Can I Start Dating During a Divorce?

dating during a divorceEven though you and your spouse have decided to call it quits, dating during a divorce can be very tricky and should be approached with caution because it can come with serious legal consequences.

First of all, be especially careful if there are children involved in your divorce. Not only do you want to avoid causing them any more pain and confusion than they’re already feeling, but a vengeful spouse can use evidence of another relationship to show you’re not mindful of the children’s best interest. The last thing you want is your spouse using your new relationship (or relationships) as evidence that your home will not be a good environment for your children. This is especially true if you decide to rub their face in it. Don’t flaunt your relationship by making a big deal about it on social media or talking about it with a lot of people. Instead, you’re better off keeping the relationship quiet until the divorce has been finalized. You can still see your new flame, but keep it off social media and make sure only a few trusted friends and family members are aware of the new relationship. At the same time, however, your soon-to-be ex should be one of the people you do inform about the relationship, particularly if you have children.

Second, if you are planning to seek alimony in the divorce, engaging in a new relationship may have consequences on your arguments for seeking spousal support. Many litigants make the mistake of rushing into a new serious relationship and/or moving in with the new significant other, which can result in the Court determining that the spouse has a new source of financial support and no longer is reliant on his or her current wife/husband to make ends meets. While the factors for determining cohabitation are complex, and should be discussed with an attorney, it is usually best to avoid moving in with a significant other altogether.

Third, while you may want to go out on dates or take vacations with your new significant other, expenditures on such things may be considered by the Court to be “dissipation of assets.” What this means is that if you spend $5,000.00 on a trip to Hawaii with your new beau, your spouse could then be entitled to seek an award of $5,000.00 from your other assets to compensate him/her for money you spent on a “non-marital purpose.” Dissipation claims can be very expensive to litigate, so most attorneys will suggest that you only maintain the status quo during your divorce process when it comes to expenses.

Finally, be very careful to make sure you are spending only your own money on this new relationship. Never, ever spend marital funds or money from marital assets on another relationship because the court may require you to pay that money back to your spouse. In fact, you’re better off not spending much money at all on the new relationship. If it looks like you have money to burn, the court may either lower the amount of alimony you’re eligible to receive or increase the amount you’re required to pay, depending on your circumstances.

Of course, every marriage (and by extension, every divorce) is unique. You and your spouse may have agreed to see other people before the divorce is finalized. Your spouse might even be seeing someone. Know your spouse and know yourself in order to determine what would be the best course of action for your unique situation. In some cases, it might be putting off a new relationship until you’ve both finished signing the divorce papers.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

Who Can Claim Children As Dependents? What To Do When Your Divorce Does Not Specify

Who Can Claim Children As DependentsIllinois marital and divorce law was recently changed to redefine “custody” as “parenting time.” Under the new law, the parenting time is split between the parents. In most cases, one parent ends up with the majority of the parenting time (determining which party gets the most parenting time depends on a number of factors to be considered by the judge ruling in the matter). In some cases, especially in amicable divorces, the parties may agree on a parenting plan that divides up the parenting responsibilities between them. They then merely ask a judge to approve their plan.

The parent awarded the majority of the parenting time is known as the “custodial parent,” for situations where certain federal or state statutes still require use of the designation. Generally, this distinction also falls on the parent who gets the primary parental and decision-making responsibilities of the children, but sometimes, such as in the case of a 50-50 parenting arrangement, it is a technicality defined in the parenting plan. Although the term “custody” no longer has any meaning in the context of Illinois family law, it is still used for the purpose of designating one parent that can claim the children as dependents on their tax returns.

In some cases, parents may agree to a Parenting Plan that divides the parenting time equally between the parties and gives them both parental responsibility of the child. As mentioned above, even if the parents are able to work out such an agreement, Illinois law requires one of them to be labeled the “custodial parent” for tax purposes. In order for the other parent to be able to claim the child as a dependent on their tax forms, the designated “custodial parent” must fill out a Form 8332 in order to sign off on the other parent’s right to claim the child dependency tax exemption.

