What Is Involved In Adopting My Stepchild?

adopting my stepchildFor the most part, adopting a stepchild is much like adopting any other child. In fact, sometimes the process can be expedited since the child and your spouse are related.

But the biggest difference between adopting a stepchild and any other adoption can often be the biggest hurdle to overcome: you need permission from the child’s other parent (provided they’re still living), and granting that permission requires them to give up all their parental rights. It’s easy to understand why it might be difficult to convince a parent to give that up.

On the other hand, giving up all parental rights also means giving up all responsibilities, including child support. If the other parent does not have a strong relationship with their child, they may even welcome an opportunity to stop making those payments.

In some cases, the other parent may recognize that surrendering their parental rights so the child can be adopted by the stepparent is in the best interests of the child, in which case they’ll be more likely to provide their consent. In order to voluntarily surrender their parental rights, the other parent will need to sign appropriate Court documents to surrender their rights and attest that they understand what they are doing in front of a Judge before the adoption can proceed.

If the other parent refuses to give up their parental responsibilities, and you can provide evidence that they are an unfit parent, you can have their parental rights terminated. It’s an extreme measure and it requires being able to meet a very high burden of proof. There are several bases to claim unfitness, but the more common issues that arise are abandonment, physical abuse or neglect, and/or significant drug use.

In order to prove abandonment, you must be able to demonstrate that the other parent has not communicated with the child, by no fault of your own, and they also provided financial support for the child for a defined length of time. In many cases, the Judge will want to see that the parent has been out of touch for at least several years, even if the statutory duration is a shorter period.

If you accuse the other parent of being an unfit parent, most courts will respond by conducting a fitness hearing, which it will use to determine whether the other parent has been abusive, neglectful, incarcerated, suffers from an addiction, or fails to visit the child. If parental rights are terminated, the Court can move on to the secondary issue of whether the adoption will be granted, which is a separate proceeding.

As explained above, obtaining the permission of the other parent (or having them deemed an unfit parent by the prevailing court) is just the first step. Once the Petition for Adoption is filed, the Court will also be appointing a Guardian Ad Litem to investigate the facts of the case and make a recommendation to the Court on whether or not the adoption is in the best interest of the child. The GAL also has very specific duties under the statute, and everything about the adoptions process must strictly adhere to the applicable laws. If it strays in any way, it could subject the adoption to being overturned later down the road, which could cause a lot of distress and/or damage for the child.

The basic takeaway from adoption law in Illinois is that you really need to have an experienced attorney handling these proceedings for you. There are several factors at play and procedures to complete, even for an “uncontested” adoption where one parent is agreeing to terminate his/her rights.

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. 

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. 

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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. 

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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. 

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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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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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Does Cohabitation End Spousal Support?

cohabitationYour divorce is final. All the judgements have been entered, the custody battles have ended, and the support payments have started. You are eager to move on with your life and find someone new to spend your time with. If you depend on your support payments, you must be careful if things begin to get serious. If you have a desire to live with your new significant other, it could mean living without your ex’s support payments.

Cohabitation

Illinois is one of the many states where cohabitation will end spousal support payments from an ex. The idea of spousal support is to help the less financially secure spouse in the divorce transition into life as a single person. Generally, spouses make different amounts of money, and the one that earns less will need time to adjust. Support payments are the discretion of the family law judge, and different factors are taken into consideration. These include the previous standard of living, income level in relation to the income of the spouse, education level as compared to the spouse, and other levels. Once the Court determines that a spouse is a candidate for alimony payments, Illinois law uses mathematical formulas to determine how much the spouse receives from his or her ex, and for how long.

The prevailing rationalization on why cohabiting terminates maintenance is that two people living in the same residence are often each contributing to the living arrangement. Therefore, it would be unfair to make an ex continue to pay support if the spouse is already receiving support from a live-in partner. This logic in undeniable, but what constitutes “cohabitation” for the purpose of spousal support?

