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The reasoning behind these 1978 and 1988 cases may seem outdated now.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).

 

The State Of Illinois Turns 200

Illinois2018 marks the 200th anniversary of Illinois’ statehood, as well as the creation of our Supreme Court. With this milestone in mind, Sherer Law would like to take the opportunity to step back and reflect on our history and some on the great legal minds who have shaped our State.

On December 3, 1818 Illinois was promoted from a United States territory to the 21stState to join the Union.  However, in order for Illinois to be granted full statehood status, we first had to adopt our own constitution.  Our constitution shaped our current judicial system, creating our Supreme Court and providing for trial and appellate state courts to be created.[1]Originally, our Supreme Court consisted of a Chief Justice and only three Associate Justices.

The first Illinois Supreme Court Justices were appointed by the General Assembly, commissioned by the Governor, and elected for life. In 1848, our constitution was changed to require that the Supreme Court Justices would be elected by popular vote for a term of service.[2]  In 1870, our appellate court system was established. This was composed of circuit court judges appointed by our Supreme Court.

Currently, our Supreme Court is presided over by 7 Justices: Chief Justice Lloyd A. Karmeier and Justices Robert R. Thomas, Thomas L. Kilbride, Rita B. Garman, Anne M. Burke, Mary Jane Theis, and P. Scott Neville Jr.  Each of whom will serve a 10-year term before being up for reelection. [3]

Many of the changes to our judicial system over the past 200 years are due to some of the great legal minds who have called Illinois their home.  Most of us will be familiar with the famous attorney and legal crusader from Illinois, Abraham Lincoln, our 16thPresident of the United States. In fact, four of our Presidents have roots in Illinois.  Ronald Reagan, the only U.S. President born in Illinois; Ulysses S. Grant, who lived with his family in Illinois for some time; and Barack Obama, also an attorney, who lived and taught in Illinois.

George Leighton, a Federal District Court Judge who passed away this year, was another great legal mind from the state of Illinois.  Mr. Leighton was the son of immigrants, and he himself never graduated high school.[4]  He was forced to leave before graduation in order to work on an oil tanker to help provide for his family.  Nevertheless, he continued to study independently and eventually received his college diploma from Howard University.

From there he entered Harvard Law School in 1940.  His schooling was interrupted by World War II, during which he served in the United States Army and was awarded the rank of Captain and received a Pacific Service Metal and a Bronze Star. After he completed his service, he returned to Harvard Law School and earned a Bachelor of Laws in 1946.

After graduation, he moved to Chicago, Illinois where he fought to desegregate juries and schools, represented those who could not afford an attorney, and advocated for people facing the death penalty.  On December 19, 1975, President Ford nominated him to serve as a judge for the United States District Court of the Northern District of Illinois.  He served as a judge until retiring on November 30, 1987 and returning to private practice.  The Honorable Judge Leighton continued to work as an attorney until retiring at the age of 99.[5]After he passed away on on June 6, 2018, he was fittingly laid to rest in Arlington Nation Cemetery.

[1]http://www.idaillinois.org/cdm/ref/collection/isl2/id/167

[2]https://ballotpedia.org/Judicial_selection_in_Illinois

[3]http://www.illinoiscourts.gov/SupremeCourt/meetsupremecourt.asp

[4]http://www.jonathanpollard.org/2001/100501c.htm

[5]https://www.chicagotribune.com/news/obituaries/ct-met-george-leighton-dies-20180606-story.html

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.

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.

What Does Divorce Look Like if You’re Over 50?

divorce over 50We all thought our lives would be set by the time we hit our 50s – that we would have it all figured out. But life doesn’t work that way. No matter what our age, there are always things that can surprise us, and that can include divorce.

Is Divorce the Same at Any Age?

Yes and no. The laws don’t change, but where you’re at in life has a significant effect on divorce proceedings. For example, one or both of you might have established careers and have compiled significant financial assets, all of which will have to be taken into account when dividing marital property.

If you have kids and one of you stayed home to raise them instead of working outside the home, that will have a significant effect on the spousal support the court will award. The parent that stayed home will find it hard to get a job because of both their age and how long they’ve been out of the workforce, so it’s possible that spousal support will be their only form of income.

