Common Mistakes People Make During Divorce

Common Mistakes People Make During DivorceWe all make mistakes, especially when we’re stressed and feeling emotional. Few things are more stressful or more emotional than divorce, but that’s also when it’s most important to refrain from making any mistakes.

When litigating and/or settling divorce, it’s nothing less than our lives at stake. In addition to financial assets and alimony, any marriage with children will also have to deal with dividing decision-making duties and parenting time schedules. These are all things no one can afford to lose, so if you’re getting divorced, make sure you’re not making these common mistakes:

Not listening to the experts.

We’ve already talked about why it’s important to hire a divorce attorney rather than trying it DIY, but it’s equally important to listen to the attorney you’ve hired. They’re the expert and they’re able to look at the situation without all the emotional baggage you’re bringing to the divorce. You don’t have to take their advice if you don’t feel like it’s really what you want, but if your attorney is strongly advising you to do (or avoid) something, you need to take that under serious consideration.

Taking advice from people other than your attorney.

Just as important as taking advice from your attorney is not taking advice from people other than your attorney. When getting divorced, everyone will be full of advice, and it may be tempting to take advice from everyone from your best friend to your pharmacist. Even though they may have the best of intentions, they won’t necessarily know what’s best for you.  Even if you trust their opinion or believe they have all the facts because they went through a divorce or custody battle in the past, understand that they don’t have all the facts. Every divorce is different and more than likely, the Judge handling your case now did not hear your friends’ case. Outcomes in divorce vary greatly depending on the Judge you have, and it is your attorney’s job to advise you on how the Judge on your case may rule.   Also, as we posted previously, the laws changed significantly in Illinois in 2015, 2016 and 2017 via separate amendments to the Illinois Marriage and Dissolution of Marriage Act. So, all of these changes mean your divorce will be handled much differently than those heard by the Court even just a year ago.

Fighting over the children.

In many divorces, each party just wants to hurt the other, and few things hurt worse than denying someone access to their children. But it’s important to set aside your hurt feelings and pride and consider what’s really best for the children. If the other party wants to spend time with their children and they’re not putting them in any danger by doing so, the Court will insist that you allow them to have time with their children. Denying time or the ability to participate in a co-parenting relationship usually backfires on the parent withholding the children. Finally, your relationship will benefit from it in the long run and your children will benefit from having both parents remain active and present in their lives.

Continuing to litigate a case when settling would make more sense.

There are many reasons people choose to continue to litigate a case rather than settle. Sometimes people think they can get more money out of their spouse if they have their “day in Court.” Other times they just want to get revenge on their spouse, and they decide to do that by dragging out the matter as long as possible.

But in many cases, you can get more money by settling the case as soon as possible and saving yourself the additional legal fees involved in continuing to litigate. And while you may want revenge for the pain your spouse inflicted on you, choosing to drag out the litigation, rather than settling and getting it over with, can do as much damage to you (both emotionally and financially) as to the other party. There’s no point in taking the time and energy to hurt someone else if you hurt yourself in the process. A knowledgeable and experienced attorney can advise you when it is worthwhile to litigate the case than to settle.

These and many other mistakes can be made when you allow yourself to be carried away by the harrowing emotions that can come along with divorce. Instead of focusing on the negative feelings you’re experiencing right now, try to consider the kind of relationship you want with your ex-spouse and your children later on down the road. Let that foresight (and your attorney) be your guide in how you handle your divorce.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases, as well as 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. 

Understanding Why A Do-It-Yourself Divorce Is Dangerous

do-it-yourself divorceThere are some projects where it might be practical to DIY – divorce is not one of those projects.

As wonderful as the internet is, it does not, in fact, contain all the answers. Conducting an internet search of the marriage laws in your state does not give you an idea of how those marriage laws actually play out in the courtroom. And TV courtroom dramas are nothing more than entertainment and are not meant to give the impression that being an attorney is easy and anyone can do it.

As appealing as it might sound to be able to pay a single, small fee for all the legal documents you’ll need for your divorce, if something sounds too good to be true, it probably is. There’s no denying the fact that attorneys cost money and many people getting divorced are afraid they can’t afford it. But the fact is they can’t afford not to hire an attorney to help them with their divorce.

When two people have been married for any length of time, they have formed a life together. They have combined not just living space, but assets and possessions. If they had children together or were jointly raising children from a previous relationship, those children will be heavily affected by the divorce, and they deserve more than a packet of documents off the internet.