Illinois Law

The Illinois Marriage and Dissolution of Marriage Act says that support will be ended “if the party receiving support cohabits with another person on a resident, continuing, conjugal basis.” From the Act’s plain language, this means that if the party receiving support were living with another as a married couple would live together, support would be terminated.

Illinois courts have interpreted the law in this way. The Illinois Supreme Court has said that two people must be in a “husband-and-wife-like relationship”, and that the family law judge must consider the “unique nature of each relationship” when determining if cohabiting exists.  For example, non-married couples will often share joint accounts for purposes of paying bills, take vacations together, stay overnight together the majority of the time, maintain joint cell phone accounts, etc. In one court, cohabitation was even found when a boyfriend would often stay overnight at the home of the party that was getting support, despite the fact he still had his own home. The court’s decision was based on the length of the relationship, vacations that were taken together, and various other factors that showed the parties were acting similar to how a married couple lives. The judge in these cases must take every aspect of these relationships into consideration, and their decision will not be questioned if it was not against the weight of the evidence.

Seek the Advice of a Family Law Attorney

Support payments are an important part of the divorce process. Needs and circumstances change, and the support needs to be able to change as well. Modification is a strong possibility for support payments, either going up or down. At Sherer Law Offices, our experienced family law attorneys can guide you through the process and help you get the results you need.

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What is Required for Planning for A Special Needs Child During Divorce?

special needs child during divorceThere are very few things that are harder to deal with when going through a divorce than planning for your children’s future when you have a special needs child. The burden of supporting your child on the day-to-day basis can fall squarely on your shoulders as the parent with the majority of parenting time. The daily living and special moments may test your self-confidence to parent your child alone.

A pending divorce that involves a special needs child brings up unique issues of decision-making, parenting time, and also property division that can become more complex to negotiate. During the process of your divorce, you must consider what your child’s special needs entail and work with your attorney to determine what a day would be like caring for your child, particularly from a financial standpoint.

The State’s child support guidelines don’t normally address the extra expenses that come with a child of special needs, but there are special laws that allow for additional support above and beyond percentages of income. There may be a need for special medical care, therapy services, medical equipment, nutritional needs, and even paid respite care for the parent who has been awarded the majority of parenting time with the child. The uncertainty of the future costs makes it difficult to estimate the related expenses of a special needs child during a divorce.

Legally, the goal is to identify what the child’s best interests are and to understand them. Some examples include:

  • Who will the child live with?
  • What amount of contact will the parents or other parties have with the child?
  • What amount of child support will be paid to the parent who is caring for the child for the majority of the time?
  • Are there going to be transportation issues relating to the parenting schedule?
  • How will the parties share medical expenses and other costs that go above and beyond just daily needs?

The devised parenting plan should spell out all pertinent information and instructions on the special needs child’s care, daily routine, medications, and safety plans. A great staring point would be to look at how much you and your ex agree concerning your child’s disabilities and abilities. Additionally, when putting together a divorce agreement, special attention must be paid to parenting arrangements, estate planning, and the child’s eventual transition into adulthood. Legislation and case law are always evolving in this area and more family attorneys are dealing with an increasing amount of cases involving a special needs child.

In a divorce decree, it is important to discuss with your attorney the unique issues that come up in the child’s transition into adulthood. These may include:

  • Guardianship
  • Recreation
  • Social skills
  • Independent living
  • Custodial care

In most cases, child support and custody (now “parental responsibilities” in Illinois) end at the age of majority, or when they graduates from high school. The Court does, however, have the ability to extend child support beyond high school for students attending college or for children with special needs. Divorcing parents of a child with special needs, particular those who have severe impairments, face the reality of life-long care giving and co-parenting beyond just age 18

When considering spousal maintenance and child support, you need to think about the child’s eligibility for public benefits as a minor and as an adult. It is very important that your family law attorney work with a special needs attorney and an experienced financial advisor to eliminate the possibility of forfeiting the child’s benefits. It is not always known how child support payments made to the custodial parent will affect, negatively or otherwise, government programs like SSI and Medicaid. Support of any kind should be considered to preserve government benefits. It is imperative to consider these issues during the divorce proceedings. Finally, it would be wise to speak with an experienced estate planning attorney, as special needs trusts can be established and both parents can be required to contribute to a trust within a divorce agreement, as well as be ordered to maintain life insurance benefits naming the child’s custodian or trust as the beneficiary.

