New Changes to Family Law

C.-Matthew-Miller[1]-1000-ffccccccWhite-3333-0.20.3-1Marriages and divorces are codified in the state’s Marriage and Dissolution of Marriage Act (IMDMA which was extensively modified. Civil unions and same-sex marriages, which were recently allowed under Illinois law, remain. Nothing really has changed here other than the measures are now written into the Act.

One major change involves what grounds there are for a divorce. Under the old law, terms such as “mental cruelty” or even accusations of adultery or being chronically drunk could be seen as legal reasons for divorce. That’s changed. Under the new law, there’s only one reason for a divorce — irreconcilable differences. That’s a big deal and at the same time, it’s not so big of a deal. Nearly all divorces use this term so from a practical standpoint, it’s not a huge change. On the other hand, divorce is often emotional charged to begin with and while attorneys know statements like mental cruelty are just legalese, the average person doesn’t and can get quite upset if they are being accused of “extreme and repeated mental cruelty”.

Another major change and one that will affect many is the elimination of the need to live apart for two years or even to have an agreement to reduce that to six months. Now, the new law allows that the parties simply have to have “lived separate and apart” for six months prior to the entry of the judgment of dissolution. That’s a major change and one that could speed up the process in that parties no longer have to agree to waive a two year wait period that was applicable under the old law. The idea is if a couple has gotten to this point, it’s in the best interests of all to move it along quickly.

However, like any new law, there are some ambiguities. The new law doesn’t have a legal definition for what is “separate and apart”. However, “separate and apart” has been defined by the Appellate Court in In Re Marriage of Dowd, 214 Ill App. 3d 156, as not requiring the parties to actually live in separate residences but to have in essence stopped spousal relations for a period of six months.

Another huge change is the way the courts deal with children of divorce. The new laws don’t include the words custody or visitation. Instead, a judge will allocate parental responsibilities and set up parenting plans. Is this a major rethinking of how the courts look at children or is this just a New Age way of speaking while keeping the same mindset? That remains to be seen in practice but what is clear is that the old way of doing things through visitation is gone. Further, in an effort to speed up cases that involve minor children, parties are required to provide the court with a parenting plan within 120 days of filing of the petition for dissolution for the court’s approval or the matter will be set for trial on allocution of parental responsibilities.

Instead of visitation, there is “parenting time,” and instead of custody, it’s “parental responsibility.” The latter deals with significant decision making. It appears lawmakers wanted to move past the negative sense the old terms conveyed. Parents just want to be with their kids and not “visit” them. This change seems to reinforce the sense that while parents are separate, they are both still parents.

Also gone is the Joint Parenting Agreement which has been replaced by a Parenting Plan. In essence, it’s the same thing – a written layout of decision making responsibilities, how much time each parent gets with the child and other everyday matters. And that’s another change. Before, the day to day activities of such things as what food a child might eat or brushing teeth wasn’t addressed. The custody and the visitation orders dealt with things on a higher level, a 30,000-foot look so to speak.

The court can now delve into specific areas of a child’s life such as education, health or religion and allocate responsibility to both parents or to simply just one. While each parent might have a responsibility under those areas (and there’s also a separate allocation for extracurricular activities), there remains just one parent with whom the child will reside.

Another change allows parents to move up to 50 miles away from their current home and up to 25 miles if the move is across state lines. Both moves can be done without permission of the court. Under the old law, the “Residential Custodian” could move anywhere without the court’s permission, so long as it was within the state.

And while the idea was to create an arena where both sides felt like they were doing okay by their children, it’s possible the new laws could actually lead to more legal challenges as now there are more areas that feuding parents can bicker over.

That’s just a quick look at the new changes to the law. By no means is it is comprehensive and future posts will do a deeper dive into some of the nuances. Divorce is difficult and with children, it can be worse. That’s why you need an advocate who understands the pain and the stress. Here at Miller Law Offices, I have personally been through the process myself, and I realize that beyond all those legal terms are people and I am here to help you through your difficult times. I’ve been there and can use my own real-life experiences to not only fight for you in court but also to help you get through this. I am here for you. Give me a call to see how I can help you.

The coming New Year brought much change to Illinois’ Family law section. Last summer, lawmakers retooled criteria for divorce as well as child custody. This blog will take a brief look at some of these changes and how they could affect you.

