Four Tips for Success in Divorce Proceedings

When entering into the process of divorce, the sheer volume of considerations can sometimes be overwhelming. The uncertainty of the future can seem even more daunting when life as you know it is changing so drastically. All the variables may not be within your control, but these divorce tips can help ensure a measure of protection against the worst life may have to offer after a divorce.

  1. Be informed.    Educate yourself regarding the family income, debts, assets and financial circumstances, collecting documentary evidence wherever possible.  Obtain copies of pay stubs, income tax returns, financial institution statements, bills, investment, retirement and benefit statements, and the like. If such materials are not available to you directly, they can be accessed through the Court process of discovery.
  2. Assess your priorities.    After taking account of the needs of yourself, spouse and any children of the family, whether financial, physical and/or emotional, and the resources available to address those needs, determine if there are sufficient resources to meet all those needs, and if not, whether there are alternatives to expanding the extent of those resources (for example, additional income potential, more cost effective debt management, etc.). If compromises are necessary, as is often the case when one household becomes two, prioritizing the most important considerations will often provide a road map to an equitable resolution of matters which seem otherwise impossible.
  3. Be optimistic, but realistic.    Keeping an open mind to the potential for success, rather than being weighed down with feelings of loss, anger or resentment, can provide the foundation for healthy future relationships and opportunities for growth. Change is inevitable with divorce; however setting new goals and planning to reach those goals require parties to engage in a thoughtful review of their current circumstances with an eye towards fulfilling unmet needs. Such constructive introspection and exploration of available paths towards making goals a reality can be the first step towards achievement of happiness and prosperity.
  4. Consult with an experienced attorney.    While you may be an authority on whatever expertise you have acquired, chances are, navigating the complexities of law, legal jargon and procedure may not be part of your skill set. Just as hiring a IT expert to address matters for the technologically challenged, or an air conditioner repair person for the mechanically challenged, often provides a better result than do-it-yourself endeavors, an experienced divorce attorney can provide knowledgeable insight into not only your legal rights and responsibilities, but effective methods to meet your objectives as well.

While not all-inclusive, the above divorce tips can be instrumental in optimizing success in a divorce proceeding. For additional information, contact our office in Lombard or Plainfield for a free consultation with one of our experienced divorce attorneys.

 

 

Grandparent Visitation

Grandparent Visitation:  What are the Rights and Limitations to Grandparent Visitation?

In 2000, the U.S. Supreme Court ruled that fit parents are presumed to act in their children’s best interests, and as such, parental decisions regarding the role of grandparents should be given great weight and consideration.  Since said ruling, laws throughout the nation, including Illinois, have limited the rights of grandparents and other non-parent persons, including step-family members.

Illinois Courts will presume that parental decisions regarding grandparent visitation and visitation by non-parents are not harmful to children. The burden is on the grandparent or non-parent person seeking visitation to prove a parent’s decisions will cause undue harm to a child’s mental, physical or emotional health.

The right to even petition the Court for grandparent visitation or non-parent visitation must be based upon a showing that there has been an unreasonable denial of such visitation and, that the denial has caused the kind of harm to the child that the law seeks to protect against. Further, one of the following circumstances must also exist:

  1. The child’s other parent is deceased or has been missing for at least 90 days.
  2. The parent of the child is incompetent as a matter of law.
  3. A parent has been incarcerated for a period in excess of 90 days immediately before the petition is filed.
  4. The child’s parents are divorced, legally separated, or are currently involved in such legal proceedings involving determinations of child custody and visitation, and at least one parent does not object to the requested visitation.
  5. The child was born to parents who are not married to each other, those parents are not living together, and parentage has been established by a Court.

If the above criteria have been met, then, the Court may consider such factors as: the wishes of a mature child; the health of the child and non-parent desiring visitation; whether the parent and non-parent have acted in good faith regarding their decisions; the nature of visitation being requested and, the quality of the relationship previously existing between the child and person seeking visitation.

For additional information regarding grandparent visitation and other non-parent visitation, contact one of our experienced attorneys for a free consultation.

Temporary Relief in Divorce

TEMPORARY RELIEF IN DIVORCE PROCEEDINGS

Often times, unmet needs are a precipitating factor in the filing of Petitions for Dissolution of Marriage.  Parties may have separated, and unequal access to income, property and resources may become a burden to the more financially challenged party.  One or both or of the parties may attempt to conceal or dispose of property to the disadvantage of the other.  Abusive behavior, threats to remove a child, and other conduct which jeopardizes the well being of the parties and/or their children may require intervention without delay.

