Divorce can be a complicated thing. Especially if you’re Christo Lassiter and Sharlene Boltz, divorced couple from Cincinnati, Ohio. Not only have this couple been feuding over court hearings and paperwork for the last 20 years, they’re law professors!
According to Above The Law, 56 year old Christo is a professor of law and criminal justice at the University of Cincinnati and got his BA from University of Chicago. Sharlene, 52, is a law professor at Northern Kentucky University with a BA from Brown. Despite all of their experience and knowledge of the court system and law, the two educators have been in and out of courts for the last decade without showing any signs of wanting to mend their disputes in a professional or friendly manner.
Together the two of them have racked up more than 1,400 docket entries which are the official summaries of court proceedings (the norm is usually about 1,000 less than this). Both parties have accused both the opposition and the court system itself for giving into irrational demands and manipulation without considering the peaceful option of coming to a sound agreement.
The ex-couple’s children are now 17 and 20. Imagine growing up during this outrageous turmoil.
Choosing A Chicago Divorce Lawyer
Although this situation is a little out-of-the-ordinary (to say the least), it does show how Chicago divorce lawyer cases can get out of hand. Granted most divorce cases won’t take years but if you’re dealing with one you’ll want to minimize the amount of excess stress and complication as much as possible.
Hiring a divorce lawyer in Chicago is a great way to limit the amount of disorganization and headache. Among other things, the biggest reasons a divorce case can be come overly complicated are:
If you have children together (especially if they’re young) your court time can be extended three fold. A divorce case can become a child custody or support case. Make sure your lawyer is aware of your children’s status so they can help you from the beginning.
Assets are the material items that you own. These can become tricky if you split ownership. Things like houses and cars can be difficult to manage. Informing your Chicago divorce lawyer of all the possible assets you own or manage will help tremendously in making your case go a lot smoother.
The health of your spouse (or yourself) is rarer than the other complications but can play a serious role. Some form of financial support might be entitled to the spouse or you may need extra care yourself. Make your divorce lawyer aware of any situation like this so they can help you prepare the proper support.
In the United States, every state has its own set of rules regarding divorce and what constitutes as ‘reasonable grounds’ for one. Nowadays, there are basically two different types of divorces available to couples who believe that ending their marriage is the only option left. The two available options are ‘fault’ and ‘no fault’ divorces. In this article, we are going to talk about the differences in these two types of divorces, and about what constitutes as reasonable grounds for divorce in each case. As divorce lawyers in Chicago, the office of Touloupakis Aguirre specializes in Illinois divorce law, of course, one needs to keep in mind that every state is different, so specific details (such as time frames for separation) may vary from state to state.
In this article, we are going to stick to the ‘basics’, and give you some general guidelines that will translate to real, useable information on what constitutes as ‘reasonable grounds for divorce’ regardless of what state you are in.
Every state in the United States now allows for a ‘no fault’ divorce option. A no fault divorce would describe a marriage in which the couple decides mutually that they no longer feel that it would be worth it to try and patch things up. This type of divorce is easy to obtain, is less expensive, and doesn’t place guilt on any particular member of the marriage. Of course, different states have different requirements that must be met before a divorce will be awarded, but the following is a list of reasonable grounds that are most commonly used as reasons for no-fault divorces.
If a couple has been living apart for enough time to satisfy the state law requirements for a no-fault divorce, than separation may be used as reasonable grounds for divorce. Some states require that the couple be separated for months, while in others, the couple will need to prove that they have not co-inhabitated for up to five years before a divorce will be granted.
Irretrievable Breakdown (Also known as ‘Irreconcilable Differences’)
Every state now allows for couples who simply decide that they no longer wish to be together (for basically any reason) to file for a no-fault divorce using Irretrievable Breakdown as reasonable grounds. This is basically translated as a ‘breakdown’ in the marriage that was not caused by either partner, but that both agree makes the marriage unworkable. In order to file for a divorce under these grounds, the couple is simply required to put together an affidavit stating that their marriage is ‘irreparably broken’ and sign it while under oath.
