Can I Be Required to Pay for College and Post-Minority Support After My Divorce?

pay for collegeIs Post-Minority Support Unconstitutional?

Divorcing with college-age children may lead to the inevitable question of who will pay for college expenses of the child. In Illinois, Section 513 of the Illinois Marriage and Dissolution of Marriage Act controls this question. Section 513 provides that the Court may require either party to contribute to the educational expenses of a child over the age of 18. These educational expenses may include tuition and fees, housing expenses, medical expenses, living expenses of the child, and the cost of books and supplies. The important thing to note here is that this section says “may,” because parents are not required to contribute the post-secondary expenses of their children with the same certainty as when the child is under the age of 18.

This statute has been challenged in the past and found to be constitutional. Specifically, in 1978, the Illinois Supreme Court decided a case challenging the constitutionality of Section 513. The Court said the statute was constitutional and discussed their belief that children of divorced parents were less likely to receive assistance from their parents for college education than children of married or single parents.[1] In 1988, the Second Appellate District said that this rationale also applied to cases where the parents had never been married. [2]

The reasoning behind these 1978 and 1988 cases may seem outdated now. In Illinois the “average” family, statistically, is no longer a two-parent married household, in fact in 2011 only 46% of children under age 18 lived in a two-parent married household. [3]

A recent DuPage County case brought these changing norms to light when it again challenged the constitutionality of Section 513. [4] In this case, Yakich v. Aulds, both parents were ordered to pay 40% of the college expenses for their daughter and the daughter was ordered to pay the final 20%. However, the mother paid the daughter’s portion of the expenses.  The father, Yakich, argued that parental decision-making with respect to college contribution exists for married persons, but this input ends for non-married couples, and he was therefore unable to give meaningful input into his daughter’s college decision-making process. He further argued that because of this lack of input, non-married parties can be forced to bear a burden with respect to their child’s college expenses when they had no say in where their child went to school or how much tuition cost. This obligation, he argued, does not exist for parties who are married or single, who are not required to contribute to their children’s college expenses, violating the equal protection clause. The Court largely agreed with the father in this case and found that divorced or never married parents are not provided the same input and ability to educate their children as married persons are permitted. Further, because the Court found that there is no rational basis for this difference, it determined that equal protection was denied to the father in this case and Section 513 was unconstitutional as applied to him.

This case does not completely abolish Section 513, as it only decided regarding one specific situation.  However, it puts this statute on the chopping block if other Courts were to agree with the Yakich v. Aulds Court and find other circumstances in which a party being required to pay college expenses would be unconstitutional.

TheYakich v. Auldscase is currently on appeal. We will keep this blog updated when the higher courts give their ruling.

The information provided on this site is not, nor is it intended to be, legal advice.  You should consult with an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, emails, and communications.  Contacting our offices does not create an attorney-client relationship.  Please do not send any confidential information to us unless and until such time as an attorney-client relationship has been established.

Past results do not guarantee future results. Every case is different and is decided on its own merits. Any testimonials or endorsements regarding services do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. 

The choice of a lawyer is an important decision and should not be based solely on advertisements.

[1]Kujawinksi v. Kujawinski, 71 Ill.2d 563 (1978).

[2]Rawles v. Hartman, 172 Ill.App.3d 931 (2d Dist., 1988).

[3]Yakich v. Aulds, 15-F-651 (DuPage Cnty May 4, 2018) (citing Livingston, Gretchen “Fewer than Half of U.S. Kids Today Live in a ‘Traditional’ Family,” PewResearch Center, December 22, 2014, http://www.pewresearch.org/fact-tank/2014/12/22/less-than-half-of-u-s-kids-today-live-in-a-traditional-family.

[4]Yakich v. Aulds, 15-F-651 (DuPage Cnty May 4, 2018).

 

Divorce: How to Break it to the Kids

break it to the kidsOne of the worst parts of getting divorced is when you have to break it to the kids. Depending on how old the kids are and how much the marriage has deteriorated, they may have already guessed what’s happening, but you should still broach the subject carefully. We’ve come up with some tips to help.

Do It Together

It’s always hard to do things with your soon-to-be ex, but it’s important to remember that you will both continue to be parents, so this is a good time to start practicing how to raise the kids as a divorced couple.

