Monday, June 30, 2008

illinois family law case law updates

Illinois Cases

Civil - Abuse And Neglect/ Termination Of Parental Rights / Guardianship 1st Dist.
In re Mark W., a Minor, No. 1-05-3370 (June 19, 2008) 4th div. (Neville) Affirmed.

Evidence that disabled adult mother of minor was unfit within meaning of Adoption Act by virtue of her failure to maintain a reasonable degree of care and concern and failure to make reasonable progress toward the return of her child is not against the manifest weight of the evidence; because mother, and her guardian were uncooperative, mother's guardian refused to sign consents for State to obtain her progress at therapy, mother and her guardian took advantage of only one fourth of the opportunities given them for visitation, and mother demonstrated no bond with child. Further, mother's guardian, without court order providing for it, was not child's custodian pursuant to provisions of Section 11a-17 of Probate Act, and was not entitled to temporary custody hearing. In addition, considering testimony of child's therapist that it would be detrimental for him to testify, trial court did not abuse its discretion when it refused to allow mother's guardian to call him as wit ness.

Civil - Child Custody/ Attorneys' Fees / Child Representative 1st Dist.
In re Marriage of Thompson, No. 1-06-0472 (June 23, 2008) 1st div. (Cahill) (GARCIA, dissent) Reversed and remanded.

After trial court discharged child representative, and father asked for court to conduct evidentiary hearing on representative's final fee petition, trial court erred when it allowed child representative fees without first conducting an evidentiary hearing.

Thursday, June 19, 2008

caselaw update

Civil - Child Support/ Garnishment / Judgments 3rd Dist.
In re Marriage of Takata, No. 3-07-0175 (June 12, 2008) Peoria County (O'brien) Reversed and remanded.
Trial court erred when it denied motion for turnover order of father's current wife's 401K account to satisfy judgment against father for child support arrearage. Funds in account are marital property, having been accumulated during marriage between father and his current wife; and are not exempt from collection for child support judgment. (Appellee's failed to file briefs)

Pregnancy and delivery expenses

Pregnancy and delivery expenses
Senate Bill 2594 (Millner, R-Carol Stream; Ramey, R-Carol Stream) amends the Illinois Parentage Act to allow the court to order either parent to pay the reasonable expenses related to the mother?s pregnancy and delivery incurred by either parent or the Department of Healthcare and Family Services. Allows such actions to be filed within two years after a judicial determination of parentage. Current law is shorter; two years within the date of the child?s birth. Sent to the Governor.

Thursday, June 12, 2008

new family law task force

In an effort to improve the illinois divorce proccess there has been a resolution to create a task force to study the process.

Family-Law Study
House Resolution 1101 Illinois Family-Law Task Force. House Resolution 1101 (Madigan, D-Chicago; Fritchey, D-Chicago) creates a legislative task force to study and recommend changes in the Illinois Marriage and Dissolution of Marriage Act. The House has passed this resolution; no further action is required for this resolution to take effect. Hearings all over the state are anticipated. Passed by both chambers.

caselaw update

Civil - 2-1401 Motions/ Dissolution Of Marriage / Attorney’s Fees 1st Dist.
Engel v. Loyfman, No. 1-07-1468 (June 6, 2008) 6th div. (Mcbride) Reversed and remanded.
Because trial court misconstrued the concept of subject matter jurisdiction when it allowed former client’s motion to vacate agreed judgment for attorney’s fees because complaint was filed within 90 days of order allowing attorney to withdraw, its order must be reversed and remanded. Although motion sufficiently demonstrates basis for vacating order, on remand, court must consider whether attorney’s affidavits provide a sufficient response to client’s motion; and conduct evidentiary hearing if it does

Wednesday, June 11, 2008

Illinois Order of Protection

Followup from my last post:
Recent bill:

Domestic violence orders
House Bill 5121 (Rose, R-Mahomet; Righter, R-Mattoon) requires clerks to send an order of protection to a health-care provider if the petitioner asks them to do so. If a health-care provider receives a copy of an order of protection, they are prohibited from allowing the respondent access to the records of a child who is a protected person under the order. This bill has been passed by both chambers.

Tuesday, June 10, 2008

Illinois Order of Protection

Many divorce cases begin with one party obtaining an order of protection.

It is important to determine what remedies to look for the person filing for the order of protection.

