Tuesday, November 22, 2016

Designs for the New Will County Courthouse Taking Shape

Will County is long over due for a new courthouse. The current building is literally falling apart and needs to go. At a recent seminar, a preliminary designs of the new courthouse was circulated. The new courthouse will take over the city block just West of the current courthouse and just east of City Hall. Current designs have it as a very modern 10 story building. Here is a link to a floor-by-floor layout.
Markup of Proposed Courthouse
Current Courthouse

Tuesday, October 11, 2016

Updated Mediator List

Several times a year, the Will County Court issues a new list of court-approved mediators. Here is the latest list from March 2016. NOTE: it is subject to change without notice and if you want an updated list, either get one from a courtroom or obtain a list from the law library at the Will County Courthouse, Fourth Floor or the clerk's office on the second floor. The law library is open to the public.

Will County

Will County

Will County

Saturday, August 20, 2016

Parenting Classes in Will County - status as of August 2016

Illinois' Supreme Court Rules require that anyone getting a divorce complete parenting classes before the divorce is granted. In Will County judges often require that the parents complete the parenting classes in paternity cases as well. Sometimes the requirement can be waived when the only minor child is 17 years old. IMPORTANT: You will not be able to complete your divorce unless the parent that files for the divorce completes the parenting class and has his or her certificate of completion at the final court date. If the parent that didn't file the divorce refuses or fails to complete the class, the judge usually suspends his or her court-ordered parenting time/visitation - at least  until the class is completed and the certificate filed with the court.

Traditionally in Will County, the University of Saint Francis conducted all the parenting classes in person at one of their facilities. The registration process started at:

www.stfrancis.edu/content/solutions/parenting/register.htm - cost: $90.00

However in the Summer of 2016, that process became uncertain when the University suddenly stopped or suspended providing the classes. As of the writing of this blog, they had not resumed class - or at least never let divorce attorneys it has resumed. I did call the registration number on 8/20/2016 and the recording still referenced parenting class registration as open. (815) 740-3600

In response the uncertainty of the University, the divorce court now allows parents to get parenting classes completed online and provided the links below to approved classes. I'll try to update any changes but sometimes, the lawyers are the last to know.

www.children1stfoundation.net - cost: $80.00

www.dupageco.org/FamilyCenter/OnlineTraining/ - cost: $50.00 (must have Windows computer)

Saturday, June 11, 2016

Grounds (Reasons) for Divorce Made Easy in 2016

The revised Illinois divorce law, enacted January 1, 2016, eliminates all of the fault-based grounds for divorce and left us with a single, no-fault ground for divorce, "irreconcilable differences". The revised law also eliminates the two (2) year separation period that was required to dissolve a marriage, and replaces it with a six (6) month separation period which reads as follows, "If the parties live separate and apart for a continuous period of not less than 6 months immediately preceding the entry of the judgment dissolving the marriage, there is an irrebuttable presumption that the requirement of irreconcilable differences has been met."

As a result, you only need to state in your initial petition that irreconcilable differences have led to the irretrievable breakdown of your marriage and that you and your spouse have lived separate and apart for six (6) consecutive months by the time a judgment of divorce is entered.

However, don’t panic if both you and your spouse plan to live in the family home throughout the divorce because, although the law states "separate and apart", it does not mean that one of you has to move out. This provision simply means that, for at least six (6) months before entry of the final judgment, you and your spouse live together as two separate, unrelated individuals living under the same roof, without a sexual relationship. Easy, right???

Friday, April 8, 2016

New Statewide Financial Affidavit for family law cases approved by the Illinois Supreme Court

As part of the new divorce statute that became effective in 2016, the Supreme Court developed a new Financial Affidavit to be used in all family law cases, specifically when there are motions filed for temporary child support or temporary spousal maintenance. I'm quite familiar with the new form because I was one of three members of the Illinois Supreme Court’s Commission on Access to Justice, Subcommittee on Standardized Forms responsible for coming up with the initial drafts of the form. The form went through public comment and then approval by the Supreme Court.

Here is a link to the new form that becomes effective as of April 7, 2016.