In order to address the immediate nature of such needs, the Illinois Marriage and Dissolution of Marriage Act provides for a remedy characterized as temporary relief. Such relief is available during the pendency of the case and expires either upon the entry of a Judgment for Dissolution of Marriage, which would include provisions for a more lasting resolution of such matters, or the dismissal of a case prior to entry of a Judgment.

A party may petition the court for temporary child support and/or maintenance. Such determinations are made after considering financial affidavits from each party entailing disclosures made under oath and penalty of perjury regarding the income, budgetary needs, assets and debts of each party.  Interim attorney fees may be considered when one party is unable to adequately participate in the litigation because of limited finances. Temporary restraining orders may be entered to regulate the conduct of the parties.  The Court may also consider whether one party or the other should be entitled to temporary exclusive possession of the marital home.

Temporary relief is intended to be a short-term fix for issues which would otherwise become even more problematic if not addressed until the case is concluded.  All such remedies are implemented without causing either party to give up final claims or rights and can be modified at any time before Judgment as deemed appropriate by the Court.

Contact an attorney at our Lombard or Plainfield offices to discuss further consideration of temporary relief.

What Happens to the Pets in a Divorce?

Custody of Pets in Divorce – New for 2018

Pets, known as “companion animals” in the law, have been traditionally considered nothing more than personal property, the same as household goods or vehicles.  But, few people have the strong emotional bond with a piece of furniture or SUV that they do with their furry friend. Starting January 1, 2018, the Illinois Marriage and Dissolution of Marriage Act has been amended to permit the Court to consider the well-being of the animal when allocating ownership and responsibility for pets. Such allocations can be placed solely with one party, or shared jointly between both parties.

As pets are still considered property, to be divided with other assets in the divorce, the statutory amendment does not go so far as to implement the “best interests” standard of child custody determinations. The amendment does, however, substantially expand the Court’s opportunity to take into account the welfare of the animal.

The Court may potentially consider which party: acquired the animal, registered the animal, shares the closer attachment with the animal, undertakes the day to day care of the animal, facilitates its veterinary care, satisfies the necessary expenses of the animal, and other like considerations.

For more information about how Illinois courts allocate personal property and pets in divorce proceedings, see Section 503(n) of the Illinois Marriage and Dissolution of Marriage Act.

 

 

Parenting Through Divorce: Holidays

Parenting Through Divorce:  Holiday Parenting Time in Illinois

The holiday season can be a difficult time for those who are recently divorced as well as for those who are going through a divorce.  For those with children, many times extended families end up feeling the effects of the divorce.  Decisions need to be made as to which party will have the children on each holiday.  A difficult balancing act usually takes place, which attempts to ensure family traditions continue with the children despite the divorce, while at the same time maintaining a level of fairness between the parents and their extended families.

For any recently divorced parents, the terms of their Parenting Plan and Allocation Judgment will determine who has the right to exercise parenting time with the children on each holiday.  It’s important to remember under most Parenting Plans, the schedule of assigned parenting time only takes place in the event the parents cannot agree who should have parenting time on a specific date.  This means the parents are free to work with each other, even after the divorce is finalized, to ensure the children’s best interests are put first.  Sometimes this means a Father giving up a Christmas Eve night with the children if the Mother’s side of the family is in town.  In this situation, the parents are free to work with each other to adjust their court-ordered holiday schedules.  If the Mother was assigned Thanksgiving parenting time, she can agree to the children spending Thanksgiving with Father.  The assigned parenting times need to only take effect if the parents cannot agree.

For those parents currently going through a divorce, holidays can be especially difficult.  If a Parenting Plan and Allocation Judgment has not yet been entered, each holiday will have to be addressed on an individual basis as they arise.  This can cause difficulties in planning out-of-state travel and logistics.  When the parents are unable to agree on a holiday parenting schedule, the majority of courts in Illinois apply an alternating annual schedule on an odd/even numbered year basis.  This means that for every holiday Mother is assigned in 2018, Father will be assigned the identical holidays in 2019, and vice versa.  Furthermore, the Illinois courts tend to divide the more popular holidays such that each parent will have some parenting time with the children on or near the holiday.  For example, If Mother is assigned Christmas Eve in 2018, Father will be assigned Christmas Day.  If Father is assigned New Years Eve, Mother will be assigned New Years Day.

