If you fail to pay court-ordered child support in Illinois, the judge has a variety of options for holding you accountable. A judge can place you on probation, suspend your driver’s license, order community service or even sentence you to jail. You may be allowed to work at your job while living at the jail, but any money you earn may go directly to your child support arrearage.
But a new law gives the Court one further tool for dealing with non-payers who are self-employed or business owners. As of January 1, 2013, a Court may order you to provide monthly financial statements showing your expenses and income in order to determine exactly what you earn.
And while you may value your autonomy as a business owner, the court can force you to look for a job and show proof that you are doing so. You may have to keep a diary of all your search efforts. Finally, the Court can send you to the Department of Employment Security to apply for services to find work that is subject to child support withholding.
The new law applies whether child support was ordered in a paternity action, public aid proceeding or divorce.
As previously, the Court must still hold you in contempt for disobeying a child support order before enforcing any penalty. You must be given notice of the hearing about your alleged contempt by regular mail sent to your last known address. If you fail to appear at the hearing, the Judge will likely find you guilty and impose penalties in your absence.
If you have questions about child support issues, you should speak with an experienced family law attorney immediately. An experienced attorney can help present your case in its best possible light or perhaps help you work out an agreement in lieu of a contempt order. At this stage, a client should never try to represent themselves. Any reason you give for your delinquency may be just enough to convince the judge that you are guilty.
If you have questions about this or another domestic relations matter, please contact Zachary W. Williams at 1-312-981-0851 or email zwwlawyer@gmail.com.
Source:
http://www.ilga.gov/legislation/publicacts/97/097-1029.htm">
Wednesday, December 12, 2012
BE CAREFUL WHAT YOU WISH FOR!: NEW ILLINOIS COURT DECISION ENFORCES JOINT PARENTING AGREEMENTS
A Joint Parenting Agreement can be an excellent tool for settling disputes between spouses. The Agreement spells out each party’s rights and obligations, hopefully preventing a return visit before a Judge.
Nevertheless, an Agreement must be carefully drafted, or you might be forced into a situation that you later regret.
A recent Illinois Supreme Court decision held that a Joint Parenting Agreement is a contract and will be enforced, even if one party later changes their mind. In http://www.state.il.us/court/Opinions/SupremeCourt/2012/113474.pdf>In Re Marriage of Coulter</a> , a husband attempted to stop his wife from moving the children to Australia. The Joint Parenting Agreement, however, allowed the wife to do so. The husband argued that the Court had not determined whether the move was in the best interests of the children.
The Illinois Supreme Court disagreed. The Court reasoned that the Joint Parenting Agreement was a negotiated agreement, entered as part of the divorce judgment. The terms implied agreement had been reached regarding the best interests of the children. The Agreement would thus be enforced.
Does that mean you can never change a Joint Parenting Agreement once entered by the Court? Not completely. The Supreme Court held open the possibility that the husband could still modify an Agreement if there has been a change in circumstances. See our related blog at http://childcustodylawyerchicagoil.blogspot.com/2012/04/can-i-change-custody-of-my-child-after_24.html
The issue of parenting agreements can be extremely tricky with many land mines along the way. If you have questions about an agreement or other child custody issue, you should speak with an experienced family law attorney. An experienced attorney can help present your case in its best possible light.
If you have questions about this or another domestic relations matter, please contact Zachary W. Williams at 1-312-981-0851 or email zwwlawyer@gmail.com.
Nevertheless, an Agreement must be carefully drafted, or you might be forced into a situation that you later regret.
A recent Illinois Supreme Court decision held that a Joint Parenting Agreement is a contract and will be enforced, even if one party later changes their mind. In http://www.state.il.us/court/Opinions/SupremeCourt/2012/113474.pdf>In Re Marriage of Coulter</a> , a husband attempted to stop his wife from moving the children to Australia. The Joint Parenting Agreement, however, allowed the wife to do so. The husband argued that the Court had not determined whether the move was in the best interests of the children.
The Illinois Supreme Court disagreed. The Court reasoned that the Joint Parenting Agreement was a negotiated agreement, entered as part of the divorce judgment. The terms implied agreement had been reached regarding the best interests of the children. The Agreement would thus be enforced.
