As society progresses, our laws tend to follow suit. However, laws tend to play “catch-up” to public opinion and societal realities. As such, even in states where same-sex marriage is legal, like Illinois—which recognized such unions in 2014—same-sex couples continue to face unique legal challenges. This blog explores the unique challenges in same-sex divorces, focusing on Illinois where the legal landscape continues to evolve. In 2014, Illinois became the 16th state to recognize same-sex marriage. Since then, Illinois has made strides in LGBTQ+ rights, yet several legal issues pertinent to same-sex couples' divorce still remain. These issues include legal parentage and custody disputes to the recognition of marriage duration. Navigating Legal Parentage in Same-Sex Divorces A major challenge for same-sex couples is establishing legal parentage, particularly for children conceived through assisted reproductive means. Although Illinois Family Law acknowledges both spouses in a same-sex marriage as legal parents, unmarried couples or those who conceived before marriage may face complications. Pre-Marriage Parentage: Establishing Parentage Challenges Couples who conceived a child through assisted reproductive methods, such as in-vitro fertilization, before marriage may find themselves in a legal gray area regarding parentage. In such a case, it is crucial to establish legal parentage through adoption or a parentage order, which can proactively resolve any disputes regarding parentage. Unmarried Same-Sex Couples Parentage Under Illinois law, both partners in a same-sex relationship can be recognized as legal parents, though this requires additional steps. It's crucial to establish parentage through a Voluntary Acknowledgment or court order, especially if one parent is the non-biological parent. Custody Disputes Among Same-Sex Couples Like any couple, same-sex couples may face custody disputes in the event of legal separation or divorce. These confrontations can be particularly complex due to varying recognitions of legal parentage, which might not always be straightforward for non-biological parents. Understanding the legal nuances and protections in Illinois can be crucial for navigating these challenges effectively. Best Interest of the Child Illinois courts prioritize the best interest of the child in custody disputes, considering the child’s best interest factors such as the child’s relationship with each parent, the child’s adjustment to the home, school, and community, and the mental and physical health of all involved. Legal Parentage v. Biological Connection In cases where one parent lacks a biological connection to the child, disputes may arise concerning visitation rights and custody. However, Illinois law tends to emphasize legal parentage over biological connection, ensuring that both spouses in a same-sex marriage are treated equally regarding custody matters. Example: In In re T.P.S., 2012 IL App (5th) 120176, two women agreed to have children conceived through artificial insemination. Only one partner was biologically related to the children. At all times the parties were together, both before and after the births of their children, the biological parent agreed that the non-biological parent was to have legal parental rights to the children that were equal to hers. When the relationship ended, the biological parent sought to cut off the rights of the non-biological parent. The court ultimately held that in this case, although the parent was not biologically related to the children, she was nonetheless intimately involved in the planning and arrangement for the procreation of these children, and cared for them as a parent under an express agreement with the biological mother. The court held that “the best interests of children and society are served by recognizing the parental rights may be asserted based on conduct evincing actual consent to artificial insemination by an unmarried couple along with active participation by a non-biological parent as a co-parent.” Specifically, the common law recognizes actions for child custody and visitation where an unmarried couple agrees to conceive a child by artificial insemination and the couple subsequently begins raising the child as coequal parents. Such actions are consistent with the public policy in Illinois, which recognizes “the right of every child to the physical, mental, emotional, and monetary support of his or her parents, regardless of the legal relationship of the parents.” See 750 ILCS 46/102 (West 2020); In re T.P.S.¸2012 IL App (5th) 120176, ¶¶ 30-32. Complexities of Recognizing Relationship Duration For same-sex couples who face legal restrictions on marriage, recognition of the duration of their relationship can pose unique challenges. Legal Implications of Relationship Duration Recognition | Delayed Marriage Before the legalization of same-sex marriage, many couples faced years or even decades together without legal recognition, while their heterosexual counterparts faced no such difficulty. When same-sex marriage became legal in Illinois in 2014, some couples had already been together for years in a relationship equivalent to a marriage. Illinois law, however, does not currently provide mechanisms to recognize the duration of relationships before marriage. As such, those in same-sex relationships face the same standard as those in heterosexual marriages: the duration of the marriage begins at the point of the legal marriage. Impact on Legal Rights While the lack of recognition for pre-marriage relationships may not affect custody or parentage directly, it can impact issues such as property division, spousal support, and inheritance rights. Takeaways: Protecting Your Legal Rights and Family Security While Illinois has made significant strides in LGBTQ+ rights, especially in comparison to other states across the country, legal challenges persist for same-sex couples, especially regarding parentage, custody, and recognition of marriage duration. As such, it is crucial for same-sex couples to understand their legal rights and to take proactive steps to protect their families. By establishing legal parentage through adoption or parentage orders, same-sex couples can ensure that both partners have equal rights and responsibilities regarding their children. In the event of separation, understanding custody laws and prioritizing the best interest of the child can help resolve disputes amicably. Moreover, same-sex couples should consider legal agreements to address issues arising from the delayed recognition of their relationships, such as property division and inheritance rights. While the legal landscape may present challenges, same-sex couples in Illinois can navigate them successfully with the right knowledge and legal support. Ultimately, by advocating for their rights and seeking legal recognition, same-sex couples and their allies contribute to the ongoing progress toward equality and justice for all families. Get in Touch if You Need to Review Your Situation With Attorney If you or someone you know is navigating the complexities of a same-sex divorce, don't face these challenges alone. Contact Anderson Boback & Marshall to schedule a consultation with our experienced family law attorneys. Let us help you protect your rights and secure your future. Call us now or fill out our online form to get started. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/same-sex-divorce-challenges-illinois/