If you and your ex-spouse agreed to evenly divide the parenting time and responsibilities between you, one of you should still have been labeled the “custodial parent.” If that title went to the other party, you can ask them to fill out Form 8332 so you can claim your children as dependents on your tax form and take the coinciding deduction.

It is most common for parents to agree to alternate the child exemption, regardless of who was given the title of “custodial parent.” The reason being that the non-custodial parent is still often paying child support for purposes of assisting with the child’s needs when the child is in the care of the custodial parent.

If such was the case for you and your ex-spouse, you might want to check in with them regarding whose turn it is. Whoever did not get to claim the tax credit the year before should get to claim it this year. If this is your first time filing taxes after the separation or divorce, talk with the other parent to make sure you’re both on the same page when it comes to filing taxes. You can choose to have the “custodial parent” claim the exemption first and switch off from there or work out another system that works for both of you. It is always best for there to be a court order that clearly defines the tax dependency arrangement, including who can file and whether that parent can file in even or odd tax years.

When filing your taxes, it also helps to get a written declaration from the custodial parent that they will not claim the child as a dependent and have them attach the declaration to their tax return. This would expedite the resolution of any issues filing your return.

No matter your situation, it is always best to maintain open and respectful communication with your ex-spouse regarding the parenting of the children and the terms of the divorce. It makes everything much easier, including the children’s ability to adjust to their new circumstances.

If you are having any family law issues, consulting a knowledgeable attorney can help. At Sherer Law Offices, we can guide you through the legal steps you need to take to ensure your rights are protected.

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Abuse of Allocated Parenting Time in The State Of Illinois

In this video, Barbara Sherer shares some of the highlights and changes to the Illinois Marriage and Dissolution Act that took place in January 2016. She is particularly focusing on the abuse of allocated parenting time. For example, if you are being denied parenting time, you need to reach out to the other parent showing that you are trying to resolve the issue. She discusses how these new provisions work. Please know, this is in no way to offer specific legal advice. Every situation is different.

 

There is always a chance for circumstances to change in one form or another.  That is why it is so important to have an experienced divorce attorney on your side.  At Sherer Law Offices, our experiences attorneys will guide you through the process of modifying your maintenance agreement and make sure that you get exactly what you need and deserve.  

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4 Ways To Make Visitation After Divorce Bearable

visitation after divorceDivorce, as well as visitation after divorce, is a difficult experience and it takes a toll on all family members, especially children. Parents need to collaborate and continue to parent together for the sake of their children, making them feel comfortable about the new arrangements. The more cooperation parents can establish regarding decisions involving their children, the better parenting visits will be for everyone. The following are some ideas that you can implement during your visitation, now referred to as “parenting time” in Illinois, to make sure all goes smoothly:

Set a Calendar

Both homes should have a calendar for the kids. Together, you can mark weekly events like weekday dinners, school events and overnight outings. Be on time for your parenting time visits and be there for your kids. Remember: your email and text messages can wait. Also, try to be upbeat and optimistic, setting realistic expectations for time spent together. As your kids get older especially, stay “in the know” of what is going on with each child – who has instrument lessons and soccer practice and at what time. The task of keeping a calendar will be more difficult for the parent who never may have managed the family’s calendar in the past. Take a breath and remember you’re doing this because spending quality time together lets your children know that they are important to you.

Create a Positive Atmosphere

Your goal is to make your children feel comfortable and cared for during the transition of being a “nuclear family unit” to a separated household. Further, you will want to connect with your kids individually as much as you can, and remember to celebrate their individuality and independent choices. Finally, creating a positive atmosphere is more important than ever.  So, under no circumstance should the other parent be discussed in a negative or disparaging way. Children become much more alert and sensitive to questions and comments about their other parent, as naturally a child is loyal to both of their parents. It should come as no surprise then that children will feel conflicted when talking about the other parent and/or feel they should not mention them at all. By maintaining a positive and upbeat attitude about the transition, it will help put the children at ease and reassure them that neither parent will put them in an awkward position.

