Posted on February 07, 2017 in Paternity

Establishing paternity is often a prerequisite towards obtaining child support. Illinois has specific legal procedures for recognizing paternity over the objections of a reluctant father. But, what if paternity has already been determined by a court in another country?

There is a principle in law known as “comity” that covers such situations. Comity basically means an Illinois court will recognize a judgment entered by a foreign court under its own laws and applicable to its own citizens. This is not just a matter of respecting foreign courts; it also prevents parties from re-litigating matters in Illinois courts that have been already decided somewhere else.

Illinois Court Upholds Thai Paternity Judgment

A recent case from Cook County illustrates how comity works in practice. In this case, a woman from Thailand filed a petition to enforce child support obligations against the man she claimed was the father of her triplets. The father was an American citizen who had been working in Thailand and admitted to having an extramarital affair with the mother. While he also admitted to being the mother's “sperm donor,” he denied acceptance of any paternal obligations towards the children, which were conceived through an artificial insemination process.

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 Posted on February 03, 2017 in Alimony/Spousal Support

Aside from child custody concern, spousal support is often among the most contentious issues in Illinois divorce cases. Unlike child support, which is subject to rigid state guidelines, judges have wider latitude to determine alimony or spousal support. The goal of spousal support is not to "punish" anyone, but to ensure the recipient spouse is not at a serious financial disadvantage once the divorce is final.

McHenry Court Considers $400,000 Per Month Alimony Request

Spousal support is exponentially more complicated when dealing with a high-asset divorce. Among other factors, the judge must take into account the couple's "standard of living" at the time of the divorce, as well as each spouse's current and future earning capacity. Put another way, the alimony award for a stay-at-home spouse married to a multi-millionaire may differ significantly from that of a working spouse who already has significant income.

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 Posted on January 30, 2017 in Divorce

A divorce involves a number of technical legal issues. One of the first questions you may have is: "Where should I actually file for divorce?" In some cases, the answer may seem obvious, but if you and your spouse are already living apart–and in different states–then the matter is a bit more complicated.

The Importance of Jurisdiction

Not all courts are the same. The law determines what types of cases a particular court may decide. This is known as jurisdiction. If a court lacks jurisdiction, it cannot hear the case.

There are two types of jurisdiction: subject-matter and personal. Subject matter jurisdiction refers to broad categories of lawsuits. For example, patent law is under the exclusive jurisdiction of the federal courts. This means you cannot file a patent infringement lawsuit in Illinois state court. Conversely, family law matters like divorce fall within the subject-matter jurisdiction of state courts.

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 Posted on January 27, 2017 in Divorce

Retailers often consider the holiday season–late November through the end of December–as their peak season. But once Christmas and New Year's end, does that signal the start of peak divorce season? A recent study published by a major university suggests it just might.

Sociologists Identify “Twin Peaks” in March and August

Last August, sociologists at the University of Washington presented the findings of a comprehensive survey of 14 years worth of divorce data from Washington State. Specifically, the researchers examined divorce filings from 37 of Washington's 39 counties during the period from 2001 to 2015. What they found was there were consistently two “peaks” in divorce filings each year: one in March and the second in August.

University of Washington Professor Julie Brines, who led the study, attributed the March and August spikes to the “domestic ritual” calendar surrounding family holidays. In other words, couples tend to wait until after summer vacation and the Christmas season to file for divorce. Brines noted holidays are “emotionally charged and stressful for many couples and can expose fissured in a marriage.” In particular, if holidays “don't live up to expectations,” unhappy couples may be more motivated to seek divorce.

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 Posted on January 25, 2017 in Child Support

Illinois courts currently determine child support payments based on the non-custodial parent's net income. A person's “net income” means all income less statutorily specified deductions. A common deduction is for state and federal income taxes, which are generally withheld by the employer and paid directly to the government.

Of course, many of us end up receiving a tax refund each year because our employer withholds more than the final tax due. Is this refund therefore considered part of a person's net income for purposes of child support? The short answer is yes, but the long answer is more complicated depending on the specific circumstances.