0 Comments
While 2024 did not see any significant changes to the laws governing divorce and parentage cases in Illinois, it is always important to check whether your parenting agreement is suitable for your family. Alternatively, consider if it is time for modifications. As children grow older, parents may discover that their parenting agreements need adjustments to reflect the changing circumstances in their households. Likewise, changes in the parents’ lives may require modifications to agreements or child support. Here are considerations and a few powerful tips for divorced parents considering modifications to their parenting arrangement. Need for Modifications as Families Evolve Changing Parenting Time Needs Many parents find that over the years the division of parenting time can become outdated and no longer reflects the best interests of their children. For example, parents often craft parenting schedules with frequent parenting exchanges to ensure that the children are never away from their parents for more than a couple of days. As the children get older, the families may find such frequent exchanges are no longer necessary. Older children are better able to handle time away from one parent. The children may also find frequent exchanges during the school week disruptive and prefer longer uninterrupted periods with each parent. Likewise, parents often find that less frequent exchanges can simplify things for parents. This is especially true when the kids have increasingly busy activity schedules and social lives. Formalizing Informal Modifications Similarly, some parents seek to formalize the informal agreed-to modifications in their parenting time schedules. This comes up often when children grow older and express that they want to be able to spend more time with a parent than the parents originally agreed to. This situation can also arise if one parent clashes with an older child, usually a teenager, and the parents agree for the child to move in with the other parent. Considering Children's Needs When considering possible updates and modifications, parents must account for their children’s schedules, needs, and preferences—in addition to their best interests. As children get older, they should have a greater say in their living situation and the time they spend with their parents and siblings. Kids’ changing social lives, extracurricular activities, and school schedules must also be taken into account when considering modifications to the parenting time schedule. Overall, parents need to show thoughtfulness and flexibility as their children age and ensure that the kids have time to be kids and enjoy childhood events, as part of the parenting arrangement. It is important to always be proactive and communicate with the other parent for the best well-being of the children. Impact on Child Support In a situation where one, or both, parents seek to modify their parenting time schedule, it’s important to remember that this kind of modification can also impact the child support amount. Especially if the child support was set using the pre-2019 calculations, where only the payor’s income and number of children were used to calculate the support amount. In a situation where one parent is gaining significantly more parenting time, it may also present an opportunity to reduce, or even flip, the child support obligation. Download Your Guide to ALLOCATION OF PARENTAL RESPONSIBILITIES Options for Modifying Parenting Agreements Traditional Litigation For those looking to modify their parenting agreements, the parties have options for making these changes. The most traditional option is litigation by filing a motion to modify the parenting schedule and citing the reasons for the modification. Depending on the specific facts of the case, the parent seeking to change the parenting schedule may also want to file a motion to modify the child support, as well. Alternative Dispute Resolution Alternately, parents can also consider options for alternative dispute resolution when it comes to modifying an existing agreement. Alternative dispute resolution, also known as ADR, focuses on providing parents with the opportunity to talk directly to each other and work together to create a new agreement. ADR options for reaching agreements outside of court include mediation and collaborative law. Both promote amicable negotiation with a focus on the parents deciding what is best for their families, rather than leaving that decision to an unknown third party. Mediation Mediation of a child's case concerns doesn’t have to involve a lawyer, though either party may bring a lawyer to mediation. If the parents elect not to have attorneys at mediation, an attorney should still be retained to review and formally draft any mediation agreement into an agreed order by an attorney. The attorney can also enter the order by agreement, as well. Likewise, if the parties agree to a modification of parenting time that would result in child support, the new amount should be calculated by an attorney who will also be responsible for drafting and entering the new support order. Having an attorney to do the legwork on your agreements, and ensure everything is drafted and entered correctly, is essential to protect your parenting time and finances. Collaborative Law In collaborative law, parties will work together with their attorneys and a mental health professional to craft any modifications to the parenting schedule, and possibly the child support amount. The attorneys working on the case will be responsible for drafting any necessary agreements and orders, as well as entering them with the judge. Discussing Modification Options With an Attorney If you are wondering if your family’s situation might be ripe for modification, the attorneys at Anderson Boback & Marshall can discuss the changes your family has experienced, and the circumstances surrounding those changes, as well as methods of modification to help you understand your options and figure out the best way forward for you and your family. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/tips-for-divorced-parents-2024-parenting-agreements/ Illinois residents facing marital difficulties no longer have to navigate the complexities of fault-based divorce. Before 2016, obtaining a divorce meant proving your spouse was at fault, often leading to accusations of adultery, cruelty, and lengthy legal battles. Thankfully, Illinois law has evolved with the introduction of no-fault divorce, providing a simpler and less stressful path. The Challenges of the Old Fault-Based System It used to be difficult to gain a divorce and leave a marriage that was not working. Before a change in Illinois law governing divorces which occurred in 2016, parties wishing to end their marriages needed a good, provable reason for the divorce. Grounds under the old rule included adultery, mental or physical cruelty, abandonment, impotence, habitual drunkenness, and substance abuse. You or your spouse couldn't approach the court and ask for a divorce on the basis that you simply no longer wished to be married. You needed something to pin on your spouse to have the Court grant your relief. If the grounds were simply that you wanted to be done and did not want to work any harder on a marriage you believed was not working or going well, the Court could and would deny you a divorce and require you to stay married. A Simpler Path: No-Fault Divorce in Illinois Thankfully, Illinois law has evolved to recognize the difficulties associated with divorce. The change in the law since 2016 has significantly lowered the burden of what you have to prove to be granted a divorce in Illinois. As of 2016, and the passage of Public Act 99-90, the only grounds on which a divorce can be granted by the Court are “irreconcilable differences.” The changes ultimately mean:
Benefits of No-Fault Divorce in Illinois This is, in one Chicago divorce attorney’s opinion, a good thing in several different ways:
No-Fault Divorce Became Nationwide With Clear Benefits The removal of the requirement to prove fault to obtain a divorce on a national level (in all 50 states) has measurably improved lives, especially for female spouses. Researchers tracking the emergence of no-fault divorce laws state by state over a period found significant drops in the rates of female suicide and domestic violence, in addition to decreases in spousal homicide of women. Research links no-fault divorce laws to beneficial outcomes, such as reduced domestic violence and spousal homicide rates. Additionally, statistics indicate that women initiate the majority of heterosexual divorces. The progressive nature of these laws is highlighted by the stark contrast seen in states with more restrictive policies, such as Missouri. Here, pregnant women face significant legal barriers, as Missouri state laws prohibit them from finalizing a divorce during pregnancy. This policy not only limits personal autonomy but also poses serious risks for those trapped in abusive relationships, underscoring the critical role no-fault divorce laws play in protecting vulnerable individuals. By allowing individuals to exit marriages without assigning blame, no-fault laws offer a more humane and safety-focused approach, showcasing their importance in fostering healthier communities and preventing violence. No-Fault Divorce Offers Streamlined Path, But Legal Representation Might Be Needed No-fault divorce offers a streamlined path for couples who have mutually decided to end their marriage. However, disagreements can sometimes arise, even in no-fault states. These disagreements can lead to contested divorces, which can become more complex and require legal representation. Illinois Remains Committed to No-Fault Divorce While there have been discussions in other states about restricting no-fault divorce laws, Illinois law remains firmly in favor of no-fault divorce. This means couples can end their marriage by citing irreconcilable differences, without assigning blame. No-fault divorce offers a more streamlined and less adversarial approach, especially beneficial for couples with children. Illinois designed this streamlined approach to minimize conflict and allow Illinois residents to move forward with their lives more efficiently. Why an Illinois Divorce Attorney is Crucial Even under a no-fault divorce, navigating the Illinois divorce legal process can be complex. An experienced Illinois divorce attorney can protect your rights and ensure a fair outcome in areas like:
Don't Go Through This Alone Divorce can be an emotionally and legally challenging time. An Illinois divorce attorney can provide invaluable support and guidance throughout the process. They can answer your questions, address your concerns, and work towards a resolution that protects your interests. Their support will enable you to move forward with your life. Schedule a consultation with a skilled Chicago-based divorce attorney to discuss your specific situation and explore your options. Contact a Dedicated Chicago Divorce Attorney Today THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/no-fault-divorce-in-illinois/ Filing joint tax returns during a divorce? Here’s what you need to know about protecting yourself from unexpected tax liabilities related to joint tax returns and Innocent Spouse Relief. In most divorce cases, filing joint tax returns proves more financially beneficial for both parties, whether it helps secure a refund or reduce tax liabilities. Any refund the couple receives or payment they owe becomes a part of the marital estate. When spouses file jointly, they both share responsibility for any taxes, interest, or penalties owed. This is true, even if there is a final divorce agreement entered by the Court with language that says one spouse might not be responsible for any liabilities of debts owed on joint tax returns. This is also true even if your spouse made all of the income for both of you. Your divorce judgment, unfortunately, does not protect you from tax liability, even if it explicitly states otherwise. Tax Liability and Divorce Agreements Filing joint tax returns often benefits both parties financially in most divorce cases, either by securing a refund or reducing tax liabilities. Any refund received or payment due becomes part of the marital estate. Both spouses share responsibility for any taxes, interest, or penalties when filing jointly. This shared responsibility applies even if the final divorce agreement states that one spouse is not responsible for debts on joint returns. It remains true even if only one spouse earned all the income. Unfortunately, your divorce judgment does not protect you from tax liabilities, even if it explicitly states otherwise. What exactly is an “understatement of tax” and how can you avoid liability? What Is an Understatement of Tax in Joint Returns? The IRS defines an “understatement of tax” as the difference between the total amount of tax that should have been shown on your return and the amount of tax that shows on your return. “Erroneous items” may consist of either unreported income, an incorrect deduction or credit, or, an incorrect value used for assets. In determining whether it is unfair to hold you responsible for the understatement, the IRS will consider whether you received any significant benefit from the understatement of tax, or whether you were divorced from or deserted by your spouse. How Innocent Spouse Relief Protects You During Divorce In 1998, the Internal Revenue and Reform Act made it easier for an innocent spouse who signed a joint return to avoid responsibility for the total tax due to be paid to the IRS. According to Internal Revenue Code section 6015(b), an innocent spouse will be relieved of an understated tax liability on a joint return when he or she did not know or have reason to know of the understatement, and it would be inequitable to hold the spouse responsible. Requirements Qualify for Innocent Spouse Relief To qualify for innocent spouse relief, you must meet ALL of the following requirements:
Innocent spouse relief can be demonstrated through financial records and any other documentation that the spouse may have. The IRS reviews each relief case on an individual basis. Factors ranging from someone’s education to changes in someone’s spending habits can impact how the IRS responds to such requests. Keep in mind that the innocent spouse relief is designed only for cases where the taxpayer underpaid or understated the tax due, not where the taxpayer paid the tax in full. The IRS will only accept requests for innocent spouse relief after a taxpayer receives a notice of audit or other notification of potential liability. The taxpayer must file the request for innocent spouse relief no later than two years after collection efforts begin. If the IRS denies the petition for relief, the taxpayer then has ninety days to petition the Tax Court. Conditions and Exceptions for Innocent Spouse Relief If the IRS determines that you do not meet all the required conditions for innocent spouse relief, there are two other instances in which a spouse may be relieved of the tax, interest, and penalties on a joint return. These two types of relief are “separation of liability” and “equitable relief.” Relief by Separation of Liability This relief, if granted, allows you to divide the understatement of tax on your joint return between you and your spouse (or former spouse). The understatement of tax allocated to you will be the amount of tax for which you are responsible. To request relief by separation of liability you must meet the following requirements:
However, the IRS only grants this relief in specific situations:
So, if you had any knowledge of an attempt made by your spouse, either involving you or not, to try to avoid paying taxes, the IRS will not grant the relief you are requesting. Equitable Relief The IRS does allow a third type of relief from tax liability for spouses who do not qualify for the two other previously mentioned types of relief. This is called equitable relief, which may be available if you meet all of the following conditions:
Unlike innocent spouse relief or relief by separation of liability, it is possible to obtain equitable relief from either an understatement of tax or an underpayment of tax. The IRS defines an underpayment of tax as an amount of tax that you properly reported on your tax return but that you have not paid. If you are separated or already divorced from your spouse, the IRS will consider it as a positive factor in favor of you obtaining equitable relief. Exceptions for Victims of Domestic Abuse If you do not qualify for any of the three types of relief mentioned above, and you are a victim of domestic abuse by your spouse, you may have one final remedy available to you. This remedy is available even if you knew or had knowledge about the errors on the tax return. You may be eligible for relief as an innocent spouse if you were a victim of domestic violence if you meet the following conditions:
Whichever relief you are requesting, remember that you must request Innocent Spouse Relief within two years of receiving an IRS notice of an audit or taxes. For more information regarding innocent spouse relief and how to apply for relief, visit the IRS website and IRS Publication 971. Take Our Divorce Readiness Quiz and uncover Possibilities for a Brighter Future Consulting Your Attorney: Navigating Tax Complications in Divorce If you face tax issues in your divorce, the Court may consider these when dividing the marital estate. A spouse who lied on taxes to deceive their partner can seriously damage their credibility in court. If a spouse misused marital funds for unrelated purposes instead of settling tax debts, the court could order them to reimburse you for half of those funds. Discuss your options with your divorce attorney if you face an innocent spouse-related tax issue. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/joint-tax-returns-and-innocent-spouse-relief-in-divorce/ Stalking in Illinois is a serious issue, and the courts offer various protections depending on your relationship between the Petitioner (the person seeking the Order) and the Respondent (the stalker). This blog explores the legal options available, focusing on Stalking No-Contact Orders (SNCOs), which provide legal protection against stalkers. Read on to find out the steps to take to obtain an SNCO and understand the different types of protection. Illinois Order of Protection An Order of Protection under the Illinois Domestic Violence Act is only for people who have been abused by a family or household member. According to Illinois law (750 ILCS 60/103 (6)), "family or household members" include:
So, what if the person stalking or harassing you isn’t your family or household member as defined above? What if the person stalking you is a former coworker or a friend of a friend? A Stalking No-Contact Order may provide you with some relief. People used to call this a “restraining order.” A Stalking No Contact Order (SNCO) is exactly what the law prescribes when a Petitioner cannot get relief under the Illinois Domestic Violence Act. What Is Stalking in Illinois Law? Stalking in Illinois law involves a course of conduct directed at a specific person, where the stalker knows or should know that the conduct would cause a reasonable person to fear for their safety or experience emotional distress. Key Elements of Stalking
Stalking does NOT include the exercise of the right of free speech or assembly that is otherwise lawful or picketing occurring at the workplace that is otherwise lawful. 740 ILCS 21/10. Now that we've defined stalking, let's explore the legal protections available. How Can a Stalking No-Contact Order (SNCO) Protect Me? A SNCO can order one or more of the following:
Of course, it’s important to remember that an Order cannot physically prohibit a Respondent from continuing to stalk the Petitioner. But, it does make continued contact or violations illegal, where they otherwise wouldn’t be. This means that a victim can call the police to report a violation of the SNCO. An initial knowing violation of a SNCO is a Class A misdemeanor. Any second or subsequent knowing violation is a Class 4 felony. 740 ILCS 21/125. What Are the Types of SNCOs? The types of Orders differ in how they are granted and how long they are in place.