Plan Ahead

There’s no way to map out exactly how a conversation will go, and you can’t expect it to happen just the way you plan it, but you can foresee some questions (maybe even objections) and decide how you’ll address them. Because you and your partner should have the conversation with your kids together, you should also complete the planning stage together. It’s important that you both agree on how and when to broach the subject, as well as the kind of language you’ll use. The words you choose to use can make a big difference, so it’s important that you decide carefully, agree on it beforehand, and stick to the plan.

Talk to Everyone at Once

If you have more than one child, be sure to talk to all the children at the same time. This is not a situation to deploy the “divide and conquer” strategy. While it might be tempting to try to talk to just one child at a time, in reality that will just lead to confusion for them and emotional exhaustion for you, since you’ll have to have the same tough conversation multiple times. It will also give them a chance to talk about it amongst themselves before you have a chance to talk to each of them, which will lead to rumors and fear.

Answer Any Questions

They’re bound to have questions: where will they live? Who will they live with? Will they still see both parents? Will they still be a family? It’s important to address all these questions and any others they might have in order to reassure them that your decision to end the marriage has nothing to do will your love for them.

Be Prepared for Multiple Conversations

It will take a while before they’ll be able to fully digest what you tell them and what it might mean for them. Be prepared for them to come back later with more questions and be open to answering all those questions. Just keep in mind the first rule of talking about divorce with the kids: do it together. You might not both be in the same room when one of your kids asks you about the divorce, (they’ll likely feel more comfortable talking to one parent than the other), just remember the words and language you and your partner decided on and continue to abide by that plan. You should also keep your partner in the loop about any questions or concerns your children are having, just as they should keep you abreast of anything that one of the children might approach them with after the initial conversation.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 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. 

The information provided on this site is not, nor is it intended to be, legal advice.  You should consult with an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, emails, and communications.  Contacting our offices does not create an attorney-client relationship.  Please do not send any confidential information to us unless and until such time as an attorney-client relationship has been established.

Past results do not guarantee future results. Every case is different and is decided on its own merits. Any testimonials or endorsements regarding services do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. 

The choice of a lawyer is an important decision and should not be based solely on advertisements.

How Long Does the Divorce Process Take?

How Long Does the Divorce Process Take?How long the does the divorce process take? That depends on a lot of factors, including how complicated the division of assets is (how many assets, children, pets, etc.) and how well you two cooperate in the divorce process. If one spouse decides they want to drag it out, they can make it last years.

The Requirements

First, there are some requirements you need to meet before you can even file for divorce. These include the fact that, under Illinois law, you or your spouse need to have lived in Illinois for at least 90 days before you can file for divorce in Illinois. If children are involved, that limit goes up to 180 days. If for some reason you don’t meet the time limit and you can’t wait, you’ll have to file in another state.

In Illinois, the only remaining grounds for divorce is irreconcilable differences.  Under Illinois law, if you and your spouse have been living separate and apart for 6 months, irreconcilable differences are presumed. If you have not been living separate and apart for 6 months, you can still file for divorce, but you must allege that irreconcilable differences have arisen and prove same.

Uncontested Divorce

The best-case scenario is when you and your spouse can both agree that divorce is in everyone’s best interests, and you can agree on things like the division of assets, spousal support, and parenting time. These divorces can be completed in as little as two weeks, but more commonly take a month or two.  If there are children involved, both parties must complete a parenting class prior to the entry of the final judgment.

Contested Divorce

When you and your spouse can’t agree on one or more of the important factors in the divorce, that’s known as a contested divorce and it can take much longer – anywhere from 18 to 30 months and on. Each issue that you and your spouse can’t agree on needs to be determined by a judge, and each time you need to go before a judge to argue your case extends the time it will take before the divorce can be finalized.

Divorce by Publication (Default)

Maybe things have deteriorated in your marriage to the point where you don’t even know where your spouse is currently living. If this is the case and you want to seek a divorce from this person, you’ll need a divorce by publication, which requires a few steps.

First you need to attempt to notify the spouse of your intention to divorce them. If you don’t know where they are, you can publish a notice of your intention in local newspapers in the area where they were last known to reside.

You also need to do everything you can to try to locate your spouse. This might include things like calling their friends and family, their last known residence/landlord, employer, etc. There’s no definition for the things you need to do in order to prove you made an effort to reach your spouse, but you do need to provide sufficient evidence that you did everything in your power to reach them. This process could take months.