Do Not Argue

Let’s face it – Arguing is uncomfortable to witness for everyone! In the same vein as “create a positive atmosphere” above, keep in mind that if you argued in front of your kids as a married couple, make sure those habits don’t carry over into parenting time. Visits are for them, including drop-off and pick-up times. When you have disagreements about parenting choices, create a separate time to discuss these issues. Do not try to hash these out at exchanges, as the kids will be paying close attention to how these go. If you need a mediator, contact your attorney who can suggest the best form of mediation for your situation.

Phone Numbers and Phone Calls

Equip your child with a notebook of information including phone numbers for both parents, close family members and trusted caregivers. It is important for you to show them it is okay to stay in touch with the other parent, creating a positive relationship between parents and children. If you are the parent exercising parenting time, be cognizant that calls to the other parent should be allowed and/or encouraged for instances like saying “good night” or letting the other parent know if something unusual or exciting happened that day. The bottom line is that you want your child to feel it is okay to communicate with your co-parent.

It’s also important to let your kids know that missing the other parent is okay. If the other parent is being missed, have your kids draw pictures, do crafts or write a note if the child is old enough to write. Raising a child is a team effort, and letting your children express their emotions while in your care is very important. The sweet token, whether it’s simply a page they colored for their mom or dad, can be presented at the conclusion of the visit and represents your willingness to work together to raise a happy, well-adjusted child.

It is essential for parents to create a collaborative effort so that parenting time can be pleasant, constructive and comfortable for everyone, especially for children. For assistance or legal advice for your family regarding divorce, setting up visitation parenting plan or any other divorce-related issue, contact Sherer Law Offices. Expert divorce attorneys are available to advise you throughout all steps of divorce, including legal advice to help you set up the best visitation schedule for you and your family.

Quick Guide To The New Illinois Custody Laws For 2016 – Part One

New Illinois Child Custody Laws for 2016Several things have changed in Illinois Divorce Law as it relates to child custody laws beginning in January 2016. As a result of the new custody laws, a quick guide for parents, including information on time allocated to children of divorced parents, is provided here as a convenient reference.

PART ONE – NEW DIVORCE/CUSTODY CASES

Parental Allocation – Not Child Custody

Formerly known as Child Custody, the State of Illinois now recognizes the term Parental Allocation when referring to parental decision-making and also the time allowed with children in a divorce situation. See below fora quick guide to the new updates in Illinois law that will help you as you decide parental allocation with the new procedures and requirements that must be followed when filing a petition.

Allocation of Parental Responsibilities: Decision-Making

Formerly known as “legal custody,” the Court will now refer to this arena of divorce or parentage cases as parental allocation of decision-making responsibilities. Although it’s quite a mouthful, the premise is simple. The Court decides if or how the parents will share decision-making responsibilities over the following four major areas:

  1. Health/Medical
  2. Education
  3. Religion – A Court can only allocate responsibilities here when it was clear that the parents had a prior agreement or practice on this issue.
  4. Extracurricular Activities

In most situations, where the Court would have previously determined that the parents should share “joint legal custody,” the parents will likely each have an equal say-so in these 4 categories. If the case called for more of a “sole legal custody” arrangement, the new system will essentially provide that only one parent will have the decision-making responsibilities for all of these 4 topics. More interestingly, the Court can also customize which decisions are shared jointly and which may be decided by just one parent. For example, one spouse could be a teacher and the other a doctor. The Court can order that the parents have equal say on religion and extracurriculars, but then say that the doctor has sole authority over medical decisions and the teacher has sole authority over educational decisions. The goal being that the Court wants to allocate parental decision making in a way that makes the most sense for the child and likely conformed to how decisions were being made in the household while the couple was still together.