Related Article: Domestic Violence and its Impact on the Divorce Process How Do I Get a SNCO? The first step is to file a petition. A petition should include the victim’s allegations and claims for a SNCO is needed. You can file a petition for an Emergency Order if there is a time-pressing issue or threat. You can also file a petition for a Plenary Order if there is no emergent threat and you would like to go directly to scheduling a hearing where you and the Respondent can both present evidence. Typically, an advocate at the courthouse can help you fill out a petition. This may be the best option if you need an Emergency Order. A family law attorney can help you file a petition as well, and can ensure everything is included for the best possible outcome in a hearing. What Happens in a SNCO Hearing? In a hearing, both sides get to present their evidence and provide testimony for their side of the story. A judge considers everything presented and offers a ruling the same day. While some judges have the option to hold a hearing via Zoom, most choose to have this hearing in person, as it can be easier for them to determine a person’s credibility face-to-face rather than via video call. It is best to discuss what type of evidence you want to present with a lawyer, as it can change on a case-by-case basis. In general, photographs, screenshots, call logs, letters, and other proof of the Respondent’s repeated stalking conduct are the best kind of evidence to support the stalking claims. Testimony is a type of evidence, too. After being sworn in, your testimony should provide the judge with a clear and consistent story of why you need to have the SNCO in place. What If a SNCO Was Served on Me? If you are the Respondent in a SNCO matter, you can seek the help of an attorney to represent you in the case. False accusations of stalking are unfortunate, as many people who are actual victims need Orders, and people seeking them without needing them hurt other people’s cases. However, as the accused, you need to take precautions. The most important thing you can do is contact an attorney. At Anderson Boback & Marshall, we help defend you against the false accusations made about you in court and we can facilitate a discharge of the accusation. If you're experiencing stalking, or you are falsely accused of stacking, contact Anderson Boback & Marshall to discuss your options and get the legal protection you need. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/illinois-stalking-laws-protection-snco/ Once you’ve decided you are ready to divorce, it is important to think about how you want your divorce to go forward. Many people feel powerless when it comes to deciding the method, tone, or handling of their divorce. That is because people do not always realize that they have options beyond a litigated divorce, but they do. Collaborative divorce can be a great choice for those couples seeking greater control over the process and less conflict along the way. Let’s explore and focus and the key benefits of a collaborative divorce. What is Collaborative Divorce? As a newer form of divorce facilitation, collaborative divorce has gained popularity among practitioners who prefer it to traditional litigation. It's an ideal choice for couples willing to communicate and work through their divorce cooperatively, without taking sides. Collaborative divorce involves a team of professionals, not just attorneys. The team may include a divorce coach for emotional support and other experts such as financial advisors and child specialists. Together, they guide couples understand the impact of their decisions as they separate their lives. As collaborative divorce can cover more than just legal issues addressed under the law, it provides a more holistic approach to divorce. As opposed to the secrecy and gamesmanship of litigation, collaborative divorce facilitates the sharing of information within the team and between spouses to maintain amicability both during and after the divorce. Three Reasons to Choose Collaborative Divorce 1. Time Many people are disappointed, if not downright dismayed, to learn that the average divorce usually takes between one to two years. The timeline is largely dictated by the professionals involved, most notably the judge. Depending on the county where you live, the judge handling your divorce might have hundreds, even thousands, of other cases to schedule and hear at the same time. Since two or more attorneys handle the case, they may also have other cases, which complicates scheduling. If issues in your case must go to a hearing or trial, you may have to wait months before your issue can be heard. The judge must give both sides sufficient notice and time to prepare, and fit it into their busy schedule. Usually, the longer the hearing or trial, the longer the wait for your day in court. Because collaborative divorce occurs outside the courtroom—except for the final prove-up hearing—the schedule isn't dictated by the judge’s docket. Instead, attorneys and clients set the schedule, with no briefing schedules or due process timelines to follow. Although the attorneys are likely busy, their schedules are less likely to push meetings out for more than a few weeks. This results in a significant time savings. Between meetings, the parties, their attorneys, and other experts are generally busy gathering and reviewing documents, working on proposals, and resolving issues quickly and efficiently. 2. Money While collaborative divorce is not cheap, especially up front, many practitioners find that the total cost of a collaborative divorce is significantly less than litigation—particularly in highly contentious cases. This is largely because of the significant cost of hearing and trial preparation, which involves extensive attorney preparation, court time, expert witness fees, and exhibit preparation, among other expenses. While collaborative divorce does include attorney and professional fees, which can vary depending on the number and specialty of the professionals, there are none of the additional expenses or costs related to preparation or court appearances. The professionals’ time is dedicated to the divorce settlement by discussing and resolving issues. So, rather than arguing issues to a third party, a less time-intensive and more expeditious method of dispute resolution. 3. Conflict Resolution Unlike litigation, Collaborative divorce eliminates impasses because there's no third-party decider or tiebreaker. Instead, the parties must work together to reach an agreement. With less antagonism, they can better resolve disputes and move forward. Focusing on conflict resolution protects children and preserves families during this difficult process. Reducing conflict helps maintain relationships, benefiting the parties, their children, friends, extended families, and futures. The team at Anderson Boback & Marshall includes experienced litigators, collaborative divorce practitioners, and trained mediators. We can help you identify and understand your options as you move forward. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: illinoislawforyou.com/blog/choosing-collaborative-divorce-3-benefits/ When a marriage becomes strained, couples face challenging decisions. Should they opt for a divorce or consider legal separation? Understanding the key differences between these two legal processes is important to make an informed choice. In Illinois, legal separation offers a path to living apart while retaining some marital benefits. However, it’s not the same as divorce. In this article, we explore the nuances of legal separation, its implications, and why some couples might choose legal separation over divorce. Legal Separation vs. Divorce: What’s the Legal Difference? Legal Separation in Illinois allows you to live separately from your spouse and it divides the assets of the marriage. With Legal Separation, you and your spouse can stop being financially tied to each other by agreement – the debts, real estate, bank accounts, and more would be settled and separated during the Legal Separation process. You and your spouse can also settle issues of your children such as child custody and child support. The same is true for the divorce process, but in addition, divorce in Illinois dissolves the marriage. Legal Separation, however, does not terminate the marriage, so, you would not be able to remarry someone else, as the marriage has not ended. Visit our Legal Separation services page to learn more Limitations of Legal SeparationAside from not being able to remarry, another limitation to Legal Separation is that a Court can only order certain kinds of remedies. Illinois law limits the temporary relief available in a Legal Separation to only Temporary Child Support, Temporary Spousal Maintenance, and Petitions for Restraining Orders. [T]emporary relief and trials shall be the same as in actions for dissolution of marriage, except that temporary relief in an action for legal separation shall be limited to the relief set forth in subdivision (a)(1) and items (ii), (iii), and (iv) of subdivision (a)(2) of Section 501. 750 ILCS 5/402(b) So, in a Legal Separation, the property cannot be divided unless you and your spouse agree to it. “If the court deems it appropriate to enter a judgment for legal separation, the court may approve a property settlement agreement that the parties have requested the court to incorporate into the judgment, subject to the following provisions: (1) the court may not value or allocate property in the absence of such an agreement; (2) the court may disapprove such an agreement only if it finds the agreement is unconscionable; and (3) such an agreement is final and non-modifiable” 750 ILCS 5/402(b) Understanding the limitations of legal separation can guide your decision-making process. Why Choose Legal Separation Over Divorce? Couples might choose legal separation over divorce for various reasons. Staying legally married allows you and your spouse to retain financial benefits like health insurance and other federal perks. Sometimes legal separation is chosen for social and cultural reasons. Financial Considerations With a Legal Separation, you may be able to keep sharing a health insurance plan with your spouse. However, many health insurance companies treat Legal Separation the same as divorce. If you are considering Legal Separation instead of divorce for this reason, be sure to double-check with your health insurance plan if this is a possibility before pursuing Legal Separation, and raise the issue early in your case. Military Benefits Similarly, you may be able to retain spousal military benefits with a Legal Separation. However, a marriage of 10 years or longer is usually required before the spouse of a military service person may receive certain types of benefits. Please review our Military Divorce page for specific insights on the nuances of military divorce and spousal benefits. Immigration Benefits Some immigration benefits may be available to you and your spouse after a Legal Separation. The farther you’ve gotten in the process of obtaining a green card through your spouse, the better your chances are with Immigration Services to overcome a Legal Separation. You may need to provide evidence that your marriage remains real. Be sure to consult with an immigration lawyer for issues pertaining to a Spousal Petition for Citizenship. Social Security Benefits Social Security benefits are tricky because the federal government will still view you and your spouse as married. In a divorce, you can start to receive your ex-spouse’s benefits once you reach retirement age. In a Legal Separation, however, you cannot draw from your spouse’s Social Security until they decide to opt in. Alternatively, you and your spouse can agree for them to opt-in, but defer taking the benefit for themselves. Just like military benefits, a 10-year marriage is usually required in order to collect from your ex-spouse’s Social Security benefits. Below is guidance from Social Security Administration to determine whether a marital relationship exists. SI 00501.150: Determining Whether a Marital Relationship Exists Social Security Act §1614(b) and §1614(d) – Regulations 20 CFR 416.1801 through 416.1835
Social Considerations In many cultures and religions, divorce is strictly prohibited. Legal Separation may offer a form of relief for couples who can’t divorce due to their other personal values. Many religions find Legal Separation acceptable because keeping the marriage legally intact prevents remarrying someone else. Additionally, because it is not final like a divorce, a Legal Separation can offer time for couples who need a break. Couples can “test-drive” their separate lives without the strain of financial uncertainty or custody disputes. If you and your spouse reconcile and decide to jump back into full marriage, you can reverse the Legal Separation by filing a Motion to Vacate the Order of Legal Separation. A Legal Separation Can Become a Divorce Later If the limitations of a Legal Separation become too much for you or your spouse, either one of you can file for divorce. A proceeding or judgment for legal separation shall not bar either party from instituting an action for dissolution of marriage, and if the party so moving has met the requirements of Section 401, a judgment for dissolution shall be granted. 750 ILCS 5/402(c) If there were certain agreements reached in the Legal Separation, those agreements will stand in the subsequent divorce unless they are explicitly stricken in the divorce judgment. Therefore, pursuing a Legal Separation instead of a divorce requires you and your spouse to be on good terms and agree to many issues in order to have the best of both worlds. If you’re considering legal separation or divorce, Anderson Boback & Marshall can guide you through the process. Our experienced attorneys specialize in family law and are here to help. Contact us today for a consultation and let us assist you in navigating the legal complexities. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/legal-separation-vs-divorce-illinois/ When child custody, which the state of Illinois now calls parenting time and allocation of decision-making, is an issue before the Court, the primary consideration by the Court is always going to be the best interest of the child/children. There are a variety of factors that the Court must consider when determining the best interests of the children, and a parent’s behavior that could put a child in danger or at risk is one of those factors. This behavior includes whether a parent abuses alcohol or uses/abuses drugs. Is Drug Use or Alcohol Abuse an Issue? When determining if drug use or alcohol abuse is an issue, the Court will first want to know about the drug and alcohol use history of the parent or parents whose behavior is an issue. The drug and alcohol history includes illegal drugs – opioids, heroin, amphetamines, cocaine, LSD, Ketamine, ecstasy, mushrooms, etc., alcohol, prescription drug abuse, and marijuana, even if it is legal to possess marijuana recreationally in the state of Illinois in certain amounts. The Court can request that each parent advise of their drug history and current drug use, or if the drug or alcohol use is a current issue leading to immediate concerns for the minor children when they are with that person, the drug issues are brought before the Court in a motion by the other parent regarding restricting parenting time. Appointment of a Guardian Ad Litem Oftentimes, when a parent discloses drug use, or there is a motion filed in court, the Court will appoint a Guardian ad Litem (GAL) for the minor child or children to investigate the situation to find out more accurate information. The GAL can obtain the history of both parents and their alcohol and drug use, as well as visit their homes to see if there are alcohol or drugs and/or related paraphernalia at a parent’s home that could be available for a child or children to access. The GAL can also request that a parent be required to take a drug test or breathalyzer test at random times to determine if they are under the influence of drugs or alcohol if they suspect a parent is abusing drugs or alcohol. If a parent is found to be in possession of or using drugs or alcohol to intoxication when they are with the minor child or children, the court may require the parent to stop using those substances during their parenting time and when they speak to the child on the phone. If the GAL gets a sense that alcohol or drugs may be affecting a parent so much that they are unable to stop their use, the GAL can recommend to the Court that the parent be required to attend an alcohol or drug abuse treatment plan and/or attend AA meetings. When Alcohol or Drug Use Affects Parenting Time If the alcohol or drug use is so severe, or a parent does not stop using during their contact with the minor child or children, or even when they are not with the children, resulting in a behavior change, additional measures could be put into place that affect a parent’s ability to have parenting time with the minor children. These can include all or one of the following:
It is important to remember as well that just because recreational marijuana is legal in Illinois now does not mean a parent’s use of the drug won’t result in some negative consequences when it comes to their parenting time. Legal or not, it is still a substance that can impair your judgment, decision-making, and reasoning, all of which are important when it comes to parenting your children and taking care of them. If very strict measures are put in place like breathalyzer tests, drug tests, AA requirements or a drug and alcohol treatment program, along with restricted parenting time, that parent who has the abuse issues will be under strict scrutiny by the court to ensure they follow the procedures in place and stay sober so they can have parenting time. One additional element of drug and alcohol use is mental health. Often the drug and alcohol use and eventual abuse is due to an underlying mental health issue, or the stress and trauma of the divorce process, especially if the pother parent is abusive physically or mentally. The mental health of a parent with drug use or alcohol abuse issues should always be assessed to deal with any underlying psychological issues. If you or your child’s parent are affected by drug or alcohol use, be sure to contact an experienced parentage or divorce attorney like those at Anderson Boback & Marshall to assist you in dealing with these issues during your case. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/can-drug-use-impact-child-custody/ As Chicago divorce attorneys, a common question we often hear from potential clients is, “When is the right time for me to hire a divorce attorney?” People are often concerned about hiring an attorney too soon – what if their spouse doesn’t know they are contemplating divorce? Can they pay the retainer fee using marital money? Will their spouse see it? Should they wait until their spouse files before hiring someone? These are all common questions for people who are contemplating a divorce in the future. Hiring an Attorney “Early” The truth of the matter is that a person should hire a divorce attorney whenever they are comfortable doing so. Some folks will choose to hire an attorney very early in the process. This has some distinct benefits. While nothing may yet be filed, an attorney can consult with you and help you plan for filing the case, receive the paperwork for your spouse filing the case, assist you with researching mediators, and more. We often counsel our clients about when is the "right time” is to file and how to notify their spouse. We will often help clients by instructing them on which documents to gather to speed the process along or help them plan for the short-term and long-term items such as spousal and child support, living situations, temporary custody/allocation of parenting time, parental responsibility situations, and more. Benefits of an Attorney in the Early Stages Having an attorney early on is also great if you want to start negotiating a settlement with your spouse before the paperwork is filed. We often counsel clients “in the background” and advise them on what to offer for support, living arrangements, property division, parenting time schedules, and more. This is beneficial to the client. Having an attorney assist in the early stages of negotiation, even if the attorney is not the one directly negotiating with another attorney, means that whatever deal is being discussed is “lawyer approved.” The odds of the agreement becoming undone later once lawyers are involved diminish because an attorney was involved from the beginning. Oftentimes, clients will negotiate amongst themselves and believe they have an agreement, and then they will hire legal counsel. Once counsel reviews the agreement, it can unravel, especially if things were agreed upon that are contrary to how a lawyer might advise them. This risk significantly decreases when attorneys are involved from the beginning. Hiring a Divorce Attorney After Filing However, it is also not uncommon for someone to wait until their spouse files for divorce before hiring a lawyer. If the parties are not trying to resolve the issues or negotiate before filing, there is very little risk in waiting to hire a lawyer. It is always beneficial to have an attorney involved as early as possible, but if there are no negotiations taking place there is no risk of “undoing” what has been agreed to. However, the filing date can be significant in certain cases, especially ones that involve maintenance, so, again, it is always a good idea to consult with an attorney as early on in the process as possible. Someone who would be entitled to a long award of spousal maintenance could be cutting their maintenance duration short by filing too soon or by becoming employed when they had previously not worked for years and years. Generally, it is never too late to hire an attorney, even if the process has already begun. You can hire an attorney at any time in your divorce process. However, having early