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. 

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!

Can I Get Granted Visitation Rights to My Step-Children if Their Parent and I Divorce?

Visitation Rights to My Step-ChildrenParental Responsibility cases can be ugly between divorcing biological parents. But when a biological parent and a step-parent get divorced, does that step-parent have legal visitation rights? The answer depends on what state you live in. In general, step-parents seeking visitation rights are facing an uphill battle if the biological parent is still living and does not wish for the step-parent to have visitation with the child.  In Illinois, step-parents fall under the category of “nonparents,” and do have options for still seeing his or her stepchild after a divorce with the child’s parents. However, the statute gives a strong presumption that the child’s parent is acting within their rights to deny time, and this presumption can only be overcome in limited circumstances.

Can Step-parents Get Visitation Rights?

In many cases, step-parents have no formal “right” to visitation with the child if the biological parent refuses to allow them to see the child. In several states, the laws are written such that biological parents are the only persons best suited to make the decision on who spends time with the child and when. This is known as the “parental preference rule”, or the “doctrine of parental rights”. When one of these are used, non-parents, including grandparents and step-parents, face a battle to gain any sort of visitation privileges.

Exceptions to the Rule

There are several exceptions to the parental preference rule that could allow step-parents visitation rights. For instance, step-parents who have been involved in the child’s life since they were an infant and/or if they have been involved in raising the child for many years, are more likely to be successful if they decideto petition the court for visitation. Generally, step-parents who were married to the biological parent for an extended period have better success when seeking visitation rights.  However, there are still many more hurdles to jump through in Illinois before you can even demonstrate to the Court that the law allows you to bring a petition. As a step-parent, one of the rules to establish you have “standing” to file an action is that the child’s biological parents are either previously divorced and/or were unmarried but the biological father has been identified by the Court.

State Laws and Visitation Rights for Step-parents

In an important U.S. Supreme Court case, Troxel v. Granville, the child visitation rights of third parties, especially grandparents, were very closely examined. In this case, a Washington state statute allowing third parties to file for visitation was struck down partly because it was considered unduly broad in its scope. The result was that several states sought to better define their own standards in regards to child visitation rights and custody rights of non-parents, like step-parents.

Uniform Marriage and Divorce Act in Illinois

Illinois was no exception to the States who tailored their laws to restrict non-parents’ abilities to file for visitation privileges. In Illinois, you may only petition the Court for visitation rights if one of the following circumstances exist:

  1. The child’s other parent is deceased or has been missing for at least 90 days
  2. A parent of the child is incompetent as a matter of law
  3. A parent has been incarcerated in jail or prison for at least 90 days
  4. The child’s parents have been granted a divorce or legal separation, and at least one of the parents does not object to the step-parent having visitation
  5. The child is born to unwed parents who are not married currently or living together, and paternity has been established by a Court

However, even if a step-parent can prove one of the above conditions, a Court will only allow the step-parent to have visitation with the child if the person can show that the denial of time has been unreasonable, and that it causes “undue mental, physical, or emotional harm to the child.” So, absent this showing, the statute provides a rebuttable presumption that the parent’s choice to deny time to the step-parent are in the best interests of the child, and the Court will not interfere with that preference.

Because child custody laws vary from state to state, step-parents seeking visitation rights should consult with an experienced family law attorney. At Sherer Law Offices, our attorneys will explain your rights and help guide you through the process to get you the visitation you want.

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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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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 TWO – POST-JUDGMENT ISSUES

Illinois custody lawsAs we touched on in Part One of this series, several things have changed in Illinois Divorce Law as it relates to Illinois custody laws. See below for a summary on the changes affecting how cases are handled after there has been a custody judgment already in place.

Abuse of Parental Allocation

These situations arise when one parent doesn’t follow the Court’s orders regarding decision-making or the parenting time schedule. In the event of an abuse of Parental Allocation, the Court can expedite a procedure for enforcement. Either parent can file a petition to enforce the order, and it must include: the name and address of the person filing the petition, the respondent’s name and address to include place of employment or mailing address, terms of existing parenting plan, nature of the violation with relevant dates and pertinent information, as well as indication that reasonable attempts were made to resolve the dispute.

