Uncontested Divorce

What is an uncontested divorce?

An uncontested divorce is one in which both parties are in agreement with each and every request in the Petition for Dissolution of Marriage.  The Petition for Dissolution of Marriage is the initial filing with the Court that commences a divorce proceeding.  Many parties believe they have an uncontested divorce, when in reality they only have an agreement on a few major issues.  For a court to determine your case to be an uncontested divorce, all issues, both small and large, must be addressed.

If the parties have children, this includes schedules of parenting time, decision making for the children, transportation arrangements, vacation schedules, etc.   All financial issues must also be in agreement.  This includes, but is not limited to, the amount and duration of child support and maintenance (formerly known as alimony), allocation of marital property, including the marital residence, retirement accounts, bank accounts, and automobiles.

If both parties agree to all the settlement terms for both the financial issues and parenting issues, and certain procedural requirements have otherwise been met, the divorce may generally be concluded with a single appearance before the Court, called a prove-up hearing, where settlement documents, which have been signed by both parties, are approved by the Judge and the divorce is finalized.

If you are unsure whether your divorce will be considered an uncontested divorce by the Court,  contact our experienced divorce lawyers.  Our attorneys are available to meet either in person at our Lombard or Plainfield offices or on the phone at any time.

When do I need an Order of Protection?

What is an Order of Protection?

An Order of Protection is a court order which restricts someone who has abused a family or household member. An Order of Protection may:

  • prohibit an abuser from continuing threats and abuse;
  • order an abuser out of a shared home or residence;
  • order an abuser out of that home while they are using drugs or alcohol;
  • order an abuser to stay away from you and other persons protected by the order and keep abuser from your work, school, or other specific locations;
  • prohibit an abuser from taking or hiding children, give you temporary custody, or require the abuser to bring the child to court;
  • require an abuser to attend counseling;
  • require an abuser to turn weapons over to local law enforcement; and/or
  • prohibit an abuser from other actions.

How do I obtain an Order of Protection?

To obtain an Order of Protection, you should ask your attorney to file in civil court or in a criminal prosecution.  If you are already going through an existing divorce or family court proceeding with the abuser, you may file it in that proceeding.  The divorce and family law attorneys at The Law Offices of Robert F. Kramer, Ltd. are experienced in helping clients in need of Orders of Protection obtain the legal remedies they need to protect themselves and their family members.

If you do not have an attorney, you can go to your local circuit court clerk’s office and get the necessary forms to seek an Order of Protection for yourself, or you may contact a domestic violence program for help completing the necessary forms.

What is Domestic Violence?

What is Domestic Violence?

Any person who commits an act of abuse against another family member or household member has broken Illinois domestic violence law.

How are family or household members defined?  Under Illinois law, family or household members are defined as:

  • family members related by blood or marriage;
  • people who are married or used to be married;
  • people who share or used to share a home, apartment, or other dwelling;
  • people who have or say they have a child in common;
  • people who have or say they have a blood relationship through a child;
  • people who are dating or used to date, including same sex couples; and
  • people with disabilities and their personal assistants.

 

What is an act of abuse?  An act of abuse in Illinois includes:

  • physical abuse (such as pushing, hitting, forced sex);
  • harassment (such as creating a disturbance at your job, repeatedly telephoning, following or watching you, preventing you from seeing your child, threatening to hurt you);
  • interference with personal liberty (such as not allowing you to leave);
  • making a child or other person watch abuse; and
  • denying a disabled person access to needed care.

Domestic violence is a serious issue and assistance may be obtained from law enforcement, domestic violence programs, court personnel and family law attorneys. The divorce and family law attorneys at The Law Offices of Robert F. Kramer, Ltd., are experienced in helping clients who have been victims of domestic violence obtain the legal remedies they need to protect themselves and their family members.

 

Mediation in Divorce: What Issues Must be Mediated?

