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Parents who have a disabled or special needs child understand the complexity of ensuring adequate care for their child. A divorce adds to the complexity of this issue both financially and emotionally. Whenever possible, divorcing parents should seek to develop a parenting plan and come to an agreement on long-term care for their special needs child.
Generally, child support is calculated using a formula. The court uses the net income of the non-custodial parent and the number of children supported to determine the total amount of support. In most cases, child support terminates when a child is 18. However, when a child is disabled and has special needs that require long-term care, then the court may extend child support. This is particularly true if a child has a severe disability. In these extreme cases, it is possible that the court may order child support to extend for the child’s entire life.
Court May Order Lifelong Child Support
Divorcing couples must decide how to divide assets and marital property. If a couple can decide how to divide assets without contention, this process can be simple. Sometimes, however, it is not easy for a couple to identify marital assets or decide on how to divide the assets. When this happens it is important to understand how marital property is defined. Understanding basic differences will allow a divorcing couple to properly discuss marital assets with their divorce attorney.
Defining Marital Property
Illinois is a non-marital property state. This means that property either spouse gained during the marriage is marital property. It does not matter if only one spouse has the title to the property. If the property was purchased during the marriage it will be divided in the divorce. Examples of marital property acquired during a marriage include:
Divorce and child custody are complex issues. These issues are even more complicated when one parent attempts to prevent the other parent from seeing his or her child during a court ordered visitation.
Visitation interference and visitation abuse are two common issues that a non-custodial parent may need to address. Therefore, if you are a non-custodial parent, it is important to understand the difference between visitation interference and visitation abuse.
What is Visitation Interference?
Visitation interference, or parenting interference, is criminal offense. Visitation interference happens when the custodial parent intentionally interferes with the non-custodial parent’s visitation time. Under Illinois criminal law, visitation interference occurs when a parent violates “visitation, parenting time, or custody time” as ordered by a court and attempts to “detain or conceal a child with the intent to deprive another person of his or her rights to visitation, parenting time, or custody time.”
Divorce is a complex issue. The complexity only increases when the divorcing couple has children. The couple must make many decisions about child custody, visitation and parenting plans. Some couples are able to arrive at a decision on custody issues. Other times, the couple is not able to make a decision even after trying mediation or other efforts to settle. When this happens, it is not uncommon for the divorcing couple to ask the court to decide issues of child custody. The Illinois Marriage and Dissolution of Marriage Act directs the court to seek the advice of a mental health professional (e.g. psychologist, psychiatrist or licensed social worker) on child custody. The court may make this decision by requesting a child custody evaluation.
When Do I Need a Child Custody Evaluation?
The child custody evaluation process allows a mental health professional to evaluate a child in his or her environment and then recommend a custody, visitation, or parenting plan. Child custody evaluations have tremendous influence on a court’s custody decisions. A custody evaluation is critical when the mental health of a child is a concern (e.g. eating disorder, anxiety disorder, schizophrenia). The opinion of a mental health professional will help the court determine a custody arrangement, which serves the best interests of the child, and will ensure the child's mental health will remain stable.
There are several forms of spousal support, or alimony, under Illinois law. Alimony can be periodic or permanent. Alimony may also take the form of a lump-sum payment or a transfer of property. Most alimony, however, is periodic. A supporting spouse will usually make regular payments to the supported spouse for a specific period of time. If the supported spouse decides to remarry or cohabitate, alimony payments will be impacted.
Remarrying and Alimony Awards
Generally, alimony ends automatically when the receiving spouse marries again or has a marriage ceremony. Alimony will end even if the supported spouse is not yet legally married. Therefore, the supporting partner may cease paying immediately on the day of the receiving spouse’s marriage. The supporting spouse does not need to head back to court or perform additional tasks. However, if the alimony was a lump sum payment, then the payor spouse must still facilitate the payment even if the receiving spouse has chosen to remarry. Conversely, if the supporting spouse remarries, this does not immediately alter alimony payments. However, the court will consider the new marriage when considering whether alimony should proceed.
When you and your spouse are going through a divorce, you already anticipate the division of property and assets. However, most people fail to realize that debts are also a major part of this process. Most divorcing couples focus on who gets the house, car, or big screen television; still, they must also consider who handles the mortgage, car payments, and credit card debt. These debts might have been manageable when both spouses were paying the debt down, but it might be much more difficult to pay those debts on one's own.
Fortunately, when it comes to debts, Illinois law has certain provisions that deal with marital and non-marital debts. Under Illinois law, “Neither husband or wife shall be liable for the debts or liabilities of the other incurred before marriage, and they shall not be liable for the separate debts of each other, nor shall the wages, earnings or property of either, nor the rent or income of such property, be liable for the separate debts of the other.” Therefore, neither spouse will be liable for the debts of the other spouse. Creditors will not be able to go after assets you own when they are going after your spouse.
Today, in Illinois family courts, the divorce process is governed by the Illinois Marriage and Dissolution of Marriage Act (“Act”), which was passed in 1977. Society was different back then, and the Act was created to address the many issues families were facing. Today, however, the landscape of society has changed and families have several new needs that the Act can no longer satisfy.
In order to get divorced under the current statutory scheme, you have to identify a specific ground that provides for the dissolution of marriage or you must have been separated from your spouse for at least 24 months. There are many grounds for divorce in Illinois, some of which include adultery, cruelty (mental/physical), drunkenness, and irreconcilable differences. In certain instances, people desiring divorce have used these grounds to obtain an unfair advantage over the other spouse when it came to child custody or alimony, among others.
In an overwhelming majority of cases, divorces are handled in one long proceeding. However, there are rare circumstances in which a case may be settled in parts. Bifurcated judgments are handed down by a court when there are obstacles to a single judgment that may not be resolved in the time available. Illinois courts do consider them, but the stakes must be high.
When is Bifurcation Appropriate?
Bifurcation is permitted under 750 ILCS 401(b), and is generally granted when “appropriate circumstances” exist. While this is, understandably, a nebulous term, it has somewhat been clarified by Illinois case law. Several different court cases have created non-exhaustive lists, but the general rule of thumb is that bifurcation is on the proverbial table when one spouse has a reason to want proceedings concluded quickly, and the reason does not unduly inconvenience or prejudice their soon-to-be ex-spouse.
In Illinois, a guardian is appointed for a variety of reasons and has the same responsibilities to a child as a child’s natural parent. Guardianship arises in certain scenarios, such as when: a child’s biological parents cannot care for the child; a child’s parents died in an unfortunate accident; a minor child is disabled and is unable to provide for his or her own well being; or when elderly persons can no longer take care of themselves.
Under Illinois law, there are four types of guardianships available. These guardianships are: permanent legal guardian; guardian ad litem; standby guardian; and short-term guardian.
A permanent legal guardian assumes the obligations of the biological parents and is responsible for the child’s necessities, such as food, clothing, shelter, education and upbringing;
A guardian ad litem is someone appointed by the court to investigate the facts surrounding the case involving the child, who then makes a recommendation to the court, which the court usually accepts;
While United States law is supreme within our borders, this does not preclude other systems of law from having an effect on how people raise their children and where those children may want to live in the event of divorce or the loss of a parent (or both). Legal systems such as those adopted by religions or ethnic groups still play an extremely important role in many lives, and in some cases, it is possible to integrate certain provisions into a determination of child custody.
Islamic Law and Child Custody
Islamic law is heavily paternalistic, at least in regards to family law matters, and the preferable custody arrangement in many Muslim divorces is to have the children stay with their mother until they reach the age of “custodial transfer” (which varies between families, but is generally around the Islamic age of maturity—teenage years) and then return to their father’s family.
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