This is a review of the Illinois family law case of In re Marriage of Portillo for an order of protection and supervised visitation. The opinion was filed on September 23, 2021. Case Background Julie Portillo filed a petition for an order of protection and a petition for supervised visitation against her former husband and father of her children, Daniel Portillo Martinez. The trial court granted both petitions and entered an emergency order of protection. Both orders limited Daniel’s contact with the children, and he appealed. The Appellate court reversed. THE ORIGINAL JUDGMENT Under the original judgment, the parenting plan gave both parents joint decision making of their two minor children. As part of the Parenting Plan, a schedule was created that specified dates and times when each parent was responsible for the care of the minor children. JULIE SEEKS EMERGENCY RELIEF FROM THE COURT Daniel started the litigation with a petition to modify his parenting time. Julie filed a motion to dismiss that petition and the court sent the parties to mediation. Shortly thereafter, Julie filed a petition for an order of protection, asking the court to protect her and the children for 2 years. That same day, the court entered a preliminary order of protection and a date was scheduled to conduct a hearing on Julie’s request that the emergency order be continued for two years. Julie also filed an emergency petition seeking to terminate Daniel’s parenting time. Included in the petition to terminate parenting time, she indicated intent to use hearsay testimony of her children. When you want to use hearsay testimony in court, you have to file a motion prior to the hearing to let the court and the other side know that you intend to admit hearsay testimony, and that is what Julie did. What is Hearsay Testimony? Hearsay is any testimony that is made out of court. Statements made to the police are considered hearsay in court if the police officer takes the stand and tries to testify about what someone told that officer. The police officer can only testify about what that officer saw or heard. The court will not allow affidavits or statements that you have gathered from a witness. A piece of paper cannot be cross-examined, so it is not allowed. Hearsay testimony is not allowed. Are There Exceptions to the Hearsay Rule? However, there are many exceptions to the hearsay rule. In this case, Julie sought to have her children’s statements about what happened to them admitted in the hearing without the children having to physically be present. When you want to do this, you cannot spring that testimony on your opposing counsel or the court, you have to seek permission ahead of time. That allows everyone to know if that type of testimony will be allowed or not. If the judge denies it, then the person seeking to have the hearsay admitted can decide to bring the witness in personally, or that testimony will not be a part of the record. Julie filed a motion to admit that hearsay testimony and the notice of intent to offer hearsay evidence, “pursuant to Section 213.1 of the [Domestic Violence Act] and Section 2 606.5 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act), or in the alternative, Section 2601 of the Code of Civil Procedure” (Code). The court had a hearing on Julie’s motion prior to the trial date. The Plenary Hearing On December 16 and 17, 2019, during the plenary hearing (hearing for a 2-year order of protection), the trial court heard evidence about both Julie’s plenary order of protection against Daniel and the emergency parental termination petition. At that hearing, numerous witnesses (including Julie and Daniel) testified as to several events that had disrupted the Parenting Plan. These events included numerous altercations and incidents that occurred during child drop-offs and pickups, prompting Daniel to install a camera to record the events. Eventually, the parties started to exchange the children at the sheriff’s office in an attempt to avoid further incidents. Julie testified that the children came back from a visit at Daniel’s home with sore bottoms. Two days later, Daniel filed a petition to modify parenting time and responsibilities claiming that Julie failed to share extracurricular activity schedules or the children’s coach's information. Daniel complained that Julie unilaterally signed the children up for private school, and took the children to therapy without notifying him or allowing him to participate. Julie testified that on August 25, 2019, after picking up the children from Daniel’s residence, her child told her that he and his brother can go to Daniel’s room but they are only allowed to sleep with him one at a time when he gets off his computer. In mid-October, her son began having nightmares, which lasted for several weeks. On October 17, while changing her son’s diaper, Julie discovered the tip of his penis was unusually red, as well as the area surrounding his rectum. The child complained of pain when his diaper was changed. When Julie asked him what happened to cause the redness, the child told her that “daddy did it.” Julie then asked her son “Did daddy touch your pee-pee and hurt you?” Her son said, “Yes.” Additional evidence was presented during the hearing regarding Daniel’s history of inappropriate sexual behavior, including:
The case was continued for hearing, and at that hearing, the trial judge weighed the credibility of the witnesses. The judge found Julie was a credible witness and that some of Daniel’s testimony was not credible. The judge granted Julie’s order of protection protecting her and the children. The Appeal Specifically, Daniel argued that Julie should not have been able to testify about what their son told her. In his brief to the court, Daniel argued that there was insufficient evidence to justify the trial court’s orders restricting his parenting time under both the plenary order of protection, addressed under the Domestic Violence Act, and the emergency parental termination petition, addressed under the Marriage Act. Can a Child's Hearsay Statements Come Into Evidence? THE APPELLATE COURT FINDS THAT THE LAW WAS NOT FOLLOWED WHICH WOULD ALLOW THE HEARSAY STATEMENTS TO COME INTO EVIDENCE There are two possible Illinois statutes under which a person can admit the hearsay statements. One is section 606.5(c) of the [Marriage] Act (750 ILCS 5/606.5(c) (West 2018) and the other is section 8-2601 of the Code (735 ILCS 5/8-2601 (West 2018)). The Marriage Act does not require a separate hearing regarding the admissibility of a child’s proposed hearsay statements. In contrast, a separate admissibility hearing is envisioned under section 8-2601 of the Code. 735 ILCS 5/8-2601(a) REQUIRES A SEPARATE HEARING IF A STATEMENT IS TO BE ADMITTED FOR A CHILD UNDER THE AGE OF 13 Section 8-2601 (735 ILCS 5/8-2601(a) (West 2018)), located in article VIII of the Code (735 ILCS 5/art. VIII (West 2018)), states the following: “(a) An out-of-court statement made by a child under the age of 13 describing any act of child abuse or any conduct involving an unlawful sexual act performed in the presence of, with, by, or on the declarant child, or testimony by such of an out-of-court statement made by such child that he or she complained of such acts to another, is admissible in any civil proceeding, if: (1) the court conducts a hearing outside the presence of the jury and finds that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. The child must either testify at the proceeding; or be unavailable as a witness. If the child is unavailable, there has to be corroborative evidence of the act which is the subject of the statement." Plenary Order of Protection Hearing At the December 16, 2019, plenary hearing, the trial judge discussed Julie’s motion to admit hearsay testimony of the minor children as well as Julie’s notice of intent to offer hearsay evidence of the minor children, which requested, inter alia, that the judge allow the hearsay testimony of the minor children in accordance with section 606.5 of the Marriage Act (750 ILCS 5/606.5 (West 2018)). In opposition to Julie’s hearsay motions, Daniel’s counsel argued that section 8-2601 of the Code should govern the admission of the children’s hearsay statements. The trial court elected to use the statute under the Marriage Act, the court ruled that the statute under the Marriage act would govern the admission of the children’s hearsay statements for the plenary order of protection and the emergency parental termination petition. In previous case law, the appellate court had ruled that the Marriage Act should govern the admission of a child’s hearsay statements regarding abuse by a parent because that statute specifically addresses and allows admission of these statements where they concern parental custody and visitation rights. See 750 ILCS 5/606(e) (West 2014) (now codified as 750 ILCS 5/606.5(c) (West 2016)). Section 606(e) is more specific regarding the admission of out-of-court statements in which a child alleges sexual abuse by a parent. Daniel’s Argument to the Appellate Court Daniel asked the appellate court to revisit the issue of allowing out of court statements in light of the more recent decision in a previous case. Daniel argued that where two statutes are allegedly in conflict, a court has a duty to interpret the statutes in a manner that avoids an inconsistency and gives effect to both statutes. Daniel’s argument was supported by a previous case decided by the appellate court, In Arika M. In that case, a mother sought an order of protection on behalf of herself and her three daughters against the father of her children. In the petition for the order of protection, the mother asserted that the children had confessed that their father touched them inappropriately when he took baths with them. The trial heard the mother’s request for a plenary order of protection and the father in that case argued that the children’s out-of-court statements should not be admitted because they lacked corroboration. In this context, it means that there should be other evidence supporting the statement. By way of example, if a child complained that a parent punched them in the face and the child had a bruise, the bruise could be considered the corroboration. “Touching cases” are hard to prove because they rarely have bruises, cuts, or anything to prove or disprove them. In Arika M, the trial court admitted the children’s statements, agreeing with the mother that the girls’ actions and demeanors corroborated their out-of-court statements. The trial court granted the order of protection and reduced the father’s parenting time to supervised visits. On appeal, the father claimed that the children’s hearsay statements should not have been admitted. The appellate court remanded the case for a hearing to be held in accord with the provisions of section 8-2601 of the Code. Daniel argued that in his appeal that the court use the ruling in Arika to decide his case. The appellate court in Daniel’s case agreed with him and said that the trial court should have used the other statute, the one in section 8-2601 since it was a domestic violence proceeding. The Appellate Court Agreed with the Father A SEPARATE HEARING SHOULD HAVE BEEN HELD AS TO THE RELIABILITY OF THE CHILD'S HEARSAY STATEMENTS In this case, as in the Arika M. case, Julie requested a plenary order of protection on behalf of herself and her children against the children’s father, Daniel. At the plenary hearing, although Daniel’s counsel requested that section 8-2601 of the Code be applied, the trial judge applied the Marriage Act standard instead. As a result, the trial court heard out-of-court hearsay statements without first holding a hearing about the reliability of those statements. The appellate court reversed the trial court’s ruling. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody-visitation/in-re-marriage-of-portillo-use-of-a-childs-hearsay-statements-in-court/
0 Comments
One of the costliest parts of divorce litigation is discovery. Written Discovery is the request for you to answer questions in detail about your income, assets, standard of living, etc. These request will ask you to produce a detailed list of documents usually spanning several years. There is no way around discovery if the parties wish to proceed in this fashion and it is often advisable to request documents so that you can confirm details about assets and liabilities and the value of the marital estate.
The best way to keep the cost in check is to provide all the documents that you are asked to produce. If you produce them electronically, produce them in a form that can be easily saved, reviewed, and summarized, and if you produce the documents in paper format, it is best to produce 3 copies of each document so that your attorney has a copy to provide opposing and a copy for the court in the event the case proceeds to trial. This will save your attorney time and you money in getting the documents ready to send to opposing counsel. It is also advisable to produce a word document listing all of the documents you are sending – that can be used in generating the production responses and again saves your divorce attorney time and you money. Tips to Save Your Attorney Time and You Money on Divorce Discovery 1. Gather Important Financial Documents and Statements When the divorce case begins, or before if you are aware it is coming, you should begin gathering your important documents and organizing them as described above. Bank Statements, Retirement Statements, brokerage account statements, mortgage statements, car notes, personal loans, credit cards and pay check stubs are the main documents you know you will need to produce. Other items such as copies of utility bills, insurance paperwork and taxes are also likely needed. Don’t wait for the other attorney to send out a request, get the paperwork together so that you can get them ready when needed efficiently and quickly. This will get your case through the system faster and again keep cost down. 2. Provide ALL Documents Requested One mistake I often see is people gathering some documents but not others, missing statements, and, at times, refusing to produce some things. This leads to motions with the court compelling the producing and requests for attorney fees due to the time spent in court to compel you to produce. Those litigants who drag their fee and don’t do a thorough job in document production end up spending more time and money on compliance issues and is simply not cost effective. 3. Be Prompt Responding to Discovery Requests If the other attorney asks for documents and you have 28 days to get them together – don’t wait the 28 days and ask for more time, get it done so that if there is a problem, they can notify you and you can rectify it before any motions have to be filed. Once a divorce is filed your life is an open book so there are not too many categories of documents that you do not have to produce. 4. Have Every Statement for Retirement Accounts Another important matter for discovery that has saved clients tens of thousands of dollars is gathering every statement for their 401K or IRAs. The reason every statement is necessary is that the money accumulated during your marriage is marital but the money you put in prior to the marriage along with all gains on those funds is non-marital. You must have every statement to calculate the amount of gains on the non-marital share and can make a large difference in the division of the marital verses non-marital share. I see many attorneys determine the marital portion of one of these retirement accounts by looking at the value on the date of the marriage and subtracting that amount from the total value of the account on the date of divorce leaving the remainder the marital value. However, the money you earned on your non-marital portion due to the market has been lost, you have given it away to your spouse as a share of the marital estate. It is important to get every statement to do this calculation. You cannot assume or guess; you must have the documents. 5. Have a Copy of Your Credit Report Always get a copy of your credit report. This will give you a full picture of all joint accounts and include accounts you may not have been aware of and any credit problems. I often request opposing to provide a copy of their client’s credit report as well. Promptly Comply With Discovery Requests The lesson to take away from this is that the best way to get through the discovery process and keep costs down is to fully comply, as soon as possible. Otherwise, you will be faced with litigation regarding obtaining the remaining documents and it will also delay finalizing your case. