participates in higher risks hobbies or sporting activities, we have had to come up with some creative solutions when the other parent is fearful of their children participating in such things. I have often seen the provision that a child must reach a certain age before operating an all-terrain vehicle and in the agreement provide detail the specific safety gear required. The parents agree that the minor child shall not ride on nor operate an all-terrain vehicle until they reach the age of 13; Upon reaching the age of 13 and riding on or operating an all-terrain vehicle the child shall be closely supervised by the parent and wear a fully certified, properly fitting undamaged helmet, safety goggles as well as gloves and shall not under any circumstances operate such all-terrain vehicle on a public roadway. Watercraft is another area where parents want to work out a solution where they are both comfortable regarding safety gear, supervision, operation, etc. It is best if one parent knows that the other parent will be taking the children out on a boat during their parenting time then it is best to talk about how this will work before the parenting agreement is entered so that everyone is clear about what is expected. The parents agree that any time the child is aboard a non-motorized or motorized watercraft it shall be under the supervision of the parent and both parent and child will have a life vest on. Health Provisions I have seen situations, where the child requires a special diet due to allergies or illness or the child, has a weight problem and one of the parents is concerned that the other parent will not be mindful of these health issues. It is important to understand that you cannot micromanage the other parents at their home during their time and under the Illinois law each parent is charged with doing what is in the best interests of their child and absent proof otherwise the court’s will presume each parent will act accordingly. However, if you feel strongly about addressing an area of concern such as specific foods a child should or should not eat or other dietary concerns the best time to do it is when you are working out a parenting plan so that it can be enforced by a court if the agreement is not followed such as The parents agree that they will provide a healthy balanced diet, including appropriate meals and snacks, during the time the child is in his or her care. The parents agree that they will each carry an epi-pen with them at all times with complete understanding of when to use the devise and how it works. The parents agree that they will always place the child in the appropriate car seat/seatbelt in any automobile the child is riding in. Drugs and Alcohol Use Provisions When it comes to issues surrounding drugs and alcohol use, here are some unique provisions that could be incorporated into a parenting agreement: The parties agree that under no circumstances will the child be in an enclosed location or automobile while someone is smoking tobacco. The parents agree that they will not consume alcoholic beverages, narcotics, or restricted dangerous drugs (except by prescription) within 12 hours prior to or during periods of time with the child. The parents agree that they will not permit any third party to consume alcoholic beverages, narcotics, or restricted dangerous drugs (except by prescription) in the presence of the child. Provisions Addressing Extracurricular Activities If there is a concern that a parent will fill the child’s schedule with too many or inappropriate extracurricular activities, you can address that in the parent agreement and address the way the activities are selected as well as limit one parent selecting activities that fall on the other parents’ parenting time: Each parent shall have the right to schedule individual lessons and extracurricular activities and events for the children which occur exclusively during his or her own parenting time. Neither parent will make plans or schedule activities which fall on the other parent’s time without first consulting with the other parent and coming to an agreement regarding the activity The parents agree that the child should not participate in more than three separate activities during any given school year. Provisions Regarding Other Relationships If you believe there could potentially be an issue with a significant other, you can address that concern in a parenting agreement with provisions as follows: Both parents agree that they will not live with a romantic significant other prior to marriage nor to allow a romantic interest to spend the night out of wedlock at the parent’s residence while the child is present. Neither parent is allowed to tell the children to call another person “mom” or “dad” The parties agree that prior to introducing a significant other to the child they must first introduce the significant other to the other parent If there is a specific person you do not want around your child then that those concerns can be addressed with provisions like: The child will have no contact with (specify name) The child must not be left alone in the presence of (specify name) Religious Education Provisions Many parents can agree about the role of religion and religious upbringing for their children which would be based on the way they had been raising their children in the home while they were together. However, there are times when the parents are practicing two separate religions in the household or the divorce process goes on for a long period of time during which period one parent has chosen to take up a different religion. It is in those types of cases where it is important to create a specific solution to fit the needs of the entire family. The solution may be that the parents select one of the religions to raise the children or they agree that the children will be exposed to both. Each parent may take the minor child to a church or place of worship of his or her choice during the time that the minor child is in his or her care. Both parents agree that the minor child may be instructed in the following faith: Neither parent may allow the child to partake in religious activities or institutions without prior written approval from the other parent. DISPUTES INVOLVING RELIGIOUS PRACTICES If the court has to decide a dispute that comes up about the children and their religious practices, the court will always look at the written agreement in place that details how you have agreed to handle the children’s religious upbringing. If there are specific things in your religion that are particularly important then you should detail them in your parenting agreement: List the specific religious training, how often the child will attend services, will there be other classes, Sunday school, bible studies, or other church-affiliated programs such as camps; when will these events occur and will they require vacation time; in addition will the children be free to attend the other parent’s place of worship for services or special events. Need Expert Advice on Parenting Agreements? Call Anderson & Boback When crafting a parenting agreement be sure to incorporate unique provisions that reflect the specific needs or your family by working with an experienced family law attorney. For more than 20 years, Anderson & Boback family law attorneys have been helping Chicago clients with a wide range of family law and child custody issues, including crafting unique provisions in parenting agreements tailored to the special needs of parents and children. Contact us today for a confidential consultation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: illinoislawforyou.com/child-custody-visitation/incorporating-unique-provisions-in-parenting-agreements/ There was a unanimous ruling by the Illinois Supreme Court on September 24, 2020, that parents in a civil union have the same rights as stepparents as married individuals and that those rights will continue after the death of their spouse.
