Share Your Experience

five star review
X
Blog
Lombard Office
630-426-0196
Chicago South Loop
By Appointment Only
Subscribe to this list via RSS Blog posts tagged in Illinois Law

Lombard divorce lawyersEveryone knows that when you get divorced, your ex-spouse gets half of everything—unless you have a prenuptial agreement. That is just the way it works, right? Well, not exactly. Not in Illinois anyway, along with about 40 other states. The idea of an equal 50-50 split applies only to the nine states that maintain a standard known as community property in divorce. The remaining states, including Illinois, use what is called an equitable distribution standard, which may vary slightly from state to state, but generally requires a more in-depth consideration of a divorcing couple’s property and circumstances.

Determining and Valuing the Marital Estate

The equitable distribution guidelines in Illinois are contained in the Illinois Marriage and Dissolution of Marriage Act. The process begins with establishing which assets belong to the couple and which belong to each individual spouse. Those that belong to the couple include all property acquired by either spouse during the marriage with limited exceptions for gifts, inheritances, and judgments. Assets owned by either spouse prior to the marriage, along with the exceptions to marital property, are non-marital property and not subject to division. The value of the marital estate must also be determined, which may require the assistance of various experts, including real estate appraisers, financial advisors, and other professionals.

Considerations for Equitable Distribution

Once the marital estate has been established and valuated, the court must make a determination regarding the portion of the estate to be allocated to each party. In doing so, the court is required by law to take into account:

...

DuPage County family law lawyersFinancial and property considerations can be a very complicated part of the divorce process. It is often difficult to determine who should get what and how much is fair based on the specific circumstances of the case. For many couples, the concepts of dividing marital assets and spousal maintenance might seem like two, very separate ideas. In reality, they are often very closely related, and in many cases, decisions regarding one directly affects the other.

Spousal Maintenance

Spousal maintenance, or alimony as it is sometimes called, is intended to help a financially-disadvantaged spouse ease some of the economic impact of a divorce and a post-divorce life. To determine if maintenance is needed, in the absence of an agreement between the spouses, the court must take into account a number of factors regarding the marriage and divorce. These include each spouse’s income and needs, as well as their contributions to the marriage and toward the earning capacity of the other. The court will also consider the length of the marriage and the standard of living that was established.

Property Division

Similarly, when the division of marital property is left to the court, the circumstances of the marriage and divorce must also be weighed carefully. The court must take into account—again—the income and needs of each spouse, as well as any claims of dissipation, which spouse wishes to remain in the marital home, and any provisions regarding the couple’s children.

...

b2ap3_thumbnail_court-gavel-judge-jurisdiction.jpgThe application and enforcement of the law can be very complex in many situations. This can be especially true in cases related to allocated parental responsibilities—formerly child custody—and parenting time, or visitation. One of the fundamental principles of law is the concept of jurisdiction, which refers to the authority that a particular county, state, or federal court system maintains over the parties and the subject matter of the case in question. Only a court with appropriate jurisdiction can make decisions and enter orders in accordance with applicable statutes.

In some situations, jurisdiction may be fairly straightforward. For example, if you live in DuPage County, and were injured in an accident near your home caused by another resident of DuPage County, you probably realize that the DuPage County circuit court has jurisdiction over your case, and your claim should be made there. In other cases, however, jurisdiction may not seem quite so clear, at least to the average citizen. One such example can be found in the area of family law. If your parenting plan and parental responsibilities orders were entered in Illinois, and you decide to move out of state, which state has continuing jurisdiction over your family’s case?  Fortunately, there are laws in place to address this exact scenario.

Relocation and Substantial Change in Circumstances

...

Lombard divorce attorneysIf you and your spouse are having serious problems in your marriage, one of you may decide to find another place to stay while you figure out what to do next. You might, for example, stay with a family member so that you can gather your thoughts about how to proceed. This practice is so commonplace that most couples would not even consider a divorce while still sharing a home.

Just because something is a common practice, however, does not mean that it is a legal requirement. In fact, it may come as surprise to learn that Illinois law does not require any period of separation in most divorce cases.

Knowing the Law

...

Lombard divorce attorneysIdeally, every divorcing couple would be cooperative and amicable during the divorce proceedings and the time leading up to it. However, this is not how a large number of divorces go. Spouses are often at least partially resentful of each other or harbor negative feelings about their soon-to-be-ex. In most instances, these hostile feelings only result in a few sideways glances or muttered insults between the spouses. In more extreme circumstances, one spouse may try to “get even” or hurt the other spouse through excessive spending or squandering marital property. This wastefulness is called “dissipation of assets,” and Illinois courts take the matter very seriously.

What Exactly Does "Dissipation of Assets" Mean?