Does that mean you can never change a Joint Parenting Agreement once entered by the Court? Not completely. The Supreme Court held open the possibility that the husband could still modify an Agreement if there has been a change in circumstances. See our related blog at http://childcustodylawyerchicagoil.blogspot.com/2012/04/can-i-change-custody-of-my-child-after_24.html
The issue of parenting agreements can be extremely tricky with many land mines along the way. If you have questions about an agreement or other child custody issue, you should speak with an experienced family law attorney. An experienced attorney can help present your case in its best possible light.
If you have questions about this or another domestic relations matter, please contact Zachary W. Williams at 1-312-981-0851 or email zwwlawyer@gmail.com.
NEW ILLINOIS COURT DECISION EXTENDS CUSTODY RIGHTS TO NON-BIOLOGICAL PARENTS IN GAY/LESBIAN FAMILIES
An Illinois Appellate Court upheld the rights of non-biological parents who agree to the artificial insemination of their partner. Stating that every child has a right to support from their parents, the Court gave non-biological parents the right to seek custody and/or visitation.
Illinois law already provides that when a husband gives written consent to artificial insemination, the husband shall be treated as the natural father. (Illinois Parentage Act 750 ILCS 40/2). The new Court decision extends this right to lesbian or gay couples.
In http://www.state.il.us/court/opinions/AppellateCourt/2012/5thDistrict/5120176.pdf>In re T.P.S. and K.M.S</a>, Dee and Cathy agreed that they would have children through artificial insemination with Dee giving birth. Cathy did not try to adopt the couple’s children since the Williamson County Court would have likely rejected that request. Cathy quit her job and became the children’s primary caregiver. After the couple broke up, Dee kept the children away from Cathy. The lower court dismissed Cathy’s petition for parentage, custody, visitation and support without hearing evidence.
The Appeals Court overruled. Noting that recognizing parental responsibility serves the best interests of children and society, the Court examined whether children conceived by artificial insemination "are to be denied the physical, mental and emotional support of the non-biological parent who actively assisted in the decision and process of bringing them into the world." (In re T.P.S and K.M.S., p. 12.)
Because Illinois public policy requires courts to protect a child’s right to parental support, the Court held that Cathy’s custody petition should be heard.
The issue of child custody can be extremely tricky with many land mines along the way. If you have questions about child custody issues, you should speak with an experienced family law attorney. An experienced attorney can help present your case in its best possible light to allow you to have time with your child(ren).
If you have questions about this or another domestic relations matter, please contact Zachary W. Williams at 1-312-981-0851 or email zwwlawyer@gmail.com.
Illinois law already provides that when a husband gives written consent to artificial insemination, the husband shall be treated as the natural father. (Illinois Parentage Act 750 ILCS 40/2). The new Court decision extends this right to lesbian or gay couples.
In http://www.state.il.us/court/opinions/AppellateCourt/2012/5thDistrict/5120176.pdf>In re T.P.S. and K.M.S</a>, Dee and Cathy agreed that they would have children through artificial insemination with Dee giving birth. Cathy did not try to adopt the couple’s children since the Williamson County Court would have likely rejected that request. Cathy quit her job and became the children’s primary caregiver. After the couple broke up, Dee kept the children away from Cathy. The lower court dismissed Cathy’s petition for parentage, custody, visitation and support without hearing evidence.
The Appeals Court overruled. Noting that recognizing parental responsibility serves the best interests of children and society, the Court examined whether children conceived by artificial insemination "are to be denied the physical, mental and emotional support of the non-biological parent who actively assisted in the decision and process of bringing them into the world." (In re T.P.S and K.M.S., p. 12.)
Because Illinois public policy requires courts to protect a child’s right to parental support, the Court held that Cathy’s custody petition should be heard.
The issue of child custody can be extremely tricky with many land mines along the way. If you have questions about child custody issues, you should speak with an experienced family law attorney. An experienced attorney can help present your case in its best possible light to allow you to have time with your child(ren).
If you have questions about this or another domestic relations matter, please contact Zachary W. Williams at 1-312-981-0851 or email zwwlawyer@gmail.com.