Allocation of Parental Responsibilities: Parenting Time

Formerly known as “visitation,” the second step in parental allocation cases will be allocating parenting time between the parties. Many factors are considered by the court when deciding a parenting time schedule, all of which are in the best interests of the child(ren). These topics include:

  • Wishes of the parents and child(ren)
  • The amount of care given to the child(ren) within 24 months prior to petition filing
  • Any prior agreement reached by the parents that relates to caretaking functions of the child(ren)
  • The child’s adjustment to home, school, community
  • The mental and physical conditions of all involved
  • The child’s needs
  • The distance between the parents’ homes, the child’s school, individual schedules and parental cooperation with the arrangement
  • Appropriate restrictions
  • Physical violence, threats of physical violence and domestic violence of either parent directed against any household member
  • Restrictions on parenting time
  • Willingness of each parent to place the needs of the child first
  • Living conditions of each parent: if a parent is a convicted sex-offender or living with a convicted sex-offender
  • IF a parent is employed in an branch of the armed service and if a military family-care plan is complete prior to deployment
  • Other factors that the court deems relevant to parental allocation decisions

Mediation Orders      

The Court issues a mediation order when each party in a divorce has yet to resolve allocation of parenting time and guardianship. This document orders each party to participate in mediation to resolve all areas of parental allocation. In most local counties, the parties will be required to complete four hours of mediation, unless the mediator files a report discharging them from mediation prior to the four hours being completed.

Parenting Plan

A Parenting Plan must outline items such as an allocation of decision-making responsibilities, to include education and health, child’s living arrangements, religion and all extracurricular activities. These plans will resemble the Joint Parenting Plans or Agreed Orders previously used by parties to memorialize their agreements on custody, visitation and support issues. But, the intent is to make these agreements more structured, more detailed, and more useful in guiding parents on how to resolve child-related issues in the future as the child grows.

Parenting Plan Requirements

A proposed Parenting Plan must be submitted by both parties, either together or separately, within 120 days of filing a petition. If no parenting plan is submitted, the Court has to conduct a hearing and mediation will be ordered. If there is an agreement, the plan has to be signed by both parties. More importantly with the amendments to the law, if the parents agree to a Parenting Plan, the Court MUST sign it unless the agreement is found unconscionable by the Court. If there is no plan, each parent has to complete and sign a plan within 120 days of the appearance.

Understanding such a comprehensive and complex rewrite of the Illinois divorce laws is no easy task. For assistance with understanding the new laws regarding Parental Allocation in Illinois, please contact Sherer Law Offices. Our attorneys can provide you with the most recent information and guidance with Parental Allocation procedures and requirements, and answer any questions you may have when considering what is best for you and your family.

Professional Evaluations and Parental Allocation

255658_10151407281112711_912839515_n_7If you’ve ever found yourself in a highly contentious situation with your current spouse or ex about parenting time or perhaps a modification of your former divorce agreement, you’ve likely heard or experienced first-hand that court battles over children are not easy. Often times, attorneys will recommend the use of experts in order to strengthen your case. One such tool is the use of a professional evaluator who is a clinical psychologist and trained to make specific recommendations to the Court about “parental allocation” and parenting time.

What Is Parental Allocation?

The term “Parental allocation” is the new descriptor for what was formally known as “custody” in the State of Illinois, beginning in January 2016. This new language is part of a significant rewrite to family law statutes in the State, and it deals specifically with the Court’s allocation of parental responsibilities regarding decision-making and parenting time, formerly known as “visitation.” Although the terminology of custody and visitation has changed, many of the same tools for evaluating a child’s best interests, such as the use of experts, remain available to parties in a divorce.