Order-of-protection remedies available under the Illinois Domestic Violence Act (IDVA).
750 ILCS 60/101

One purpose of the statute is to "[s]upport the efforts of victims of domestic violence to avoid further abuse by promptly entering and diligently enforcing court orders which prohibit abuse and, when necessary, reduce the abuser's access to the victim and address any related issues of child custody and economic support."

The 19 remedies can give the plaintiff a significant advantage in a divorce proceeding, especially in child custody.

General remedies
Prohibiting abuse, neglect, harassment, and exploitation.
"Abuse" is vaguely defined under the IDVA as "physical abuse, harassment, intimidation of a dependent..."

"Harassment" means knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the petitioner. Unless the presumption is rebutted by a preponderance of the evidence, the following types of conduct shall be presumed to cause emotional distress:
(i) creating a disturbance at petitioner's place of employment or school;
(ii) repeatedly telephoning petitioner's place of employment, home or residence;
(iii) repeatedly following petitioner about in a public place or places;
(iv) repeatedly keeping petitioner under surveillance by remaining present outside his or her home, school, place of employment, vehicle or other place occupied by petitioner or by peering in petitioner's windows;
(v) improperly concealing a minor child from petitioner, repeatedly threatening to improperly remove a minor child of petitioner's from the jurisdiction or from the physical care of petitioner, repeatedly threatening to conceal a minor child from petitioner, or making a single such threat following an actual or attempted improper removal or concealment, unless respondent was fleeing an incident or pattern of domestic violence; or
(vi) threatening physical force, confinement or restraint on one or more occasions.

"Neglect" is also prohibited by the IDVA.
Exclusive possession of residence. The court has power to evict one party from the home, regardless of whose name is on the title or whether it is "marital property."

The court shall balance (i) the hardships to respondent and any minor child or dependent adult in respondent's care resulting from entry of this remedy with (ii) the hardships to petitioner and any minor child or dependent adult in petitioner's care resulting from continued exposure to the risk of abuse....The balance of hardships is presumed to favor possession by petitioner unless the presumption is rebutted by a preponderance of the evidence.

Stay-away orders.
If the court grants the order of protection, it can require the defendant to stay away from plaintiff or any other person protected by the order. Unlike exclusive possession, the stay-away remedy provides for no balancing of hardships. Order-of-protection forms typically let the plaintiff specify how many feet away the defendant must stay. There is no set amount of space that must be given under current statutes or case law. Innocent encounters in public locations are not a violation.

Personal property.
Damages from abuse.
The IDVA allows plaintiffs to seek damages for actual losses suffered as a result of defendant's abuse, including lost earnings, medical expenses, etc.

Entry while intoxicated, under the influence. The IDVA can prohibit the defendant from entering or staying in the home "while the respondent is under the influence of alcohol or drugs and constitutes a threat to the safety and well-being of the petitioner and petitioner's children."

Firearm possession
. The IDVA requires the defendant to turn over weapons and guns to the police to hold "if the court is satisfied that there is any danger of illegal use of firearms."

Payment of shelter services. The defendant could be ordered to pay for the costs of a shelter that provided temporary housing to the abused.

Injunctive relief. The "order of injunctive relief" section is the catch-all "other appropriate relief" section of the statute.

Animals. Pursuant to Public Act 095-0234 signed by Governor Blagojevich on August 17, 2007, effective January 1, 2008, pets are also included as part of the remedies available in orders of protection as follows:

Protection of animals.Grant the petitioner the exclusive care, custody or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent and order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, harming, or otherwise disposing of the animal.

Child-related remedies

Physical care and possession, temporary legal custody of minor child.
In an emergency order of protection, where there is no notice to the defendant, the court can only grant possession of the children, not custody.

Denying, restricting visitatio
n. Under the IDVA, the court may deny or restrict visitation if the court finds that visitation presents an additional opportunity for the defendant to abuse the petitioner or other protected persons.

Child support. The IDVA allows the remedy of child support.
Removal or concealment of a minor child. This IDVA remedy is also automatic upon the service of a summons and petition or praecipe filed under the IMDMA under the dissolution action stay.

Ordering defendant to appear in court
. The defendant could be ordered to appear in court either alone or with the minor child who has been wrongfully concealed from the plaintiff.

Prohibiting access to child's records.
If the order of protection prohibits defendant from having contact with the minor child, school or other records of the child may also be kept from the defendant.

Order of protection hearings are usually expedited as much as possible.

Thursday, June 5, 2008

Marital settlement agreements - retirement & disability benefits

Dissolution Of Marriage/ Marital Settlement Agreements / Pensions 3rd Dist.