“IS IT MINE OR IS IT OURS?”: MARITAL VS NONMARITAL PROPERTY IN ILLINOIS
When you got married, you didn’t think about signing a prenuptial agreement. Now that you are contemplating divorce, you are wondering whether the house you acquired before the marriage is still yours. And what about that nice inheritance from your aunt or the business you built up before your marriage? And your father certainly never intended for your spouse to get that savings account he set aside for you.
The determination of what is and isn’t marital property can be tricky in Illinois, but there are some basic guidelines.
Generally, all property acquired during a marriage is marital property regardless of who is on the title. For example, a home purchased during your marriage belongs to both spouses even if only one name is on the deed. Marital property includes pension benefits, stock options, earnings and property purchased after marriage.
But there are exceptions to the "All is presumed marital property" rule.
Any property owned before marriage or received through gift or inheritance remains yours alone, as long as you didn’t comingle it with other marital assets. If your individual property increases in value, that increase belongs solely to you. You can also designate individual property through an agreement such as a pre-nuptial. And once you are legally separated, any property you acquire afterwards is yours.
Property purchased after marriage belongs to both spouses, unless you can prove that you used individual property to acquire the new asset. In that case, a home you bought after marriage would remain individual property if, for example, you bought the home with the proceeds of your pre-marital home. Your pension benefits or stock options after marriage are also marital property unless they came from individual property, for example, a job you had before marriage.
You can turn individual property into marital property through comingling. For example, you and your spouse live in your pre-marital home. Your salary pays the mortgage and, thus, you are contributing marital funds to your individual property. If you instead rented the house, the rent and the home would likely remain your individual property.
If you mixed individual and marital assets to buy marital property, your individual contribution would now be considered marital property. And even if you keep your individual property, you might owe your spouse reimbursement if they contributed their personal efforts, such as by fixing up your old home.
All these rules can be changed by agreement, which is why you might consider a prenuptial agreement if you have sufficient individual property at stake.
If you have questions about this or another domestic relations matter, please contact Zachary W. Williams at 1-312-981-0851 or email zwwlawyer@gmail.com.
The determination of what is and isn’t marital property can be tricky in Illinois, but there are some basic guidelines.
Generally, all property acquired during a marriage is marital property regardless of who is on the title. For example, a home purchased during your marriage belongs to both spouses even if only one name is on the deed. Marital property includes pension benefits, stock options, earnings and property purchased after marriage.
But there are exceptions to the "All is presumed marital property" rule.
Any property owned before marriage or received through gift or inheritance remains yours alone, as long as you didn’t comingle it with other marital assets. If your individual property increases in value, that increase belongs solely to you. You can also designate individual property through an agreement such as a pre-nuptial. And once you are legally separated, any property you acquire afterwards is yours.
Property purchased after marriage belongs to both spouses, unless you can prove that you used individual property to acquire the new asset. In that case, a home you bought after marriage would remain individual property if, for example, you bought the home with the proceeds of your pre-marital home. Your pension benefits or stock options after marriage are also marital property unless they came from individual property, for example, a job you had before marriage.
You can turn individual property into marital property through comingling. For example, you and your spouse live in your pre-marital home. Your salary pays the mortgage and, thus, you are contributing marital funds to your individual property. If you instead rented the house, the rent and the home would likely remain your individual property.
If you mixed individual and marital assets to buy marital property, your individual contribution would now be considered marital property. And even if you keep your individual property, you might owe your spouse reimbursement if they contributed their personal efforts, such as by fixing up your old home.
All these rules can be changed by agreement, which is why you might consider a prenuptial agreement if you have sufficient individual property at stake.
If you have questions about this or another domestic relations matter, please contact Zachary W. Williams at 1-312-981-0851 or email zwwlawyer@gmail.com.
“HOW MUCH IS MINE?”: DETERMINING YOUR SHARE OF MARITAL PROPERTY
Generally, in Illinois, each spouse is entitled to half of the marital property. However, a court can award property in "just proportions" after considering a variety of factors.
It may surprise you, but "marital misconduct" is not one of those factors. A court will not punish a cheating spouse through a marital property award. However, if your spouse’s misconduct meant gambling away or wasting your assets, then a court may consider that behavior, subject to certain guidelines. (See related post http://childcustodylawyerchicagoil.blogspot.com/2012/12/my-spouse-is-spending-all-our-money-new.html .)