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce-litigation/cost-effective-divorce-avoiding-discovery-non-compliance/ The question “How can I modify my child support” is one of the most frequently asked questions in family law. Child support is often a hotly contested issue, as many parents feel like they are paying too much, or their ex-partner is paying too little. But, opinion has little to do with it. Child support is set by Illinois state guidelines, so it is usually just a matter of doing the math based on what each party is earning and how much time they spend with the child under the current law. That said, there are important deviations, credits, and other nuances that an experienced family law attorney can educate you about, as well as providing you with assistance in navigating your case through the court system expediently and efficiently.
The Recent History of Child Support Law in Illinois The first thing to know is that in the fall of 2016, the Illinois legislature made a major change to how child support is calculated. Prior to 2016, the state would only look at the income of the parent who exercised less parenting time with the children, i.e. the minority parent. The state would then assess a child support obligation based on a percentage of their income, such that for one child a parent would pay twenty percent of their income in child support, twenty-eight percent for two children, thirty-two percent for three children, and so on. The law did not consider how much time the children were spending with the minority parent at all. In the fall of 2016, as part of a sweeping revision to domestic relations law that included getting rid of the term “custody”, the legislature changed the child support calculation model to a shared-income model. Instead of looking only at the income of the parent with less parenting time, the shared-income model combines their incomes to mimic what their household income would be like had the parents never split up. The result is that both parents are now assessed a child support obligation, but only one parent actually makes payments toward that obligation. Impact of Overnight Parenting Time The other major change is that the amount of time a parent spent with their child had an impact on the child support amount, which was not considered before. Now, if the parent exercising less time has over 146 overnights with the child, their child support obligation decreases significantly because they are already providing significant support to the child/children in their home. It is important to understand that this formula only considers overnights, not days spent with the child, when determining whether a parent is entitled to this deduction. If you have a child support order from before 2016, it is important to know that the factors and way the support amount is calculated have totally changed and the new law will be applied if either you or your ex-partner seeks to modify child support. It is critical to consider how those changes could impact your support amount before proceeding with a modification, to your detriment or your advantage. Talking to an experienced family law attorney can help you understand whether a modification could be financially beneficial to you, or not. Can My Child Support Be Modified Without Going to Court? If the parties have a formal child support obligation, i.e. a child support order, the amount and frequency of the payments are set and enforced through a court order. In that case, it is not possible to change one’s child support without a court order reflecting that change. It is also important to note that the child support obligation remains in effect, for the amount included in that order, until a judge agrees to modify the amount. Child support does not automatically change just because someone has lost their job or had some other change income, and the fact that a person feels they cannot pay it does not mean they do not owe child support. Child support modification require a new support order with the new support amount. The way that child support is usually changed is by filing a Motion to Modify Child Support. Per the current law, the person seeking to change the support amount must state that a “substantial change” has occurred in order to reduce or increase the child support amount. This change could include an involuntary job loss or salary decrease, an increase in the other parent’s income, or it could be a change in the child’s needs and expenses. Any of these could constitute the “substantial change” necessary to modify the child support obligation. It is important to know that quitting a job, or the decision to go back to school or go down to part-time, does not entitle you to a reduction in your child support. Any reduction in income must be involuntary to qualify. Also, it is important to know that even if your ex-partner is earning more money at a new job, or through a promotion, that may not be sufficient grounds to modify a child support obligation if you are also earning more money than you were when the last child support order was entered. Finally, the change in the law is not grounds for a modification of child support. If you have a child support order from before the fall of 2016, you must show a substantial change in circumstances other than the change in the law to have the