Here are some other general instructions on filling out this Financial Affidavit form:
A.    If you are familiar with using PDFs, you should fill out the Affidavit on your computer, save it, print it, sign it and then send back the completed PDF. This is the preferred method because: 1) you can easily edit a saved PDF without redoing the whole Affidavit and 2) it automatically calculates most of the math.
B.    You can also just print it out, write in your answers, sign in the places indicated. The Affidavit may need to be revised throughout the case as conditions change.
If you are having trouble downloading the form, you will need to have Adobe Reader on your computer. That software is available at: https://get.adobe.com/reader/
Below are some general guidelines that are IN ADDITION to the instruction that go with the form. Those instructions override any suggestions here. Everyone’s situation is different and judges are different in how they handle their cases so this is not a substitute for a consultation with an attorney so that the form is properly filled out. 
1)     DUE DATE: The sooner this is completed, the better. However, it is absolutely required at the time you file a motion for temporary support or temporary maintenance/alimony. The party responding to the motion must also complete a Financial Affidavit. Also, both parties must include supporting documents such as paystubs and tax returns when completing it.
2)     Overview: While the Affidavit is lengthy, many of the questions may not be applicable to your case and it may be appropriate to just answer “none” or “N/A” (not applicable). Also note that there are four primary parts to this document:
a.      General Information (pages 1-2)
b.     Monthly Income and Deduction (pages 2-3)
c.      Monthly Living Expense Summary (pages 4-6)
d.     Assets and Liabilities (pages 7-9)
3)     Purpose of document. The purpose of filling out this form is to give the judge in your case a quick summary of your situation, assets, debts, income and expenses. You should spend considerable time properly preparing this as you can be punished for knowingly misleading the judge with the information. Below are some general ideas to help but again, none of this is a substitute for the direct assistance of an attorney.
4)     Assets and Debts not in your name or not under your control:
a.      Pre-divorce cases - You should list every asset or debt you have any knowledge of regardless of whose name it is in, who’s paying it or whether it is even getting paid right now. As far as what assets to list, all accounts get listed and personal property can be detailed on the “Additional Information” sheet.;
b.     Post-divorce cases or Paternity Cases – You should list just your own assets and liabilities.
5)     Averaging of income and expenses. Since the document calls for your repeating and regular monthly income and expenses, you will have to calculate what those are even if some are paid weekly or biweekly or if you have expenses that are paid quarterly (such as car insurance) or yearly (such as children's school fees). For those items not received or paid on a monthly basis, try to reasonably calculate your yearly amounts for that item and then divide by 12. If you are paid every two weeks, you would need to multiply your gross pay every two weeks by 26 (i.e. 26 pay periods per year) and then divide by 12 to get an average monthly gross income.
6)     Relationship between income and expenses. Often times clients have a tendency or inclination to overstate expenses and sometimes even understate income. You may lose credibility with the judge if you show that you have expenses of $5,000 a month but income of $1,000 a month. There are times where this is the fact and it is appropriate to put it down (like where your credit cards are meeting the difference or you have help from family), but these are the areas where the assistance of attorney is required to handle this properly before the document is submitted to the court.
7)     Access to records. Sometimes you may not have immediate access to all the records necessary to complete this form either because they don't exist or the other party is the only person with access. If you know an expense, asset or debt exists, use the best information you have available and include it.
8)     Sharing of expenses. Sometimes there are situations where you either have a roommate or someone else you share expenses with or live with family. In these instances, you should indicate how you are actually contributing. Again this is a situation to discuss with an attorney of it is not clear what to do or how to respond.
9)     Documents submitted with the Financial Disclosure Affidavit: Under the rule, you are to submit a copy of supporting documents that in most instances should include your most recent paystub and a copy of last year’s income tax return.
10)  Sign and date the Affidavit: Once you have completed the entire Affidavit you will need to sign and date it as well as provide a copy to the other party or their attorney if they have one. You should also bring extra copies to court for the judge.
Keep in mind that whatever information is put down is made under oath and as long as you use your best efforts to fully complete it and can explain and justify your answers, you should be okay.
Sometimes it is also helpful to complete one as a draft with all your notes, questions, documents and then for a final version to be completed after you have had a discussion with an attorney.