The missing spouse needs to be given a reasonable amount of time to respond to the notice of your intention to divorce them, but if they fail to respond, then the court will grant your divorce. At that point, you will need to publish notice of the divorce in all the local papers in the area where your spouse was last known to reside.  After publishing the notice once a week for three weeks without a response, the court will deem the divorce to have been finalized.

The Attorneys

Unfortunately, some attorneys will take advantage of the friction in divorces and drag out the process, so they can bill more hours on the case. We never do this. Our job is to serve you and make the process as easy and painless as possible. If you’re considering getting divorced and you need a family law firm you can trust, reach out to us today to schedule a consultation.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 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 Are the “Best Interests of the Children” Determined?

Best Interests of the ChildrenWhen a couple with children decides to get divorced, the first question is usually: how will it affect the children? In most cases, everyone wants what’s best for the children, including the court, but what, exactly, does that mean? And how does a court determine what’s in the best interests of the children?

Ideally, the couple can agree on what’s best for their children and work together to come up with a Parenting Plan that decides how much parenting time each parent gets, where the children will live, who pays child support and how much, etc. The Parenting Plan needs to be approved by a judge, but judges do often assume the parents know what’s best for their children. So long as the Parenting Plan does not run afoul of the law, go against public policy interests, and/or seem unconscionable (meaning no reasonable person would agree to it), the Parenting Plan will be approved by the Court.

Most couples can agree on how to raise the children after the divorce, but sometimes a divorce happens in which the couples can’t agree, and no amount of mediation can help them reach common ground. In that case, the court will have to step in and make up its own mind as to what’s best for the children of the divorcing couple.

In addition to determining how to split parenting time, most judges will also decide which parent gets to make the major parenting decisions (where the children will go to school, who their doctor will be, when they can get their driver’s license, etc.) In Illinois, the law requires that the Court allocate decision-making responsibilities to the parents, either by having them jointly decide one category or by having one parent be solely responsible.  With the 2016 amendments to the Illinois Marriage and Dissolution of Marriage Act, the Court now specifically has to award decision-making responsibility for the 4 following categories:  Health/Medical, Education, Religion, and Extracurricular Activities.  For each category, the Court must indicate whether both or one parent can decide that issue, so it is possible for one parent to have sole decision making on something like medical decisions, but the other parent to be solely responsible for educational decisions.

When allocation of decision-making is contested, Judges must look at 15 factors and weigh them against the existing facts of that case. Those 15 factors are:

  • The children’s wishes;
  • How well the children have adjusted to their current home, school, and community in general;
  • The mental and physical health of everyone involved in the divorce;
  • The level of conflict between the parents and their ability to work together to make decisions;
  • The level of each parent’s past participation in making significant parenting decisions;
  • Any prior agreement or course of conduct between the parents regarding the making of parenting decisions;
  • The wishes of the parents;
  • The children’s needs;
  • The distance between the parents’ residences, the cost and difficulty of transporting the children, each parent’s daily schedules, that of the children, and the likelihood the parents will be able to cooperate in an arrangement;
  • Whether a restriction on decision-making is appropriate;
  • The willingness and ability of each parent to foster a close and continuing relationship between the other parent and the children;
  • Any history of physical violence or threatened physical violence directed at the children by either parent;
  • Any history of abuse against the children or any member of the child(ren’s) household;
  • Whether one of the parents is a sex offender, the nature of their offense, whether they’ve sought treatment, and the nature of that treatment;
  • Any other factor the court might find relevant.

It should be noted that this is not a tally in which parents should aim to win the most points. Each judge will give more weight to some factors than others and it all depends on the situation. If you have any questions about what this might mean for your case, contact us today.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 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. 

What Does Child Support Cover?

child supportIf you’re getting divorced (or thinking about getting divorced) you may be wondering how much you can expect to pay (or receive) in child support payments. Unlike alimony, which is based on a percentage of each spouse’s income, child support is calculated based on the estimated costs of caring for and raising a child.

