Elmhurst Divorce Lawyers | Illinois Family Law Attorneys

Do I Need Custody of My Kids?

Posted on August 17, 2015 in Child Custody

child Changes are coming to the custody and visitation portions of the Illinois Marriage and Dissolution of Marriage Act (IMDMA). However, at this time and in prior years, there are distinct differences between the terms “custody” and “visitation.” Many litigants of custody battles do not know if they should be awarded custody of their children.

Each parent to a divorce usually believes they want “custody” of their children. However, often times what that parent is asking is whether the child(ren) can spend more time with one parent than the other. Technically, this is not custody of a child. Technically, under the current statute, the term of art “visitation” determines how much time each parent spends with a child.

Custody, in contrast to time, is decision making. The parent that decides the choice of doctor for a child is making a custody decision as one example (medical decision making). If the parents can agree on the choice of doctor, it may be appropriate to award joint custody to the parents. Other major custody issues involve decision making related to extracurricular activities (enrollment and selection), child care, religious training or lack thereof, and the like. If two parties can agree on all of these decisions, than they are strong candidates for joint custody.

What Are the Visitation Rights of Grandparents, Great-grandparents, and Siblings?

Posted on August 03, 2015 in Child Custody

visitation, non-parental visitation, Illinois family law attorney Under Illinois law, grandparents, great-grandparents, and siblings of a minor child who is one year or older, have standing to bring an action in circuit court by a petition requesting visitation. The petition must be filed in the county in which the minor child(ren) reside.

A grandparent, great-grandparent, or sibling may file a petition for visitation rights to a minor child if there has been an unreasonable denial of visitation by a parent and at least one of the following conditions exist:

The child’s other parent is deceased or has been missing for at least 3 months;
A parent of the child is incompetent as a matter of law;
A parent has been incarcerated in jail or prison during the 3 month period preceding the filing of the petition;

What Certifications Should My Divorce Lawyer Have?

Posted on July 17, 2015 in Lincolnwood Divorce Lawyer

NITA, certification, Illinois family lawyer Attorneys have a law degree. We all know that. They have a JD and technically speaking they are doctors of the law. But there are additional certifications and licensure that attorneys can seek following law school and while they are in practice. One of those certifications is from the National Institute of Trial Advocacy, also known as NITA.

NITA provides valuable and dynamic teaching methods to attorneys licensed to practice in Illinois and other jurisdictions. NITA employs expert faculty to enrich lawyers in advanced skills and provide them with Continuing Legal Education credits as required for each attorney to maintain their licensure. Attendees at NITA practice advanced skills in all areas of law, from jury selection to expert witness examination to family law (divorce law).

One of the courses taught by the National Institute of Trial Attorneys each year involves a 8-day (yes, 8 days) certificate program in family law advocacy. Divorce cases are a component of family law. This course includes advanced techniques in examining and cross examining expert witnesses, including custody evaluators (604(b) and 604.5 evaluators) and financial experts (CPAs and the like). In addition to daily drills and lectures, each attorney puts on a mock trial at the end of the program to duplicate and show off the skills they learned from the preceding 7 days of drills. That trial involves expert testimony and cross examination.

What are the Differences Between Joint Custody and Sole Custody in Illinois?

Posted on July 02, 2015 in Child Custody

Joint Custody v. Sole Custody

In Illinois, joint legal custody means that the parents will share in all major decisions affecting their child. Sole legal custody means that one parent is given the authority to make all major decisions affecting the child without having to consult with the other parent.

In Illinois, parents can have joint legal custody, with the child primarily residing with one of the parents. On the other hand, one parent can have sole legal custody of the child, but have equal amounts of parenting time as the other parent. Therefore, the determination of joint or sole custody will not necessarily affect how much time the child spends with either parent. In most cases, the non-custodial parent will be granted a reasonable amount of visitation time with the child.

While there is no presumption that joint custody is in the best interest of the minor child, having both parents cooperate and involved in their child’s lives is almost always in the best interest of the child. Thus, most of the time Illinois courts will hope for joint custody. However, both parents must demonstrate to the Court that they can work together in the raising of their child.

What Should I Do When Planning or Preparing for a Divorce?

Posted on June 16, 2015 in Divorce

divorce, divorce planning, Illinois divorce attorney Divorce lawyers are often asked by potential clients what they, the client, should do when planning or preparing for a divorce. This is not a situation where they are trying to hide assets or income. On the contrary, this question is usually posed to protect the person that is contemplating divorce because their husband or wife may begin to hide assets, income or other information in the event of a divorce.