For example, professional evaluations have become common in more complex and/or contentious custody battles. In brief, professional evaluations, also known more commonly as “custody evaluations”, are processes facilitated and completed by a mental health professional and/or psychologist that are designed to evaluate your family’s relationships, parental skills, and other information about your family. This information is then used to help with the “best interest” recommendations for the child or children, when being placed in a parent’s home or when the Court is determining parental allocation of decision-making responsibilities and parenting time. This professional ultimately serves to make a recommendation to a court regarding a parenting plan that is in your child’s best interests. He or she can be appointed by the Court or retained as a private expert upon a motion by the Court, the Guardian Ad Litem or a party to the case. Costs for a professional evaluator are paid for by the parties themselves, and the fees are allocated by the Court according to the specific circumstances of the parties, such as their finances. Depending on the applicable statute, the evaluator’s report may be admitted as evidence, placed under seal, or subject to motions by either party to exclude it from trial.

Professional Evaluation Structure

Although every evaluator may have a different routine for how they prefer to conduct evaluations, an example of a possible evaluation structure for a case involving parental allocation may be as follows:

  • Several interviews with each parent
  • Individual interviews with each child
  • Observations of children with each parent
  • A review of court documentation or other pertinent written information
  • Contact with reference sources – these could be teachers, school personnel, doctors
  • A specific written recommendation about parental allocation and anything else which addresses the concerns of each parent

Evaluation Report Should Include:

As part of the recent rewrite to the IMDMA, the legislature has now set out very specific criteria that must be included in an evaluator’s report, which includes:

    • A description of the procedures employed
    • A report of the data collected
    • All test results
    • Any conclusions of the professional relating to the allocation of parental responsibilities
    • Any recommendations concerning allocation of parental responsibilities and/or the child’s relocation
    • An explanation of any limitations in the evaluation/investigation or any reservations of the author regarding the recommendations

In addition to interviews of the family, psychological testing of the parents may be ordered by the Court as part of the evaluation, which may be helpful to the evaluation of a parent’s emotional functions and parenting style could be performed. These techniques are often used by psychologists in complicated evaluations, and are designed to provide further information that will help with the best recommendation for the children. An evaluator may request a home visit at the home of each parent, which is designed as an observation of your family in a less clinical environment. There is a requirement for the professional to testify as Court’s witness and be subject to cross-examination.

To better help children understand an evaluation process, it is best to explain that the professional is there to help the parents to work together when raising them. The professional is someone who is there to learn about the family and then be able to help parents to agree on the best parenting skills to use to raise the children. Encourage children to be open and speak honestly to the evaluator.

Evaluation Recommendations

There are several topics that can be included in an evaluation recommendation.

  • Parental Allocation recommendations
    • Includes recommendations on the parents’ abilities to make major decisions about the child’s medical, religious, educational, and extracurricular decisions together. This would also touch on what kind of schedule the parents should share with the children, and how this would work toward the children’s best interests.
  • Parenting time and conflict-resolution
    • The evaluator will make recommendations about how parents can work together to solve future problems regarding parenting time and work with parents on an ongoing basis to teach them to resolve issues
  • Therapy recommendations
    • Specific recommendations for treatment of either parents or children will be included
  • Specific recommendations that focus on special issues such as domestic violence and substance abuse, including but not limited to recommendations for treatment
  • Parenting classes that are designed to help parents recognize a child’s needs
  • A re-evaluation may be recommended as the child grows and his needs significantly change

Generally, it may be best for evaluators to deliver recommendations directly to parents, because there is a tendency to focus on result of the case instead of the best interests of the children. Also, parents tend to stay focused on the children’s needs and remain focused in this manner at all stages of the divorce process which is the best approach to establish in a recommendation situation.

For expert guidance through a Professional Evaluation during Parental Allocation processes, particularly in light of the new changes to the IMDMA beginning in January 2016, contact Sherer Law Offices. Our attorneys will provide you with the guidance and advice you need for the best resolution for you and your family.