Retirement

If you’re in your 50s, you’re probably starting to think about retirement – or you might even be one of the lucky few who managed to retire early. The reduced income you have in retirement could affect the amount of spousal support you have to pay, assuming you didn’t retire early (before age 65).

Social Security

If one spouse stayed home to raise the kids and take care of the house, they won’t have much Social Security of their own because they weren’t paying Social Security for all those years they weren’t in the workforce. In some cases, the court might award them a portion of their ex-spouse’s Social Security income, but only if they’re over the age of 62, have not remarried, the marriage lasted for at least ten years, and at least two years have passed since the divorce was finalized.

In general, retirement funds, such as 401k plans, IRA plans, and pension plans are considered marital assets if the parties contributed to the funds during the marriage, though there may be exceptions to this rule for things such as inherited IRAs or other inheritance or gifts.

Pension Plans

Pension Plans are also considered marital property (if earned partially or entirely during the marriage) and the Court typically awards each spouse a percentage of the pension plan.  A pension is divided though a Qualified Domestic Relations Order (QDRO), in which case the pension plan administrator will send the payments directly to each spouse when the plan participant qualifies to receive same. This ensure payments to each party in the proper form and amount and allows each party to be taxed only on his/her portion of the benefits.

Survivor’s Benefits

You also might want to consider trying to negotiate for survivor benefits. Most pension plans give their workers the option of reducing their retirement benefits for themselves during their lifetime so that more can be paid to their spouse after the employee’s death. This is especially common in cases where the wife stayed home while her husband made the money  or the wife earned far less than the husband during the marriage.  Women tend to live, on average, seven years longer than men. That makes for a substantial amount of survivor’s benefits, so it’s worth it to at least try to get it included as part of your retirement division agreement.

No matter what stage you’re at in life when you and your spouse decide to split, you need a qualified family law attorney on your side – someone who will listen to your story and come up with the best solution for your needs.

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 if You Discover Hidden Assets During Your Divorce?

hidden assetsIn a 2014 survey, one in three people admitted to “cheating” financially on their spouse. It could be anything from hiding bills from their spouse to lying about how much money they make or how much debt they have, to something as big as hiding assets from their spouse. But everything tends to come out during a divorce, so what do you do if you’re in the middle of divorce proceedings and you suddenly discover hidden assets?

Tell Your Lawyer

If you hired a good divorce attorney, your attorney will attempt to find any hidden asset(s) during the discovery phase of the divorce proceedings. You will work closely with your attorney to review the financial discovery from the other party to see if anything appears off or suspicious.  If the attorney finds anything suspicious, they’ll know the next best steps to take from there. It could be anything from asking the judge for more time for the discovery process to filing a motion to have your spouse held in contempt of court. There are many reasons people hide money and assets during a divorce, but it’s against Illinois law, and depending on the circumstances, people who do so risk contempt of court and even perjury if they lied under oath about the hidden asset. That means they may have to pay some hefty fines and might even serve some jail time.

If you happen to find out about the asset on your own (for example, if you find a misplaced bill or bank statement), then the first thing you need to do is inform your lawyer so they can determine the next steps to take.

Look for the Warning Signs

If you think your spouse may be trying to hide money from you or the divorce court, here are some things to look for:

  • Overpaying taxes – some people do this so they can collect a large refund after the divorce has been finalized.
  • Delaying raises or bonuses – some people ask their employers to hold off on raises or bonuses until after their divorce is final. If your spouse had mentioned they were expecting a raise or bonus that never came and they suddenly stopped talking about it, that would be something to investigate.
  • Putting property in someone else’s name – if it looks like they gave away a lot of money or sold an asset for much less than it was worth, that’s suspicious behavior that should be investigated, especially if the person who now “owns” it is a friend or family member of your spouse.
  • Suspicious business holdings – if one of their business accounts suddenly received a large amount of cash, they could be using it to try to hide money they don’t want to get divided up in the divorce.

Regardless of the methods used to hide money or assets, doing so is always against the law and can come with severe penalties in an Illinois divorce court. Whether your spouse is trying to hide assets so they don’t get divided up along with the rest of the marital property, or so they don’t go into the child support and/or spousal support calculation, you’ll need an experienced Illinois divorce attorney on your side.