While the Court’s assigning of alternating holidays ensures fairness, it does not always reflect or encourage the continuation of family traditions.  For this reason, parents are encouraged to work with each other to reach an agreement on a holiday schedule that best reflects what each parent believes to be the best interests of their children, rather than a third party deciding it for them.

There are a number of additional factors to consider when considering a holiday parenting schedule.  Contact a divorce lawyer or family attorney at our Lombard or Plainfield offices for a free consultation.  Our attorneys are able to meet in person or discuss your options via phone if it is more convenient for you.

For more information about Illinois Parenting Plans and Allocation Judgments, see section 5/602.7 of the Illinois Marriage and Dissolution of Marriage Act.

 

Want to Re-Marry an Ex-Spouse? Read These Important Considerations

Important Considerations for Re-Marriage:

Many couples get married, and many couples get divorced.  Some of those couples end up meeting new people and getting re-married.  While certainly less common, some couples even get re-married to each other after getting divorced.  In this situation, many people believe their marriage will simply “pick up where it left off.”  While this might be true on an emotional or relationship level, the Illinois courts will not treat your marriage this way.

In Illinois, your first marriage is considered completed after a Judgment for Dissolution of Marriage is entered and your property is allocated.  This initial allocation of property is important when you get re-married to an ex-spouse, as even though that property might have been acquired during the (first) marriage, it will be treated by the Illinois courts as each spouse’s pre-marital property.  This means that all financial accounts and property you bring into your second marriage, even if it’s to the same spouse as your first marriage, are no longer considered marital property.

This same concept applies when the Court calculates maintenance, or spousal support.  In Illinois, significant increases in the duration of maintenance occur every five years of marriage.  However, if you get re-married to your ex-spouse, the Court will only consider the length of your second (or most recent) marriage when determining an award of maintenance.  If you were to get re-married to an ex-spouse who still owed you 8 years of maintenance payments, and your re-marriage only lasted 2 years, there is a good chance the Court would only award you a few months of maintenance, rather than the years of maintenance you were previously awarded.

There are a number of additional factors to consider when considering re-marriage, especially when it is to an ex-spouse.    Contact a divorce lawyer or family attorney at our Lombard or Plainfield offices for a free consultation.  Our attorneys are able to meet in person or discuss your options via phone if it is more convenient for you.

For more information about marital property in divorce cases, see section 5/503 of the Illinois Marriage and Dissolution of Marriage Act.

How Property is Divided in a Divorce

Divorce:  Property Division

When parties go through a divorce, the first major thing the Court will decide are issues relating to the parenting of the child or children.  If the parties do not have any children, or once the parenting issues are decided, the Court will then turn to the financial side of the divorce.  While child support and spousal support do need to be determined, a more complex issue arises when the Court is tasked with dividing the marital estate.

What is the Marital Estate

The marital estate is the total value of all assets determined to be marital minus all debts determined to be marital.  This means the Court must first determine which assets are “marital.”  A general rule of thumb is that all assets acquired during the marriage, regardless of title, are marital assets that make up the marital estate.  There are various exceptions, which an experienced divorce lawyer or family attorney can explain in further detail.

Marital debts are those debts incurred during the marriage for a normal marital purpose, including most commonly mortgage debts and auto loan debts.

Determining the value of the marital estate can become complicated as the liquidity of the marital assets become more complex.  Calculating the value of a bank account is straight forward; calculating the value of a business is not.  In many cases it makes sense to hire an expert to value a business in a divorce case, as reaching an accurate valuation is necessary before the Court can divide property.  Tax consequences also must be considered when dividing retirement accounts.

Once the value of the marital estate is determined, the Court will then divide it equitably.  Many times the Court determines an equal division of the marital estate to be equitable, but the law only requires the division to be equitable, not equal.

There are a number of factors the court can consider in determining whether the division of marital property is equitable.  Contact a divorce lawyer or family attorney at our Lombard or Plainfield offices for a free consultation.  Our attorneys are able to meet in person or discuss your options via phone if it is more convenient for you.

For more information about marital property in divorce cases, see section 5/503 of the Illinois Marriage and Dissolution of Marriage Act.