Tips For Making Your Divorce Easier On Your Older Kids

o-KIDS-DIVORCE-facebookJust because your children may be older, going through a divorce can still cause them stress and anxiety. It’s important that you have realistic expectations regarding how your older children will react through the process of a divorce. Older children experience similar feelings as younger children when faced with a parental divorce. Anger, sadness and uncertainty are some normal feelings that are often experienced, but luckily there are ways to help you navigate through the emotions together.

First, keep the lines of communication open. Help children process information by not hiding your own stress or feelings. This shows your child that it’s okay to be sad. Be prepared to explain topics in general, offering practical information they want to know. Remember: some tiny details often invite more questions, but it’s okay to be candid as long as it is not too personal or information that may be detrimental to your child(ren) and their feelings towards your spouse. Revealing your feelings will help kids to better relate to the fear, anger and confusion they have about the divorce.

However, it’s also important to avoid making adult kids your ultimate confidants. It is tempting to confide in the people closest to you during a divorce, and that often may be your older child. Be careful what information you share and how you share it with your teen or young adult. Sharing too many personal details or high-stress issues between you and your ex can cause your child to have distress, ultimately causing disillusion toward one or both parents. Address issues directly with your ex-spouse and utilize a mediator whenever necessary. Avoid using your kids as messengers or as therapists.

During a divorce, it’s important to assure your children that you still love them and that both you and your spouse will strongly remain in their lives. This is true no matter how old the child may be. Let them know that the divorce was not because of them or anything they did. Too often adult kids don’t get crucial information until later in life, which may cause them to re-process and re-open emotional wounds. Be mature; discuss openly and honestly while leaving any details out that may be too painful. You know your child better than anyone – only share information that you believe he/she can handle.

Expressing bitterness for your ex-spouse with ideas such as s/he is not a good parent or that your ex is not someone with whom your kids should want to have a relationship does not cultivate a mature rapport that your child desires. You will want to continue to compliment their relationship with your ex in positive ways to help free them of any guilt they may have derived from the divorce.

Pay special attention during holidays and birthdays when children can become upset about changing family traditions. Be flexible about creating new rituals, special events, and be sensitive about incorporating new individuals into family time. Look for fun activities that promote stress reduction, while encouraging building of new relationships.

Loneliness is another emotion that older children may feel during a divorce, and it can be a quite common one. Make sure your child has a support group where s/he can listen and converse with others who have experienced similar situations and feelings. Many of these groups are online, which makes attending more accessible. Church organizations and your child’s pediatrician can also offer support groups for children who have experienced a divorce.

Remember: divorce is stressful for everyone. As a parent, it’s important to be vigilant. Watch for rough spots and arrange for counseling, which provides an objective point of view to help your kids if any serious emotional signs are detected.

As older children grow and develop, make yourself available to listen whenever they want to talk. Sometimes years after a divorce, children may need to share information or different perspectives with you. As a parent, you will need to encourage kids to share their feelings without fear of judgment or hurting your feelings.

Hiring the right divorce attorney is essential to achieve a resolution that is best for you and your family and one that encourages positive family transitions during divorce. Contact the law offices of Barbara Sherer. We will provide you with expert legal advice and the confidential support that your family needs.

Same-Sex Divorce: Is The Process Different?

same-sex-marriage-divorce-rateSome aspects of same-sex divorces are similar to traditional divorces. However, sometimes same-sex divorces can have additional legal issues, including but not limited to: the validity of the marriage, when and where the marriage began, what rules exist with regard to the couples’ finances, if both spouses are legal parents, and/or why it’s important to legally end a partnership. Home states for many same-sex couples did not recognize their relationships, therefore couples decided to travel to another state to get married. By doing so, every couple with multiple registrations has to take extra steps as they separate.

Is It Time To Legally End Your Union?

If you were married, registered, or a partnership was created, you are legally and financially bound to your partner, unless you terminate those arrangements. Recent rulings at the federal level have changed legal aspects of same-sex marriage and divorce, so if your union didn’t seem legally significant when registered, time and recent changes may affect the scope of those decisions.