More often than not, trying to save money with a DIY divorce backfires, sometimes to the point of one partner having to file for bankruptcy after the divorce. If you weren’t trained to defend your case in a courtroom, you won’t be properly equipped to represent your best interests. Even if there’s no one more motivated to protect your rights than you, that doesn’t mean you know the best way to go about doing so in a courtroom.

By insisting on a DIY divorce, you could unintentionally get a bad deal for yourself when negotiating settlements and end up with a far smaller settlement than an experienced divorce attorney could have gotten for you. If children are involved you could end up with less parenting time and/or less child support than you are owed.

And are you aware of the developing laws regarding pets in divorce? Some state divorce laws are starting to treat pets more like children (since their owners certainly do), but Illinois still treats pets like property – meaning, if you both acquired the pet during the marriage, the pet will be divided along with the furniture, heirlooms, etc. If you and your spouse acquired a pet together, and you want to make sure the pet stays with you, you’re going to need a competent divorce attorney on your side.

Many couples who try a DIY divorce end up back in the courtroom a year or two later to sort out all the things their DIY divorce missed or failed to handle properly. That costs more time and more court fees. Further, they’ll probably end up having to pay the attorneys’ fees they were hoping the DIY divorce would avoid, only now the fees will be much higher because the attorney will require more time, effort, and resources to sort out the mess made by the DIY divorce. Obtaining your rightful property may also be impossible if you’ve already given it away, as property settlements are generally not disturbed 30 days after the Judgment. Bottom line: it is easier and less expensive to do it right the first time.

Finally, don’t ever assume that a Court will just accept the settlement that you and your spouse come up with in your DIY divorce. More and more judges are refusing to enter divorce agreements that are based on online forms, even the ones the parties paid for using an online document servicer/generator. This is not because Judges prefer to have attorneys, but rather because the Judge can usually identify the problems with the documents or potential pitfalls with the parties’ agreement. So, by rejecting the documents and advising the parties to go seek an attorney to review them, the Judge is actually helping the parties by avoiding a situation where one or both of them has to return to Court down the road to fix the problems.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases, as well as 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. 

Dividing Pension and Retirement Benefits During Divorce

Dividing Pension and Retirement Benefits During DivorceWhen considering what they’re entitled to in a divorce, most people think of dividing up the bank accounts and the property. Few of them think of the pension, 401k, or other retirement plan, but they should.

In most states (depending on the relevant marriage law) all pension money earned during the marriage is considered an asset that belongs to both parties and should be divided accordingly. Along with the rest of the estate, the pension benefits can be divided at the time of the divorce. The court can issue an order (known as a domestic relations order) for the pension plan to make payments to a former spouse, in which case they’ll be listed as an Alternate Payee.

Most pension plans will pay benefits directly to an ex-spouse if the domestic relations order meets certain criteria. If there are survivor benefits on a pension, payments can be made for the life of the employee and even after, regardless of whether they die before or after retiring. But everything is dependent on the prevailing local law, so check your state, county, city, and village requirements if you’re getting divorced and want to know your chances of getting your share of your spouse’s pension. Illinois allows both court orders and model court orders.

But the federal Employee Retirement Income Security Act (ERISA) controls all corporate-defined retirement plans, as well as certain defined contribution plans, and it pre-empts any state court orders. If a domestic relations order meets the requirements laid out by the ERISA, it becomes known as a Qualified Domestic Relations Order (QDRO). A plan administrator can determine whether a particular retirement plan fulfills all the criteria for a QDRO.

Government and military plans are exempt from ERISA, but they have their own regulations. Government pension plans involved in a domestic relations order that meet the necessary requirements are also referred to as QDROs.

The criteria for qualifying as a QDRO include things like the need to state the amount or percentage of the benefits to be paid to the Alternate Payee (or at least the manner in which that amount or percentage is to be determined). They also require a specific number of payments or the time period to which the order applies.

There are also limits on what QDROs can do. For example, they cannot require the plan to pay any benefits in any option that is not already offered by the plan. They also cannot require the plan to pay benefits that are worth more than the value of the Primary Participant’s interest (an actuary will be needed to determine that number); and they cannot require payment be made to an Alternate Payee that has already been set aside to be paid to an earlier Alternate Payee.

