How Is Child Custody Decided In A Divorce Case?

There are number of factors that go into deciding who is going to have legal custody of the minor child. The most important item and determining factor is the best interest of the child standard. The court will also utilize experts to evaluate the situation and to report back to the court. These individuals include guardians ad litem, child representatives, social workers, and psychologists.

The video below talks in general terms about how custody is decided in a contested matter.

 

Fight To Save Your Home With Chapter 13 Bankruptcy

Fight ToSave Your HOmeThe biggest expense that most people have is their mortgage payment or their rental payment. In many cases, homeowners are reaching the limits as to what they can afford per month. Many people do not choose a house that they can afford but rather a house that they desire. For this reason, many homeowners are financed with adjustable-rate mortgages that will fluctuate based on current economic conditions. We saw this have a devastating effect during the recent mortgage foreclosure crisis of the past 10 years. However, aside from the mortgage foreclosure crisis, there are always a certain percentage of people who run into financial problems concerning their home.

So what are you to do if you have fallen behind on your mortgage due to illness, injury, divorce, loss of job or simply mismanagement of funds? You can decide to wait out the foreclosure process for the next year or two and then be prepared to vacate the property. If this were to happen, you may be liable for any deficiency remaining on your mortgage after Sheriff sale including tax consequences due to cancellation of debt. Depending upon your financial outlook, it may be your only realistic option. For many others, there is another option and oftentimes, a better option. What I am referring to is filing chapter 13 to save your home.

Chapter 13 bankruptcy involves an incredible set of laws which allows you to stop a foreclosure any time before a house has gone to a Sheriff sale. You do this by filing a petition under chapter 13 which creates the existence of the automatic stay. The automatic stay basically tells creditors that they are prohibited from taking further collection activities without permission of the bankruptcy court. Chapter 13 bankruptcy will allow a homeowner to reorganize the debt and pay back what they have fallen behind on over the next 3 to 5 years. This portion is known as the arrearage amount and it can be stretched out over a maximum of 60 months. During this repayment of the mortgage arrearage, the homeowner must begin to make the regularly scheduled mortgage payment once again. This can be a very daunting task to ask someone who has not made the mortgage payment recently to not only start making the regular payment again, but to also put something away towards the arrearage. However, it can be done and I have seen it done hundreds of times per year over the last 23 years.

You have to be realistic about your chance of success.  You have to understand that if there was a reason you fell behind on your mortgage and that reason has been rectified, then you stand a much better chance of success than someone who simply fell behind due to mismanagement on their own. For example, if you were ill and did not receive your full paycheck for four months or six months and now you are back healthy, you may be back on track to make your payment. You also may have lost a job for a period of months and now you are back employed. Perhaps, you’re even making more money at your new job. If these are your scenarios, then there is a pretty good chance that you’re going to have success with saving your home through chapter 13. If, on the other hand, you simply could not afford your house before and nothing material has changed, you are not likely going to be able to afford your home now.

The first step is to sit down with a chapter 13 bankruptcy attorney to go through the interview process. The attorney will be able to advise you as to whether or not chapter 13 is feasible under your circumstances. The attorney will likely lay out a range of payments that will have to be made over the next 3 to 5 years to have success. The attorney will also look at your income in detail as well as go through your monthly budget and expenses. The attorney does not want to file a chapter 13 bankruptcy case for you if it has no chance of success. This is due to the fact that chapter 13 bankruptcy attorneys are typically paid out of your monthly payments to the trustee. Thus, for the attorney to be paid, you must be successful with your case. If you do not have the ability to repay, the attorney will likely recommend a chapter 7 fresh start where you eventually give up the property.

