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As of January 1, 2016, Illinois made many major changes to its family law code. One of these changes was to move away from the concepts of custody and visitation and to move towards division of decision making responsibility and parenting time. While the change seems more semantic than anything else thus far, the new language does indicate changing values in family law.
“Parenting time” acknowledges that relationships with both parents are important to children and while one parent may have more time with the child, the child deserves the right to spend meaningful time with the other parent as well.
After the divorce and after parenting time has been apportioned by the court, there still may be issues that arise. An unfortunately common issue is that one parent may not want the other parent to see the children and will deny the opportunity for the court ordered parenting time that he or she, and the children, deserve. If your ex spouse is denying you visitation time with your children, there are steps that you can take to preserve this time and enforce your rights.
Couples planning to divorce have several factors to consider. For example, couples often worry about how property will be divided during a divorce. Specifically, who will get the house? It is important to understand specific elements of Illinois divorce law that commonly arise when determining who will get the marital home if you are planning to separate from your spouse.
Fault Does Not Matter
In a divorce in Illinois, fault is not taken into account. When dividing assets, a court will not consider the events that went on in the marriage or reason for divorce, unless resources were wasted or misspent.
What Can be Done With a House
There are a few situations that can occur with a marital home during a divorce. One party may get the house and the other party may get other property of approximately the same value. Another option is for the court to order that the house be sold and the profits be divided between the parties. The house may also be in foreclosure. Additionally, one spouse may get the house and “buy out” the other spouse’s share. Finally, property can be divided in such a way that one party may get the house without the other party being fully bought out or receiving an equivalent share of property. This is most likely to happen when kids are involved.
The default rule is that married couples filing joint returns are liable for the taxes owed. However, sometimes one spouse will erroneously file an incorrect return in which the other spouse is unaware. Erroneous returns can either not include taxable income or events, or incorrectly claim a credit or deduction to which that the taxpayer is not entitled. If your spouse engaged in some of these activities without your knowledge, whether you were together or separated, you may be able to apply for “Innocent Spouse Tax Relief” and your liability will be forgiven and your ex-spouse will have to pay the taxes out of his or her own separate pocket.
Joint and Several Liability
When you are married and filing joint returns with your spouse, you are jointly and severally liable for those returns. Therefore, you are both, and each, liable for the whole amount. For example, if as a couple you owe $1,000, the IRS can go after each of you for $500, or they can make you alone pay the $1,000, even if it is your spouse or ex-spouse that made the mistake. This is true even if in your divorce decree you agree that your ex-spouse is liable for the whole amount. No matter what the divorce paperwork says, the IRS can still go after you for the full amount owed. However, if you did not know about these erroneous entries you may be able to escape liability for the additional tax charged; still, you have to meet certain criteria first.
On March 7, 2016, the United States Supreme Court further solidified the rights of adoptive parents by upholding the rights of an adoptive parent.
The Case: V.L. v. E.L.
The case involves two women, E.L. and V.L., who were together for 16 years. While together, E.L. gave birth to three children and both E.L. and V.L. raised the children from birth. Originally based in Alabama, the family moved to Georgia and took advantage of the more favorable adoption laws in Georgia so V.L. could legally adopt the children in what is typically called a “second parent adoption." Second parent adoptions allow another person to be an adoptive parent to children without the current parent giving up his or her own parental rights. Second parent adoption is often used by same-sex couples and stepparents when one of the biological parents is out of the picture.
When you are considering a divorce there are a lot of variables that you may need to take into consideration. Illinois divorce law uses a lot of legal terms that not everyone may be familiar with, or be familiar with in a legal context. One part of divorce that is important to understand is whether the divorce will be contested or uncontested.
Contested Divorces
A divorce is contested if the parties cannot agree on basic elements of the divorce. The disagreement can be as big as whether or not to divorce at all, or as seemingly small as the specific details of the separation of property. Common disagreements include allocation of parenting time, formerly known as custody and visitation, and with whom the children will live after the divorce. Other sticking points that can commonly be found in contested divorces are how much child support or maintenance, formerly called alimony, should be paid. Finally, the division of assets between parties is also a frequent area of disagreement that can make a divorce contested.