support amount modified. There are no guarantees with child support modification—a substantial change in circumstances is an issue to be decided by the judge, and the new support number is based on both incomes. So, unless there has been a large change in the parents’ financial circumstances, it can be difficult to ensure a specific outcome until financial information has been exchanged and the numbers crunched. How Long Does It Take to Modify Child Support? Child support modifications are not terribly complicated, as the support amount is based on the parents’ incomes and the parenting time schedule. When one party files their motion to modify the child support obligation, the parents must exchange statements about their incomes and expenses, called financial affidavits, and provide documentation verifying their incomes for the past two years. Once that information has been exchanged, the new child support amount is calculated using those incomes and the number of overnights the child spends with each parent. The parents can argue that they are entitled to a deviation from the guideline support amount, either up or down, depending on factors like the needs of the child and expenses for the parent. For example, a parent whose child lives out of state might be able to reduce their monthly child support obligation because they must pay travel costs to exercise their parenting time. Another example would be that a parent of a child with significant special needs might be able to successfully convince the judge to an upwards deviation from the guidelines because this child requires additional financial support. Deviations are entirely up to the judge’s discretion and will be considered on a case-by-case basis. After the new child support amount has been calculated, the judge enters a new child support order, called a Uniform Order for Support, for the new monthly support amount. This can often be done by an agreement because the support amount is set by pre-existing factors and the current guidelines. Ideally, the process would be done in somewhere around six months. What can slow down a child support modification is if one party refuses to turn over the financial information or turns over an affidavit that does not honestly reflect their total income. Busy court calendars can also slow the process down because it can take a while to get your case in front of the judge and to get an order modifying the child support amount. Factors like these can extend the modification process by several months, maybe even more than a year. Should I Hire a Lawyer to Modify Child Support? The simple answer is yes. While child support modification is not a terribly complicated process, it is absolutely in your best interest to have an experienced and knowledgeable child support lawyer there to help guide you through the process. Your attorney has the information about how child support is calculated and can advise you on possible ways to lower your support amount. For instance, parents who provide health insurance are entitled to a reduced amount based because they are paying for that benefit for the child. Likewise, parents with children from other relationships are also entitled to a reduction in child support. Most importantly, the person who files the motion for modification support is entitled to relief retroactive to the date of filing. This means that if you file to lower your child support amount you will be entitled to repayment, or credit, for the difference between your old support amount and your new one. While retroactive relief is part of the statute, it is critical to know to ask for it, and include if your new child support order, or you will lose out on that relief. These credits could easily be missed by a parent representing him or herself because they are not knowledgeable about all of the credits and retroactive relief they are entitled to under the law. A child support attorney can also help to expedite the process by keeping your case moving quickly and ensuring that timelines are followed and, if necessary, enforced by the judge to avoid unnecessary delays. As child support modifications can be entered by agreement, and often are, an experienced attorney can also help to negotiate an agreed modification without having to take the matter to hearing before the judge, which can save you both time and money. Likewise, having an attorney helping you in your case to modify child support is the best way to ensure that the calculations are accurate, and the order is entered correctly. If the wrong box is checked, a monthly obligation could become a biweekly obligation, and the only way to fix such a significant error would be to go back to court to modify that order. Having an experienced family law attorney who knows the law, and the math is the best way to ensure that your support modification is done right. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-support-modification/how-can-i-modify-my-child-support/ Second Parent Adoptions are typically done when a spouse has a child from a previous relationship and the circumstances allow that child to be adopted by the other spouse. As an example: Wife and Husband get married and Wife has a child from a previous relationship. Wife wants Husband to adopt this child which can happen if the child’s biological father consents to the adoption. However, there are situations where the biological father’s consent is not possible and that is when the biological father has passed away or is unknown.
