Multi-Family Adjustment in Child Support

multi family adjustmentIllinois law governs the method of calculating child support in a dissolution or parentage proceeding. The method of calculating child support was modified in July 2017. Since then, parties and attorneys alike have been adjusting to the new method of determining child support.

One of the interesting points of the July 2017 changes to child support calculations is something called the multi-family adjustment. This adjustment allows for a deduction when determining a party’s income for child support purposes based on the fact that they have other children whom they support.[1]These other children can be children from a prior or a subsequent relationship.

There are two types of multi-family adjustments. The first type is for those with an order to support another child. In cases where a party has a court order to support another child, the amount of support being paid for the other child is deducted from that party’s net income calculation because the person paying child support is credited for their payments towards their other child’s support.[2]

The second type of multi-family adjustment is for those without an order to support another child. When a person is supporting another child or children but there is no court order requiring such, there are standard deductions taken from the supporting party’s income in order to account for that support.[3]This comes up most often in cases in which parties have separated and one party has entered into a relationship with another person, had another child and is still in a relationship with the other parent of the subsequent child. In these cases, although the parent is supporting the subsequent child in a two-parent household and therefore not paying child support, they are still given credit for the funds they must use to support the subsequent child.

Because the multi-family adjustment can make a significant impact to any child support determination under Illinois law, it is important to inform your attorney if either you or the other party have any children from prior or subsequent relationships.

If you have any questions about how the multi-family adjustment for child support may effect your case or other child support or family law issues, please contact Sherer Law Offices at shererlaw.com or 618-692-6656.

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]750 ILCS 5/505(3)(F)(I)

[2]750 ILCS 5/505(3)(F)(I)(i)

[3]750 ILCS 5/505(3)(F)(I)(ii)

Changes to the Illinois Car Seat Law in 2019

Illinois car seat lawThe new year will bring changes to the Illinois laws regarding child safety seats. As of January 1, 2019, Illinois will require up to age 2 to be secured in a rear-facing car seat, unless the child weighs more than 40 pounds or is taller than 40 inches.[1]  This amendment to the Illinois Child Passenger Protection Act was signed into law by Governor Bruce Rauner in August of 2018.  The amendment is intended to ensure the safety of children riding in cars and educate parents on the risks of using improper car seats.

Previously, Illinois only required drivers to use an approved safety seat for children under 8 years of age, but did not specifically require a rear-facing seat for children under the age of 2.  The new law brings Illinois into compliance with the American Academy of Pediatrics (AAP) Recommendations on car seats. Children needing a rear-facing car seat may sit in a rear-facing only car seat or in a convertible car seat that is installed to be rear-facing while the child is using it.

The AAP recently issued an updated policy statement recommending children remain in a rear-facing car safety seat as long as possible, as research has revealed this to be the safest position for children in the event of an accident.[2]   Their report was supported by biometric research, crash simulations, as well as data collected from some European countries, which have required young children to ride in rear-facing car seats for several years.

Their research has shown that placing children in rear-facing car seats protects children’s head, neck and spine in ways front-facing car seats cannot.  This is primarily because the hard shell of the rear safety seat is designed to absorb most of the crash force if a car is in an accident.  When riding in a forward-facing seat, although the child’s body is appropriately restrained, the child’s head can jolt forward during a crash, possibly leading to spinal, head, and neck injuries.  In fact, one study has shown rear-facing car seats for children between 12-24 months are approximately 532% safer than forward-facing seats.[3]

While the act requires all children under the age of 2 to ride in rear-facing car seats unless the child weighs more than 40 pounds or is more than 40 inches tall, it also requires all children under the age of 8 to be properly secured in a United States Department of Transportation approved child restraint system. This means that children between the ages of 2-4 must use a car seat with a harness restraint, and children over the age of 4 may generally use a belt-positioning booster seat.  Weight and height requirements remain for each type of car seat, and you should always follow the car seat system that is in line with your child’s current height and weight.  It remains the parent or guardian’s responsibility to provide any driver transporting their children with an appropriate car seat.  First time violators will be fined $75, and second time violators with be fined $200.[4]

Illinois offers programs to help you with the proper installation of car seats. The Secretary of State’s office offers educational presentations regarding basic car seat installation and information regarding child passenger laws.[5] There are also car seat fitting stations throughout the state, which provide car seat inspections by certified child safety seat technicians.[6] Further, most local fire departments will help you install child car seats in order to ensure the proper installation.

For more information and help regarding this or other traffic matters, please contact Sherer Law Offices at (618) 692-6656.

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]625 ILCS 25/4

[2]https://www.aap.org/en-us/about-the-aap/aap-press-room/Pages/AAP-Updates-Recommendations-on-    Car-Seats-for-Children.aspx

[3]https://wereparents.com/illinois-car-seat-laws-2018/

[4]https://herald-review.com/news/local/public_safety/new-illinois-law-kids-under-must-be-in-rear-facing/article_c9300a39-10ca-5e89-beb8-2bb37ec37eb4.html

[5]IOffice of the Illinois Secretary of State, “Child Passenger Safety Requirements,” https://www.cyberdriveillinois.com/departments/drivers/childsafety.html (accessed Nov. 30, 2018).