Wednesday, July 22, 2015

Governor signs new divorce law

Yesterday, July 21, 2015 Governor Rauner signed the new divorce law into effect. It is a huge change in family law - the likes of which  has not been seen in 45 years. Over the next several weeks I will continue to run articles on the new law and its likely effects on pending divorce cases and those to be filed. It is of note that the legislative notes indicate it will be effective January 1, 2016. However, some provisions could have different effective date. A careful analysis of the law will need to be made and there will be a substantial learning curve for lawyers and judges alike. Brace yourselves.

In the meantime, here is the text of Public Act 99-0090

Thursday, July 2, 2015

New Divorce Statute Sitting on Governor’s Desk.

A divorce law has been circulating through the hallowed halls of our state legislature for quite some time with a re-write of the Illinois Marriage and Dissolution of Marriage Act. In its current status, the law is called Senate Bill 57 and it would drastically change the 40+ year old divorce statute. If signed into law, some of the changes would:
  • Eliminate the “grounds” or reasons for a divorce like adultery and mental cruelty and keep a modified version of irreconcilable differences. Section § 401 provides that once the parties have lived separate and apart for six months, there would be no need to get mutual agreement that the marriage should happen, i.e. irretrievably broken down. With an agreement, there would be no waiting period. Without an agreement, that 6 month period applies.
  • Eliminate the idea of and even the word “custody”. Instead, a court granting custody to one parent with the other parent getting "visitation", the new law would have courts allocating “parental responsibility”. Responsibilities range from issues of education, health, religion, and extra-curricular and can be tailored to allow joint decision in some areas and not others. § 602.5(b). 
  • Change the “removal” provisions of the divorce statute that deals with a custodial parent moving from Illinois without permission of the other parent. Instead of "removal", the term would be "relocation” and instead of being triggered by leaving the state, it would be triggered by the parent with the “primary residence” moving more than 25 miles from the other parent. Specifically, parents with the primary residence in Cook and the collar Counties (Cook, DuPage, Kane, Lake, McHenry, and Will) can move up to 25 miles from their current residence without permission from the court. Parents in counties outside of Cook and the collar counties could move up to 50 miles from their current residence without permission of a court. This also means a parent with primary residence can move up to 25 miles away even if the new residence is across the state line. This would eliminate the problem of the parent who got into trouble crossing the state line into Indiana but the parent who moved to Cairo, Illinois at 350 miles away is o.k.
  • Eliminate "Alienation of Affection" or “Heart Balm” civil suits against an in individual for having an affair with a married person.
  • Adds provisions to speed up the court’s decision in a case after the trial is over
  • Allows that when spousal maintenance (alimony) comes up for modification review after the divorce, the law also allows for setting a fixed period after which no more maintenance could be awarded. However, the marriage must have been less than 10 years for this to apply.
  • Maintenance would also automatically end if your former spouse remarried and requires that spouse to give notice of plans to remarry.
  • Sets up an automatic timeframe of 10 days for an unemployed parent owing support to notify the court and the other parent of their new job.

Wednesday, February 25, 2015

Grandparent Visitation in Illinois

Grandparent visitation in Illinois, and the rest of the country has been something of a tennis match. The state legislatures, who were voted in office (by a large majority older people who happened to also be grandparents) have pushed for legislation that grants grandparents rights of visitation with their grandchildren in certain circumstances. The problem with that, is many of these statutes have interfered with the constitutional protections of parental rights. The constitution creates a presumption that parents are fit and act in the best interests of their children and that they have the fundamental right to make child-rearing decisions. So said the US Supreme Court in Troxel, 530 U.S. 57, 120 S. Ct. 2054 (2000). However the US Supreme Court did not strike down every grandparent visitation rights law in the land. It did say that these laws need to properly factor in parents fundamental rights before the state is justified in getting involved with child-rearing decisions.

At least as of the writing of this article, there is in place a grandparent statute in Illinois, 750 ILCS 5/607(b)(1). The law factors in a parent’s fundamental rights by putting some rather strict rules in place before a grandparent can even move forward. The first is having at least some basic facts in place before the court even lets a grandparent seek visitation.

