Our family law attorneys have the knowledge and experience to represent any client in all divorce matters, from the uncontested divorce to highly complex financial and custody disputes. Whether you are hoping to proceed collaboratively, through mediation, or need a team of attorneys to intensely advocate for your position in court, our firm has the resources to provide the highest level of family law representation possible.
Our focus is on providing the highest degree of professionalism and excellence in the area of family law, helping clients and their families navigate this difficult and emotional area of the law with dignity, compassion and privacy. This means helping clients negotiate when possible, but also being prepared to litigate when necessary. Because our goal is to solve disputes in a rational and cost-effective manner ensuring privacy among his clients, we often recommend alternatives to costly court proceedings, such as mediation and collaborative divorces.
Beginning January 1, 2016, the family law community experienced major changes as the Illinois Marriage & Dissolution of Marriage Act (hereinafter “Act”) has been drastically revised. If you are considering filing for divorce, or have already filed, it is important that you understand that new changes are in effect. It is even more important that you retain an attorney who knows and understands the new changes in the law. You do not want to be in a position where your spouse’s attorney is updated on the law and your attorney is not.
The award of maintenance is a two-step process:
(1) determination of whether a party is entitled to maintenance; and, if the party is so entitled,
(2) determination of the amount and duration of the award.
Previously, the court was directed, among other factors, to consider the present and future earning capacity of each party in determining whether maintenance is appropriate. Now however, the Act specifically directs the court to consider the “realistic” present and future earning capacity of each party. Furthermore, the Act now also requires the court to consider disability and retirement income in its determination of whether maintenance is appropriate.
The Act sets forth guidelines for determining the amount and duration of the maintenance award. These guidelines are only applied when the combined gross income of the parties is less than $250,000. In addition, the Act also stipulates that the maintenance payor must have no other child support or maintenance obligation, or both, from a prior relationship for said guidelines to be applied. If the guidelines are applicable, the duration is to be calculated by multiplying the length of the marriage in years by a number that is enumerated by the Act. The new Act clarifies that the length of the marriage is to be determined from the date of the marriage until the date the dissolution action was commenced. Therefore, the time in which the dissolution of marriage is pending is not included in the court’s calculation as it relates to the duration of the maintenance award.
Unless stipulated by written agreement in the Judgment for Dissolution of Marriage or otherwise approved by the court, maintenance terminates upon the maintenance recipient remarrying or cohabitating with another person on a resident, continuing conjugal basis. The Act provides that the maintenance will terminate by operation of law on the date of the remarriage or date the court finds the cohabitation began. The Act further provides that the payor is entitled to reimbursement for all maintenance paid from that date forward. Additionally, the new Act requires the maintenance recipient to advise the payor of his or her intention to marry at least 30 days in advance, unless the decision is made within 30 days of the remarriage. If the decision is made within 30 days of the remarriage, the maintenance recipient must notify the other party within 72 hours of getting married.
Property Purchased In Contemplation Of Marriage
All property acquired subsequent to the marriage is presumed to be marital property and subject to equitable distribution by the court. Property acquired by a method identified under 750 ILCS 503(a)(1)-(8) is specifically identified as non-marital property, which includes property that was acquired before the marriage commenced. But, what about a home that was purchased in one party’s name while the parties were engaged to be married? Under the new Act, the home would not be deemed marital property solely because it was purchased in contemplation of marriage. Therefore, additional factors must now be considered to classify it as marital.
Date Of Valuation
Previously, the Act stipulated that the date of valuation of property was either the date of trial or another date as close to the actual date of trial as practicable. In some cases, this allowed for substantial growth or substantial decrease in the value of marital property after the parties had physically separated. Now, however, the Act affords the court greater latitude in determining the date of valuation. Specifically, the Act provides that the court has the discretion to determine the value of assets or property using either the date of trial, such other date agreed upon by the parties, or a date that is ordered by the court. Therefore, the court could utilize its discretion to set the date of valuation earlier than trial, effectively stopping the increase or decrease in value of marital property while the dissolution of marriage matter is pending.
The court is now required to make specific factual findings regarding its classification of property as marital or non-marital, the values, and other factual findings that support its property award.
The commonly known words “custody” and “visitation” have been replaced with the terms “parental responsibility” and “allocation of parental responsibility,” respectively. The goal behind these changes is to protect children from experiencing additional and unnecessary conflict between parents which often reveal themselves during the divorce process. The legislative intent behind removing the words custody and visitation from divorce language it to expeditiously resolve issues involving children.
The court shall allocate decision-making responsibilities according to the child’s best interests. The court shall allocate to one or both of the parents the significant decision-making responsibility for each significant issue affecting the child, including the following: education, health, religion, and extracurricular activities. Under the new Act, parental decision-making may be allocated between the two parents without regard to which parent has more parenting time. However, the allocation of parenting time will still impact which parent is obligated to pay child support.
It is important that all parents who are filing for divorce are aware that, within 120 days after service or filing of any petition for allocation of parental responsibilities, he or she will be required to file a proposed parenting plan. The proposed parenting plan can be filed either jointly or separately, depending on the wishes of the parents. The only exception to extending this 120-day time period will be for good cause shown. If the parents fail to file a parenting plan, then the court must conduct an evidentiary hearing to allocate parental responsibilities. The court may excuse the parents from filing a parenting plan if the parents are attending mediation for the purpose of formulating a parenting plan.
There is nothing more valuable to come out of a relationship than children. Custody disputes, whether as part of a divorce or a parentage action, can be overwhelming to both parents and children. As with any dispute, there are many options and alternatives available to you if you are faced with a contested custody case. At Dussias Skallas Wittenberg, our philosophy is that we will always consider the best interests of the children in helping you to decide the strategy best for you and your family. Our first approach is to try to resolve custody matters outside of contested litigation recognizing the destructive potential on families and children when custody is litigated through the courts. Custody litigation can be extremely costly and it can take a considerable amount of time to navigate through the court system.
Post-divorce disputes, commonly referred to as post-judgment or post-decree matters, include enforcement of divorce Judgments and orders as well as modifications of those judgments. Enforcement actions may become necessary when a party is late paying support, creates problems with visitation, or does not fulfill a duty imposed by the court or agreed to in a Settlement Agreement. Modifications of child support and/or maintenance may become necessary if a party’s income changes or the needs of the other party or the children increase. When a court orders modifiable or reviewable maintenance in a Judgment for Dissolution of Marriage, at some point in the future the parties’ circumstances may be reviewed by the court to determine if additional maintenance is warranted. In other circumstances, whether authorized by a judgment or by a statute, termination of maintenance may be appropriate. Divorced parents may also seek court intervention to resolve issues regarding their respective contributions to the college expenses of their children. These types of post-decree financial disputes often require the same level of complex financial analysis and expertise as the pre-decree phase of the case. Dussias Skallas Wittenberg lawyers are well versed in these types of disputes and are effective at achieving the best results for clients in post-divorce litigation.
Other changes in circumstance that are addressed in post-judgment litigation are those situations in which a parent desires to change visitation or custody or to move with a child to another state (also known as “removal”.) These disputes can be as complex as custody disputes during the original divorce case. Post-decree custody modification cases can involve the appointment of a Child’s Representative or Guardian Ad Litem and may even require a psychological evaluation of the family to determine what is in the best interests of the children.