A fault divorce is basically a divorce that is awarded when one partner meets the burden of proof to show that the other partner did something wrong, thereby justifying divorce based on the wrong-doing of the spouse at fault. Fault divorces are much less common nowadays than they used to be, mostly due to the widespread state acceptance of no-fault divorces. They do, however, have a place in the court system, especially for partners who are divorcing their spouse for some type of abuse that may merit a conviction, and even more especially in a case where children are involved.
Of course, state regulations for what will pass as reasonable grounds for a fault divorce vary from state to state, but here is some general information that summarizes the most common grounds for such a separation.
Adultery has basically occurred when one person is unfaithful to the other in terms of sexual fidelity. In order for adultery to be grounds for divorce, proof must be submitted that the spouse in question actually committed the acts that they were accused of.
Cruelty can basically be described as any sort of calculated and/or deliberate abuse, pain, or suffering that is inflicted on one spouse by the other over a prolonged period of time within the marital relationship. Physical attacks, displays of rage, violent/threatening behavior, screaming, public displays of anger, and false accusations are all examples of behavior that could constitute as ‘cruelty’ where divorce proceedings are concerned. Of course, the burden of proof must be met before a divorce can be granted on these grounds.
Abandonment (Also known as Desertion or Parental Alienation)
Abandonment is basically the act of leaving the household and not returning. In essence, this can become a reasonable cause for divorce when one partner has been effectively ‘deserted’ by the other. Leaving the household without permission, even for military deployments and other extended engagements, does not constitute abandonment. Likewise, a spouse leaving to escape abuse or neglect would not be at fault for it either. Abandonment is more technically an unmerited, unprovoked absence of any kind that, by all intents and purposes, seems to be permanent.
Incurable mental illness can be reasonable grounds for divorce, as long as the burden of proof is met and that there is sufficient evidence to show that whatever psychological disorder is in place makes marriage effectively impossible. The mental illness must also be incurable in order to be considered reasonable grounds for divorce.
If one of the partners has been convicted of a crime or sentenced to jail time, than reasonable grounds for a divorce may be met as long as the spouse seeking the divorce can prove that the other was convicted of some type of legal offence. In a lot of states, it is required that the offending spouse be serving time in prison before criminal conviction can be considered reasonable grounds for divorce.
Nowadays, finding reasonable grounds for divorce can be as easy as two people agreeing that their marriage is ‘broken beyond repair’ due to breakdowns in communication, incompatibility, or any number of other reasons. No-fault marriages of this kind are definitely becoming more common for several reasons. For one, they offer more privacy. Secondly, they are considered to be easier on the rest of the family, mostly because blame is not being placed on another in the public medium of a courtroom. Of course, regulations vary by state, though all states have at least some form of allowance for a no fault divorce, meaning that finding reasonable grounds for divorce has actually become incredibly simple, inexpensive (when compared to fault divorce), and by most counts, less emotionally traumatic for all involved.
Child support is something that generally has a lot of issues accompanying it. Each state has its own rules on when and how payments are received and there are lotos rules that can get either the custodial parent (the parent with custody) or the non-custodial parent into trouble. That’s why it’s the job of child support lawyers in Chicago to carefully establish guidelines and agreements between the parents. Here are 5 of the most common mistakes that are made when parents are dealing with child support in Illinois.
1. The parent’s support obligations automatically terminate when the child reaches the age of 18.
Section 505(a) of the Illinois Marriage and Dissolution of Marriage Act specifically states that for purposes of child support a “child” includes any child under the age of 18 and any child under the age of 19 who is still attending high school. Moreover, even when child support does terminate under section 505(a), both parents may still have legal support obligations for their child’s medical expenses and their post high school educational expenses.
2. Parents alter the amount of the child support obligation by mutual agreement without a court order.
Once a child support order is entered by a court the amount of the non-custodial parent?s child support obligation remains in full force and effect until it is modified by a subsequent court order. Any agreement, verbal or written, between the non-custodial parent and the custodial parent to increase or decrease the court ordered child support obligation is not enforceable in Illinois unless their agreement is formally approved by the Court via a new child support order.