The first thing that needs to be done when claiming a right to part of a spouse’s retirement plan is to determine the value. That’s easy for a contribution plan, such as a 401k or IRA, because the current value gets reported to the account holder in statements that are provided either monthly, quarterly, or annually. But determining the value for a corporate-sponsored pension gets a little trickier.

In all cases involving the division of retirement accounts, it is important to consult with an attorney who is experienced in family law and the preparation of these Orders. Because the Orders entered with the family Court must often lay out the key information for the execution of a QDRO, the drafting of the Judgment for Dissolution and/or any settlement documents is just as important as the preparation of the QDRO itself. A certified copy of the divorce judgment must be sent to the Plan Administrator with the QDRO in order to finalize the division of the account, so the terms of both must match.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases, as well as 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. 

 

Divorcing An Absent Spouse

Divorcing An Absent SpouseIt can be hard enough to come to an agreement with your spouse that it’s time to end the marriage, but what if your spouse skipped town, and you have no idea where they might be? If you’re ready to move on with your life after that marriage, but can’t find your spouse, you can still file for a divorce, but ultimately serve them by publication.

For many years in Illinois, you needed to prove your spouse was at fault for causing the dissolution of your marriage if you wanted to succeed in securing a divorce. You needed to provide evidence that they had committed adultery, were abusive, abandoned you, and/or was habitually drunk, etc. Some time ago, Illinois adopted a no-fault divorce option in which people listed “irreconcilable differences” as their reason for divorce. It’s known as the no-fault option because it does not blame either spouse for the dissolution of the marriage, but merely recognizes that the two parties have reached a point where maintaining the marriage is no longer possible or desirable. Prior to 2016, a petitioning party had to be separated from their spouse for two (2) years before a Judgment could be entered, unless both parties had signed a written acknowledgment that they had been separated for at least six (6) months and were agreeing to waive the 2-year separation requirement.

In 2016, Illinois became a true “No Fault” state when it eliminated all grounds for divorce except for irreconcilable differences. Further, under the current law, you only have to show that you have been living separate and apart from your spouse for six (6) months immediately prior to the entry of a Judgment for Dissolution. Such a showing creates an irrebuttable presumption that irreconcilable differences have arisen in the marriage, and you can seek a divorce much sooner than the old law.

So, how does this change in the law affect how and when you can file for divorce if your spouse is nowhere to be found?   Now, you can file for divorce against an absent spouse and you only have to show that you’ve been separated for six (6) months before requesting the Court enter a Judgment for Dissolution against your spouse on a “default” basis. But, some things have to be shown to the Court before they will default your spouse, as explained below.

Once you file your Petition for Dissolution, you have to actually serve your spouse with the Petition before the Court can proceed with any default proceedings. It is important to note as well that marriage and divorce laws vary from state to state, so be sure to familiarize yourself with the requirements for filing a Petition for Dissolution and also with your State’s laws on service of process, including specifically on what is called “service by publication.” There’s usually a minimum amount of time you and your spouse must have been living apart before you can file for divorce, and you must also be able to prove that you preformed “due diligence” in trying to locate your spouse but were still unable to find them for purposes of serving them personally. It is important to also speak with an attorney before assuming you can or should serve someone by publication, as there may be other methods of “personal service” that are still available to you even if you do not have a known residential address for your spouse.

The requirements for due diligence also vary from state to state, but service by publication generally requires you to publish a notice that you are seeking divorce from your spouse in all the newspapers published in the area in which they were last known to reside. If, after a specified amount of time, the spouse does not respond to your notices, you can submit proof to the court that you performed due diligence in trying to find your spouse and to notify them of your intention to divorce them. Such proof will usually include a copy of the publication of your notice with the motion you file with the Court to request that the Judge find that you successfully served your spouse via publication.

Once service by publication is established, the court can then set the case for a final hearing and issue a divorce, even in the absence of your spouse. If you are truly unable to locate your spouse, the court does have the ability to enter orders for all aspects of the dissolution of the marriage, including division of property and assignment of debts. The Court may also enter default orders relating to parenting time and parental decision-making (formerly known as “custody”). However, in many jurisdictions, the Court may be more reluctant to enter default orders relating to child issues depending on the circumstances, so it is important to speak with an attorney who regularly practices in the jurisdiction you live to determine whether a default order is likely in your case.