While the amount of child support an ex-spouse is made to pay will vary depending on the divorce agreement, in most cases, child support payments are just meant to cover the basics: food, clothing, housing, and the essential needs of the children. Things like toys, school books, sports, and school supplies are not normally “covered” by child support payments, so the parent with the most parenting time needs to keep that in mind when budgeting their income (including child support) against their expenses.  The Court can, however, enter orders for child support that address these costs outside of the “basic child support obligation” that is calculated per the statute. See below.

Health Insurance

The parent paying for support may also be required to get health insurance for the child through their employer, if their employer offers it, regardless of whether they’re buying health insurance for themselves through their employer. If their employer does not offer it, the parent with the most parenting time may enroll the child in their employer’s healthcare program.  Once the cost of insurance is determined, the new child support guidelines will normally divide this cost of the child’s premium between the parents.

Orders for Supplemental Support

Depending on your unique situation, the court may order the parent who is paying child support to pay for additional expenses, including those related to education for the child, childcare, or any medical or dental costs that are not covered by insurance. It can also include expenses related to extracurricular activities, such as music lessons and sports, as long as those expenses are deemed reasonable and are intended for the wellbeing of the child, their education, and/or their social, cultural, or athletic development.

This is important to remember, especially if your children are in private school and/or are planning on attending college. The price for higher education continues to climb, so it’s common for both parents to chip in to pay those bills. The court may or may not include a supplemental order for the parent with minority parenting time to cover those costs, but either way it’s a good idea for the parents to work out between themselves who will cover how much of those costs. Not only does it make things easier on their post-marriage relationship, but it also makes things easier on the child by ensuring they can focus on what’s really important: getting a good education.

There are many factors included in divorce, especially when children are involved. Ideally, you and your ex can work together to come up with an agreement, but if that’s not possible, at least know your rights so you have some idea of what to expect.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 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. 

You’re Getting Married and Your Future Spouse Has an Adopted Child, What Does This Mean for You?

future spouse has an adopted childWhile getting married and having kids is great, and relatively straightforward from a legal perspective, life doesn’t always go that smoothly. Sometimes the kids come before marriage, whether from a prior relationship or through adoption. So what does that mean for you if you’re about to become the newest addition to an existing family?

Marrying someone who has already adopted a child can be especially tricky. How tricky depends on a variety of factors:

  • The child’s age now
  • The child’s age when they were adopted
  • Their history before they were adopted
  • Whether they had a closed adoption

The Child’s Age Now

As with any other adoption, if the child is of a certain age, they have a say in whether they want to be adopted by their new step-parent. If the child does not want to be adopted by you, for any reason, then the adoption can’t move forward. That can be painful, but it’s important to respect their wishes and try to work through any existing issues that may have contributed to that decision.

The Child’s History

The child’s age and their history at the time they were adopted can also be important factors in whether they want to add a legal parent. While some children are adopted very young, and thus have never known any other family, others have lost their biological parents and/or been through the foster system. That can make it hard for the child to learn to put down roots and to trust that people are going to stick around for the long haul. For that reason, offering to adopt them can be a beautiful way to show your commitment, not just to your future spouse, but to their children. At the same time, it could also mean the child is not comfortable being adopted by anyone else, in which case it’s important not to force anything on them, even if they’re not yet of age to have a say.

Whether They Had a Closed Adoption

A closed adoption is when the identities of the birth parents and the adopted parents are not known to each other, in which case adopting your step-child could be fairly straightforward, assuming all parties are on board with the idea. But when the birth parents are still in the picture, it can make things tricky.

There are a variety of reasons this might happen. Your future spouse may personally know and/or be related to their child’s birth parents, but decided to adopt for the good of the child. It could be the biological parents were not ready to have a child and your future spouse was; or the biological parents may have been neglectful or even abusive, and your future spouse stepped up by adopting the child for his or her own good.

In any case, although they do not have legal rights to the child, if the biological parents are still in the picture, they may place some emotional pressure on the situation by expressing their disapproval. They won’t have the ability to formally object in Court, since they are no longer their child’s legal parent, but you may want to take their opinion into consideration to help things go smoothly, especially if the child has any sort of relationship with their biological parents.