3. A non-custodial parent’s child support obligation automatically ends if he/she is unemployed.
The fact that a non-custodial parent has become unemployed does not eliminate his/her obligation to pay child support. While the court may enter an order temporarily reducing or suspending support while the non-custodial parent is unemployed, it remains the unemployed parent?s obligation to show the court that he/she is making reasonable efforts to find employment and is not simply trying to avoid paying child support. If the court determines that the non-custodial parent is voluntarily unemployed or underemployed, is attempting to evade paying child support, or has unreasonably failed to pursue obtaining appropriate employment, the court had the authority to order child support based on the unemployed parent?s most recent employment income or on the amount of income he/she could reasonably be expected to earn.
4. The non-custodial parent does not need to pay child support if he/she has no visitation with the child or is denied visitation with the child.
In Illinois, a non-custodial parent?s child support obligation and his/her visitation rights are independent of each other. A non-custodial parent continues to have a legal obligation to support his/her child and must comply with any child support order entered by a court even if the non-custodial parent spends no time with the child. Similarly, the non-custodial parent may not withhold payment of court ordered child support even if the custodial parent is refusing to allow him/her to exercise court ordered visitation rights. In such a case, the non-custodial must continue to pay child support while seeking to enforce the visitation rights, being denied, through the court.
5. If the parties are awarded joint custody of the child, there will be no award of child support.
Generally, in cases where joint custody is awarded, one parent is designated as the residential parent; and the child’s legal address is the same as the residential parent. In these instances the non-residential will be required to pay child support to the residential parent according to the statutory guidelines with no automatic credit to the non-residential parent for the amount of his/her parenting time. However, where a non-residential parent?s time with the child exceeds what is considered to be customary visitation, the Illinois courts may choose, on a case by case basis, to deviate downward from a strict application of the child support guidelines.
Purpose of a Prenupial Agreement
A prenuptial agreement (also known as a premarital or antenuptial agreement) is a legal means for a couple to protect the assets each is bringing into a marriage and to codify a variety of rights and obligations that may arise as a result of their marriage. In Illinois, prenuptial agreements, are governed by the Illinois Uniform Premarital Agreement Act.
Requirements for a Prenuptial Agreement in Illinois
Any Illinois couple may enter into a prenuptial agreement, provide that their agreement is in writing and has been voluntarily signed by both parties. In Illinois, prenuptial agreement does not require any consideration, that is a couple’s mutual exhange of benefits and/or liabilities, for it to be enforceable. While a prenuptial agreement is executed prior to a couple’s marriage, it only becomes legally effective upon the couple’s marriage. Illinois law does not require that either party be represented by or consult with an attorney for a prenuptial to be valid, However, where one of the parties to prenuptial agreement asks a court to invalidate that agreement, the courts, in making such a decision, routinely give strong consideration to whether the “disadvantaged” spouse had adequate legal representation during the negotiation of the prenuptial agreement.
Content of a Prenuptial Agreement
Section 4 of the Illinois Uniform Premarital Agreement Act states that parties to such an agreement may contract as to the following:
- the rights and obligations of each of the parties in any property, including the right to buy, sell, manage or dispose of the same
- modification or elimination of spousal support
- making of a will or a trust
- ownership and disposition of death benefits in life insurance policies
- the choice of law governing the prenuptial agreement
- any other matter that does not violate Illinois public policy or a statute imposing a criminal penalty
In addition to subject matters that are criminal or violated public policy, a prenuptial agreement in Illinois may not contain any provisions that would adversely affect the rights of their child(ren) to support.
Enforcement of Prenuptial Agreements
The terms of a couple’s prenuptial agreement are enforceable in Illinois unless the party against whom such enforcement is being sought proves either of the following:
- the prenuptial agreement was not executed voluntarily
- not only was the prenuptial agreement unconscionable at the time it was executed but also that prior to its execution, the disadvantaged party did not receive a reasonable disclosure of the other’s property, did not waive the right to receive such a disclosure and did not reasonably have an adequate knowledge of the other party’s property and financial obligations
Amendments or Termination of a Prenuptial Agreement
After the parties are married, their prenuptial agreement may always be amended or terminated. Illinois law requires that in order for a valid prenuptial agreement to be amended or terminated, the amendment or termination must be in writing and must be signed by both parties.