Stepparent Rights in a Civil Union The facts of the case were that Kris Fulkerson was in a civil union with Matthew Sharpe who died in 2017. Sharpe had a child with his ex-wife and he and his ex-wife shared equal parenting time, but the child’s main residence was with his father Matthew and his partner, Kris, and her three children. After Matthew died, his ex-wife took custody of the child and would not allow Kris and her children to see the child. Stepparent Visitation and Allocation of Parental Responsibilities Kris filed a petition for visitation and for an allocation of parental responsibilities. The circuit court certified two questions to the appellate court:
Does Someone in a Civil Union with a Parent Qualify as a Stepparent? The question before the court was whether someone who was not married to the birth parent but in a civil union with the birth parent, qualify as a stepparent. Under Illinois law, stepparents are allowed to request visitation and parental responsibilities if their spouse dies. Also, under Illinois law, there are ONLY three other nonparents that are allowed to ask for visitation and those are grandparents, great-grandparents, and siblings. Prior to the U.S. Supreme Court legalizing same-sex marriages nationwide, Illinois passed the Illinois Religious Freedom Protection and Civil Union Act to provide most of the rights of marriage to couples who were not legally married. Set forth in Section 20 in 750 ILCS 75, the law states: “A party to a civil union is entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses, whether they derive from statue, administrative rule, policy, common law, or any other source of civil or criminal law.” The Illinois Supreme Court found that “in enacting the Civil Union Act, the General Assembly intended to create an alternative to marriage that was equal in all respects,” Justice Rita Garman wrote for the court. “This intent was not limited to partners’ rights as to each other.” The case will now go back to the circuit court for the judge to decide how much visitation and parental responsibility Kris will have. Seek Advice from a Chicago Family Law Attorney About Stepparent Visitation and Civil Unions The bond between a stepparent and a stepchild can be profound, whether a stepparent is in a civil union or marriage with that child’s parent. When a stepchild suffers the loss of his or her birth parent, losing the relationship with their stepparent relationship can be devastating. If you are a stepparent interested in stepparent visitation, seek trusted legal advice from an experienced family law attorney to discuss your unique situation. Our top rated divorce attorneys have been helping Chicago clients with complex divorce, domestic partnerships, child custody, and family law matters including stepparent visitation. Contact us today for a free consultation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody-visitation/legal-victory-for-stepparents-in-civil-union-in-illinois/ As Chicago divorce attorneys, we often speak with stepparents that have formed close parental relationships with step-children. When that marriage leads to divorce, many wonder if an Illinois family court will allow an order for parenting time or stepparent visitation with a step-child?
Stepparent Visitation in Illinois When it comes to divorce where a stepparent relationship is involved, stepparent visitation is subject to the same statute under Illinois law that applies to requests for grandparent, great-grandparent, and sibling visitation orders. Generally speaking, in Illinois, there is a rebuttable presumption that a fit parent’s decisions regarding step-parent visitation, as well as visitation with a grandparent, great-grandparent, or siblings, are not harmful to the child’s mental, physical, or emotional health. This means that if the parent is a fit parent and they decide that their children should not have visitation with their own parents (the grandparents) Illinois usually won’t disturb it. It would be up to the stepparent who is bringing an action for visitation to prove that either the parent is not fit, or that the actions of the parent are, in fact, harmful to the child’s mental, physical or emotional health before any visitation with the stepchild would be granted. Factors for Visitation with a Non-Parent The statute on this in Illinois lists many factors the Court will consider when making an assessment regarding a child visitation order for “non-parents” under 750 ILCS 5/602.9. Specifically, the factors that apply to stepparent visitation are the following:
Visitation when a Parent is Deceased If a child’s parent is deceased, though, and the parents of the deceased parent would like visitation, it can sometimes become a situation that is easier to try and obtain visitation when looking at the above factors. (i.e., Mom passes away, mom’s parents want visitation and Dad says no). This is particularly true when the children had a good relationship with maternal grandparents and Dad put a stop to it once Mom passed away, for example. The Court could then find that Dad is acting in bad faith by denying the visitation. Similar circumstances would be at play for step-parent visitation. Additionally, there is no requirement that a stepparent or grandparent have overnight parenting time, even if the parenting time is granted. Talk to an Experienced Chicago Family Law Attorney About Visitation with a Stepchild While it is a burden to try to file for stepparent visitation in Illinois, and can at times be an uphill battle, it is attainable in the correct circumstances. If you are a stepparent interested in filing a request for stepparent visitation, seek trusted legal advice from an experienced family law attorney to discuss your unique situation. At Anderson & Boback, we are top rated divorce attorneys with decades of experience helping Chicago clients with complex divorce, child custody and family law matters including stepparent visitation. Contact us today for a free consultation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody-visitation/step-parent-visitation-chicago-divorce/ |
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