In re Marriage of Schurtz, No. 3-07-0345 (May 28, 2007) Peoria County (Lytton) Affirmed.
Trial court did not err when it ordered 62 yr. old former husband to pay a portion of his disability pension over to his former wife based on provision of Marital Settlement Agreement allocating a portion of his retirement pension to her. Because former husband was entitled to retirement benefits but chose to receive disability benefits instead, the wife is entitled to what she would receive from his retirement benefits. Further, trial court did not abuse its discretion when it refused wife's petition for attorney's fees and interest on past due benefits; because husband had a good faith argument that she was not entitled to receive any portion of his disability.

Wednesday, June 4, 2008

No-fault divorce separation period

Clients also ask how long must they be separated before they can get divorced.
Normally, there is a two-year separation period, but if the spouses have lived separate and apart for a continuous period of not less than 6 months prior to the case, the 2 year time period can be waived if both parties agree in writing.

Can I file for divorce if I don't know where my spouse is?

Can I file for divorce if I don't know where my spouse is?
Yes. You can file for divorce if you do not know where your spouse is.
You must show the court that you have exhausted all reasonable means to find your spouse. Your spouse must have been gone for over a year as well. Usually, a process server is involved. They will perform a skip trace to see if they can locate the spouse. If that comes up empty, the petitioner will have to send the notice of filing to the last known address and to the last known place of work. If that fails, then the court will have the notice published in the paper. If there is no response in the required amount of time (per local/state law) then the court will allow one party to obtain a default divorce without the other spouse.

Client Question - Do Both Parties in a Divorce Proceeding Need an Attorney?

A client recently asked me if both parties in a divorce need a lawyer or could it be done with one lawyer?

The answer I give is that I always recommend both parties get a lawyer. While a divorce case may seem easy at first, it can often turn ugly, parties can change their minds, or what was thought to be in agreement, turns out not to be so. When only one party has a lawyer, the paperwork prepared, although could be fair, it is usually drafted in the clients best interest. An attorney cannot represent both sides of a conflict, which poses a conflict of interest as well.

The court will have any party that wishes to go forward pro-se (without an attorney) sign and notarize an affidavit that it was recommended that they hire a lawyer, and that they are declining to do so.

Therefore, it would be in your best interest to always get a lawyer, divorce lawyers in cases that are uncontested often offer a flat fee.


Owe Child Support Arrears? Kiss your license goodbye-unless you pay!

Illinois Ups Child Support Collection by Targeting Licenses
The threat of losing their driver's licenses has prompted more than 3,000 Illinois parents to pay about $1.3 million in child support since the beginning of the year, officials said Tuesday. From the Springfield State Journal-Register.

Under this procedure, the Department of Healthcare and Family Services (DHFS) will mail a warning notice to any parent who owes a minimum of $2,500 in child support arrears and who has an Illinois driver's license. If that individual does not answer, then their name is sent to the Illinois Secretary of State, who will then in turn, suspend their drivers license in 60 days.


Pension Assets

Pensions that are acquired by either spouse after the marriage and before a judgment of dissolution is entered are presumed to be marital property. QDRO (Qualified Domestic Relations Order) divides this asset.

A court order that recognizes or creates a spouse’s or a former spouse’s right to a portion of a member’s retirement annuity. Commonly referred to as QDRO.

What is a QDRO Be Used For?
A QDRO is a court order that recognizes the right of the ex - spouse to receive all or part of a pension plan that belonged to their ex – spouse.
The QDRO can be used for:

* Providing support payments to an ex – spouse.
* Dividing marital property.

Certain situations have to be met for the QDRO to be valid.

QDROs are subject to ERISA (Employee Retirement Income Security Act) rules and regulatioins.
The QDRO is issued by a state authority, usually a state court through a judgment, court order or divorce decree, which addresses a marital property settlement.
The QDRO must stick to guidelines that are instituted by the pension administrator. Not all court orders are considered qualified domestic relations orders. The plan administrator will make the decision as to whether or not the QDRO qualifies. Often the administrator has their own version of the forms for the QDRO, and your attorney can draft or modify these accordingly. This is a very particular area of law, so speak with your lawyer about specifics.