Tips On How To End Your Same-Sex Union/Marriage

Some of the easier registrations to terminate are those with employers, cities, and counties. Each will have its own termination form and for the most part all that is required is completing and submitting a form. In some instances, your partner’s signature may not even be required, however it is best that you notify your ex-partner of each action taken in writing so that should an issue arise later, you have documentation.

State registrations or marriages are generally much more complicated to terminate. In situations where your current home state does not recognize same-sex unions or marriages, your local court judge may refuse to grant a divorce, even with regard to the current federal ruling. A judge may be even more reluctant when faced with dealing with registrations from several states. And although it may seem easier to return to the state where you were married or partnered, most states have residency requirements in order to file for divorce.  In Illinois, for example, you cannot file for divorce unless you have resided in the State for at least ninety (90) days. By checking with the state in which you were married, you can determine the requirements for your specific circumstances.

Conflict and Divorce

No matter who is involved in a marriage, the basic premise remains the same when facing divorce: you want the best and most painless way for you and your family to get through this most difficult time. As such, there are several options to consider as you work toward choosing a method of resolution. Options are available to you to achieve resolution if you and your spouse wish to settle your dispute without going to court: mediation, negotiation or collaborative divorce proceedings.

Negotiation

Negotiation, simply defined, is discussions geared toward reaching an agreement. Negotiation often involves each spouse deciding together how to divide property, or it can mean that you each hire lawyers who negotiate on your behalf to carry out your wishes.

Emotions can complicate issues such as parental rights and division of property. However, if you are able to negotiate directly with each other, you will avoid court and lawyer fees. What you will need is a clear understanding of not only your position, but that of your partner, and the ability to keep a strict focus on the end result while showing that you are open to compromise.

If this option is not for you, a lawyer can be hired to negotiate for you on your behalf. Your lawyer will work with your partner’s lawyer toward resolution that involves the exchange of possible settlement options until an agreement is reached.

Mediation

Mediation plays out with a neutral negotiator, or mediator, who works with each of you to resolve disputes using effective communication regarding your needs and interests until an issue is resolved. A mediator is not a judge, and mediators do not make legal decisions or issue rulings.

Mediation may be an appropriate option in same-sex divorces. Often, same-sex spouses may have been accumulating property together for much longer than they have had the right to marry. As such, mediation may be an appropriate venue for itemizing assets or debts that, although were not acquired during their legal marriage, were in fact acquired after the couple decided to enter into a marriage-like arrangement but were prohibited from legally marrying. If this is the case, mediation may be best for you.

Further, something to note is that where a couple has children, Illinois court rules require parties to complete at least four (4) hours of mediation if a divorce action is filed. So, many attorneys will encourage parties to attend mediation even before a divorce is filed, as it may be required anyway if or when a Petition for Dissolution of Marriage is filed with the Court. There are exceptions to the mediation requirement, but only the Court can make this determination to waive mediation once a case becomes contested.

Collaborative Divorce

A relatively new method is Collaborative Divorce, which contains elements of lawyer-assisted negotiations and mediation. Each party hires an attorney, who then advocates for each client. Both spouses and lawyers sign a written agreement that the case will not go to court and agree instead to settle it. If one party chooses litigation, each attorney withdraws and the couple must choose new representation. The new set of attorneys then begin a new representation.

Contested Divorce Proceedings

In the event an agreement cannot be reached, most spouses will hire representation, and all disputes will be submitted to a judge for resolution, except as stated above with regard to Court-ordered mediation. Although hiring an attorney is not a Court requirement, it is not advisable to represent yourself in any divorce proceeding. If you are considering this option, be prepared to spend a lot of time organizing documents and researching the law to create a solid legal argument that supports your position, as well as preparing yourself to present your case in front of a judge.