While the Courts do not require that you have an attorney to serve your spouse via publication and/or seek a Judgment for Dissolution by default, it’s always recommended to have a knowledgeable legal professional help you through the process. There are a lot of forms to fill out, many of which are full of legal jargon, and you don’t want to miss any necessary steps by accident. A competent family and divorce attorney can help facilitate the divorce process for you as quickly and painlessly as possible, while making sure you get everything you need.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases 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. 

How Do I Get Temporary Support Until My Divorce Is Final?

temporary supportDivorce agreements commonly include orders for alimony and/or child support, but the divorce process can take months, or even years, to complete. So what do you do if you can’t wait that long to pay your bills?

Fortunately, you can file a petition for temporary relief. Once the court receives the proper form (which varies, depending on the court), a brief hearing will be scheduled in which you can make your case as to why you need financial assistance now. Under the new amendments passed to the Illinois Marriage and Dissolution of Marriage Act (IMDMA) in 2016, hearing on temporary child support or temporary maintenance (a.k.a. alimony) can be heard on a summary basis, unless one or both parties request a full evidentiary hearing with good cause. A summary hearing means that the Judge will review the parties’ Financial Statements, which must be filed in all divorce cases, and supporting financial documents that are attached to the Financial Statements to make a ruling on temporary support. No testimony is presented during these hearings, but the Judge rather reviews the documents alone. However, if a party wants to present evidence, perhaps to counter the other party’s arguments for support, then an evidentiary hearing may be scheduled in lieu of a summary proceeding.

In any hearing for temporary relief, the judge will first determine whether you should receive any alimony or child support, and if so, how much you will receive. The Judge can also divide the party’s use of and access to assets, such as real estate, cars, and access to bank accounts, all on a temporary basis until the divorce is finalized. The temporary order will likely include a provision that prohibits either party from selling significant financial assets before the divorce has been made final.

If you can’t afford an attorney, you do have the option of filing a petition for temporary relief on your own. Most of the court’s forms can be found online or at your local Family Court. You may file the paperwork yourself and receive a valid order for financial support from a Family Court Judge without having to pay for an attorney, but it is always suggested that you seek legal counsel, as these motions do require a lot of financial documentation as well as submission of various forms and affidavits.

If you and your spouse are still getting along fairly well and they make a verbal promise to continue supporting you, that’s great, but don’t rely on it. Attorneys always recommend you get a promise in writing, especially when your livelihood is at stake. Even the best intentions can go unfulfilled, so don’t rely on a verbal contract alone.

If you and your spouse have managed to reach your own agreement regarding spousal and/or child support, you can request that the Court enter an Agreed Order memorializing these terms. The judge will then review the terms to make sure the agreement is fair to both parties before approving any agreed order.

The process of getting divorced is stressful enough. You don’t need to make it more stressful by wondering how you’re going to pay the bills. Fortunately, the courts recognize this and have put in place systems to help give you one less thing to worry about.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases 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. 

CONTACT US TODAY!

Child Support Changes In Illinois

Child Support Changes In IllinoisIn the past, when a couple with children got divorced, one parent (the non-custodial parent) would be made to pay child support to the custodial parent. But in 2016, Illinois changed its divorce law to exclude titles like “custodial” and “non-custodial.” Instead there is only “parental responsibilities” and also “parenting time,” which get divvied up between the two parents.

At this time, Illinois law still requires the parent with less parenting time to pay child support to the primary caregiver, but that’s all about to change in July 2017. The current system is outdated in that it presupposes a household in which one parent earns the family income and the other parent stays home to raise the children. While many families do still operate this way, an increasing number of families have two parents who work outside the home and the Illinois Legislature recently passed a new law that takes into account these changes.

Rather than ordering one parent to pay a certain percentage of their income based on the number of children being supported, the new law orders the courts to determine how much it costs to raise a child depending on the combined net incomes of the parents. Based on this figure, the Court then decides what each parent must pay toward the cost to raise the child, allocating their responsibility based on his or her income.

For example, let’s assume that based on the parents’ net income, the Court determines that the cost to raise a child is $2,000.00 per month. Husband makes 70% of the household income and Wife makes 30% of the household income. Wife also has primary parenting time with the children. Husband may be looking at paying $1,400 per month of this $2,000 cost, and the Wife would be paying $600. Once you offset these amounts, Husband’s direct contribution to Wife would be $800.00 per month.

As referenced above, the new law also takes into account how much time each parent spends with the children. If the parents share 50-50 parenting time, or one parent has at least 40% of the time with the children, the new guidelines may not apply, and the Court will have to determine a proper child support figure.