Managing the care of a special needs child is a full-time job. The effects it can have on the income of the custodial parent should be considered when deciding the amount of maintenance or support. Because caring for your child with special need may extend past the age of majority, you need to have your divorce agreement tailored for the long term. Use special needs trusts in tandem with public benefits. Effectively channel support obligations and tailor parenting plans within the divorce settlement to provide fully and adequately for your special needs child.

Make the system work for you by taking a hard look at what special needs exist and how they are addressed during your divorce. The family law attorneys here at Sherer Law Offices can guide you during this difficult process and give you all the advice you need to make sure that the future of your special needs child is taken care of fully.

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What Are the Types of Maintenance/Alimony in The State of Illinois? What If I Want to Change Them?

Types of Maintenance/Alimony in The State of IllinoisIn the state of Illinois, maintenance, also known as alimony, can be awarded to a spouse either by agreement between the parties or court-ordered by a judge in the dissolution of a marriage or a legal separation.  The judge decides what type of maintenance the spouse will receive, the amount of time they will receive it, and the amount the Court deem fair and equitable after considering all of the relevant factors in the case.  

Those factors are provided for by statute and include:

  1. Property and income of each party
  2. Needs of each party
  3. Realistic present and future earning potential of each party
  4. Impairment of future earning potential of the party seeking the maintenance due to that party devoting time to domestic duties or having not obtained education, training, or employment due to the marriage
  5. Any impairment of present and future earning potential of the party who would be paying maintenance
  6. The time that is necessary for the party seeking maintenance to acquire proper education, training, or employment, and whether that party can support herself/himself through employment
  7. Standard of living accustomed to during the marriage
  8. Length of marriage
  9. The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties
  10. All sources of public and private income, including, without limitation, disability and retirement income
  11. Tax consequences of property division and economic circumstances of the parties
  12.  Contributions and services by the party that is seeking maintenance to the education and career training of the other spouse
  13.  Valid agreement of the parties
  14. Any other factor the court sees fit

Types of Maintenance in Illinois

There are several types of maintenance that can be awarded.  It can be ordered to be paid in installment payments, or in a one-time lump sum.

Permanent maintenance is ordered when it is not likely that a spouse will be able to secure regular employment due to a serious illness or where a spouse has foregone employment or attending school to devote their time to supporting the family in the home during a long-term marriage.  This type of maintenance is generally only awarded where the parties have been married for more than twenty (20) years.

Temporary maintenance is ordered while the parties’ case is pending, and until the final order is entered.

Rehabilitative maintenance is awarded to allow a spouse to go to school or seek employment in order to become self-sufficient over a period of time.  This type of maintenance is usually ordered to end on a specific date or set for judicial review at a later time.  The majority of maintenance awards fall under this category, particularly because Illinois recently adopted calculation-based maintenance guidelines for all Courts to follow when awarding maintenance, much like the Courts do with child support.

Keep in mind that if the Court awards maintenance under the new guidelines, maintenance is always modifiable upon a substantial change of circumstances (see below).  However, parties may agree to make maintenance non-modifiable.  Parties may also choose not to follow the formula for calculating maintenance amounts or duration of payments.

Maintenance Modification

If, at a later date, a spouse seeks to modify the maintenance agreement or Order, they would have to show a substantial change in their circumstances to warrant the current agreement to be changed.  If the order states that the agreement can go under review on a set date, the parties have an automatic right to review the terms of the order and no proof of a change in circumstances is necessary.  