  1. The case must be filed in the county where the child resides AND
  2. The child in question must be over the age of one AND at least one of the following applies:
    1. the child's other parent is deceased or has been reported missing to the police for at least 3 months.
    2.  a parent of the child has been declared incompetent by a judge;
    3. a parent has been in jail or prison for at least 3 months;
    4. the child's parents are divorced, legally separated or involved in divorce or custody proceedings and at least one parent does not object to the grandparent visitation;
    5. the child was born out of wedlock, the parents are not living together, and the persons seeking visitation is a maternal grandparent or the paternal grandparent if paternity has been established in court.

Note that this is a summary of some of the rules and there are exceptions and other conditions! Also, while I mention grandparents above, they are not the only persons covered. Great-grandparents, siblings and step-parents can also seek visitation under the law. Step-parents have some separate requirements to meet as well.

But we are not done. The statute continues to stack the deck against these individuals by not only putting the above rules in place but also by creating a rebuttable presumption that a fit parents actions and decisions regarding visitation are not harmful to the child’s mental physical or emotional health. This is yet another hurdle to overcome. In order to get over that presumption, the grandparent must prove that the parent’s decision regarding visitation is harmful to the child’s mental, physical or emotional health. It’s a tough and strict barricade to protect against the state (i.e. the judge) intervening in matters of parent’s constitutional right. Once all of those hurdles are met and if the court allows the grandparent’s case to continue, the court will then look at nearly a dozen factors to further assess whether grandparent visitation is to be allowed over a parent’s objection.

So far Illinois grandparent visitation law remains in force and to navigate through it or against it, a careful analysis of the statute and case law interpreting it must be done in each situation. I have seen where judges (often older themselves) are very sympathetic to grandparents. No doubt when the parents themselves are very young, courts look for stability for small children and young parents cannot always offer that. Often it is the grandparents of these children that can provide stability. Thus a judge looking at the best interests of the children may be inclined to look toward the grandparents. However, just because a grandparent’s home may be the best place for a child, doesn’t meant the child should live there given a parent’s fundamental rights.

If you face this situation, consult an attorney as this article only touches on the general state of the law and is not a full or complete analysis. Finally, as stated above, it is also an area of the law that can change quickly.

Tuesday, October 7, 2014

New Maintenance Statute in Illinois in 2015

(effective January 1, 2015)

Illinois law on alimony (or what we now call maintenance) is about to get about the biggest change in its history. Many are familiar with child support guidelines but now there will be spousal maintenance guidelines. The new guidelines, like child support, offer a mathematical calculation to apply to a situation to arrive at a dollar amount due for maintenance. Notably, I find the move toward a “one size fits all” approach to maintenance strange considering that the recent trend in child support awards has actually been to strive towards more flexibility. I expect some legislator with pull and an agenda was able to push this through the state assembly and got the governor to sign it.

In any event the new statute applies the following math: first determine 30% of the payor’s gross income and then subtract from that 20% of the recipient’s gross income and the result is the amount of maintenance. However, there is a cap that maintenance can not be more than 40% of the parties’ combined gross.

Apart from the amount of maintenance, the new statute also determine the length of maintenance ranging from as short as a few months to permanent maintenance or equal to the length of the marriage.

Also note that this will affect child support as well in the instance there are both minor children and a maintenance obligation. Child support is based on the payor’s net pay. Net pay is defined as all income from all sources minus allowed deductions. Allowed deductions include taxes, health insurance, union dues as well as few others and now will also include the amount of maintenance paid under the new statute.

Bottom line: there is a lot of information and tools here for you to consider. It is NOT here for you to rely on because even trained attorneys who concentrate in family law are wrestling with how this new statute will play out. If you are facing divorce and possible receiving or paying maintenance, get to knowledgeable attorney to ensure your rights are properly advanced.

