Recent Blog Posts
How to Divorce a Spouse You Cannot Find
Posted on August 03, 2017 in Divorce
There are occasions in which a divorce must proceed happen in a way very different from the norm. One of the most common is for a spouse to be missing or deliberately absent, so as to frustrate personal jurisdiction over them. This does not mean that you are stuck in a marriage you wish to dissolve; it just means that divorce must be sought in a different way.
The First Steps: Due Diligence
In a divorce, you must be able to serve your spouse with papers, as he or she has the right to appear on his or her own behalf or contest the action. However, if you cannot locate your spouse, an alternate method has to be found, and you must obtain permission to use it. The first step toward obtaining that permission is to put forth a “good faith effort” toward locating your spouse. You must be able to show the judge that you have exhausted all reasonable options to find your spouse before you will be permitted to pursue alternate service. For example, many judges require you to look in places like indexes from the Department of Motor Vehicles (DMV), Social Security’s database of deaths, or even on social media to try to find a trace of your soon-to-be ex.
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College Expenses and Continued Child Support
Posted on August 02, 2017 in Child Custody and Support
Most divorced parents think of child support ending when the child in question turns 18 years old. Usually, this is the case. However, there are several situations in which a court may order more, and one of those is when dealing with college expenses. Illinois law differs somewhat from many other states’ in that while married parents may decline to contribute to their children’s college expenses, unmarried parents may be ordered as part of a divorce agreement to contribute according to their income level.
Non-Minor Support
College expenses such as tuition, room and board, books and the like fall under a legal category Illinois calls non-minor support. It is also possible, but somewhat less common, that the court will hold some living expenses to fall into that category as well—costs such as bus or train passes and medical insurance. The key word in such determinations is “reasonable,” and the court has quite a bit of leeway in that regard.
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Divorce and Filing for Bankruptcy
Posted on July 31, 2017 in Divorce
Sometimes, life attacks from multiple sides. Sadly, it is not uncommon for those going through a divorce to end up in bankruptcy at the same time, with seismic changes to one’s finances as a result of debt restructuring. However, depending on your unique situation, it can be difficult to determine which proceeding should happen first and how to handle both.
Divorce First
Depending on the situation, getting a divorce before filing for bankruptcy can be the best path for many couples. There are two different types of bankruptcy filings, each named for the chapter of the U.S. Bankruptcy Code used for the filing. Chapter 7 is for individuals or couples with very few assets, while Chapter 13, also called a reorganization bankruptcy, is for those with steady income and debt that it is possible to restructure.
It is possible for couples to file together, but it is also common for each person to file individually. If you are divorced before your bankruptcy proceedings, a Chapter 7 filing will be much more streamlined than it might be otherwise. Conversely, if the divorce happens after the bankruptcy, marital assets might be sold to pay off debts during the filing, which can make a later divorce extremely difficult in terms of equitable distribution of the remaining assets. Whether you file together as a couple or as individuals can also make a difference. Some debts are not dischargeable, and with many marital debts, it is possible for creditors to attempt to hold the husband responsible for debts that the wife originated and vice versa.
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Dividing Intangible Assets During Divorce
Posted on July 30, 2017 in Property Division
As you probably realize, all marital assets must be divided between the spouses during a divorce, unless the asset has been addressed beforehand, such as in a prenuptial agreement or other contract. This includes intangible assets, such as patents, royalties, and business goodwill. It is very easy to become confused when dealing with intangible assets, and consulting an attorney may help clear up some of your questions.
Important Definitions
An intangible asset is simply an asset with no physical form. One may be able to see the effects of the asset’s possession, such as elevated goodwill, brand awareness, increased income, and the like, but the asset itself has no physical or transportable form. Most of the time, these assets are treated in a similar way to any tangible piece of marital property, but there are exceptions.
It is important to note that intangible assets are not quite the same as indefinite assets, though the two terms are often used interchangeably. An indefinite asset is something which can be seen to affect its holder—for example, the brand recognition of the Coca-Cola Company—that stays with the company or person indefinitely, while a definite asset is intangible, but has a finite shelf life. The most common example of such assets are those which are operated under license and revert to the original holder at the expiration of the license. Definite assets tend to stay in the possession of the holder while indefinite assets are more likely to be held to be marital property.
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Forcing Back Payment of Child Support
Posted on July 24, 2017 in Child Custody and Support
An order for child support is a binding judgment. If a parent who has been ordered to pay refuses to comply or otherwise claims an inability to do so that is not supported by facts, the recipient parent and the state can take steps to ensure the children are supported in the way they should be according to the law. It is often a laborious process, but once started, it is usually successful.