Once the adoption is completed both parents will stand equal as far as parental rights, responsibilities and obligations related to the child. The adoption grants the second parent the same rights as the biological parent. Second Parent Adoption in Illinois A Second Parent Adoption – when one of the parents is biologically related to the child – requires a court proceeding with the proper paperwork prepared and filed with the Court. In Illinois, the requirements are not as stringent as an adoption proceeding when neither parent is biologically related to the child. The process is still a formal court proceeding that requires a home study, background check and the consent of the biological parent who is consenting to the adoption. The consent is very important because the consent will terminate that parent’s legal rights to this child in this process. Home Study Requirement In Illinois, a home study is mandatory even though it is a second parent adoption. A Home study is an investigation done by an agency that provides the Court with a report and their opinion of the adoption as it relates to the best interest of the child. The Court must be sure that the child’s needs will be met if this adoption proceeds. The Agency may want to see birth certificates, marriage licenses, divorce documents, criminal background checks, and verify that there has been no allegations or findings of child abuse. The parties to the adoption, which are the biological parent and the parent adopting the child as well as the child will appear in court and the Judge will hear the facts surrounding the adoption. The court will confirm the parent’s desire and is likely to ask the child some light questions regarding the relationship the child has with the parent who is adopting the child. Once a judge is satisfied that the criteria have been met and the proper paperwork filed, an Order for the adoption will be signed and a new birth certificate will be issued which will change the name of the father of the child and the child’s last name. Terminating Rights of the Consenting Parent The parent consenting to this adoption and allowing another person to become the child’s parent will have all their rights and obligations to the child terminated. There will be no inheritance that will flow from the consenting parent, no rights to see the child, and no obligations of support – all of that is terminated. The court will only allow this termination if there is someone to step in and take on this responsibility in a Second Parent Adoption. The second parent who is adopting will have a legal child and all the obligations, rights and responsibilities that come with that. Second Parent Adoption For Same-Sex Parents A second parent adoption can be used when one same-sex partner has a biological child, and the other partner wants to adopt. For example, if a woman has a child using a sperm donor, her partner can adopt the child through this Second parent adoption process. Situations Where Second Parent Adoption Arises In our law practice, I have seen this come up several times and often it is at the end of a long, contested fight over parenting time that includes abuse allegations, restricted or supervised parenting time and a very distressed child. The parent that has the child has remarried and their new spouse wants to adopt the child which would terminate the relationship that the child has with the biological parent. Judges are very careful when this comes up as they want the parent giving up their rights to a child to understand exactly what that means and take every precaution to make sure they are doing this willingly and with full knowledge of all consequences. Once the parent signs the consent to allow the child’s other parent’s new spouse to adopt the child, the litigation terminates. I have seen this be a relief in some family situations and other times where it has been sad to see the destruction of parent/child relationships that can happen when parties abuse the court system. Many times the pressure to consent to an adoption is financial. There is a large amount of child support that is due and all financial obligations, including child support, medical payments, childcare, etc. that are due and owing are waived when the consent is signed. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/adoption/what-is-a-second-parent-adoption/ If you’re convinced that your marriage is irretrievably broken and divorce is coming, there are things you can do now to prepare and protect yourself in the divorce process. Here are 10 steps to take if you believe your spouse is about to file for divorce:
1. Consult a Divorce Attorney Start doing research on divorce and family law attorneys in your area and make appointments for consultations. Being adequately informed as to your legal rights and responsibilities is very important. Ask your attorney for more details on what to do before the divorce is filed and hope you can prepare for divorce. 2. Copy Important Documents And/or Obtain Documents Online Go through the house and make copies of all documents that are relevant to your divorce case. These documents will include things like tax returns, paystubs, title documents for real estate and other property, retirement account statements, investment account statements, mortgage documents, wills, credit card statements, bank statements, and other similar documents. If there are no paper copies of the documents readily available, make sure to go online to obtain copies of these documents. If you are unable to print out copies, save them to another device/memory stick that you can access later. 3. Inventory All Household Items and Possessions Make a list of all items in the home you share with your spouse, including but not limited to furniture, appliances, expensive handbags or shoes, silverware, plates, books, artwork, automobiles, jewelry, and any other items that will have to be divided between you and your spouse in a divorce. Don’t forget to check the garage for tools and other outdoor equipment and outdoor furniture that will have to be allocated during the divorce, as well as any other storage areas you and your spouse might have. 4. Determine How to Manage the Family Debt First, determine if there is any debt that was incurred by either you or your spouse before the marriage. This debt could be classified as non-marital debt and should be assigned as that person’s individual debt for which will be solely responsible. Next, consider paying down the marital debt before the divorce if you can. The marital debt will be allocated between you and your spouse. Consider getting a copy of your credit report to be aware of any accounts or unknown debts that have accrued during your marriage or account recently opened. 5. Be Knowledgeable About The Household Budget and Expenses Go through your bank and credit card statements for the last year to help determine your monthly expenses. This information will be important during the divorce when calculating support and will also help you understand how much you might need to set aside to support yourself before the divorce is filed. Keep track of your cash purchases each month as well. 6. Find Out What Your Spouse Earns Your income and your spouse’s income will be used to determine child support and spousal maintenance if your case is a maintenance case as determined by statute. Having knowledge of your spouse’s income will help in determining potential support amounts. If your spouse earns a regular salary, the income can be easily found out via pay stubs or W-2 forms. However, if your spouse is self-employed, then additional documents will likely be required to prove their income accurately. Talk to your attorney about more details if your spouse is self-employed. 7. Determine Your Earning Potential Have you been out of the workforce for some time? Is your current job long-term and in the field in which you were educated? Are you able to support yourself on your own? Whatever your situation might be, consider your current employability and potential to earn additional income. This will help you determine if furthering your education before a divorce might be beneficial. 8. Know Your Credit History Get a credit report. Having good credit is important for your life after a divorce. If you only have credit cards in the joint name of you and your spouse, apply for your own credit cards to start establishing more of your individual credit history. If your name is not on any credit cards, apply for your own credit cards to start establishing your own individual credit history. Use the cards and pay them off on time. If you know you have a poor credit history, work on paying creditors now to improve your credit rating before the divorce. 9. Build Your Own Nest Egg Start to set aside funds in your own separate account for use in case your spouse stops paying for household bills and expenses. This money can also be used to pay a retainer to your attorney to represent you in the divorce. You can obtain an Order from the court in your divorce case for temporary support from your spouse, but until then, you can use these separate funds to help you maintain your expenses. 10. Put Your Kids First Don’t make any sudden changes to your kids’ daily routines or activities; keep them as normal as possible. To prevent disagreements about the children, try to create a schedule with your spouse as to when each of you will get separate time with the children. Try to reach an agreement about taking the kids to their activities and other events so arguments can be avoided. Make sure to stay involved, or start getting involved, in your children’s school, activities, and sports. Talk to the children’s teachers and coaches so they know you. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/10-things-to-do-if-your-spouse-is-about-to-file-for-divorce/ A cohabitation agreement is an agreement or contract entered into between two people living together in the same household who are in a romantic relationship but not married. With more millennial couples choosing to live together, whether planning to marry or not, commingling property can get complicated in the event the relationship ends. A pre-nuptial agreement – or prenup – is an agreement or contract entered into by two people who are getting married. For prenups, the agreement is only valid in the event the marriage actually takes place. Cohabitation Agreements in Illinois Cohabitation agreements are not very common in Illinois due to an Illinois Supreme Court case in 1979, Hewitt v. Hewitt. In the Hewitt case, the Illinois Supreme Court held that the courts cannot resolve a property dispute between unmarried couples. Victoria Hewitt lived with Robert Hewitt from 1960 until 1975 in a family-like relationship, they had three children but were never married. Virginia filed a suit asking the court for her share of the property accumulated during the time they were together. The Court held that Victoria’s claims were unenforceable because they contravene the public policy implicit in the Illinois Marriage and Dissolution of Marriage Act disfavoring the grant of mutually enforceable property rights to knowingly unmarried cohabitants. Since the Supreme Court made this statement in 1979 it was understood that unmarried couples in a married-like situation without marriage were not going to be able to get the relief in Court that you would get if you were married. In 2016 the Illinois Supreme Court took a case involving a property dispute between same-sex partners, Blumenthal v Brewer. Similar to Hewitt in that they had been in a long-term relationship without the benefit of marriage and asked for the court to resolve a property dispute. Blumenthal and Brewer had been domestic partners since 1981 and jointly owned a Chicago home. In 2010 the relationship ended and Blumenthal asked the court to partition (divide) the residence and Brewer counterclaimed for a share of Blumenthal’s ownership in a business so that their assets would be equalized upon separation. Blumenthal asked the Court to apply the rationale of the Hewitt case which denied the division because they were never married. Brewer argued that it was “particularly irrational” to apply Hewitt because she and Blumenthal could not marry because same-sex marriage was not recognized in Illinois. Again, the Illinois Supreme Court made it clear that the legislature intended marriage to be the only legally protected family relationship under Illinois law. Permitting unmarried partners to enforce mutual property rights might “encourage the formation of such relationships and weaken marriage as the foundation of our family-based society.” Marriage is a legal relationship that all individuals may or may not enter into, Illinois does not act irrationally or discriminatorily in refusing to grant benefits and protections under the Marriage and Dissolution Act to those who do not participate in that institution. Cohabitation Agreements Protect Property Everyone has personal property of some kind. It could be a large asset like a house or it could be a television set or a pet. If you have a partner you have likely shared this property with that partner. If you break up, deciding how to divide that property without a cohabitation agreement can be very difficult so if you are going to live with someone and share property it is best to have an agreement in writing. Illinois has laws that address how to divide property but if you are not married the divorce law cannot help you divide the property. You have to count on a civil court to enforce a cohabitation agreement under civil contract law. While not as common, cohabitation agreements can be very effective in avoiding property disputes if your relationship breaks up. What to Include In Your Cohabitation Agreement When it comes to creating a cohabitation agreement, the agreement should address:
Although they are not common and not enforceable in divorce court because the law does not give you the same rights as a married couple, you should protect yourself as best you can by having a cohabitation agreement in place. It is too late to do this when something goes wrong so think about it when things are good and you can discuss these topics in a calm rational way. Thinking About a Cohabitation Agreement in Chicago? Consult Anderson & Boback If you are thinking about moving in with your significant other, a cohabitation agreement can save you headaches down the road. Be sure to have it drafted by an attorney experienced with these types of agreements, both of you sign it, and keep it tucked away in the event you need it. If you are in the Chicagoland area, feel free to schedule a consultation with one of our divorce attorneys to discuss a cohabitation agreement. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/property-division/cohabitation-agreements-and-what-millennials-need-to-know/ |
AuthorArchives
August 2022
Categories |