While this list is not all inclusive, consider the following if a divorce seems imminent. First, gather important documents, such as:

Birth certificates;
Social Security Cards;
Prior years’ tax returns;
Wills;
Trusts;
Premarital Agreements;
Bank statements;
Credit card statements;
Medical records; and
Any other document that is hard to duplicate

What Is a Qualified Domestic Relations Order or "QDRO”?

Posted on May 31, 2015 in Divorce

qdro, A qualified domestic relations order (QDRO) is (i) a domestic relations order (ii) that creates or recognizes the existence of an "alternate payee's" right to receive or assigns to an alternate payee the right to receive, all or a portion of the benefits payable with respect to a participant under a retirement plan, and (iii) that includes certain information and meets certain other requirements as provided by law. ERISA § 206(d)(3)(B)(i); IRC § 414(p)(1)(A)

So, what does that mean? In more plain language, a QDRO allows a person incident to a divorce, legal separation, or dissolution of same-sex partnerships, the right to divide their retirement benefits with their former spouse. This is particularly important if only one spouse to the marriage was saving for retirement and said savings are held in a qualified retirement plan.

QDROs are governed by the Employee Retirement Income Security Act of 1974 (ERISA), the Internal Revenue Code of 1986 (the IRC), and the Plan holding the retirement funds. Unless incident to division in a divorce or similar domestic proceeding, ERISA and the IRC do not allow a retirement plan participant (i.e., the spouse saving for retirement by placing funds in a 401(k) Plan) to assign their interest in a retirement plan to another person. An exception to the anti-assignment rule occurs by way of a Qualified Domestic Relations Order.

What is a Removal Action in Illinois?

Posted on May 21, 2015 in Family Law

removal, moving out of state, Illinois child custody attorneys A removal action occurs when a custodial parent, who is separated or divorced from the other parent, tries to move out of state with the children. The non-custodial parent can agree to the removal, in which case the parties would enter an agreed order with the court. If the noncustodial parent does not agree to the removal it will be up to the court to decide whether the removal is proper.

The court will consider the following factors known as the Eckert Factors to determine whether the custodial parent can move a child out of state over the other parent’s objection:

The likelihood that the move will enhance the general quality of life for both the custodial parent and the children;
The motives of the custodial parent in seeking to move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation;
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What Does Child Support Cover? What Expenses of My Children are not Included in Child Support?

Posted on April 24, 2015 in Lincolnwood Divorce Lawyer

child support, support orders, Illinois family lawyer In Illinois, the current statute that governs child support is 750 ILCS 5/505 which is titled, “Child Support; Contempt; Penalties.” According to the Illinois child support statute, guideline child support is as follows:

The Court shall determine the minimum amount of support by using the following guidelines:

Number of Children

Is My Divorce Uncontested?

Posted on April 09, 2015 in Lincolnwood Divorce Lawyer

uncontested divorce, contested divorce, Illinois Divorce Attorney Divorces are usually classified as either contested or uncontested. It is important to understand the difference between the two. A contested divorce means that the parties are not able to come to an agreement on disposition of property, finances, and custody of the children. The parties need the court system to decide these matters for them. In these instances, it is always best that you reach out to an attorney who is experienced in filing the appropriate motions and petitions necessary to protect your rights.

Alternatively, an uncontested divorce occurs when the parties have reached an agreement on all issues they may face, including disposition of property, finances, and custody. An uncontested divorce is the preferred way to go, as they will save the parties’ both significant time and litigation costs.

An experienced attorney can review your case for common pitfalls that trip up divorcing couples and advise you of your legal rights and responsibilities.

I Am Not Married to the Mother of My Child, What Rights Do I Have?

Posted on March 09, 2015 in Child Custody

fathers rights, unmarried, illinois child custody lawyer It is common in today’s world for couples to have children out of wedlock. There is no longer, or at least less so, a stigma about putting kids before marriage. However, the problem arises when (if) the relationship ends. The mother is presumed to the parent of the child by virtue of having given birth to the child. A man is presumed to be the father of a child if he and the mother are or have been married to each other, if the father signed a voluntary acknowledgment of paternity (VAP), and/or the father is on the child’s birth certificate. What rights does the father or mother have if the relationship ends and there was no marriage?

Parentage matters are governed by multiple statutes. First, the Illinois Parentage Act of 1984 (750 ILCS 45/1 et seq). This is different from the Illinois Parentage Act (750 ILCS 40/1 et seq.) which deals with artificial insemination. The Illinois Parentage Act of 1984 is usually referred to as the “Paternity Act.”