Court Finds Refund Not an Attempt to “Game” System

In fact, an Illinois appeals court recently addressed this very subject. The parties, in this case, divorced several years ago. At the time, they agreed the father would pay the mother 28 percent of his net income as child support. This percentage is consistent with Illinois guidelines for couples with two children.

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 Posted on January 23, 2017 in Divorce

There are dozens of details surrounding a divorce. One that may get overlooked is estate planning. Most couples have previously signed wills, powers of attorney, and advances directives for health care naming the other spouse as their agent. Once a divorce is final, however, these documents may no longer reflect each party’s wishes.

Wills

When it comes to estate planning after divorce, Illinois law actually provides some assistance. If you executed a will prior to divorce that named your then-spouse as executor or a beneficiary of your estate, any such provision is automatically revoked once the divorce is final. The rest of your will remains intact; only those provisions affecting your former spouse are invalidated.

That said, there may be circumstances where you want your spouse to remain an executor or beneficiary. For example, if you plan to leave your estate to your minor children, you may still wish for your spouse to serve as executor. If that is the case, you need to make a new will reaffirming your intentions.

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 Posted on January 19, 2017 in Child Custody

One of the more common disputes that arise during (and after) a divorce is visitation rights for the non-custodial parent. Ideally the parents establish a visitation plan and stick to it. But life does not always go according to plan, and when one parent feels they have been deprived of time with their child, it can lead to additional litigation even after the divorce is final.

Missed Weekend Leads to Extended Litigation

In a recent case from Chicago, a judge went so far as to hold a mother in contempt of court after the father missed two scheduled visitation days with their son. An Illinois appeals court reversed the contempt finding but still ordered the mother to give the father “make-up” visitation days. It is worth noting this dispute arose more than a decade after the parents divorced and agreed to a visitation plan.

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 Posted on January 17, 2017 in Cohabitation

A common issue in high asset and complex divorces is one spouse's right to share in the business interests developed and owned by the other spouse. These issues may be complicated if the parties had a longstanding relationship that existed prior to marriage. Unfortunately for the less-wealthy spouse, Illinois courts generally do not take such nonmarital time into account when awarding property and spousal support in a divorce proceeding.

Court Affirms Different Rules for Opposite-Sex, Same-Sex Couples

A recent Illinois appeals court decision illustrates the uphill climb many estranged spouses face. This case involves a husband and wife who were only married for seven months but had a prior 13-year relationship. The husband owned several fast-food franchises and acquired a number of other significant assets over the years, including “multiple homes and motor vehicles.” The wife, in contrast, had “modest” financial resources, according to court records.

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 Posted on January 12, 2017 in Divorce

Social media posts have become an important source of evidence in many divorce cases. Many people falsely assume their posts are "private" and that any incriminating material–such as proof of an extramarital affair–can be concealed from an estranged spouse. In fact, many spouses have learned how to keep an eye on their partner's social media activity for just that reason.

But, what happens when a person goes even further and takes steps to monitor their spouse's email? An ongoing lawsuit suggests such activity may violate federal law. Not surprisingly, this litigation arose in the context of a highly-contested divorce.

Federal Court Reinstates Husband's Wiretap Lawsuit Against Wife

The plaintiff and the defendant have been married for more than 40 years. The wife filed for divorce in Chicago five years ago. That case remains pending before a Cook County court.

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 Posted on January 10, 2017 in Divorce

Normally, a divorce is a single judgment that not only dissolves the parties' marriage but also resolves all outstanding issues, such as division of property and establishing child support. A contested divorce can take several months or years to resolve, but there are some situations where one party may need to expedite the process. Illinois courts, therefore, have the discretion to split–or bifurcate–a divorce into separate proceedings if the judge finds there are “appropriate circumstances.” With bifurcation, a court can immediately divorce the parties while reserving other issues until a later date.

Court Permits Bifurcated Divorce to Terminally Ill Man

A recent Illinois case illustrates how bifurcation works in practice. In this case, a couple married for over 20 years “stopped acting as husband and wife,” according to court records, although they continued to reside in the same house. For approximately seven years afterward, the husband was in a romantic relationship with another woman. Eventually, the husband started living with his girlfriend.

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