[6]Id.

Pet Visitation In The State Of Illinois

pet visitationIt is common knowledge that when parties divorce, they have to figure out how to share time with their children and divide their personal property, among other issues. However, one thing that may not be regularly considered, except perhaps by some pet lovers, is determining which party will keep a pet.

On a temporary basis, Section 501 of the Illinois Marriage and Dissolution of Marriage Act permits either party to request, on a temporary basis, sole or joint possession of and responsibility for a companion animal, or pet, that is owned jointly by the parties.[1] In determining who should get possession of the pet, the court considers the well-being of the pet.[2]

Illinois law also provides a provision for determining ultimate ownership of pets at the finalization of a divorce. Section 503 of the Illinois Marriage and Dissolution of Marriage Act provides that if the court finds a companion animal of the parties to be a marital asset, the court will allocate sole or joint ownership of and responsibility for the pet.[3] Again, in making this determination, the Court is to consider the “well-being” of the companion animal.[4] It is important to note here that the definition “companion animal” does not include service animals.[5] Because of the nature of their work, service animals remain with the individual who requires their service.

Prior to 2018, family pets were simply treated as property to be divided up between the parties at the time of divorce. In fact, in 2015, the First District Appellate Court decided a case, In re Marriage of Enders,  in which the trial court had entered an order temporarily granting “joint custody” of the parties’ dogs.[6] However, the wife denied the husband visitation of the dogs and he filed for visitation of the dogs prior to the final trial.[7] The trial court found that, despite the order granting joint custody, the husband had no visitation rights under the law at that time and the Appellate Court affirmed such.[8] The Appellate Court’s reasoning in 2015 was that under the Animal Control Act the wife was the “owner” because she was the one who “keeps or harbors” the dogs and has them in her care.[9] Interestingly, the EndersCourt warned that awarding pet visitation “would only serve as an invitation for endless post-divorce litigation,” citing a New York Supreme Court case.[10] Despite this warning, Illinois changed its laws in 2018 to allow for sole or joint possession of pets, as described above.

Because these changes to the statute are still relatively new, we do not yet know how courts will treat ownership of pets going forward.  There are many questions that will be answered in the coming years as the courts clarify the role of pet visitation and ownership in a divorce proceeding. Some of these questions include, how will the Court determine the “well-being” of the animal, will parenting plans need to be prepared for the schedule of the animals, will the parties have to agree on a course of treatment if an animal is sick or injured, and many more.

If you have any questions regarding pet visitation, divorce, or other legal matters, please contact our office for help at shererlaw.com or 618-692-6656.

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]750 ILCS 501(f)

[2]Id.

[3]750 ILCS 503(n)

[4]Id.

[5]Id.

[6]In re Marriage of Enders, 48 N.E.3d 1277 (1stDist. App., 2015).

[7]Id.

[8]Id.

[9]Id.

[10]Id.

2019 Changes to Illinois Maintenance Laws

changes to Illinois Maintenance lawsStarting January 1, 2019, the Illinois maintenance guidelines are undergoing changes that may impact your pending divorce.  Under both the current and new maintenance guidelines, the law sets out certain calculations to be used in determining the amount of maintenance. These calculations apply when the gross annual income of both parties is less than $500,000.00 and the person who will be paying the maintenance is not under an obligation from a prior relationship to pay child support, maintenance, or both.[1]  In cases where a party is already obligated to pay child support or maintenance from a previous relationship, or when the gross annual income of the parties is more than $500,000.00, the court will determine the amount of maintenance, if any, by looking at things such as the parties’ age, health, work history, length of marriage, and other factors.

Under the current 2018 guidelines, maintenance is calculated by taking 30% of the payor’s grossannual income minus 20% of the payee’s gross annual income. Regardless of the calculation, the final maintenance amount is not to exceed 40% of the combined gross income of the parties.

However, this calculation will change after December 31, 2018.  The calculations to be used when the parties’ combined gross annual income is under $500,000 have undergone some significant changes. Starting January 1, 2019, maintenance will now be calculated by taking 33 and 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income.[2]

Another major change for maintenance payments beginning in 2019 is that maintenance payments will no longer be deductible for the payor and the payee will no longer claim such payments as income tax.  Keep in mind, however, that if your maintenance order was entered prior to January 1, 2019, the old tax rules will apply, unless you later agree otherwise. This means that the payor will still be entitled to deduct those payments and the payee will be required to claim the payments as income, unless the parties expressly agree otherwise.

For more information and help regarding a divorce, maintenance obligations, maintenance tax consequences, or other matters, please contact Sherer Law Offices at (618) 692-6656.

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]750 Ill. Comp. Stat. Ann. 5/504 Effective until January 1, 2019

[2]750 ILCS 5/504 Effective January 1, 2019

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).

 

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. 

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. 

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. 

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