The concept of dissipation can be hard to understand. The formal definition of dissipation comes from the Illinois Supreme Court. Dissipation formally refers to “the use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an irretrievable breakdown.” In order to know if your spouse is guilty of dissipation, you need to determine what property has been misspent. Generally, marital property includes any property or income which was accumulated by either spouse during the marriage. So, if a spouse wasted money from a bank account which was used for shared expenses like bills and household expenses, he may be guilty of dissipation.

...

Lombard family law attorneysSince 2016, child custody has been formally known as the allocation of parental responsibilities in the state of Illinois. If you and your child’s other parent are involved in a dispute over how such responsibilities should be divided, you may have had several discussions with your child about the situation. In fact, your child may even very strong feelings about where he or she wants to live and how much time should be spent with each parent.

When you and the other parent cannot reach an agreement on your own, the court will be required to step in a make custody decisions for you. In doing so, the court will hear from both you and your former partner, but what about your child? Does he or she get the chance to be heard? The answer, in most cases, is yes, but the court is by no means obligated to give the child what he or she wants.

A Combination of Variables

...

Lombard guardianship lawyersIf you wish to be the primary caregiver of a friend or family member who is unable to care for themselves, one option which you have available in Illinois is guardianship. Guardianship can be granted by a judge to help an adult who cannot make general life decisions on his or her own. Guardian responsibilities are categorized into two groups: financial/estate responsibilities and personal responsibilities. In Illinois, there can be separate guardians for a person and their estate or the same person can look after the disabled individual’s personal needs and make estate decisions.

Guardian Qualifications

In order to become a person’s legal guardian, you must be at least 18 years old, not legally disabled, a United States resident, cognitively capable of caring for another, and free from certain prior felony convictions. If the disabled person in question wishes for you to become his or her guardian, such wishes will be considered by the court, but the court is not obligated to approve you as a guardian.

...

Lombard estate planning lawyerDo you know someone who is struggling to manage their life due to advanced age, illness or disability? Most of us know a person like this in our own families. In many cases, it is possible to help a person manage their affairs by sitting down with them and assisting them with paying bills, making health care decisions, and other aspects of everyday life. While this type of assistance is fine in some situations, others may require more drastic measures. One such option may be for you to seek guardianship of the person in question, but doing so can be complicated.

Identifying the Need for a Guardian

According to Illinois law, guardianship for an adult can only be granted by the court, but before the court can appoint a guardian, it must first determine that the adult is in need of one. Specifically, the court must find that the person in question is disabled due to deteriorating mental faculties, physical incapacitation, mental illness, or developmental disability. The court may also find a guardian to necessary for a person dealing with severe gambling, drinking, or drug problems.

...

Lombard divorce attorneyMost of us know at least one married couple who are living separately. In some situations, spouses may experiment with a “trial separation” while in others, they are living on their own as they prepare for a divorce. Living separately is a common precursor to divorce, but there are some things you should know about separating before you or your spouse moves out.

What the Law Says

Prior to 2016, the law in Illinois required a couple to live separate and apart for a minimum of six months before they could pursue a divorce on the grounds of irreconcilable differences. The standard requirement, in fact, was two years, but if the spouses agreed, the separation period could be reduced to six months. Today, a couple can only seek a divorce on the grounds of irreconcilable differences in Illinois, but the separation requirement has been eliminated altogether. The law was changed in 2016 to allow couples to pursue a happier post-divorce future without having to simply watch the calendar for months. If the spouses do not agree on the divorce, however, a six-month separation period is considered by the court to be irrebuttable proof that the marriage has broken down beyond repair.

...

Posted on in Divorce

Lombard divorce attorneysThere is some confusion in the general public as to the extent that a spouse’s adultery can affect a divorce case. Television and movies often show an enraged husband or wife discovering that their partner is having an affair and yelling about how they are going to take the house and have full custody of their children. Although adultery is still frowned upon by society, it is usually irrelevant to divorce proceedings.

No-Fault State

Since the beginning of 2016, Illinois has been what is called a “pure no-fault state.” A no-fault state is one which does not require divorcing couples to report the reason or “grounds” that they are seeking the divorce. In the past, things like mental cruelty or adultery could be reported as the official reason that the marriage ended. Today, all divorcing couples in Illinois as assumed to be divorcing on the grounds of “irreconcilable differences.”  More specifically, a divorce will only be granted when “irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family.”

...

Lombard estate planning lawyerMany of us have seen celebrity disputes in the news regarding a deceased person’s estate. For instance, after music legend Michael Jackson died in 2009, his family became embroiled in financial and legal arguments regarding his last will and testament. Jackson’s siblings—who were not named as beneficiaries—claimed that pop icon’s will was fake. Another dispute arose when Anna Nicole Smith’s billionaire husband J. Howard Marshall died. In a series of dramatic court cases, Smith was at first awarded but then denied a share of her late husband’s estate. Smith died just a year after her late husband and the argument was not resolved.