Statutory Requirements for Modification of Child Support
In Illinois a supporting parent’s child support obligation can always be modified. Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) provides that a child support obligation can be increased or decreased only upon a showing of “substantial change” in circumstances. In Illinois, only the Court may modify a child support order; and any child support order remains in full force and effect until the Court has approved and entered an order modifying the child support amount. Either parent has the right to file a petition seeking a child support modification. However the parent, so filing for the modification, has the burden of proving to the court that the requisite “substantial change in circumstances” has occurred. Only after that burden has been met may the court determine the amount of increase or decrease in child support.
Proving a Substantial Change in Circumstances
In order to meet the burden of proving a substantial change in circumstance, the party seeking a modification of child support generally must demonstrate to the Court both of the following factors:
- a significant increase (or decrease) in the supporting parent’s
- ability to pay child support
- a significant increase (or decrease) in the child’s needs
Ability to Pay
Neither Illinois statutes nor Illinois case law contain any specific percentage of increased or decreased income, which would result in an automatic modification of a supporting parent’s child support obligation. The determination of whether a parent’s ability to pay has increased or decreased sufficiently to justify a modification of child support lies strictly in the Court’s discretion. In making a determination of a supporting parent’s ability to pay, the Court must consider that parent’s income from all available sources, not just from his/her employment.
Needs of the Children
Any claim that the children’s needs have substantially increased (or decreased) since a prior child support order must be documented through evidence to the Court’s satisfaction. However, it is important to note that Illinois case law has held that an increase in the child’s needs can be presumed if there has been a passage of a number of years since the prior child support order, absent documentary evidence to the contrary. Conversely, if a supporting parent can demonstrate that the child support amount substantially exceeds the child’s actual needs, the Court has the authority to deviate from the child support guidelines and
reduce support so that the parent receiving the support does not obtain a windfall.
Orders of Protection: an overview
Issuance of an order of protection is authorized by the Illinois Domestic Violence Act (750 ILCS 60/101 et seq). An order of protection is a legal and enforceable document, issued by a court, to protect abused or harassed family or household members from domestic violence.
Who may obtain an Order of Protection
Under the Domestic Violence Act, “family or household member”, who may obtain an order of protection includes spouses, former spouses, parents, children, stepchildren, persons who have or allegedly have a child in common, persons who have or have had a dating or engagement relationship, and persons with disabilities.
Behavior prohibited by an Order of Protection
The underlying purpose of an order of protection is to prohibit and make it illegal for an offender to abuse another family or household member. As defined in detail in Section 103 of the Domestic Violence Act, “abuse” includes:
- physical abuse
- intimidation of a dependent
- interference with personal liberty
- willful deprivation
The types of behavior proscribed under each of the foregoing categories of abuse are extremely broad. For example, “physical abuse” prohibits not only striking a family member but also confinement, restraint or sleep deprivation of the protected person. Similarly, “harassment” includes diverse behaviors directed at protected persons such as: repeatedly calling them, stalking them, threatening them with physical violence and concealing or threatening to conceal a minor child from them.
Types of Orders of Protection
There are two types of Orders of Protection authorized by the Illinois Domestic Violence Act: criminal Orders of Protection and civil Orders of Protection. In a criminal proceeding, the State is the “plaintiff” and the abuser is the “defendant.” To obtain a criminal Order of Protection, the abuser must have allegedly committed a crime against the family member (i.e. assault, battery, stalking); and the State must prove that the defendant is guilty “beyond a reasonable doubt” (almost 100% certainty). An action for a civil Order of Protection is brought by one person against another person, either independently or in conjunction with another civil proceeding such actions for divorce or parentage. To obtain a civil Order of Protection, the petitioner must prove that alleged abuse has occurred by a “preponderance of the evidence (a little over 50% certainty.
Impact of an Order of Protection on Visitation
As part of an Order of Protection, a court mandated to restrict or deny an abuser’s visitation rights if the Court finds that the abuser has done or is likely to do any of the following:
- abuse or endanger the minor child during visitation
- use the visitation as an opportunity to abuse or harass the petitioner or petitioner’s family
- improperly conceal or detain the minor child
- act in any manner not in the child’s best interests
An Order of Protection which restricts the abuser’s visitation in accordance with the above findings takes precedence over any visitation which was previously entered for so long as the Order of Protection is in effect.
