Lawsuits are full of procedural requirements to make sure that both sides get a fair hearing, and divorce suits are no different. One of these procedural requirements is known as “service of process.” This is a step that happens early in the suit and is designed to alert the other party to the fact that they are now involved in a lawsuit. It involves delivering the other party a copy of the court filing that started the case, along with a summons to appear in court.

This is, naturally, a necessary step in any legal proceeding because the other side needs to be aware that it is happening for them to come in and tell their side of the story. However, this part of the process is also rife with opportunities for abuse. There are some parties who attempt to avoid service by dodging the person sent to deliver the papers in an effort to delay the start of the case indefinitely. While the law does have a variety of tools to combat that sort of behavior, a New York family law judge just added another one that is perfect for the 21st Century

What Service of Process Looks Like

Divorce is a process with many different moving parts, and people going through it often focus on the major ones, issues like child custody and property division. While these are absolutely life-altering decisions, there are other, smaller questions that can still be incredibly important. One such question is which parent gets to claim the child as a dependent after the divorce. While this seems to be a fairly minor point of tax law, it is actually quite important. According to IRS regulations for 2013, a person's being able to claim the dependency exemption could save them almost $4,000, and that is just for a single child. The answer to this question turns out to be a little complex and it depends on both IRS rules and Illinois law.

The IRS Answer

The IRS answer is known as the Custodial Parent Rule, and it can be found in section 152 of the Internal Revenue Code. It states that the custodial parent is the only one who gets to claim the exemption. If there is a joint custody agreement in place, then the parent who has custody of the child for more of the time qualifies as the custodial parent. However, there are two exceptions to this rule. First, if the parents have a multiple support agreement in place, then this rule does not apply. Second, and more importantly, the parents are allowed to agree between themselves who gets to claim the child's dependency exemption, which is where Illinois law gets involved.

The American court system is set up to be adversarial in nature, which means that it pits the two parties in the courtroom against each other. Unfortunately, this is the same system that American courts use in divorce, which can lead to spouses getting involved in bitter fights as they try to assert their rights against each other. This setup often obscures the third party being affected by the divorce, the children. Children in a divorce have some rights too, though often limited ones, and it is important to understand these rights during the process. For instance, in some circumstances, Illinois law gives children the right to be represented by an attorney or a guardian ad litem, a lawyer who has their best interests in mind. Additionally, children have a right to be heard in child custody proceedings, although this right is often misunderstood.

Guardians ad Litem

Guardians ad litem, along with attorneys for the child and children's representatives, are lawyers who work to advocate for the best interests of the child. Each of these professionals has slightly different roles and powers. For instance, the guardian ad litem, which the court can appoint on its own or at the request of one of the parties, undertakes an investigation of the facts of the situation. They interview the children, the parents, and other important witnesses, and they gain a full understanding of the facts of the divorce. Then they prepare a written report for the court, making a variety of recommendations about child custody with the best interests of the child in mind. Children's representatives are similar except that rather than preparing a report, they undertake an investigation of the situation, and then make legal arguments to the court based on the evidence, acting more like the child's lawyer.

One of the central issues of any divorce is that of child custody. However, despite its importance to everyone involved, many people do not fully understand the different types and components of custody. For instance, the Illinois Marriage and Dissolution of Marriage Act allows for either joint or sole custody.

These two types of child custody relate to whether one or both parents have custody of the child, and they cover related issues like shared parenting time. Beyond this distinction, the law actually recognizes two different types of custody, physical custody and legal custody. Each of these two different types of child custody are important because each provide different rights with respect to the child.

Joint vs. Sole Custody

On Monday, October 6th, the United States Supreme Court rejected petitions from five separate states requesting that the Court make a final ruling on the issue of same-sex marriage in the United States. This decision is a victory for same-sex marriage advocates since the petitions were appealing five appeals court rulings upholding same-sex marriage in Indiana, Wisconsin, Oklahoma, Utah, and Virginia. This rejection surprised many experts who were expecting the Court to take at least one of these cases, possibly to issue a final decision on same-sex marriage, especially since the Court had issued a stay preventing these marriages from going forward while it deliberated. With these petitions denied, marriages in these states can now go forward.

The Petition Process

The way this decision happened from a practical standpoint is affected by the process by which cases get to the Supreme Court. There are three levels of Federal courts, just like there are for courts in Illinois. The first level is the district court, where trials are held. Then, losing parties are automatically allowed to appeal to the second level, the circuit courts, which exists to watch over the district courts and correct mistakes. These courts are based geographically, which each court covering several states. For instance, Illinois sits in the Seventh Circuit, which covers Illinois, Wisconsin, and Indiana. Finally, there is the highest level, the Supreme Court. Unlike the circuit courts, to which parties automatically have access, the Supreme Court gets to choose which cases it takes. Parties file “petitions for certiorari” that ask the Court to review their case. Ordinarily, the Court chooses cases in which different circuit courts have ruled differently on the same issue, a condition known as a “circuit split.”