Celebrities are not the only ones to experience the tension of an estate dispute. Every day, families whose names we do not know experience the pain and trauma of arguments over inheritance. There is no way to eliminate the risk that your estate plan will be challenged by a family member, but there are some steps you can take to minimize the risk:

  1. Talk to your family about your plans. Although it can be an extremely difficult to talk to your family about plans for after your death, it is also critically important. By explaining your estate planning choices to your family, you can help avoid disputes in the future;
  2. Do not wait until you are sick to create an estate plan. People often think that only older individuals or those with a terminal illness should take estate planning seriously. In reality, having an estate plan in place while you are physically and mentally well can lessen the chance of problems later on. An estate plan which is created when the testator is in ill health is more susceptible to being contested;
  3. Update your estate plan appropriately. Estate planning is an ongoing process. Plans should be reviewed and updated based on changes in your family.  When a beneficiary gives birth, gets married or divorced, or passes away, you must account for these changes in your plan. It is also imperative to monitor your assets and your beneficiary designations;
  4. Consider using a revocable living trust to avoid probate. A revocable living trust puts property and financial assets into a trust which are then administered for the creator’s benefit during their lifetime. After death, the assets in the trust are either distributed or held in trust for future distribution to named beneficiaries; and
  5. Do not try to navigate the estate planning process alone. An experienced estate planning attorney will be familiar with changing laws and court decisions. He or she will be able to guide you in your estate planning process and help you lessen the chance of a contested will or dispute.

Seek Skilled Legal Assistance

...

Posted on in Spousal Support

Lombard family law attorneyWhen a married couple divorces, the court may award spousal support to one of the spouses. Spousal support is sometimes referred to as alimony or spousal maintenance. It refers to payments that one spouse makes to the other in order to help them financially post-divorce. Spousal support can be based on a court decision, a prenuptial agreement or a postnuptial agreement. Maintenance is not always awarded in Illinois. In some cases, both spouses are self-supporting so there is no need for financial assistance. Even if there is a substantial difference in income between the two spouses, courts may account for this difference by awarding more of the marital property to the lower-earning spouse.

Who Gets Spousal Support?

Illinois courts have wide discretion in determining if spousal support will be awarded or not, how much payments will be, and for how long payments will occur. The court must consider the following factors in making decisions about spousal support:

...

Arlington Heights business law attorneyWhen you own business that operates in a highly competitive industry, it is understandable that you would want to protect your investments, including your time, money, and efforts. If you rely on proprietary systems or recipes, you may require your employees to sign non-disclosure agreements which contractually forbids them from sharing your secrets. Similarly, if you employ a team of skilled employees, you may want to protect that investment as well by using non-compete agreements. According to the law in Illinois, non-competes may be an option, but only if your employees’ wages also represent how much you value your workers.

New Limitations

The Illinois Freedom to Work Act was signed by Governor Bruce Rauner last August and went into effect on January 1, 2017. The Act prohibits the use of non-compete agreements for employees who make less than $13 per hour. The measure was prompted, in large part, by complaints from employees of the sandwich chain Jimmy Johns. Workers at the Illinois-based chain were routinely required to sign non-compete agreements that prevented them from working for another sub shop during their employment with Jimmy Johns—and two more years after that!

...

Posted on in Child Support

Lombard family law attorneysUntil just a few months ago, Illinois courts calculated child support as a percentage of the income of the parent with fewer parental responsibilities—referred to in the past as the non-custodial parent. Since July 1, 2017, however, a new law has brought child support guidelines in Illinois up to date with modern trends and started improving the lives of all parties involved.

The Old Child Support Law

The previous law in Illinois has long been criticized for being inequitable, with not enough potential exemptions taken into account, and an alleged unfair burden on the non-custodial parent. Under the old guidelines, there were two primary factors in determining the amount of support to be paid: the income of the non-custodial parent and the number of children to be supported.

...

Posted on in Estate Planning

Lombard estate planning lawyersEstate planning can be a difficult task for many individuals. Rare is the person who is excited about confronting his or her own mortality. The reality is that none of us will live forever, and estate planning affords us the opportunity to provide for our family members and loved ones well beyond our lifetime. Some elements of estate planning, however, are intended to take effect, if necessary, while you are still living so that your affairs can be properly managed, no matter what happens to you. Powers of Attorney are among the most important estate planning instruments, but they are often overlooked by those who are unfamiliar with their application.