Discovery in Divorce Proceedings

Discovery in Divorce Proceedings

In Illinois, discovery is common in most divorce cases.  It usually occurs after a Petition for Dissolution of Marriage is filed, but before any serious settlement discussions commence.  While most courts require the parties to exchange Financial Affidavits, formal discovery is a more thorough and time consuming process that consists of two main components:  written discovery and oral discovery.

Written discovery most often consists of serving and answering marital interrogatories and serving and answering requests for production of documents.  Marital Interrogatories are a series of questions, mostly involving finances and property ownership, which must be answered within twenty eight (28) days of being served with them.  These interrogatories must be signed or certified with an attestation page or an affidavit swearing to the truth of the written answers.  Requests for production of documents require a party to produce a number of documents in their possession.  These requests usually include paycheck stubs, bank account statements, credit card statements, retirement account statements, and documents related to property ownership.

Oral discovery most often consists of the taking of depositions.  This requires both attorneys to be present in front of a court reporter, where questions must be answered under oath.  The party being deposed is required to tell the truth, and their answers can be used against them at a future trial for impeachment purposes if they give an answer at trial that differs from their answer at the deposition.  Depositions are long and costly, but are a great way to figure out what a party (or another witness) is likely to testify to at trial.

Discovery is common in divorce cases in Illinois, however it can still be stressful for the parties involved.  The divorce and family law lawyers at The Law Offices of Robert F. Kramer, Ltd. can help you navigate through the discovery process.  Our attorneys are available to meet either in person at our Lombard or Plainfield offices or on the phone at any time.

For more information about discovery rules and procedure in Illinois, please see the Illinois Supreme Court Rules regarding discovery, which can be found here.

Can I Stop a Divorce Once It Is Filed?

Can I stop a divorce once it is filed?

It is fairly simple to stop a divorce at any point prior to the entry of a final Judgment for Dissolution of Marriage.  If the party who filed the Petition for Dissolution of Marriage no longer wishes to proceed with the divorce, they can request a voluntary dismissal of their Petition through a Motion to the Court. If the non-filing party has already filed a response to the divorce petition, and/or filed a counter-petition for divorce, additional procedural requirements may need to be met, and both parties’ agreement to dismiss the case may be needed prior to the dismissal.  Once a divorce is stopped, all previous Orders entered by the Court become unenforceable.

A more common scenario that occurs is when the parties wish to have a “reconciliation” period after a Petition for Dissolution of Marriage has been filed.  In this scenario, the parties have already begun the divorce process, but one or both parties are not one hundred percent sure they want to continue.  The Court will generally grant at least one request for reconciliation, which is a period of approximately 90 days during which the divorce process is “paused” as the parties attempt to work out their differences.  If the reconciliation period is successful, the Petition for Dissolution of Marriage can be withdrawn and the parties can continue as if no divorce had been filed.  If the reconciliation attempt fails, the divorce picks back up where it left off at the start of the reconciliation period.

If you have questions regarding a divorce you are going through or planning to go through, contact our experienced lawyers today.  Our attorneys are available to meet either in person at our Lombard or Plainfield offices or on the phone at any time.

What is a Legal Retainer?

What is a legal retainer and how does it work?

A legal retainer is a lump sum payment made by a client to an attorney at the commencement of legal representation.  It facilitates the satisfaction of costs (court costs, clerk filing fees, process server fees, etc) and attorney fees (services performed by the attorney at a specified hourly rate) contemplated to be incurred as a result of the attorney’s representation of the client.  A legal retainer is not a “quote” and is not meant to cover the total expense  of the legal representation, rather it is meant to serve as a prepayment or a good faith down payment for expected court costs and a limited number of service hours at the attorney’s billable hourly rate.

A legal retainer is refundable to the extent that the funds have not been applied towards the satisfaction of costs already incurred or attorney services already performed on a client’s matter.  If the total amount of costs incurred and attorney fees exceeds the initial retainer deposit, attorneys generally request additional retainer sums and payments as their representation of the client progresses.

The attorneys at The Law Offices of Robert F. Kramer, Ltd. understand that each client has a unique set of circumstances leading them to need legal representation.  That is why our attorneys work with clients to come up with convenient legal retainer arrangements that are specifically tailored to the facts and circumstances surrounding their case.  With offices in Lombard and Plainfield, our lawyers are able to meet in person or on the phone with clients and always offer a free 30 minute initial consultation.

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