Mediation in Divorce and Family Cases

In most Illinois counties, if the parents cannot agree on the issues of parental responsibilities or decision making, custody, or parenting time (or other non-financial issues), the Court will Order the parties to attend mediation prior to proceeding to a contested hearing on their issues in dispute.  This serves two main purposes:  encourage discussion and possible settlement, and also to deter court action over relatively minor disputes.  If the parents must attend (and pay) a licensed mediator prior to bringing the matter before the Judge, usually only serious and major disputes will remain unresolved.  Mediation may be waived by the Court for good cause and is not required if impediments exist such as: domestic violence, mental illness, cognitive impairment, drug use, alcohol use, prescription medication use, physical impairment, fraud, duress or undue influence.

If you are unsure whether your dispute is subject to mandatory mediation, contact our experienced divorce and family law attorneys.  We are available to meet either in person at our Lombard or Plainfield offices or on the phone at any time.

What is a Pre-trial Conference?

A pre-trial conference in a divorce proceeding usually occurs towards the end of the case, once the parties have been able to narrow down their dispute to a handful of issues.  At a pre-trial conference, the attorneys for both parties meet with the Judge and explain what their arguments are and what the evidence will show in the event the matter is taken to trial.  The Judge will hear the arguments and make recommendations as to how he/she would likely determine the issue at trial.  The recommendations are non-binding, and the parties are free to accept or reject the recommendations.

The primary benefit of a pre-trial conference is to get the Judge’s opinion on a few disputed issues in a cost-efficient manner.  Instead of presenting arguments for the first time at trial, which requires significant preparation and cost to the clients, the parties are able to present their arguments and receive the Judge’s opinion in one afternoon.  This encourages settlement between the parties; since the parties know how the Judge is likely to rule on a disputed issue, they can decide whether it makes sense to spend the time and money taking the issue to trial.   It is usually prudent to accept the Judge’s pre-trial recommendations, as it it difficult to change a Judge’s mind absent a change in circumstances or a newly discovered argument that was not used at the pre-trial conference.

New Illinois Child Support Law Takes Effect July 1, 2017

New Child Support Law Takes Effect July 1, 2017

Beginning July 1, 2017, the child support law of Illinois will see significant changes.  Under the current law, a parent with a majority of the parenting time with the children (custodial parent) receives a set percentage of the non-custodial parent’s net income, no matter the custodial parent’s income or the children’s actual needs.  Often times this results in a windfall to a custodial parent in situations where the custodial parent is gainfully employed and/or where the non-custodial parent earns significant income.

With the new law taking effect July 1, 2017, Illinois will join 39 other states that utilize the “income shares model” for child support.  Under this new law, the parties’ incomes are combined, and a “total child support”, also known as the “basic support obligation”, is determined by a table, which can be found here.  For example, if the parties have two minor children together and the mother earns a net monthly income of $5,000, and father earns a net monthly income of $3,050, the parties’ combined net monthly income is $8,050.  Utilizing the aforementioned table, the “basic support obligation” for the two children is $1,904 per month.

Under the new law, the $1,904 monthly child support obligation is to be split in accordance with each parent’s portion of the combined monthly income.  Therefore, since the mother accounts for approximately 62% of the combined monthly net income ($5000/$8050 = 62.11%), she will be responsible for 62% of the “basic support obligation” for the minor children, or $1,181.  Similarly, the father will be responsible for 38% of the “basic support obligation” for the minor children, or $783, since the father accounts for approximately 38% of the parties’ combined monthly net income.  In this situation, if the mother is the parent with a majority of parenting time, the father would pay $783 to the mother each month for child support.  If the father is the parent with a majority of parenting time, the mother would pay $1181 to the father each month for child support.

There are a number of other expenses that can be allocated between the parties under the new Illinois child support law.  The schedule of parenting time can also have an impact on the calculation of the “basic support obligation” and each parent’s respective obligations.  Be sure to consult with an experienced divorce lawyer or family attorney to learn the details and intricacies of the new child support law in Illinois.