Two Types

There are two different kinds of Powers of Attorney (POA): Power of Attorney for Property and Power of Attorney for Health Care. The two categories refer to the subject matter covered by the document, but both types give a trusted friend or family member the authority to make decisions for you in the event you are not able to make them for yourself. As their names imply, a POA for Property gives your chosen individual or entity—known as an agent—the power to make decisions regarding your finances, assets, and debts while a POA for Health Care appoints an agent to make medical and health-related decisions. By using POAs properly, you can help protect your family from uncertainty and unnecessary costs associated with guardianship proceedings.

...

Posted on in Adoption

Lombard family law attorneySame-sex marriage is now legal in all 50 states, with all the attendant rights and responsibilities that marriage entails. Parenting for same-sex couples can be tricky, however, as certain legal issues are likely to arise. Fortunately, the state of Illinois has measures in place to help same-sex parents obtain and exercise parental rights in variety of situations. One such option is a second parent adoption, or SPA.

SPA Defined

Second parent adoption is defined as an adoption in which a second parent may adopt a child without the first losing any parental rights. Normally, adoptions require a parent to renounce his or her parental rights—or to have them terminated—in favor of another caregiver, but SPA allows both caregivers to have legal rights regarding the child.

...

Posted on in Divorce

Lombard divorce lawyerMost of the time, when two people want to get divorced, they simply inform the other person by having a copy of the papers served upon them, usually by hand delivery. However, there are some very rare situations when the spouse cannot be located. When that happens, a suitable alternative must be found. The answer in Illinois and many other states is called divorce by publication.

A “Good Faith Search”

In all cases, your soon-to-be-ex-spouse must be informed of your desire and intention to file for divorce. However, if they have moved or are trying to avoid you and have left no forwarding address, the normal methods of mail or hand delivery are impossible. Yet it is contradictory to public policy to demand that two people remain married when they are not even living together and all communication has broken down. Publication is generally the best possible chance for your information to reach your absent spouse.

...

Posted on in Adoption

DuPage County adoption attorneysDespite the occasional controversy on the subject, U.S. citizens adopt foreign-born children fairly regularly. The regulations differ when negotiating depending on the country, as one might expect; however, the requirements that must be met upon reentry to the U.S. are the same. It is sadly common for a foreign-born adoptee to experience citizenship-related issues, though many can be solved by going through what is referred to as a readoption. It is usually not required to do so by law in Illinois, but it can prevent future issues for you and your adopted child.

Was the Adoption Completed?

Illinois does not require any further adoption proceedings if you completed the process abroad and abide by all immigration regulations. Yet, a readoption is the easiest way to quiet any potential citizenship issues before they even happen. It is sometimes referred to as an official recognition of a foreign judgment, which gives a clue to its purpose. If you travel to a foreign country and adopt a child, completing the process overseas, that is usually good enough for U.S. government to consider that child a citizen. However, if you are able and choose to bring the child to the U.S. for the purpose of completing the process (and, obviously, coming to live), recognition of the foreign judgment is usually required, because the process has not yet been completed to the satisfaction of the U.S. government.

...

DuPage County family law attorneysIndividuals and couples who are interested in adopting children obviously are advised to take the time to familiarize themselves with the Illinois Adoption Act (IAA) However, there are other areas of law in which the IAA can provide valuable input. One of the most common is when a parent or couple’s parental rights are at issue, especially when deciding whether or not a parent or parents should keep their parental rights. The IAA can provide guidance on such issues.

The Concept of Unfitness

Normally, Illinois courts prefer that if one or both of a child’s birth parents is to lose their parental rights, there should be another person able to step into the parental role. The state works very diligently to ensure that children have two parents as often as possible. The one rare occasion in which this does not always happen is when a parent is declared unfit under the Adoption Act. In these unusual instances, it is deemed more important to remove a child from a potentially dangerous situation. Sometimes, however, even if a parent is found unfit, their parental rights will not be terminated unless someone else is willing to adopt the child.

...

Lombard family law attorneyIn the overwhelming majority of cases, when your or your spouse’s parental rights are terminated, there is no getting them back. Normally, if parental rights are involuntarily taken away, it means that evidence of abuse or neglect has been discovered, after which it is considered too dangerous to allow the child to remain in your home. However, if there are other reasons for termination, such as a parent’s abrupt deportation, it may be possible to have the determination reversed, dependent on several different factors.

Illinois Law

Illinois is one of only a handful of states to even countenance the possibility of reinstatement of parental rights after their termination. The law holds that if filed by the Department of Children & Family Services (DCFS) or by the minor child themselves, parental rights may be reinstated if certain conditions are met, namely that the motion is supported by “clear and convincing evidence.” This is not subjective; it is a specific burden of proof that a court will insist upon before granting the motion.

...
Illinois State Bar Association DuPage County Bar Association Northwest Suburban Bar Association American Inns of Court DuPage Association of Woman Lawyers National Association of Woman Business Owners Illinois Association Criminal Defense Lawyers DuPage County Criminal Defense Lawyers Association
Back to Top