insight and input from an attorney who practices in this field every day is invaluable, and the earlier, the better. People are usually more concerned about if they are hiring an attorney too soon. When you are ready, you may want to review our checklist for choosing a divorce attorney so that you make informed choices It is never too soon. If you know divorce is in your future, you can have a divorce attorney on retainer for months before anyone actually files something, and they will guide you through the preliminary process, tell you what documents to start gathering, what types of events to log and journal, and more. It is never too early to get the help that you need. If you're in the Chicago area, get started by scheduling a scheduling a free consultation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/am-i-ready-to-hire-a-divorce-attorney/ In my many years as a family law attorney in Illinois, most clients come to me ready to divorce—preferably yesterday. They are coming from unhappy, but not overly acrimonious, marriages. No one is throwing clothes out the window, crashing cars, or setting anything on fire. For most couples, splitting up isn’t about drama. Rather, it’s about discontentment, frustration, and disappointment. They are ready to move on with their lives. ASAP! The Challenges of Traditional Divorce So, imagine how disappointed they are when I tell them that a normal divorce usually takes upwards of a year, and more likely between one and two years, to resolve all of their issues, particularly if there is anything contentious or conflicting that might require third-party resolution. For many, that news is devastating. But when the only option you know about is litigation, then what options do you have? Exploring Alternatives In actuality, there is more than one way to finalize a divorce. When deciding how to proceed with your divorce, it’s important to know that you do have options. With the goal of shortening the timeline, lowering the cost, and reducing the conflict, many family law practitioners began developing the process of collaborative divorce. The idea of being able to help my clients achieve their goal of divorce with less conflict and more cooperation is what drew me to the collaborative divorce process. That is why I completed the Collaborative Divorce Illinois training and became a fellow in 2023, with the long-term goal of maintaining my litigation practice while expanding my alternative resolution practice through collaborative divorce and mediation. What Is Collaborative Divorce? Collaborative divorce was created and developed by multiple professionals working with couples going through divorce, from attorneys to therapists to financial planners, who recognized the positive impact that working together, i.e., collaboratively, can have on the divorce process. It is a process wherein a multi-disciplinary group of professionals work together to help the parties reach settlements that will facilitate the dissolution of their marriage. These professionals band together to form teams to meet and work with both spouses to help them divide their financial assets and debts and, if applicable, decide how the parties will divide decision-making responsibility and parenting time with their children. The team's goal is to provide holistic services and support to guide the family through the divorce process without litigation or judicial intervention. A Team Approach to Divorce At its core, the Team consists of social worker or other mental health specialists, who would serve in the role of Divorce Coach, Attorneys for both spouses, and the couple. Recognizing the way that emotions often impact decision-making in divorce, the Divorce Coach is tasked with helping the couple communicate more effectively while protecting the emotional health of each party. In some cases that are significantly more acrimonious, each party could have a Divorce Coach or other mental health professional tasked with assisting and supporting one party. While the attorneys each represent and advocate for only one party, they facilitate the sharing of information between the spouses and avoid the secrecy that is often present in litigation. Beyond these core professionals, the Team can also consist of a Financial Neutral who helps the parties create separate budgets and divide their existing assets and debts. A Child Specialist is sometimes brought on when the parents are having difficulty making decisions about and for their children or if the children need a professional to provide input on their behalf. One of the Team's jobs is determining what additional professionals are necessary or would be beneficial to allow the parties to finalize their divorce through the collaborative process and not turn to litigation. This is because each member of the Team signs an agreement that if the parties fail at collaboration, none of the professionals can participate further in their divorce. At the very least, that means the spouses would have to find new attorneys and possibly other experts, depending on the nature of their case. Collaborative divorce has grown in popularity and practice because its practitioners have consistently found that facilitating open communication, providing emotional support, and encouraging the sharing of information substantially reduced the amount of conflict between the divorcing couple. This benefited the parties, their children, and even their extended families. Removing the secrecy and gamesmanship of litigation allows couples to behave more like a family and less like opponents, which, for many families, can have benefits that last for generations. Learning about the positive impact that collaborative divorce can have on couples and families is what drew me to collaborative divorce after years of being a litigator. While I haven’t given up litigation and agree that, for some couples, it is the most appropriate way to dissolve a marriage, I appreciate being able to offer my clients the opportunity to choose the method that they believe works best for them and their families. Divorce is not a one-size-fits-all process. Every couple’s issues, conflicts, and goals are different. For many, their priority is to maintain or rebuild their relationship with their spouse to best co-parent their children. For others, it is the desire to preserve and protect inter-family relationships after the divorce. Others just wanted the ability to divorce more peacefully, less angrily, and with substantially fewer risks than the judicial system offers. It is my belief that collaboration gives clients more control over their divorce, which in turn gives them more control over their outcomes. It also gives them greater control over the timeline of their divorce instead of leaving finalization up to the judge and their calendar. It also gives clients a greater sense of investment in the process, rather than leaving the arguments to attorneys and the decision to the judge. Collaborative divorce allows spouses to take back control, which empowers clients to make better decisions for themselves and their families. As a family law attorney, preserving the family is the optimal outcome, which is also the central reason I decided to become a collaborative law practitioner. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/divorce-using-collaborative-divorce |
AuthorArchives
August 2022
Categories |