Your Future Spouse’s View

Ultimately, it is your future spouse has the final say in all this, and he/she may or may not want you to adopt their child. No matter how well things are going between you two, their first obligation is to look after the best interests of their child.  The tougher the child’s history, the more protective the adopted parent is likely to be of them. If your future spouse doesn’t want you to adopt, don’t take it personally. Just do your best to be an active member of the family, as a child can never have too much love.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 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 Provide for a Special Needs Child in My Will?

special needs child in my willFor anyone who has a child or dependent with special needs, leaving that child unprotected and unprovided for is a nightmare that can result in many sleepless nights for parents. As parents, the ideal scenario is that we teach our children to be self-sufficient so they can take care of themselves – and maybe even their own children – after we’re gone. But that’s not always possible when your child has special needs and may or may not be able to hold down a job or take care of their day-to-day needs, much less make responsible financial decisions. So you may be thinking, how do I provide for a special needs child in my will?

In Illinois, an individual with special needs is entitled to receive monthly payments in Supplemental Security Income (SSI), assuming they meet the criteria for their asset worth and monthly income, if any. If they have any sort of income, but it is less than what they’d receive in benefits, then their SSI is reduced until the combination of their income and SSI adds up to the total eligible benefit amount.

Of course, relying solely on SSI may not be sufficient to live on, so parents and loved ones have the option of setting up a Special Needs Trust (a.k.a. Supplemental Needs Trust). A Special Needs Trust may allow someone with special needs to accumulate assets or income that exceed the SSI thresholds, while still getting the maximum amount they can in SSI benefits.

Generally, a Special Needs Trust is set up by a parent or other loved one, who then acts as trustee. Banks often also have people on staff who can manage these trusts for you. Once the trust is set up, a bank account can be opened in the name of the trust and any income (aside from SSI), assets and/or gifts from loved ones can be deposited into the trust bank account.

The trustee is responsible for managing those funds and ensuring they are used only for the trust’s beneficiary, not including room and board, which are supposed to be covered by the SSI. The idea behind the trust is to ensure a good quality of life for the beneficiary by providing a source of disposable income to go towards things they don’t necessarily need, but could still benefit from.

When a parent of a child with special needs is planning for their estate, it is generally recommended that, rather than leaving a typical inheritance for their child, they put that inheritance into that child’s Special Needs Trust instead. This can help avoid the risk of the child losing their SSI eligibility.

As with all estate planning, parents are better off setting up a Special Needs Trust for their children as soon as possible in order to avoid leaving their children high and dry if something were to happen to them. Don’t leave it to someone else to set up the trust after you’ve passed away because that can make things much more complicated and more difficult. Instead, be sure to stay on top of things by getting everything in order now to make sure your child has everything they need after you’re gone.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 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. 

Can I Start Dating During a Divorce?

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

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

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

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

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

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

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

What is a Divorce Mediator?

divorce mediatorWhile we’ve all heard horror stories of couples fighting over every single little item in their house when going through a divorce, and while that does happen, it’s not always the case. Many couples mutually agree to end their marriage, in which case they’re both more likely to cooperate in the divorce process (dividing marital property, determining custody and parenting time, etc.) For couples with an amicable divorce who don’t want to pay the fees associated with going to divorce court, there is a more affordable option: divorce mediation.

A divorce mediator is a neutral third party who helps facilitate the divorce and create an agreement that is amenable to both parties. Both spouses meet with the divorce mediator to determine the terms of the divorce agreement and make sure everyone can abide by those terms.

Representation

You don’t need an attorney if you’re using a divorce mediator, but you might still want a qualified family law attorney to help represent your interests in the divorce process. In that case, your attorney would be able to prepare you ahead of time, before you go into your first session with the mediator. This preparation would include explaining the legality of what some or all of your options are, and what those implications would be, if you decided to agree upon that term in the mediation. This is important to be informed on your legal options before entering mediation, as a mediator cannot give you specific legal advice. Rather, the mediator, in addressing you and your spouse together, can only explain in general terms what the law provides.

A common misconception is that a divorce mediator is a judge. This is not the case, as unlike a judge, a divorce mediator won’t make decisions for you and your spouse about who gets what in the divorce. Nor will a mediator examine “evidence” for you and tell you or your spouse who is “right” under the law. Instead, they’ll act as a facilitator to help you both agree on the terms of the divorce. For example, if there’s a piece of marital property or financial asset that you and your spouse both want, a divorce mediator can point out the fact that there might be something else of a similar value that you both want and each partner can get one of those things. Compromise is the name of the game in divorce, as well as in marriage, and a neutral third party can be invaluable in helping both you and your spouse recognize where you can find the potential for compromise.