In addition to saving your home from foreclosure, chapter 13 may allow you to reorganize other debt such as auto payments, credit card bills, medical bills, personal loans, utility bills, and just about any other type of debt. For this reason, chapter 13 is a very powerful vehicle to help you get on top of your finances. Chapter 13 is a specialty under the bankruptcy law. Not every bankruptcy attorney is equipped to handle a chapter 13 case. Make certain that you interview several bankruptcy attorneys to get an idea of which one is best for you. For further information about chapter 13 bankruptcy, you can contact my office at 847-520-8100. I am a member of the American Bankruptcy Institute and I am involved in chapter 13 bankruptcy cases on a daily basis and I have been for over 23 years.

 

 

When Discovery Is Not Forthcoming

What do you do in a divorce case when you propound discovery requests however opposing counsel has not complied? You can simply wait it out and not much will happen. Or, you can bring a motion to compel to bring the issue to the court’s attention. If you take the affirmative step in bringing a motion to compel, the court is going to set some form of timeframe for the respondent to reply. This may be the only thing that can get the respondent moving in the right direction. If you do nothing, the discovery time will close and you will not have an opportunity to obtain that discovery, cross examine that discovery, or otherwise use it to your benefit.

In a recent case, with a trial date soon approaching and a discovery close date not yet occurring, opposing counsel is failing to turn over discovery claiming that they do not have it completed yet. This involves evaluation of a business which should be done very early in the process. Without that discovery, the petitioner has no way of offsetting or attacking the valuation from the other side. If the petitioner simply waits, he will be prejudiced in that the respondent may bring out that information at the last minute without an opportunity to properly examine it.

The lesson here is simple. When you propound discovery, and it is not forthcoming, you need to take the appropriate action and bring a motion to compel. Otherwise, you run the risk of never receiving that discovery and potentially, maybe being accused of malpractice by your client.

Will Your Divorce Case Take Years To Finalize?

Will Your Divorce Take
In my 23 years of practice, I have seen divorce cases settle in a matter of days and I’ve seen them linger on indefinitely. So what type of case are you going to have? It all starts with the parties. Do you have a reasonable spouse? Do you have a spouse that is willing and ready to move on to the next chapter? Or, do you have a spouse that is holding on to the past unwilling to let you go? The answers to these questions are going to be more determinative of whether or not you have a lengthy divorce case than the actual facts and circumstances and details of your case.

You should be able to tell from the outset whether or not you have an uncontested case or a contested case. If you and your spouse are willing to have a conversation prior to filing petitions in court, you will likely be able to talk about the different aspects of your case. For example, can you reach an agreement on custody, support, division of property, allocation of debt and all other issues? If so, then you have a pretty good chance that you’re going to have an uncontested case which could be finalized in less than two months. If, on the other hand, you have no communication with your spouse and there is no willingness to talk about the issues in advance, then you are likely looking at a long, protracted case which could last anywhere from one year to two years or longer depending upon the particular facts of your case.

My advice to clients is that they should try and have that conversation early with their spouse. This way they can get an indication of how things are likely to play out. In many cases, the facts are simple, but one of the parties is just not willing to participate. When you have a case with no minor children, no custody issues, no child support issues, and more than enough money and means to survive, and you can’t find a resolution within two years, you have an unreasonable spouse. Or maybe you are the unreasonable spouse. Perhaps, both parties are unreasonable. In those cases, the litigation will drag on for years in some circumstances with the judge finally setting a trial date to end the shenanigans. If the parties still cannot reach an agreement by the trial date, the matter will be sent out to a judge to conduct a hearing.

Do yourself a favor. Picture this scenario where both parties agree to talk, to be reasonable, to negotiate, and to bring some finality to a marriage that has lost its glow. Contrast that with a 2 1/2 year legal battle, costing you tens of thousands of dollars, months of aggravation, only to wind up with results that are pretty much the same or similar to that which an agreed-upon case could have produced. For those who have been through the process and took the long route, most would say “I wish I would’ve done things differently or I wish my spouse would have done things differently.”

Division of Pension Benefits and Divorce

Pension and other retirement benefits earned during the marriage are marital property subject to division by the court. This video depicts a certain situation where the parties were together for 20 years however only married for six. Only the value of the pension earned during the six years of marriage are subject to division. The prior 14 years where the parties were living together yet not married, are not subject to division as those are considered pre-marital assets.