Penalties for Violations of an Order of Protection
A violation of any Order of Protection, whether issued in a civil or a criminal proceeding, may include one or more of the following: incarceration, payment of restitution, a fine, payment of attorneys’ fees and costs or community service. The type and severity of the penalty which is imposed will be dependant on the nature of the violation, previous violations, and any other aggravating or mitigating factor.
Under Illinois law, children do not decide or choose which parent will be their custodial parent. Instead, custody must be determined by the Court in accordance with the child’s best interests. In making such a determination, the Court is mandated to consider all relevant factors, including the child’s wishes as to his/her custodial parent. Depending on a child’s age and maturity level, the Court may allow the child to articulate his/her custodial preferences. The Court will then give the child’s preferences appropriate weight in making its custody determination, but the Court is never bound by the child’s preferences as to custody.
Procedures Available to the Court in Considering a Child’s Custody Preferences
There are several legal tools available which Illinois Courts in their discretion may utilize in order to assist the Court both in considering the child’s preferences in custody ligitigation and in giving those preferences their appropriate weight in its final custody determination. The three most commonly used are:
- Appointing an attorney to represent the child’s interests
- Appointing a custody evaluator
- Interviewing the child directly
Representation of the Child in Custody Disputes
In any case, involving a custody dispute, the court may appoint an attorney to represent the minor child (or children’s) interests. By statute, the appointed appointed attorney can be assigned one of the following three roles, each charged with different tasks and different powers:
- Attorney for the child ‘ provides independent legal counsel to the child and advocates the child’s position just as he/she would do for an adult client
- Guardian ad litem testifies and/or submits a written report to the Court with his/her recommendations as to the child’s best interests after investigating the facts of the case and interviewing the child and the parties
- Child’s representative advocates what he/she finds to be in the child’s best interests. The child representative considers the child’s preferences, as to custody, but is not bound by the child’s wishes. A child’s representative advocates his/her position on the child’s best interests through evidence and renders no opinions or recommendations
In contested custody matters, the court may appoint an expert to conduct a formal evaluation of the child’s best interest as it relates to custody. The custody evaluation is usually done by a social worker, psychologist, psychiatrist, or other appropriate professional person, who will observe and interview the parents and the child or children, may perform psychological tests, and may also consult with any other person with information about the child and the child’s potential custodial arrangements. At the conclusion of the evaluation, the evaluator prepares a written report, setting forth his/her findings, results from all tests administered and conclusions/recommendations concerning custody. The custody evaluator’s report may be examined and considered by the Court in determining custody, but each parent retains the right to cross examine the evaluator at a custody hearing.
Court Interviews with the Children
Illinois courts have the authority to speak directly a child in order to ascertain the child’s wishes as to custody and custodial arrangements, if the court deems it necessary. Such interviews are not done in open court, but rather privately in the judge’s chambers. Parents are generally not present for these in camera interviews, but their attorneys must be present unless the parents’ have agreed otherwise. A court reporter must be present to make a complete record of such an interview, which then becomes part of the official record in the case.
The term “alimony” is no longer recognized in Illinois law. Instead what was formerly known as “alimony” is now called “maintenance.” However, maintenance, alimony, and spousal support all refer to same thing: an amount of money determined by the court (or by agreement of divorcing spouses) to be paid to a financially dependent spouse from the other spouse upon the dissolution of their marriage. As such a spouse’s obligation to pay maintenance to the other spouse is independent of his/her child support obligations.
How Maintenance is Determined
Unlike child support, there are no statutory guidelines for setting the amount or duration of maintenance in Illinois. Instead maintenance may be awarded to either spouse, without regard to marital misconduct, in amounts and for periods of time as the court, in its discretion, deems fair after considering all relevant factors, including the following twelve factors enumerated in the section 504(a) of Illinois Marriage and Dissolution of Marriage Act (the “IMDMA). Even if one spouse earns substantially more than the other, the Court may determine that a maintenance award to the lower-earning spouse is not appropriate, particularly if both spouses are or can become self supporting. In such cases, the courts may choose to offset the difference in earnings by giving the lower-earning spouse a greater share of the marital property rather than awarding that spouse monthly maintenance.