Illinois Family Law Statutes

Here is a list of the Illinois Family Law Statutes

Illinois Compiled Statutes


* 750 ILCS 5/ Illinois Marriage and Dissolution of Marriage Act.
* 750 ILCS 10/ Illinois Uniform Premarital Agreement Act.
* 750 ILCS 16/ Non-Support Punishment Act.
* 750 ILCS 22/ Uniform Interstate Family Support Act.
* 750 ILCS 24/ Unified Child Support Services Act.
* 750 ILCS 25/ Expedited Child Support Act of 1990.
* 750 ILCS 27/ Child Support Payment Act.
* 750 ILCS 28/ Income Withholding for Support Act.
* 750 ILCS 30/ Emancipation of Minors Act.
* 750 ILCS 36/ Uniform Child-Custody Jurisdiction and Enforcement Act.
* 750 ILCS 40/ Illinois Parentage Act.
* 750 ILCS 45/ Illinois Parentage Act of 1984.
* 750 ILCS 47/ Gestational Surrogacy Act.
* 750 ILCS 50/ Adoption Act.
* 750 ILCS 55/ Contest of Adoptions Act.
* 750 ILCS 60/ Illinois Domestic Violence Act of 1986.
* 750 ILCS 61/ Address Confidentiality for Victims of Domestic Violence Act.
* 750 ILCS 65/ Rights of Married Persons Act.
* 750 ILCS 70/ Parental Notice of Abortion Act of 1995.

Tuesday, June 3, 2008

Illinois Divorce law updates

Civil - U C C J E A/ Child Custody
Appeal from 4th Dist. In re Sophia G.L., a Minor, No. 104603 (May 22, 2008) (THOMAS ) Appellate court reversed
Appellate court erred when it reversed trial court's order refusing to enroll Indiana judgment giving custody of infant, to paternal grandfather and his wife; after mother, who had lived with them and child since child's birth, moved to Illinois to live with child's father. Although Indiana's court's findings, that grandparents qualified as de factor custodians and that it was child's home state, is not against the manifest weight of the evidence, and although father was not entitled to notice until he established parentage in Illinois, initial order was exercise of emergency jurisdiction only. By time of hearing on custody jurisdiction, Indiana court was aware of Illinois parentage determination; and acted without giving father proper notice as required by UCCJEA.

Civil - Educational Expenses/ Parentage

4th Dist. People ex rel Sussen v. Keller, No. 4-07-0704 (May 7, 2008) Champaign County (MYERSCOUGH) (COOK, dissent) Reversed and remanded
Trial courts findings when making decision on motion for Section 513 educational expenses, that child's choice of out of state post high school technical school for automobile repair is reasonable, is against the manifest weight of the evidence, since respondent presented evidence that an adequate less expensive local school is available; and there was no evidence in the record to demonstrate that child's choice was a superior program. However, trial court's determination that respondent, who earns $22,000 per year, could afford to contribute one third of expenses for school, transportation and lodging is not against manifest weight. On remand court should order respondent to pay one third of costs of completing associates program for less expensive community college program.

Civil - Child Support/ Income Withholding / Jurisdiction

2nd Dist. In re Marriage of Gulla, No. 2-07-0387 (May 1, 2008) Lake County (GILLERAN JOHNSON) Affirmed
Trial court correctly concluded that it has jurisdiction to hold Mississippi employer liable for its failure to withhold income from its employee after it was served, by certified mail, with an order for withholding from Illinois court. Mississippi Code, in compliance with United States Code requirement, treats Illinois withholding order as if it were entered in Mississippi. In addition, because employer took no action after receiving clearly stated order that instructed it to contact wife's attorney if it had any questions, employer failed to rebut presumption of willfulness; and penalty of $369,000 is proper,

Child support

House Bill 4291 (Lindner, R-Sugar Grove; Martinez, D-Chicago) requires the Department of Health and Family Services to investigate and reimburse child-support obligors for its wrongful collection of child support. It applies to collections from obligors whose child-support order has been terminated for a child 18-years-old or older or who has graduated from high school. HFS must refund the child support within 60 days of its determination that it was wrongfully collected. Passed the House and is in Senate Rules Committee.

Marital vs Non-Marital Property

Marital vs. Non-Marital Property

“Marital” property and marital obligations (debt) are divided by the Court and distributed to the spouses
in percentages that the Court considers fair. Marital misconduct is not a factor for property distribution. The court looks at several factors such as the
length of the marriage, contributions, including as a homemaker, dissipation of marital and non-marital assets, value of property assigned to each spouse, tax consequences, child custody and the parties’ economic circumstances.

“Non-Marital” property is not divided but is awarded to the spouse that owns the property.