If the parties agree that the maintenance cannot be modified, neither of them can change the terms of the maintenance even if there is a change in circumstances before the set end date.  Parties can even agree that certain termination factors for alimony, such as remarriage or cohabitation, will not terminate maintenance payments.  The reason that parties can do this for maintenance cases, and not child support, is because the Court’s view alimony agreements to essentially be a contract between the spouses.  However, child support is supposed to benefit the child, and thus the Court has the final determination on whether a child support award is in the best interest of the child.  Thus, Illinois public policy prohibits agreements to make child support non-modifiable.

Something that is important to know is that the parties might agree to make a maintenance award non-modifiable, but a court cannot order the maintenance be non-modifiable.  Thus, any maintenance award that is conveyed via a Court’s judgment, following either a hearing or a trial, will always be modifiable.  Further, even if maintenance was agreed to via a Settlement Agreement, alimony is still always modifiable unless the agreement expressly states that it cannot be changed.  

If maintenance is able to be modified, the court must consider the factors that were initially taken into account in the original order.  They must also consider additional factors like changes in employment status and the income of the parties, and whether these changes were made in good faith, the efforts of the spouse receiving it to become self-sufficient, the duration of maintenance payments already paid, and the property that was awarded to each spouse under the original divorce decree.  However, although the Court must consider the same original factors, the Court must still evaluate maintenance on the current laws in effect for maintenance.  The Court cannot apply the old law if the statutes have since been amended, which is what most Courts are doing now with the recent 2015 and 2016 amendments to maintenance laws in Illinois.

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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Why Would You Do Legal Separation?

legal separationLegal separation is defined as a court-ordered agreement between spouses that have chosen to live apart but stay legally married. Many couples separate when considering divorce or when they are trying to work out problems in their relationship. But, this is distinguishable from a formal legal separation. Legal separation is achieved via a formal and final Judgment that is approved by the court, and this Judgment will outline certain rights and responsibilities for the parties much like a divorce.

Legal Separation Benefits

One benefit of a legal separation is the tax benefit. Legally separated spouses can deduct alimony payments if they are not living together in the same household. You must have a legal court document that certifies the legal separation between you and your spouse. Alimony payments generally cannot be deducted if a couple is filing jointly on their tax return. In Illinois, obtaining a decree of legal separation from the Court may allow you to file as “single” or “head of household” so long as the decree was filed prior to December 31 of that tax year. If you would still benefit more from filing jointly than from claiming single but having the maintenance write-off, then a legal separation would not be a tax benefit.

Another advantage to remaining legally married and being separated is the insurance benefit. Employee insurance plans will only cover married couples. When a divorce is final, the other spouse loses that insurance. With a legal separation, the parties are still considered married, and thus the spouse needing insurance will not lose coverage.

A legal separation does not end the marriage even though the obligations and rights have been legally defined. The marriage still legally exists.   Separation allows for the couple to return to their life together if they choose to do so. Unlike a divorce, if a couple that is legally separated wishes to reconcile, they won’t have to get married again. All they would need to do is file a request with the court to continue with their marriage. If the couple were to decide to go ahead and get a divorce, the legal separation would greatly simplify the process as well, as typically the couple has already divided their assets and debts at the time of the separation.

Legal Separation and Religion

In some religions, divorce is forbidden or unrecognized. Some religions will go so far as to excommunicate anyone seeking a divorce, especially those who choose to remarry down the road. This can put couples in a very difficult situation when sorting out their options. A legally separated couple can’t remarry, but it will allow them to live apart and separate their assets and debts. According to Census Bureau stats, about 14% of couples who get a legal separation eventually get back together. For couples that are opposed to divorce because of their religion, a legal separation can provide an independent life, religious acceptance, and a chance to reunite at a later time.

Whether the situation calls for a legal separation or a divorce, a lawyer should definitely be involved. At Sherer Law Offices, our experienced divorce attorneys are here to help you clarify your options and avoid any uncertainty along the way.

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