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 to Handle an Ex Who’s Also Your Roommate

ex who’s also your roommateMoving in together is an exciting time. You’re full of love and can’t wait to spend as much time together as possible.

But breakups are the exact opposite. Whether the separation is because of betrayal and mistrust, or just hurt feelings, your ex is usually the last person you want to see. Alternatively, maybe you do still want to see them, even though you know it’s not good for you. Either way, continuing to live with your ex can make it hard to move on, even if doing so is a financial necessity. To make it a little easier, we’ve come up with six tips on how you can handle an ex who’s also your roommate:

  • Set Boundaries

This is especially important for living expenses and household chores. Where you may not have kept track of who did what when you were a couple, one person leaving all the bills and/or work to the other after a breakup can lead to resentment, so set boundaries ASAP. Who’s going to pay which bills and who’s responsible for which chores?

  • Sleep in Different Rooms

This is a big one, for obvious reasons. Even if you’re sleeping in separate beds, sleeping in the same room is still very intimate, which is why you need to stop doing it as soon as you break up. If that means one of you sleeps on the couch, so be it. To keep things as equal as possible, you can even try to take turns sleeping on the couch, assuming your relationship is still strong enough to handle that kind of negotiation and you can both agree to a schedule and stick to it.

  • Don’t Bring Dates Home

Just don’t do it. You may have moved on, but they may not. Or they may be trying, but seeing you with someone else could set them back. It might be hard to talk (or even think) about dating when you’ve just broken up, but it’s best that you and your ex talk as soon after the breakup as possible about if/when you can each bring dates home.

  • Stop Doing Things Together

This can be tough if you’ve lived together for a long time and have an established routine. For example, you used to cook together, stop. The same goes for cooking for them or letting them cook for you. Once you’ve broken up, you’re both responsible for your own meals.

And certainly don’t drink together. While “grabbing a drink” might sound harmless, it can quickly lead to one or both of you overindulging, which can result in fighting and that just makes everything worse.

  • Set a Move-Out Date

Finally, you need to decide as soon as possible who’s moving out and when. Are you both moving out? Is one staying and the other leaving? If you bought a house together, that can make the situation even more complicated. Regardless of the obstacles, you need to find a way to work through them so you can live apart and start moving on with your separate lives sooner, rather than later.

  • Divide any property you have together.

This is where legal help may be needed, as jointly held assets between non-married couples may have to resort to filing legal action to divide that property.  Whether it’s a house, a car, or other items of property that are in joint names, you should speak to an attorney who is experienced in filing partition suits in the event you and your ex cannot agree on the division of your property.

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 Is A Postnuptial Agreement?

postnuptial agreementYou’ve probably heard of a prenuptial agreement, in which the two parties entering into marriage sign a contract detailing what belongs to whom, and what is owed to each party in the event of a separation or divorce. Most people prefer to sign such a contract before the wedding to give them peace of mind before they legally merge their lives together.

But just because you didn’t sign a prenuptial agreement, doesn’t mean your financial situation is set in stone. Much like a prenuptial agreement, a postnuptial agreement can help provide peace of mind to one or both parties – the main difference being that it’s drawn up and signed after, rather than before, the wedding.

How Do You Know if You Need A Postnuptial Agreement?

There are a few reasons you and/or your spouse might want a postnuptial agreement. Most of the time they are used to protect one spouse’s marital property interests in the event the other spouse is embarking on a business venture that will entail a significant amount of risk. On the other hand, if one spouse suddenly came into a large inheritance, they may want to protect that asset in the event of a divorce, in which case a postnuptial agreement can provide that assurance.

Other times the couple may have wanted a prenup, but never got around to signing one before the wedding. In a time where more and more couples are comprised of spouses who both work outside the home, fewer people feel like the concept of communal property makes sense for their circumstances.