Further, this likely will not be a quick or cost-effective method as many jurisdictions, particularly in Illinois, only schedule pro se dockets for certain days/weeks of the month. Additionally, given how many Court dockets are scheduled, a frequent result is that cases involving attorneys are often heard first since the Court is acknowledging of the fact that attorneys are being paid for their time to appear that day. As such, pro se litigants often end up having to take a significant time off from work to appear at every court appearance and wait for their turns to speak with the Judge. If you are represented by an attorney, the attorney can usually appear on your behalf at procedural court appearances such as status hearings, meaning you will only be required to appear when it is necessary.

Hiring the right lawyer for you is essential to achieving a settlement or resolution that is best for all involved. The legal team at Sherer Law Offices can help you navigate the divorce process and provide support should disputes arise.

What is the Difference Between Physical and Legal Custody in Illinois?

father-r-10.01.14Child custody is a topic that is often misunderstood. Many people think custody only has to do with agreements about the time spent with a child, when it actually encompasses a much wider range of rights. Custody in general refers to the decision-making power of parents after a divorce. While some states define a difference between physical custody and legal custody, Illinois does not. The joint custody law was revised in 1986 and no longer makes any distinction between physical custody and legal custody. Today, Family Law in Illinois only defines differences between joint custody and sole custody. These custodial agreements will include decision-making rights of parents regarding the important issues of education, religion and medical decisions. Physical access to the child will be outlined in the residential custody and visitation agreements.

Joint Custody in Illinois

A common misperception regarding “joint custody” is that it means parents will have an equal, “50-50” split of time with the children. This is not what joint custody means from a legal standpoint. Rather, parents who share joint custody of a child often do not necessarily spend the same amount of time with the child, but they will both have equal rights to participate in the major decisions that will affect the rearing of the child. To name just a few, educational issues, medical decisions, and religious practices of the child will all need to be discussed by both parents. Put simply, joint custody means that both parents are encouraged, and have the right, to jointly parent the child regardless of the visitation schedule.

In addition, there can be some variations in joint custody depending on the circumstances. For instance, one parent may have stronger religious beliefs. As a result, the parents could agree that said parent would have more say about the child’s religious upbringing. The other parent may have a professional medical background, so that parent might be more responsible for making decisions about the child’s medical care. This does not mean, however, that these decisions should not still be discussed and/or negotiated at the time of the divorce.

Sole Custody in Illinois

Sole custody awards full decision-making authority to one parent. This parent will have the sovereign right to make all major choices about medical care, schooling, and religious upbringing of the child without the approval or input of the other parent. The parent with sole custody will provide the primary residence for the child and receive child support, but the non-custodial parent may still be granted visitation rights.

Sole custody is usually awarded when a divorcing couple and/or unmarried parents are unable to work together peacefully. If trying to make decisions jointly creates more problems than it solves, or if there is a potential for violence, then sole custody may be the best solution. Remember, however, that it is usually in the best interest in the child if both parents can find a way to effectively communicate, compromise and cooperate.

**Note: In Illinois, even if a parent is awarded sole custody, that parent does not have the right to move out of state with the child without the other parent’s consent or court approval. The parent wishing to move has to prove to the court that it’s in the best interest of the child to move. 

Residential Custody in Illinois

If joint custody is awarded, the court will usually assign one parent to be the primary residential custodian of the child. The parent chosen as the primary residential custodian will be responsible for making daily, routine decisions for the child and be the one who receives child support payments. The Court applies the statutory guidelines for setting child support regardless of whether the parents share joint custody or one parent is awarded sole custody. Child support amounts to the primary residential parent will be the same amount as paid to a parent having sole custody, BUT residential status does not grant additional decision-making rights to that parent, unless otherwise agreed upon by the parents.

The goal with any custody arrangement—whether joint custody or sole custody—is to ensure that decisions are made in the best interest of the child.

If you have children and are going through a divorce, let the experienced attorneys at Sherer Law Offices guide you through this complicated process. CONTACT our office for a legal consultation.

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