It’s important to note that many people think that their pension and profit sharing benefits are going to remain separate simply because they were individually earned. This is not how the state of Illinois views these assets. The state of Illinois takes a broad approach whereby any asset incurred during the marriage is considered marital property unless the court orders otherwise. Keep this in mind as it relates to just about any other piece of property earned during the marriage by either party. Those assets, much like the retirement benefit are subject to an equitable division.

Contested Divorce Case Or Uncontested Divorce Case Still At Issue

Background Facts

This is the divorce case study for Kim from Mount Prospect, Cook County, Illinois. Kim comes to see me with what she hopes will be an uncontested divorce. The facts are as follows: the parties live in Cook County and both parties are employed in bestes online casino. The parties were married on March 18, 2000, and the marriage was recorded in Las Vegas, Nevada. The parties have two children, and emancipated adult age 19 and one minor child age 13. In terms of grounds, Kim alleges both irreconcilable differences as well as mental cruelty. She will see later that it’s much easier to prove-up a case under the grounds of irreconcilable differences than that of mental cruelty. In terms of maintenance she has a question because she’s not sure whether or not she’s entitled to maintenance, how much maintenance and for how long. In terms of pension and profit sharing, husband has a 401(k) which she would like divided equally. In terms of real estate property, the parties do not own any real estate. They are currently renting and the rental obligation ends in December. In terms of vehicles, they have a 2006 Nissan Sentra and a 2005 Pontiac Grand Prix. Both vehicles are paid for and each party would like to keep one of those vehicles.

Child Custody

In terms of custody, Kim would like to have sole legal custody of the minor child. Husband will have reasonable visitation with the minor child which will include alternating holidays and alternating weekends. In terms of child support, Kim is entitled to 20% of her husband’s net take-home pay. His current gross pay is 70,000 per year so we will need to see paycheck stub to calculate the proper amount of the statutory guideline based on Illinois law. In terms of the income tax deduction, wife will claim the child as a dependent for tax purposes. In terms of medical insurance, father will provide medical insurance through his employment and he will be solely responsible for any amount not covered by insurance which includes deductibles and out-of-pocket expenses. In terms of life insurance, wife would like husband to maintain a life insurance policy in the amount of $100,000 term, for as long as he is a duty to support the minor child.

Maintenance

What Kim does not know in this case is whether or not her spouse is going to be willing to sign the documents. We have to talk about maintenance as well. Kim earns approximately $20,000 per year and her spouse earns approximately $70,000 per year. Since they are married since the year 2000, we have a long-term marriage with a large disparity in the amount of income that they make per year. Based on this fact and the new formula in Illinois, wife would definitely be entitled to maintenance for a number of years. It is best if the parties talk about the situation to see if they can reach an agreement on the phone. If not, were looking at a contested case where the court would have to decide the outcome on all these issues including custody, support and division of property.

Recommendation

My suggestion to Kim is simple. Make an effort to speak with your spouse about the terms that we have talked about, and see if there’s a meeting of the minds as to all of these issues. If yes, we can bring an uncontested case through the Cook County court system in approximately 6 weeks. If not, then she is looking at a long, protracted case which could last anywhere from a year and a half to two years.

How much do I owe for my child’s school tuition in Divorce?

In a divorce case, child support is awarded to the custodial parent pursuant to the state of Illinois statutory guidelines for support. That support typically terminates upon emancipation of the minor child. However, there is a provision in the Illinois marriage and dissolution of marriage act, section 513, which talks about post high school educational expenses. This video talks about how those costs and expenses are allocated between parents who have gone through the divorce process. The court will certainly look at the parties assets and ability to pay going forward.

Attorney Jesse Barrientes tackles this tough question which often involves litigation. With the increasing cost of college, the percentage that one pays can mean a big difference in the total out-of-pocket expenditure. Multiply this by the fact that there may be multiple children in college at the same time, you can see where the importance of getting a fair award as to who pays what and how much is critical.