Should the court find that a parent was non-compliant with the parenting schedule or the Order on decision-making, the court can issue another order revising and/or providing for additional terms consistent with the original judgment. The Court can also order the parents to attend parent education classes or counseling, as well as provide for makeup parenting time and fines per incident if there was indeed a violation.

Further, the Court can punish an offending party by:

  • Ordering them to pay attorney’s fees and/or court costs,
  • Suspension of driving privileges
  • Issue probation or periodic imprisonment
  • Make a finding for a petty offense ruling; and/or
  • Issue a contempt order, transmitted to the sheriff.

Relocation

Additionally, the Court’s role with parental relocation has experienced significant changes.

First, let’s look at the previous parental relocation laws in Illinois. Parents with shared children in a household, needed to obtain permission from the Court in order to move from Illinois. An “Order of Removal” had to be issued by the Court and the moving parent had to prove the move was in the best interest of the child(ren). This version relied on the Illinois border to determine whether a parent had to get permission from the Court to move. A couple of challenges were defined with this law:

  • It did not consider a parent currently living near the border may relocate to a residence outside of Illinois that’s a reasonable distance away
  • It did not take into consideration the relocation of a parent with children within the state may still be even farther than if the parent had moved out of state.

Senate Bill 57 – In Effect January 1, 2016

This new bill addresses these challenges. The requirements have changed for parents who seek permission of the Court prior to relocation with their children. Further, the new provisions base the requirement for Court’s permission on the distance from the original residence, rather than whether the move solely crosses state lines. Parents living in Cook, DuPage, Kane, McHenry, and Will can move to a new residence in Illinois within 25 miles without obtaining Court permission, and for all other counties the distance is increased to up to 50 miles. If seeking to cross State lines, parents can move up to 25 miles away from the original residence without obtaining permission from the Court. In the event your move exceeds these mile boundaries, then either consent from the other parent or from the Court will be necessary.

A further change is that as parents seek to relocate, new requirements include written notice of intended relocation from one parent to the other, and there are specific requirements for how and when this notice must be given. In the event the non-moving parent objects, the Court determines whether the relocation is in the best interests of the child.

Given these changes, it is extremely important to contact an experienced family law attorney before you make the decision to move with your children.

MODIFICATION PROCEEDINGS

Along with the changes to how a Court decides an initial parental allocation proceeding, the Courts now have new rules for how they look at modification proceedings, i.e. cases where a parent wants to change the old order in some way.

The new statute still provides for two types of modification requests: petitions filed within 2 years after the Judgment and those filed after two years.

If you want to file for a modification within the first 2 years, the new amendment does not make your request any easier than the old law. But, the statute does now reference that a Court can consider whether not allowing the modification will result in a “significant impairment of emotional development.”

If filed after 2 years, the parent seeking modification now has a much more relaxed burden of proof than the old “clear and convincing evidence” standard, which provided the petitioning party show that “it was highly and substantially more probably to be true” that a modification was in the best interests of the child, due to a substantial change of circumstances that occurred after the Judgment was entered. Now, litigants need only prove their case by a “preponderance of the evidence” standard, which means that it is “more likely true than not” that the circumstances have substantially changed and a modification is in the child’s best interest.   Although this may seem like more legal talk, it makes a big difference in how difficult it will be to get a Court to agree with your position to modify the old Order.

Almost equally significant is the addition of a new law providing that a parent can now request a modification of parental allocation even where there has been no substantial change of circumstances. (gasp!) But, this exception to the long-established “substantial change” finding is limited to the following four situations:

  1. Where the proposed modification reflects what the parents have been doing, without objection from either parent, for the past 6 months
  2. Where the proposed modification is only a minor change
  3. Where the modification is necessary to change a prior “agreed order” due to the fact that, had the Court known about certain circumstances at the time, would not have approved the agreement of the parents
  4. Where the parties agree to the modification

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.

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.