Other factors a court may assess include each party’s contribution to an asset. Did you use individual funds to buy the asset? Or did you contribute your labor to your spouse’s individual property? In that case, you may be entitled to some reimbursement.
Courts can also look at how children fit into the property picture. Did you contribute to the marriage by staying home with the children? If you are getting primary custody, should your share include the marital home? Should you be given a greater share of property as a substitute for alimony (now known as maintenance)? How well equipped is each party to make a future living?
Courts look at legal obligations. Did you sign a prenuptial agreement specifying the property division? Do you pay child or spousal support to a prior marriage? What are the tax consequences to each party in dividing the property?
Other facts include the age, health, employability, debts and needs of each party. An elderly spouse or one with a serious illness might need a greater share of the property.
The issue of marital property can be extremely tricky with many land mines along the way. If you have questions about marital property issues, you should speak with an experienced family law attorney. An experienced attorney can help present your case in its best possible light to ensure that you get your fair share.
If you have questions about this or another domestic relations matter, please contact Zachary W. Williams at 1-312-981-0851 or email zwwlawyer@gmail.com.
It may surprise you, but "marital misconduct" is not one of those factors. A court will not punish a cheating spouse through a marital property award. However, if your spouse’s misconduct meant gambling away or wasting your assets, then a court may consider that behavior, subject to certain guidelines. (See related post http://childcustodylawyerchicagoil.blogspot.com/2012/12/my-spouse-is-spending-all-our-money-new.html .)
Other factors a court may assess include each party’s contribution to an asset. Did you use individual funds to buy the asset? Or did you contribute your labor to your spouse’s individual property? In that case, you may be entitled to some reimbursement.
Courts can also look at how children fit into the property picture. Did you contribute to the marriage by staying home with the children? If you are getting primary custody, should your share include the marital home? Should you be given a greater share of property as a substitute for alimony (now known as maintenance)? How well equipped is each party to make a future living?
Courts look at legal obligations. Did you sign a prenuptial agreement specifying the property division? Do you pay child or spousal support to a prior marriage? What are the tax consequences to each party in dividing the property?
Other facts include the age, health, employability, debts and needs of each party. An elderly spouse or one with a serious illness might need a greater share of the property.
The issue of marital property can be extremely tricky with many land mines along the way. If you have questions about marital property issues, you should speak with an experienced family law attorney. An experienced attorney can help present your case in its best possible light to ensure that you get your fair share.
If you have questions about this or another domestic relations matter, please contact Zachary W. Williams at 1-312-981-0851 or email zwwlawyer@gmail.com.
“MY SPOUSE IS SPENDING ALL OUR MONEY!:” NEW LAW ON WASTING MARITAL ASSETS IN ILLINOIS
Now that your divorce is on the horizon, your spouse seems to be going through your jointly-owned property at an alarming rate. A change in Illinois law spells out the requirements for holding your spouse accountable. (See Illinois Disposition of Property law at http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=097-0941&GA=97. )
Illinois courts may look at whether one spouse has dissipated the marital assets when deciding how much property to award each spouse. As of January 1, 2013, a court may only consider a dissipation claim after you give proper notice.
A notice of intent to claim dissipation must be filed with the court clerk, served on your spouse, and given at least 60 days before trial or 30 days before discovery closes, whichever is later. (Discovery is each party’s opportunity to learn the facts about the other’s property, such as obtaining bank account records and taking testimony at a deposition.) The notice must specify a time period when the marriage began breaking down, identify which assets were dissipated, and when that happened.
The span of your dissipation claim has a time limit. You may not claim dissipation from more than five years before your divorce was filed or more than three years after you should have known about the dissipation.
The issue of marital property can be extremely tricky with many land mines along the way. If you have questions about marital property issues, you should speak with an experienced family law attorney. An experienced attorney can help present your case in its best possible light to ensure that you get your fair share.
If you have questions about this or another domestic relations matter, please contact Zachary W. Williams at 1-312-981-0851 or email zwwlawyer@gmail.com.
Illinois courts may look at whether one spouse has dissipated the marital assets when deciding how much property to award each spouse. As of January 1, 2013, a court may only consider a dissipation claim after you give proper notice.