Although that last provision was no doubt created with the best of intentions, it may have some unintended consequences. One or both parents might try to spend at least 40-50% of the time with the children, at least on paper, as a way of avoiding paying extra child support, rather than because such an arrangement would be best for the children.

A parent may likewise argue that the other parent should not get to spend that much time with the children because they want more child support, without taking their children’s best interests into account. If both parents start fighting to have the children for a minimum of 40% of the time (or approximately 146 nights each year), a judge may have to step in and determine whether the parents are acting in their own financial interests or the wellbeing of their children.

If one parent is voluntarily unemployed or underemployed, the court will assume their income is 75% of the current U.S. Department of Health and Human Services Federal Poverty Guidelines for an individual. If that’s case, they will be required to pay a minimum child support obligation of $40 each month.

The new law will go into effect on July 1, 2017, so there’s still time to prepare for these changes.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases 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. 

CONTACT US TODAY!

What Divorcing Couples Should Know About A Jointly-Owned Business

Divorcing CouplesIn 2007, the Census Bureau estimated that approximately 3.7 million businesses were co-owned by spouses, and as more people start their own businesses, that number has likely only gone up. That’s great if couples can successfully work together, but what if you get divorced? Can the business survive? Do one or both of you need to start looking for another job in addition to dealing with the emotional pain of divorce?

Every relationship is unique, and that’s as true of business relationships as it is of personal relationships. Some couples can continue to work together even after they’ve divorced, while others simply have to go their separate ways. Whichever path you choose, here’s what you need to know:

1) Put it in writing.

Most business partners sign an agreement when they start working together that outlines what happens if they want to go their separate ways. But because business ventures between spouses tend to be less formal, they often don’t sign such an agreement and that’s their first mistake. If you don’t already have a written agreement with your partner, write one up and sign it ASAP.

2) Get an attorney who has experience in handling business division along with divorce.

There are attorneys who practice preventing and resolving business disputes and attorneys who practice divorce, but an attorney who practices one is not necessarily experienced in the other. In order to make sure all your assets and interests are protected, make sure you get an attorney you know is capable of handling all aspects of the division of assets.

3) Maintain accurate records.

Your business is one of your assets, so you want to make sure you and your partner can accurately determine its worth when it comes time to divide your property. If you decide the business needs to be sold as part of the divorce, it’s not in anyone’s best interests to sell the business for less than it’s worth. In order to avoid a situation in which one or both of you gets cheated, it is necessary to maintain accurate records from the beginning. Know how much you have each invested in the business, and how much income the business has generated, and it will make the process of splitting and/or selling the business much easier.

4) Talk to your employees.

Much like children, employees might feel betrayed and/or take sides in a divorce. If they hear their bosses are getting divorced (especially if they hear it from someone else) they may worry about their job security.

To avoid confusion and potentially messy situations, couples should agree on a story they can tell their employees, and, whenever possible, they should be the ones to break the news. Some people may feel uncomfortable sharing such a personal experience with the people in their office, but doing so will ultimately make for a more comfortable and trusting work environment. That said, the decision is yours to make and no one will make you do anything you’re not comfortable with.

If you do decide to continue working together after the divorce, it might help to know that there are couples who have made it work. They have said mutual respect is necessary, and that the first two years are the most difficult. After that it gets easier.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases 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. 

CONTACT US TODAY!

How is Social Media a Contributing Factor in Divorces Today?

Social Media a Contributing Factor in DivorcesSocial media has quickly grown from something only a few college kids did to something that impacts every area of our lives – from our jobs to our ability to obtain a loan and, yes, even our divorces.

One of the most common pieces of advice regarding social media is to refrain from posting anything you wouldn’t want a potential employer seeing. Well, divorce attorneys are also advising their clients not to post anything they wouldn’t want a judge to see. Just like conducting an online search is one of the first things prospective employers do, it’s also one of the first things your spouse’s divorce attorney will do when collecting evidence against you. Here are some things to keep in mind:

1) Don’t assume your spouse can’t see what you post just because you’ve blocked them.

If your friends post about your job or your vacation, your spouse may be able to access that post and use it against you in divorce court.

Despite the fact that you may use privacy settings to make sure your spouse can’t see your posts, keep in mind your friends who may be posting compromising pictures of you. Even if your spouse can’t see your posts, they may be able to see what your friends are posting and that information can still be used in court against you. Not only should that caution you against posting indelicate information, but it should also warn you to keep track of what your friends are posting about you.