Alternatively, if two people get married and only then realize that they have very different ideas about how to handle money, a postnuptial agreement can help to save their marriage by defining which assets and properties belongs to which spouse. If you’re having marital problems, and you feel like your finances might be at risk because of it, a postnuptial agreement can allow you to focus on working on your marriage instead of worrying about your financial assets. Many people feel more comfortable working on relationship issues they may not otherwise have given a chance without a postnuptial agreement.

On the other hand, if you’re seriously considering divorce, a postnuptial agreement can save time and money in the divorce process by dividing property and assets ahead of time.

The birth of a child is another common reason people sometimes seek out a postnuptial agreement, especially if one or both of the spouses was previously married to someone else. A postnuptial agreement can clarify the child’s inheritance rights of property and finances from the current marriage and/or one or more previous marriages, if necessary.  However, you cannot pre-negotiate child support.

Previous marriages can also make inheritance tricky if one spouse dies, which is another common reason for seeking out a postnuptial agreement. In that situation, a postnuptial agreement can clarify who owns an asset in the event of a divorce or the death of a spouse.

There are many reasons for wanting a postnuptial agreement. Whether your circumstances have changed, or you just wanted the additional peace of mind a contract can bring, the family law attorneys at Sherer Law Offices are here to help.

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 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. 

Who Gets to Keep the House?

Who Gets to Keep the HouseWho gets to keep the house is often one of the most highly contested aspects of a divorce. Not only is it the largest piece of marital property, but it’s also where the couple made a home together. Many people might want to keep the house, not for its value, but for sentimental reasons, or because it’s the only home they’ve known for the past several years, or even decades. On the other hand, others might want nothing to do with a house that is now tainted with negative associations of an unhappy marriage, but they may need the house as a financial asset to help them get back on their feet after the divorce.

Try to Reach an Agreement

The ideal situation is always to talk with your spouse about what you want and why. Have an honest conversation about what each of you wants and needs from the divorce and how the house plays into that. Maintaining honest communication with your spouse is especially important if you decide to divorce through mediation or work together to come up with a divorce settlement that works for both of you.

Marital Property

The first thing to determine is whether the house can be considered marital property. In most cases the answer is yes, since newlyweds tend to buy a house together shortly after getting married and/or people move into new homes together after they’ve been married for several years. If one spouse owned it prior to the marriage, but the other made mortgage payments and/or other significant contributions to the maintenance of the house, or additions or projects that significantly increased its value, then it could give that spouse certain rights to seek a monetary award from the home.

But not all marital property is split 50/50 under the Illinois Marriage and Dissolution of Marriage Act. Instead, it gets divided based on several factors, including, but not limited to, the level of contribution by each spouse to acquiring and maintaining the property, the duration of the marriage, other property the parties will be receiving in the divorce, as well as their needs following the divorce.

Factors that Tend to Be Considered When Deciding Who Gets the House

That said, there are also other factors that play into the decision regarding which partner gets to keep the house. For example, if children are involved, the partner given the most parenting time in the divorce usually gets the house so they can keep living there with the kids. Divorce can be especially hard on children, and most judges are sensitive to the fact that letting the kids stay in the same house with one of their parents can help them adjust to the big change. Allowing the kids to stay in the house also means they don’t have to switch to a different school district or leave their friends behind, which is good for them, not only because it means minimizing the changes they have to go through, but also because they have a support system in place to help them deal with the stress of the divorce.

Sometimes the decision is less one of “who gets the house?” and more one of “who gets to stay in the house for now?” For example, if there are children involved, and the partner with the most parenting time gets to stay in the house with the kids, judges have been known to allow them the first opportunity to stay in the home. However, this is dependent on other factors, such as that spouse’s ability to refinance the mortgage, if the loan is in both names, and for that spouse to be able to afford to pay the mortgage following the divorce.

Regardless of whether children are involved, one spouse might be allowed to keep the house on the condition that they buy out the other spouse’s interest in the property. In a spousal support arrangement, the higher-earning spouse may be required to continue making mortgage, taxes, and/or insurance payments on the house, even if they no longer live there.

As you can see, divorce is a complicated situation and the more property is involved, the more complicated it gets. If you are getting, or considering getting divorced, contact our offices right away to discuss your options.

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 choice of a lawyer is an important decision and should not be based solely on advertisements. See additional disclaimers here.