If a husband or wife inherits or is gifted any property during a marriage, that property is non-marital property, and will remain the sole property of the spouse receiving any such inheritance or gift. However, if the inheritance or gift is placed in co-ownership with the other spouse, then the inheritance or gift is considered a gift to the marriage, therefore, changing from non-marital to marital asset.

Types of Divorce and Grounds for Divorce in Illinois

Simple Divorce (Joint Simplified Dissolution of Marriage):

To qualify for a simple Divorce the marriage cannot exceed eight years in duration. Irreconcilable differences have caused the marriage to breakdown and the parties have been separated for six months (can still be living in the same residence). No children were born of the marriage and neither party depends on the other for support. Neither party has any interest in real estate and each party waives any right to spousal support. The total market value of all marital property is less than $10,000 and the total annual income of both parties is less than $35,000.

If you qualify for a simple Divorce, a Judgment for Divorce can be obtained on the day of filing or within the next several days.
Uncontested Divorce:

In marriages of longer than eight years in duration with children, real estate and assets and income in excess of the simple Divorce minimums, you can obtain a Divorce within a relatively short period of time. This can only be accomplished if the parties are in agreement on all of the issues.
Contested Divorce:

A contested Divorce begins with the Sheriff serving the Petition for Dissolution of Marriage on the other party. An attorney represents each side and there may be temporary child custody, child support and alimony orders. Eventually most of these cases settle with a written agreement after financial investigation, negotiation, settlement conferences and ultimately litigation. A small number of cases are resolved by a contested jury trial.

Contested issues can include but are not limited to:

1. Grounds for the divorce
2. Custody of children
3. Visitation rights
4. Division of assets
5. Child support
6. Maintenance of alimony
7. Payment of family debts
8. Contribution toward education expenses (college or parochial)
9. Payment of health insurance for dependent spouse
10. Distribution of retirement accounts
11. Income tax structuring


An annulment is a legal proceeding to declare the marriage invalid (as if it never occurred). In Illinois, there are a just few grounds to declare a marriage invalid:

1. One of the parties lacked capacity to consent to the marriage at the time of the marriage ceremony because of mental incapacity or if they were under the influence of drugs or alcohol that inhibited their ability to consent; or a party was induced to enter into the marriage by force, duress or fraud involving the essentials of the marriage;
2. A party lacks the capacity to consummate the marriage by sexual intercourse, and the other party did not know of the incapacity;
3. A party was under the age of 18 and did not have parental/guardian consent or judicial approval; or
4. The marriage is prohibited.

The time limit to obtain an annulment depends upon the grounds:

1. Lack of capacity to consent to the marriage: either party may petition, but the petition must be filed no later than 90 days after the petitioner obtained knowledge of the grounds.
2. Inability to consummate the marriage: either party may petition, but the petition must be filed within one year after the petitioner obtained knowledge of the grounds.
3. Underage party: that party or guardian, may petition for annulment prior to the time that underage party reaches the age at which marriage is permitted.

Grounds for divorce

There are 11 grounds for divorce in Illinois:

1. Irreconcilable differences (commonly referred to as “no-fault”)
2. Impotence
3. Bigamy
4. Adultery
5. Desertion
6. Habitual drunkenness for two years
7. Drug addiction for two years
8. Physical cruelty
9. Mental cruelty
10. Conviction of a felony or other infamous crime
11. Infecting the other spouse with a sexually transmitted disease

Monday, June 2, 2008

Illinois Child Support amounts

One of the most common questions I get is "how much child support will the non-custodial parent have to pay?"

Illinois Courts determine child support payments by using a percentage formula:
Number of Children

Percentage of Supporting Party’s Net Income

1 child 20%
2 children 28%
3 children 32%
4 children 40%
5 children 45%
6 or more 50%

Net income is defined as total income from all sources minus the following deductions:

1. Federal and State Income tax property calculated
2. Social Security payments
3. Union dues
4. Mandatory retirement contributions required by law or as a condition of employment
5. Dependent and individual health/hospitalization insurance premiums
6. Prior obligations of support or maintenance actually paid pursuant to a Court order
7. Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent and exclusive gifts.


Hi. I have expanded my blog topics to other areas of practice. I will give updates on caselaw, questions received from clients, useful tips, resources etc. So feel free to poke around, check out the information here. Don't forget I have other useful blogs at Chicago Bankruptcy Blog, and Chicago Sports Chat Blog. I hope to help make the divorce process easier for all of those involved...husbands, wifes, children, grandparents and friends. Feel free to post comments and tips, and use this as a sounding post for your feelings, ideas and thoughts. Thank you.