Life Insurance and Child Support

Life Insurance and Child Support

For litigants in divorce and paternity proceedings where child support is a consideration,  life insurance should also be an important consideration. In the event a parent who is contributing support passes away before his/her obligations of child support and college contributions conclude, life insurance proceeds can continue to provide for the financial  support of the children. Life insurance beneficiary designations, as well as such designations on other assets such as financial instruments and retirement accounts, may need modification to best protect the asset(s) for the benefit of the children. Many parents consider designating their children as beneficiaries instead of their ex-spouse, other parent or relative. Doing so more effectively assures the proceeds are allocated for the intended recipients. If minors are designated as beneficiaries, a custodian will be required to oversee the proceeds until the time the children are emancipated. Such a designation is regularly accomplished through insurance company forms. The custodian receives the proceeds from the life insurance policy upon the death of the insured, but the custodian has a legal duty to use the funds for the only the welfare of the beneficiaries. A trust is another estate planning option. If utilized, the trust can be designated as the beneficiary of the life insurance, and the terms of the trust can provide how the proceeds are to be distributed for the benefit of designated survivors. Consultations with experienced divorce and estate planning attorneys can offer the best direction for each person’s particular circumstances.

Divorce: Jurisdiction and Service

Once a Petition for Dissolution of Marriage is filed, the responding party must be made a party to the proceedings in order for the Court to obtain jurisdiction over that party. Jurisdiction is the authority of the Court to hear and render decisions in a pending case. If the responding party, or an attorney on his or her behalf, does not voluntarily file an appearance in the case, the usual practice is for the petitioning party to have a Summons issued by the Clerk of the Court where the divorce is pending and to place the Petition for Dissolution and Summons for service with the sheriff’s department in the county where the responding party resides or with a private process server. If service of process is accomplished on an out-of-state resident, additional requirements must be met.

When the responding party receives valid personal service, the Court obtains both: 1) the authority to adjudicate the status of matters, for instance: dissolving the marriage, adjudicating allocation of parental responsibilities (parenting time, parental decision-making authority), and assigning interests to property assets located in Illinois (characterized as in rem jurisdiction), as well as, 2) the authority to enter orders regarding the conduct of the parties, for instance: the payment of child support or maintenance, and the allocation of attorney fees and marital debt (characterized as in personam jurisdiction).

If a spouse cannot be located after diligent inquiry, rendering personal service unattainable, upon motion to the Court, service by publication of a notice of the proceedings in the local newspaper where the case is pending may offer an alternative means of service, although, service by such means only confers in rem jurisdiction, such that matters requiring in personam jurisdiction must be reserved until the responding party is either personally served or agrees to file an appearance with the Court.

Estate Planning: Living Trust

A Living Trust is created by a trust document and designates one or more individuals or corporations to act as trustee.  The trust document directs the trustee to accept title to, or ownership of, real and personal property as trustee for the benefit of the trust’s beneficiaries.  The trust documents sets out in detail how the trust is to be administered.  It contains the directions of the person who sets up the trust to guide the trustee.

A Living Trust avoids the requirement of probate as your property is conveyed to the trust during your life time.  Most of the time, you, as Grantor, would be the trustee and the trust would provide that you can utilize everything in the trust for your needs during your lifetime.  Upon death, a Living Trust typically provides for a successor trustee and directs how the property in the trust will be used for the benefit of the remaining beneficiaries.  A living trust can also be used to derive tax advantages in larger estate cases.

Parenting Class in Divorce Proceedings

Parenting Class and Education Programs

Illinois Supreme Court Rules require that each county or circuit court establish an approved parenting education program. Such programs encourage parents to develop ways to relate to each other that keep their children out of conflict, motivate parents to focus on the best interests of their children, and emphasize the need for parents to set aside personal differences in order to provide the healthiest environment possible for their children.

 

Such programs are generally four hours in length and cover the subjects of parenting time, allocation of parental responsibilities and the impact of divorce and separation on children. Attendance and completion of such programs is mandatory for all parents of minor children who are participating in divorce or paternity cases, unless the requirement is excused by the court for good cause shown. Such programs generally should be completed as soon as possible after commencement of the court case, but not later than sixty days after an initial case management conference, which conference generally takes place about ninety  days into the proceeding.

 
Some counties offer programs that are available online as well in person seminars, and most programs cost in the range of $50.00-$100.00 per parent, although reduced costs are available in some cases, especially to litigants with limited resources. Parents are encouraged to attend different sessions. Courts may impose sanctions on any party willfully failing to complete the parent education program approved in that county, including findings of contempt, and in some cases, denial of parenting time

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