Divorce by Publication

Case Facts

This is the divorce case for Mr. Davis, who resides in Chicago, Cook County, Illinois. This is a divorce case by publication since Mr. Davis does not know the whereabouts of his spouse. Here are the facts as we know them: the parties were married on May 28, 2008 in Buffalo New York. The parties separated shortly thereafter in the beginning of 2009. Thus, they have been apart for a period in excess of two years which is what is needed to prove up the grounds of irreconcilable differences. We could also use the grounds of desertion since Mrs. Davis has been gone for more than one year without any information as to her whereabouts and her departure was not caused by Mr. Davis.

Since this is a divorce by publication, the court will merely grant the divorce and nothing else. This means that all other issues concerning the parties, property, debt, retirement benefits and all other issues are going to be held in reserve. These issues can be litigated at a future date provided there is personal jurisdiction and subject matter jurisdiction over the respondent. However, in 99% of all publication divorce cases, the respondent is never found or heard from again. Thus, those issues that remain reserved likely will remain reserved forever.

The Process

The process to complete the case is as follows: we file a petition for dissolution of marriage on behalf of Mr. Davis and against Mrs. Davis. We allege the grounds of irreconcilable differences since the parties have been living separate and apart for a period in excess of two years. We serve the respondent by posting this in a publication for three consecutive weeks and by sending a copy to the last known address that we have for her. She has approximately 30 to 45 days to respond to the court and file what’s known as an appearance. If she does not do so within that timeframe, we are able to set a motion for default and prove up the case against the respondent. It is at that time, that I and Mr. Davis will appear before the court to present our case. I will ask a series of yes and no questions to Mr. Davis and the court might have some additional questions. If the court is satisfied with the documents that were filed as well as the answers to the questions presented to Mr. Davis, the judge will typically enter the judgment for dissolution of marriage instanter, which means immediately.

Divorce by publication only applies if you do not have the ability to locate your spouse and provided you have made reasonable efforts to investigate and attempt to locate your spouse. Due process requires that people be served with a summons and a petition if they can be located. Publication divorce cases are reserved for those cases in which the respondent cannot be located after a diligent inquiry and investigation.

For more information about divorce by publication and how such a case may apply to you, you can contact the office directly.

Will Divorce Affect My Immigration Status?

A divorce case will typically not affect one’s immigration status in general. However, there are occasions where divorce in combination with additional circumstances can affect someone’s immigration status. Typically, if there is no fraud involved, then the fact of divorce should not affect one’s immigration status. If, on the other hand, the marriage was based on fraud, then a party might make a referral to the Immigration and Naturalization Service (INS).

For detailed information about immigration, I would recommend that you contact an attorney that specializes in immigration law. For purposes of divorce and immigration, there typically is no change in immigration status as a result of the parties dissolving their marriage.

Divorce Case Study

Divorce Case Study

Family Details

This is the divorce case study for the family name Ralls, which is being changed to protect the confidential nature of the consultation. The family resides in Great Lakes, Lake County, Illinois and they are here to consult with regard to a divorce. The couple was married on April 16, 2006 and the marriage was registered in Las Vegas, Nevada. The couple has two children, a seven-year-old son and a six-year-old son. In terms of grounds, the couple is citing irreconcilable differences. They have been living separate and apart, not functioning properly as husband and wife for a period in excess of six months, since March 1, 2014.

Property

The couple does not own any real estate as they are currently renting. In terms of vehicles, the couple possesses a 2011 Jeep Wrangler which has a monthly payment of $541. The couple also has a 2006 Kia which is paid in full. Wife would like to keep the 2011 Jeep and make the monthly payments and wife is going to transfer title to the Kia to husband. The parties own very little in the way of personal property and each party will pay the debt in his or her own name.

Custody

In terms of custody of the two children, wife will have sole legal custody. This means that she will have exclusive decision-making over the health, education, religion and extracurricular activities of the children. Father will have reasonable visitation which will include summer vacation as well as other times agreed upon by the parties.