2) Think before you post.

You’ve probably heard that, once something is published on the Internet, it never really disappears. Keep that in mind before you post anything because, even if you delete compromising posts, forensic experts may still be able to access them.

3) Ask your friends for help.

If you see an unflattering or compromising post one of your friends put up that includes you, you can ask them to remove your tag from the post or remove the post altogether. But remember that nothing is ever truly deleted from the Internet. While your friend may comply with your request, the damage may have already been done.

4) Remember: nothing is private online.

Also keep in mind that the social media sites we use every day are owned by businesses with their own agenda. Most of them have Terms of Service that allow them to do pretty much whatever they want with the information you post. Even if your friends are on your side, Facebook probably is not and they can decide to sell your information to the highest bidder.

5) Take a break from social media.

The best way to keep a clean profile is to simply stay off social media until your divorce is finalized. Don’t post anything, no matter how innocent it may first appear.

6) Don’t delete any of your accounts.

At the same time, don’t delete any social media accounts you already have. It may be tempting, but it can also be considered destruction of evidence. This has the potential to get you in even more trouble than the social media account itself could.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases 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. 

CONTACT US TODAY!

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.

CONTACT US TODAY!

LGBTQ Rights in Illinois

LGBTQ Rights in IllinoisFamily law for the LGBTQ community drastically changed with the landmark decision by the United States Supreme Court on June 26, 2015. This is the day the Court ordered that every state must recognize same-sex marriage. Up to this point, same-sex marriage caused inconsistency and confusion from state to state. With the supreme court decision, a same-sex couple who gets married in Illinois can cross state lines and still be considered married. Q

Marriage and Divorce

The Illinois Marriage Equality Bill was signed into law on November 20, 2013. Illinois was the 16th state to legalize same-sex marriage. After being signed by the governor, the law took effect on June 1, 2014.

While marriage laws may still differ from one state to another, same-sex couples in specific states have the same legal benefits as heterosexual couples. One of these is spousal benefits, which includes the right to jointly own property and extend your healthcare benefit to your partner. Denial of any of these rights is discrimination.

As with traditional marriage, same-sex marriage can be dissolved by separation or divorce. If you are a same-sex couple and decide to end your relationship, you must formally so do by following the “Dissolution of Marriage” statutes in your state. You must file for a divorce.

Adoption and Children

Once you are married, you may want to start a family. Illinois does recognize the right of same sex couples to adopt children. Illinois also recognizes certain surrogacy contracts, but only those regarding gestational surrogacy and not “traditional surrogacy.” The difference between the two is that gestational surrogacy occurs when a woman undergoes In Vitro Fertilization (IFV) to carry a child who is unrelated to her, but rather is the child of a donor mother and donor father (who usually are a couple). Traditional surrogacy is when a surrogate female is inseminated using the sperm of a Father donor, thus making the surrogate also the child’s biological mother. Traditional surrogacy is against Illinois public policy.

Regarding adoption, it is possible for one spouse to legally adopt the other spouse’s biological children from a previous relationship. This is called second-parent adoption. This will help to avoid custody problems in the future if the biological parent passes away or the couple gets divorced.

Employment

The Illinois “Human Rights Act” was enacted in 2005, and it has been extremely effective in protecting the rights of LBGTQ employees on the same exact terms as other groups. Unfortunately, Congress has not acted on the need for federal protections. To combat this, President Obama signed an executive order in July 2014 that prohibits employment discrimination by federal contractors and subcontractors against LGBTQ employees. This order became effective April 8, 2015. Illinois is one of 18 states to prohibit workplace discrimination based on sexual orientation and gender identity.

Hate Crime Protection

Since 1991, there has been hate crime legislation based on sexual orientation only. The law did not specifically protect against acts of violence based on gender identity, but gender identity cases could be prosecuted as sexual orientation cases since the state criminalizes attacks based on one’s perception of sexual orientation. On April 16, 2015, and May 20, 2015, the House and Senate passed House Bill 3930 to include the words “gender identity” into the Illinois Crime Statutes. On July 20, 2015, the law was signed by Governor Bruce Rauner. It became effective on January 1, 2016.

Get Help from an Attorney

You deserve to have your rights protected, regardless of sexual orientation. 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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