State Court Enforcement
Illinois has a specific law on the books known as the Non-Support Punishment Act (NSPA), which governs the proceedings that may face a parent who is significantly behind on child support payments without sufficient cause. The offense of failure to support is created by the act, which is either a Class A misdemeanor or a Class 4 felony, depending on the manner in which the noncustodial parent seeks to evade support. For example, a parent who attempts to leave the state to avoid support obligations may be charged with a Class 4 felony, while a parent who fails to pay outstanding support arrears for more than 6 months could face prosecution for a Class A misdemeanor.
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Child Support Law Changes Take Effect
Posted on July 21, 2017 in Child Custody and Support
Major revisions have been made to the way that child support is calculated by courts in Illinois. The Illinois legislature has been wrestling with the way that child support has been calculated in our state for many years, but as of this month, much-needed changes are finally here.
What is New About The Law?
The law, which went into effect on July 1, changes an outdated, static, and unchanging methodology for child support calculations and switches Illinois to an income shares model used by many other states.
Under the previous law, courts calculated child support obligations using a fixed percentage of the nonresidential parent’s income based on the number of children being supported. For example, under the old law, if there was one child in the marriage the parent without primary custody would be ordered to pay 20% of his or her net income in child support. The effect of these calculations produced results that were insufficient in many in cases to actually address the needs and the best interest of children involved in a divorce.
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When to Use Divorce By Publication
Posted on July 19, 2017 in Divorce
There are many different legal procedures related to parenting time and other divorce issues, which require the input or consent of both spouses. However, this is obviously an issue if both parties cannot be located. In cases such as this, there are times where the judge will press ahead, but most of the time, they will rule that the parent who is present should at least try to contact their absent ex-spouse. Divorce via publication is perhaps the most common way to do so.
Your “Best Faith Effort” Must Come First
When a couple decides to divorce, the spouse who files must serve the other with the papers detailing the filing. If there is a lack of service, the other spouse has the right to contest the filing. In some cases, however, the non-filing spouse might be difficult to locate, especially if he or she has essentially abandoned the family. If this is the case, Illinois courts generally hold that the filing spouse must exert a “best faith effort” to locate the other parent.
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How to Help Your Child Through Divorce
Posted on July 18, 2017 in Divorce
If you are a parent who is considering a divorce, you are probably concerned about how the divorce will affect your children. Children have many different responses to their parents splitting up, and it can be difficult to know for sure how yours will react. Some children are vocal about their feelings and fears while others keep their emotions inside. Some will ask many questions and some will refuse to talk at all about the separation. Fortunately, studies show that children are more resilient than many parents realize and with the right guidance, they can lead happy, healthy lives after their parents’ divorce.
Psychologist E. Mavis Hetherington of the University of Virginia conducted a study that showed that many children experience negative effects of divorce in the short term but are adjusted to their new life by the second year. Research also suggests that children of divorce do not show significant differences in behavior, academic achievement, or self-esteem than children whose parents did not divorce.
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Can I Collect Social Security Through My Ex-Spouse?
Posted on July 16, 2017 in Divorce
Following a divorce, it is very common for people to begin worrying about their future, especially if they are at an age where retirement may soon be an option. One of the issues that may concern them is the question of Social Security benefits. There is much confusion over who is entitled to what, and without the help of an experienced attorney, you and your ex-spouse can find yourselves back in court or embroiled in a long debate that is simply unnecessary.
Requirements to Collect
Almost everyone in the United States who legally works will build up what the Social Security Administration (SSA) calls a work record. Normally, you will be entitled to benefits based on the length and type of your work record, but spouses or former spouses have the right to collect based on their spouse’s record if it is better than their own. The rationale is that especially for older women, who might be lacking in ability to reenter the workforce after divorce, there needs to be a safety net of sorts to keep people out of poverty.
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Understanding Adult Adoptions
Posted on July 05, 2017 in Adoption
The procedure for adopting children in Illinois is fairly straightforward, yet intensive. Multiple background checks are required, as well as home study and often fees paid to adoption agencies. The procedure for adult adoption is somewhat different, especially since adults, in most cases, are of an age and ability to weigh in on the issue. If you are interested in adopting an adult as a member of your family, it is important to ensure you are familiar with the law.
Why Adopt an Adult?
While it may seem strange to adopt adults, given that it is not possible in many other countries, many states in the U.S. preserve that right, Illinois included. Sometimes, doing so is necessary in order to legally formalize relationships that already exist in practice. For example, if a child grows to adulthood under the care of a stepfather or other guardian without a legal, familial relationship, that parental figure may be excluded from certain relevant decisions. Many people believe that a stepparent has a legal right to make decisions for a spouse’s child, but this is not the case in Illinois; a stepparent must adopt or otherwise be assigned rights over the child before he or she has any say in that child’s welfare, whether the child is a minor or an adult.
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