A prenuptial agreement, known colloquially as a “prenup”, is a legal contract between a couple before they marry. In Illinois, prenuptial agreements are governed by The Illinois Uniform Premarital Agreement Act.
A prenuptial agreement will typically set up how current and future assets will be divided in the case of a divorce. Sometimes prenuptial agreements will set up penalties and bonuses to encourage or discourage certain behavior. For example, some prenuptial agreements will include language where one person will have to pay more to the other spouse if he or she performs or fails to perform a certain action.
Conversely, some prenuptial agreements will allocate more assets to a spouse after certain milestones, like having a child or after a certain number of years of marriage. If you are thinking about a prenuptial agreement it is crucial that you talk to an experienced family law attorney who can help you examine your specific situation. However, there are some factors that you may want to consider when you are considering a prenup.
Making the choice to get divorced is one of the hardest decisions you may ever have to make. Divorces can be as unique as the couples in them; what makes sense for you may not be the right choice for others. Yet once you and your spouse have made the decision to divorce, what comes next? The following suggestions may prove beneficial if you feel your marriage is irreparable.
Contact an Attorney
The first step in the divorce process is to contact an attorney so he or she can offer you specifics of what to do or what not to do. For example, sometimes leaving the marital home can hurt your case later; therefore, your attorney may suggest that you remain in the home.
Mediation? Collaborative Law? Litigation?
Once you have had the difficult conversation with your spouse, you will need to come together to make various decisions. One of the first decisions you need to make has to do with the legal process you want to use going forward. Mediation involves a third party who helps couples come to agreements about how to divide assets and parenting responsibility. Collaborative law is another kind of alternative dispute resolution where each party has an attorney, but the parties and their attorneys work together to try to come to agreements about important issues. Finally, there is traditional litigation. This is the adversarial way to approach the situation, but it may also be the best option for you. A qualified attorney can advise you on your options and recommend which one may be best for you and your individual situation.
Legal separation is a process that few people pursue, but it can be important for couples considering divorce to understand. Legal separation is not the same thing as just living apart. Most couples divorcing in Illinois will not be legally separated at any time, but there are some circumstances where legal separation is the best option. Below are some of the basics of legal separation; however, you will want to speak with an attorney to find out whether legal separation is right for you.
So are We Still Married?
When a couple is legally separated they are still married. Therefore, spouses cannot marry anyone else and there is not a divorce decree. However, legally separated couples can ask for child and spousal support from each other, but the marital property itself will not be divided.
What are the Requirements for Legal Separation?
There is a common myth in our culture that half of all marriages end in divorce. However, as recent graphics and articles make clear, that is not true and the figure is closer to one-third, though the rates vary among different groups.
Declining Divorce Rates
Divorce rates peaked in the 1970s and 1980s, and have gone down each decade since. The New York Times “Upshot” column reported that close to 70 percent of the marriages which began in the 1990s "reached their 15th anniversary (excluding those in which a spouse died), up from about 65 percent of those that began in the 1970s and 1980s." Moreover, couples who married in the 2000s are "so far divorcing at even lower rates.”
So even though conventional wisdom cites the divorce rate at 50 percent, the same article estimates that two-thirds of couples that get married today will never divorce.
Reasons for Declining Divorce Rates
Illinois law now requires divorcing couples with children to submit a “parenting plan” to the court in order to be granted a divorce. This is part of the changes made by the new Illinois family laws that went into effect January 1, 2016. There are several important rules and considerations surrounding parenting plans and it is advisable to work with a skilled family law attorney to make sure that the plan that gets approved will be one that is best for you and your children.
What is a Parenting Plan?
A parenting plan is a document that lays out the rights and obligations of both parents in relation to the children. A parenting plan specifically allocates parenting time (formerly known as custody and visitation) and other matters that need to be worked out in order to parent separately.
Generally a parenting plan will lay out who has the children when, including birthdays and holidays. The parenting plan may also include agreements about what school the children will go to and perhaps who will pay for it, as well as other important matters like religion, ability for parents to relocate, and decision making powers.
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