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An Alternative to Divorce: Legal Separation

Posted on March 29, 2019 in Uncategorized

Divorce is a huge decision and step in a person’s life. Once a divorce is granted, a couple’s marriage is over, and it brings significant changes to finances, child custody, and living arrangements. Every relationship faces challenges at some point, and needing a break to assess whether the marriage can work is not uncommon. Some spouses may not be ready to file for divorce, but still need some structure for parenting issues, property rights, and financial support.

One option at this juncture is a legal separation. While it can ultimately lead to divorce, that outcome does not always occur. Couples who enter into legal separation agreements are still legally married and cannot remarry or finalize certain aspects of dissolving the marriage without seeking a divorce. In other words, legal separation is revocable, whereas divorce is not once granted.

Breakdown of Legal Separation

Legal separation is a court-approved action that recognizes and formalizes the physical and financial separation of a couple as they consider reconciling or getting divorced. It differs from physical separation, in which a couple simply agrees to live apart, by creating an enforceable agreement binding the spouses to certain terms related to parenting, child support, alimony, and property division. In order to qualify for this legal remedy, at least one spouse must have resided in Illinois for at least 90 days and the couple must be living apart. This procedure is still available even if one spouse does not presently live in Illinois, but if he/she never lived in the state, the court will not be able to settle issues of child support and maintenance. Additionally, in order for the court to have authority to order a parenting plan, the child must have lived in Illinois for at least six months. Further, the parties must agree on the division of marital assets and debts for it to be included in the court’s order. Otherwise, this issue will remain open and unsettled. Another important point to understand is that any award for spousal maintenance will be revisited if a divorce case is later filed, with no impact from the earlier award on the divorce proceeding. Only in instances where a couple agreed to non-modifiable alimony would this treatment not be applied.

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Challenges of Dividing Retirement Accounts in Divorce

Posted on March 25, 2019 in Uncategorized

The division of marital assets is one of the more complicated aspects of divorce, and retirement accounts present a number of unique issues that can make creating a fair settlement difficult. Since retirement accounts, especially 401(k)s, are accumulated through the individual efforts of one spouse, learning that this asset may be subject to division in a divorce is hard for many to accept. However, any amount in a retirement account classified as a marital asset must be divided, unless the spouses agree otherwise.

Valuing an account and determining how to structure a settlement are complicated matters that do not always have easy answers. Often, a spouse is forced to choose between the pros and cons of short- and long-term options when dividing retirement accounts, and working with an experienced divorce attorney is necessary to receive a complete picture of the implications of any decision. Retirement accounts are often a couple’s most valuable asset, so taking the time to assess how to approach this issue is one of the more critical aspects of a divorce case.

Classifying a Marital Asset

In Illinois, anything accumulated by either spouse during a marriage is considered a marital asset. Thus, for retirement accounts, funds contributed or earned before the marriage would be considered a non-marital asset and exempt from division. Any amount contributed to the account or generated during the marriage would be divided, meaning some percentage of a preexisting retirement account would be part of the divorce settlement. Because the value of retirement accounts can vary greatly from year to year, working with a financial expert to determine what the present and future value of this asset should be is key to working out an appropriate settlement. Assessments can differ, so working with a skilled attorney to negotiate an agreed upon amount is important to resolving this issue.

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Is Leaving a Child Alone Grounds to Modify Parental Responsibilities?

Posted on March 20, 2019 in Uncategorized

Children, as they grow up, assert their desires for independence, particularly about staying home alone, but there is a real question about whether leaving a child alone is safe, or even legal. Divorced parents who share custody of a child, known as the allocation of parental responsibilities under Illinois law, must concede some level of control when the child is under the care and supervision of the other parent.

Of course, parents should require the other parent to keep the child safe, including providing an environment that supports the child’s well-being. Leaving a child alone can become murky territory as a child becomes a teenager, and under Illinois law, leaving a child home alone under the age of 14 is a crime. Thus, any parent who leaves a child home alone risks child neglect charges and the possibility the other parent may file a petition to modify the parenting plan to give them a greater share of the parental responsibility.

Modifying Parenting Plans

While circumstances in life are bound to change, once a parenting plan is in place, courts are reluctant to upset the child’s life by ordering a modification unless there is a compelling reason. As a result, during the first two years after a parenting plan is established, the court will not consider modifying the plan unless a parent can meet the high burden of showing the child’s environment is a threat to their mental, physical, or emotional health.

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How Do Court-Ordered Parenting Classes Work?

Posted on March 15, 2019 in Uncategorized

Divorcing couples face stress from a number of places, including the legal system they need to officially end their marriage. One of the more difficult and complicated issues to address is the division of parental responsibilities. Child-related matters always spark strong emotions, and the sensitive issues that must be resolved as part of divorce only tend to exacerbate this tendency.

One requirement that confuses some parents is when they must attend a court-ordered parenting class before a divorce decree is issued. This is true even in uncontested divorces, and compliance is mandatory in all but a few cases. Thus, parents will need to arrange to complete a course no later than 60 days after the first case management conference. This requirement can seem frustrating and arbitrary to some parents, but understanding the purpose behind the course, what to expect during the course itself, and the consequences of not satisfying this requirement, may make it easier to get through the experience.

Why This Course Exists

To put it simply, this parenting course exists because the Illinois Supreme Court says all county and circuit courts must require them as part of deciding any child-related case. More specifically, the court is hoping to teach parents about the components of dividing parental responsibilities and how conflict over these issues impacts the mental well-being of the child. Thus, the intention is that by attending this course, parents will find an amicable path to resolving parenting issues that do not include intense court involvement.

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Parental Responsibility and Fathers’ Rights in Illinois

Posted on March 13, 2019 in Uncategorized

Old stereotypes paint fathers as less interested and less capable of providing the care and attention a child needs to thrive. As a result, when a father seeks to establish rights to see a child following a divorce or paternity suit, some think the mother should receive the bulk of the parenting time, with the father entitled to just a handful of days every month. This dynamic can make it difficult for a father to have a significant relationship with his child, and while courts are moving away from this model of dividing responsibilities, fathers still experience more pushback when seeking equal time.

In Illinois, part of this shift toward more equal parenting is reflected in the elimination of the terms child custody, custodial parent, and visitation to describe parenting structure. This is designed to facilitate an arrangement that emphasizes cooperative parenting over strict lines of accountability and authority. Fathers, in particular, need to understand the system in place that regulates the division of parental responsibility, because this is the best way to ensure their interests are fully represented.

Paternity in Illinois

When paternity is in question, which most frequently occurs when a child’s parents are not married, the purported father has no rights until specific action is taken to establish him as the legal father. Until paternity is determined, the mother, who is always a presumptive legal parent, can legally deny the father access and information about the child, and the father would have no legal recourse.

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