Types and Durations of Maintenance
A maintenance award can be comprised of various durations and types. Although the Illinois maintenance statute places an affirmative duty on the receiving spouse to become self-supporting, if the Court determines that the receiving spouse’s age, health or other circumstances prevents her/him from ever fulfilling that duty, the Court may order that the maintenance continue permanently. Such permanent
maintenance awards are infrequent. More often, a spouse’s maintenance obligation will be set for a specified period of time. Maintenance set for a specific period of time may terminate at then of that period without the possibility of an extension, the purpose being to enable the receiving spouse to pay for living expenses during that period while gaining the skills necessary to become self-supporting. Alternatively, maintenance set for a specific period of time may be reviewable by the Court at the end of that period in order to determine whether
maintenance should continue as ordered, be modified, or be terminated altogether.
In both cases, the underlying rationale is that the receiving spouse has the ability to become self-supporting and that the maintenance will be terminated at some point.
Modifications of Maintenance
A maintenance award can be non-modifiable, provided that the parties’ written agreement or the court order, which establishes the maintenance obligation, specifically sets forth that the maintenance obligation cannot be modified as well as any contingent circumstances that might alter its non-modifiable status. In all other circumstances an order for maintenance can always be modified upon either party showing that a substantial change in circumstances have occurred. In determining whether a modification of maintenance is warranted, the Court considers not only the twelve factors enumerated in section 504(a) of the IMDMA, but also nine additional factors set forth in section 510(a-5) of the IMDMA.
Termination of Maintenance
By statute, a spouse’s obligation to continue to pay maintenance terminates upon the death of either spouse, the receiving spouse’s remarriage, or the receiving spouse cohabiting with another person on a resident, continuing conjugal basis.
These terminating events apply automatically unless the parties in a written agreement or order, approved by the Court, have specifically waived application of any, or all, of these terminating events.
Parent’s Responsibility to Support Their Children
In Illinois both parents have a duty to support their children; and, by statute, the duty of support, includes an obligation to provide for the “reasonable and necessary physical, mental and emotional health needs” of the children.
Application of Child Support Guidelines
Generally, in an Illinois action brought pursuant to the Illinois Marriage and Dissolution of Act, the non-custodial or non-residential spouse will be ordered by the court to pay child support to the custodial or residential spouse. The court determines the minimum amount of child support pursuant the following guidelines:
Only with the requisite finding can the Court deviate above or below the guidelines in setting a party’s child support obligation.The Court must apply the above statutory guidelines in every case unless it makes a finding after considering all relevant evidence that the application of the child support guidelines would be inappropriate and not in the child?s best interests.
Calculation of Net Income
For purposes of setting a child support, a party’s net income includes not just their salary, but income from all sources minus certain deductions which are specifically listed in the child support statute, 750 ILCS 5/505(a)(3). In determining a party’s net income for the purposes of calculating his/her child support obligation, the Court is prohibited from deducting any amounts that cannot be included in one of the categories as set forth in the aforementioned statute.
Modification of Child Support Obligations
Once a party’s initial child support obligation is determined by the Court, any subsequent increases or decreases in that obligation are also strictly controlled by statute. An existing order for child support may be increased or decreased at any time provided that the party can meet the statutory requirements set forth in 750 ILCS 5/510(a). However, it is imperative that a person seeking to modify child support promptly file a motion seeking a modification as the statute prohibits modification of any child support installment accruing prior to the motion being filed.
No Statute of Limitation on Collection of Past Due Child Support
In July 1997 735 ILCS 5/12-108(a) was amended to add the following: “Child support judgments, including those arising by operation of law, may be enforced at any time”. As a result of this amendment, there is no statute of limitations barring a claim for past due child support. Therefore, a party may seek to collect past due child support at any time. Illinois courts have now determined that this amendment may be applied retroactively to child support judgments entered before this amendment was enacted.
Independence of Child Support and Visitation
A parent’s child support obligation and his/her visitation rights are independent covenants in Illinois. In other words, a parent’s failure to pay a child support obligation does not take his/her visitation rights; and, conversely, a parent’s failure to exercise visitation rights does not relieve him/her of the obligation to pay child support.