Below I have more details and then a calculation sheet to run numbers

Summary and Worksheet:

Guideline maintenance applies when:
       1. The court finds maintenance appropriate;
       2. The parties’ combined gross income is under $250,000; and
       3. The parties do not support multiple families

Amount of Maintenance:

 Payor’s gross yearly income: _________________ x 30% (.30)   =   ______________________    
                                                                                                                      [ – subtract ]
Payee’s gross yearly income: _________________ x 20% (.20)   =   ______________________
                                    TOTAL yearly maintenance calculation:        _______________________
                                                                                                              Maintenance Calculation
Maintenance Cap Calculations:
_________________________   +   _____________________   =   _______________________      
Maintenance Calculated Above:        Payee’s Gross Income:              Maintenance and Payee Gross
 _________________________   +   _____________________   =   _______________________
Payor Gross Income                          Payee Gross Income                   Combined Income
                                                                                   x 40% (.40)   =   _______________________
                                                                                                               40% of Combined Income
 _________________________   –   _____________________   =   _______________________
Maintenance and Payee Gross          40% of Combined Income          Cap Reduction Amount

 _________________________   –   _____________________   =    ________________________
Maintenance Calculated Above        Cap Reduction Amount             Maintenance Cap Calc*
                                                                                                               *use if less than amount above

Duration of Maintenance:

Years                                       Duration
   1       x 20%  (.20)    =          .2 years
   2       x 20%  (.20)    =          .4 years
   3       x 20%  (.20)    =          .6 years
   4       x 20%  (.20)    =          .8 years
   5       x 40% (.40)    =         2 years
   6       x 40% (.40)    =          2.4 years
   7       x 40% (.40)    =          2.8 years
   8       x 40% (.40)    =          3.2 years
   9       x 40% (.40)    =          3.6 years  
* “Permanent Termination” - for marriages under 10 years, court can award “fixed  period” maintenance and bar extensions of maintenance after term expires
Years                                       Duration
   10     x 60% (.60)     =          6 years       
   11     x 60% (.60)     =          6.6 years
   12     x 60% (.60)     =          7.2 years
   13     x 60% (.60)     =          7.8 years
   14     x 60% (.60)     =          8.4 years
   15     x 80% (.80)    =          12 years
   16     x 80% (.80)     =          12.8 years
   17     x 80% (.80)     =          13.6 years
   18     x 80% (.80)     =          14.4 years
   19     x 80% (.80)     =          15.2 years
   20 or more years of marriage 
    THEN either  1) permanent maintenance or
     2) duration equal to years of marriage

 Note: Unallocated Maintenance must be by agreement except in a pre-decree temporary order

Portions of Statutory Language:

(b-1) Amount and duration of maintenance. If the court determines that a maintenance award is appropriate, the court shall order maintenance in accordance with either paragraph (1) or (2) of this subsection (b-1):

(1)  Maintenance award in accordance with guidelines. In situations when the combined gross income of the parties is less than $250,000 and no multiple family situation exists, maintenance payable after the date the parties' marriage is dissolved shall be in accordance with subparagraphs (A) and (B) of this paragraph (1), unless the court makes a finding that the application of the guidelines would be inappropriate.

(A) The amount of maintenance under this paragraph (1) shall be calculated by taking 30% of the payor's gross income minus 20% of the payee’s gross income. The amount calculated as maintenance, however, when added to the gross income of the payee, may not result in the payee receiving an amount that is in excess of 40% of the combined gross income of the parties.

(B) The duration of an award under this paragraph (1) shall be calculated by multiplying the length of the marriage by whichever of the following factors applies: 0-5 years (.20); 5-10 years (.40); 10-15 years (.60); or 15-20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order either permanent maintenance or maintenance for a period equal to the length of the marriage.

(2) Maintenance award not in accordance with guidelines. Any non-guidelines award of maintenance shall be made after the court's consideration of all relevant factors set forth in subsection (a) of this Section.

*         *          *

(b-4) Unallocated maintenance. Unless the parties otherwise agree, the court may not order unallocated maintenance and child support in any dissolution judgment or in any post-dissolution order. In its discretion, the court may order unallocated maintenance and child support in any pre-dissolution temporary order.

(b-4.5) Fixed-term maintenance in marriages of less than 10 years. If a court grants maintenance for a fixed period under subsection (a) of this Section at the conclusion of a case commenced before the tenth anniversary of the marriage, the court may also designate the termination of the period during which this maintenance is to be paid as a "permanent termination". The effect of this designation is that maintenance is barred after the ending date of the period during which maintenance is to be paid.