Support

In terms of child support, since wife is going to be the custodial parent, she is entitled to child support. Based on the state of Illinois statutory guideline, 28% of the obligor’s net for two minor children, wife shall receive approximately $987 per month through the state disbursement unit. This means that the child support obligation will be deducted directly out of husband’s pay. In terms of tax deduction issues, the mother will claim both children as dependents for income tax purposes every year. In terms of medical insurance, father will provide medical insurance through his employer. Any amount not covered by insurance will be allocated with husband paying 75% and wife paying 25%. In terms of life insurance both parties will maintain a life insurance policy in the amount of $300,000 for as long as they have a duty to support the minor children.

Maintenance

In terms of maintenance, wife is seeking two years of maintenance, reviewable thereafter. The approximate dollar amount for maintenance would be $800. In terms of the division of pension and retirement accounts, husband’s retirement benefits will be divided through the use of a qualified domestic relations order with wife receiving 50% of whatever was earned during the marriage.
If the couple can agree to all these facts, terms and conditions, we can proceed as an uncontested case. If not, then the case will have to be filed the traditional way, with summons served and time given to respond. Should the case proceed to a contested matter, the couple should plan on being in litigation for the next one to three years. Obviously, is more desirable if the parties can agree on the terms and complete the case as an uncontested matter.

What amount of child support am I entitled to?

There is often confusion when it comes to how much child support one is entitled to receive.  Under Illinois law, the legislature has set statutory guidelines to assist the court in awarding child support.  Now the actual amount of support can vary from the guidelines.  However, if your income falls within a normal range and is not excessive, you can plan on paying guideline child support.  For more information about your rights and child support, you can contact the main office.

There is often confusion when it comes to how much child support one is entitled to receive.  Under Illinois law, the legislature has set statutory guidelines to assist the court in awarding child support.  Now the actual amount of support can vary from the guidelines.  However, if your income falls within a normal range and is not excessive, you can plan on paying guideline child support.  For more information about your rights and child support, you can contact the main office.

NEW LAW GOVERNING ILLINOIS DIVORCES:

Illinois Divorces:

In essence what this new law will do, once it becomes effective (January 1, 2015) is that it creates a formulaic, uniform, method for divorce Judges and attorneys to calculate spousal maintenance, formerly alimony, (where the parties combined Gross income does not exceed $250,000.00 per year) if and when maintenance is deemed appropriate. A brief synopsis of this formula as pertaining to a prototypical case, where the Breadwinner’s/Payor’s income is higher than that of the Other-Spouse/Payee and the Other-Spouse is seeking maintenance then maintenance could be calculated as follows:

Maintenance EQUALS 30% of Breadwinner’s Gross income MINUS 20% of Other-Spouse’s Gross income. This is subject to an EXCEPTION that the calculated Maintenance amount PLUS Other-Spouse’s Gross income CANNOT exceed 40% of the Combined Gross income of Breadwinner and Other-Spouse.

 

Reducing Child Support Obligations

When Circumstances Change

If you owe child support and you lose your job (or your monthly income is reduced due to a loss of hours at work or involuntary furloughs or other reasons) it is important that you immediately bring this matter to the Court’s attention so that your child support payments can be reduced appropriately by Court order. If you fail to bring this to the Court’s attention you will still be liable for child support payments as they were under the initial court order and you may not be able to afford both your child support payment and your regular monthly living expenses.

Take Action

By bringing this information to the Court’s attention via appropriate motions you have the opportunity to satisfy your child support obligations as well as maintain your standard of living. If you fail to bring this matter to the court’s attention and do not modify your child support in a timely manner, you may end up accruing significant child support arrears, judgment interest at 9% in the state of Illinois as well as potential attorney’s fees for the attorney representing the person to whom your support (all of which would be non-dischargeable in bankruptcy). Please note that the only proper way to reduce your Court ordered child support is through the Court; an agreement between the parties may not be sufficient in the eyes of the Courts.