A notice of intent to claim dissipation must be filed with the court clerk, served on your spouse, and given at least 60 days before trial or 30 days before discovery closes, whichever is later. (Discovery is each party’s opportunity to learn the facts about the other’s property, such as obtaining bank account records and taking testimony at a deposition.) The notice must specify a time period when the marriage began breaking down, identify which assets were dissipated, and when that happened.
The span of your dissipation claim has a time limit. You may not claim dissipation from more than five years before your divorce was filed or more than three years after you should have known about the dissipation.
The issue of marital property can be extremely tricky with many land mines along the way. If you have questions about marital property issues, you should speak with an experienced family law attorney. An experienced attorney can help present your case in its best possible light to ensure that you get your fair share.
If you have questions about this or another domestic relations matter, please contact Zachary W. Williams at 1-312-981-0851 or email zwwlawyer@gmail.com.
Wednesday, July 25, 2012
NEW ILLINOIS CASE LAW DEFINES WHAT IS INCOME FOR CHILD SUPPORT PURPOSES
If you have minor children, you may be paying or receiving child support. But how do you determine what counts as income for child support purposes?
A recent Illinois case helped clarify this issue. In Re Marriage of McGrath examined whether money regularly withdrawn from a savings account qualified as income for child support purposes. (See In Re Marriage of McGrath at http://www.state.il.us/court/opinions/SupremeCourt/2012/112792.pdf.) In McGrath, the father was unemployed, but living off $8,000 per month in savings account withdrawals. The Illinois State Supreme Court held that the savings withdrawals could not be counted as income.
Under Illinois law, child support is based on net income. Net income is defined as "the total of all income from all sources" minus certain deductions for items such as FICA, federal and state taxes. (750 Illinois Compiled Statutes 5/505(3)). Illinois courts have followed the dictionary meaning of net income as "something that comes in as an increment or addition…a gain or recurrent benefit that is usually measured in money….the value of goods and services received by an individual in a given period of time," or "the money or other form of payment that one receives, usually periodically, from employment, business, investments, royalties, gifts and the like." The McGrath court reasoned that savings account withdrawals simply didn’t fit any of those categories. Since the father already owned the savings, withdrawing the money did not convey a benefit.
This does not mean, however, that refusing to work and living off your assets is a surefire way to beat child support. A court can increase child support based on the assets of the noncustodial parent versus the needs of the children. Furthermore, courts can impute income to a noncustodial parent if that parent refuses to work, is trying to evade child support, and turns down job opportunities.
If you have questions about this or another domestic relations matter, please contact Zachary W. Williams at 1-312-981-0851 or email zwwlawyer@gmail.com.
A recent Illinois case helped clarify this issue. In Re Marriage of McGrath examined whether money regularly withdrawn from a savings account qualified as income for child support purposes. (See In Re Marriage of McGrath at http://www.state.il.us/court/opinions/SupremeCourt/2012/112792.pdf.) In McGrath, the father was unemployed, but living off $8,000 per month in savings account withdrawals. The Illinois State Supreme Court held that the savings withdrawals could not be counted as income.
Under Illinois law, child support is based on net income. Net income is defined as "the total of all income from all sources" minus certain deductions for items such as FICA, federal and state taxes. (750 Illinois Compiled Statutes 5/505(3)). Illinois courts have followed the dictionary meaning of net income as "something that comes in as an increment or addition…a gain or recurrent benefit that is usually measured in money….the value of goods and services received by an individual in a given period of time," or "the money or other form of payment that one receives, usually periodically, from employment, business, investments, royalties, gifts and the like." The McGrath court reasoned that savings account withdrawals simply didn’t fit any of those categories. Since the father already owned the savings, withdrawing the money did not convey a benefit.
This does not mean, however, that refusing to work and living off your assets is a surefire way to beat child support. A court can increase child support based on the assets of the noncustodial parent versus the needs of the children. Furthermore, courts can impute income to a noncustodial parent if that parent refuses to work, is trying to evade child support, and turns down job opportunities.
If you have questions about this or another domestic relations matter, please contact Zachary W. Williams at 1-312-981-0851 or email zwwlawyer@gmail.com.
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