You Decide Together

Because you and your spouse work together with the mediator to reach a mutually agreeable solution to the dissolution of your marriage, you’re both more likely to abide by the terms of the divorce and avoid conflicts in the future. While going to divorce court might provide an option that settles the matter relatively quickly and efficiently, all decisions are ultimately made for you by the judge. You both have a chance to say your piece, but the final decision is up to the judge, which usually leaves both of you feeling unsatisfied with the result .When that happens, you’re both less likely to abide by the terms of the divorce settlement, and this could end both of you back in divorce court if one spouse sues the other for failing to comply with the terms of the agreement.

Privacy

The other bonus of mediation is that it is completely confidential. Anything that happens in court goes on the record, which is then made publicly available. That can lead to some awkward conversations if a future spouse or potential employer gets their hands on a record of you and your spouse sniping at each other in court. But what happens in mediation stays in mediation. You’re not prohibited from telling your attorney about what happens in mediation, but the attorneys cannot give the Judge any details about what was negotiated, agreed to, or not agreed to with the mediator. Further, the mediator cannot be called to testify in your case about what was discussed in mediation, so this helps to ensure that discussions in mediation are honest, forthright, and productive.

If you’re going through a divorce, and you have children, more likely than not, you will have to attend sessions with a mediator during the process if you and your spouse are not otherwise able to agreed to a Parenting Plan on your own. In Illinois, parents are required to attend mediation for up to four (4) hours in any divorce or contested litigation involving children.   If used properly, mediation can save the parties thousands of dollars in litigation fees, so it is a smart thing to discuss with your spouse if you know divorce is coming.

At Sherer Law Offices, all of our attorneys in the firm are certified mediators in Illinois. So, we have several options for qualified mediators if you’re looking to pursue a more amicable and cost-friendly way to resolve your divorce. Contact us today to set up a time to discuss it.

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

When Your Spouse Refuses to Participate in the Divorce Process

Spouse Refuses to Participate in the Divorce ProcessThe best-case scenario for a divorce is an uncontested divorce, in which both parties agree to the dissolution of the marriage and cooperate in the dividing of marital property and determining things like alimony and custody (if necessary). But sometimes one spouse refuses to participate in the divorce process, making it difficult to complete the divorce process.

Contrary to popular belief, you do not need both parties to sign the papers in order to finalize a divorce. All you need is to file a petition for divorce and make sure you can prove your spouse is aware of the petition. Further, you have to be able to show you gave them a chance to respond, and each state has their own time requirements before the Court will find someone in “default.” In Illinois, all contested divorce cases start by serving your spouse with divorce papers. If he or she does not respond within 30 days of receiving your petition for divorce, or otherwise file any motions with the Court, you can ask the Court to find your spouse in default and to set the case for hearing on a default Judgement. If your spouse does not show up to court on the appointed date, the court may decide to grant you a default divorce. By failing to respond or show up to court, your spouse forfeits their right to have a say in the divorce process or judgment.

However, there are some instances in which the spouse cannot be located. So long as you can attest to the Court that you have made all reasonable attempts to locate your spouse, you can get what is known as a publication by divorce, in which you publish notice of you your petition for divorce in the local media outlets of the last known whereabouts of your spouse. Your notice has to run a certain number of times before the Court will accept service by publication, so it’s important to check your local Court Rules or consult with an experienced attorney for the required procedure. If your spouse still doesn’t do not respond within 30 days, most courts will grant a default judgment.

If your spouse did file a response to your petition for divorce, but refuses to participate further in the process, the judge may proceed as though it is an uncontested divorce, but you might have to wait to be assigned a court date. If you get a court date and your spouse fails to appear in court on the appointed day, the judge may enter orders based on the divorce petition and response.

As always, a competent family law attorney can help with this process, as even seeking a default divorce can be stressful since there are specific rules you must follow. If your spouse thinks they can avoid divorce by simply refusing to sign the papers, a letter from your attorney can set them straight. When they see that the divorce can proceed with or without their cooperation, most people will choose to cooperate in the divorce. There are many reasons one might refuse to sign divorce papers, but an experienced family law attorney can usually ensure that the divorce proceeds according to your wishes.

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

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