No Stalking Order and Orders of Protection, What’s the difference?

Logo

 

 

3C[1]-1000-ffccccccWhite-3333-0.20.3-1

A common legal result of a domestic dispute is often the order of protection or the stalking, no-contact

orders which are designed to give the parties a cooling off period. Temporary at first, such an order can

be made permanent if a judge feels there is a need to keep people away from each other.

Domestic violence is no laughing matter and is serious problem within our community. And while

relationship problems can usually be worked out without involvement from the criminal justice system,

there are times when it is necessary for a judge to step in and say, “enough, don’t go near one another.”

Under Illinois law, there are two ways this can happen. An order of protection and a stalking, no-contact

order. So what’s the difference? An order of protection can only involve those who are in a domestic

relationship or who are related. According to the Illinois Attorney General’s web site, that includes:

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

Those who feel threatened by someone who isn’t related can petition the court, using a similar method

as with an order of protection, to obtain a stalking, no-contact order. In essence, they are the same

thing but one is for those who are related or in a relationship and the other isn’t.

In both cases, the idea is to require a harassing person to stop with threats and abusive behavior or

actions. It can require the abuser to stay away from your home, your place of employment, your

children’s school and even other places that you frequent. Here is a small sampling of some of the

things an order of protection can require a person to do.

  • require abuser to attend counseling;
  • prohibit abuser from hiding a child from you or taking a child out of state;
  • require abuser to appear in court or bring a child to court;
  • give you temporary physical possession of children or give you temporary legal custody;
  • specify visitation rights (if and when visitation is awarded);
  • bar abuser from accessing child’s records;

The remedies are similar in the stalking, no-contact situation. In both cases, a person must petition the

court for such an order. You could hire an attorney to fill out the petition or go to the courthouse to see

if there is an office for this. In Peoria County, the office is located on the ground floor near the

treasurer’s office.

A judge will then review the petition and either issue an emergency order which grants a temporary,

two-week to three-week cooling off period or deny the petition outright. If an emergency order is

granted, then both sides can obtain attorneys and present evidence at a hearing. The outcome of that

hearing could result in a more permanent order which last months or the outright dismissal.

Either way, the consequences and the ramifications are great.

If you violate one, a first offense is a class A misdemeanor which exposes a person to as much as a year

in the county jail. A second offense is class 4 felony and carries a maximum of three years in prison.

Beyond that, violation of these can have serious effects on your civil rights including the right to obtain a

firearms owners ID card. It could also affect one’s standing to obtain or to maintain custody of a child,

even visitation.

Such offenses are serious and require a serious attorney who understands the law and who knows how

to protect your interests. That’s Miller Law Offices where we focus on your problem, your issue. No

domestic violence matter is the same and you need an attorney who understands how stressful and

traumatic such a situation can be. Here at Miller Law Offices, we will do everything in our power to

make sure you and your family are safe.

Who will get the kids?

Logo

 

3C[1]-1000-ffccccccWhite-3333-0.20.3-1

Divorce isn’t a pleasant experience. The emotional toll of ending a relationship can be physically and mentally exhausting. Throw children into the mix and emotions can run high.

With so much at stake, it’s important for you to know what your rights are and how to protect your interests. Here at Miller Law Offices, we pride ourselves in thinking about the human aspect of divorce and custody issues. I personally have been through the process of divorce and child custody myself and know the stress and emotional toll it can take on a person.

In Illinois, a judge is the one who decides whether there is sole or joint custody if the two sides can’t agree. That determination is made “in the best interests of the child or children.” For the most part, both parents live within the same state but if different states are involved, the judge will have to decide what is considered the “home state” of the child. Such a determination falls under the Uniform Child Custody Jurisdiction And Enforcement Act which is a federal statute outlining the legal reasons for what is considered a home state.

It matters because only a judge in the child’s home state can hear arguments regarding custody and placement of a child. An experienced lawyer is a necessity in this area as the consequences could be severe. However, in a nut shell, Illinois has jurisdiction to hear a custody case if the child has lived within the state for at least the past six months.

When a divorce proceeding begins and children are involved, the two sides will participate in a court-mandated and approved educational seminar discussing the legal impact of the divorce. Ideally, the two sides can come to an mutually agreeable outcome. However, if that’s not the case, then the judge will order mediation in an attempt to solve the issue.

If that doesn’t work, then the judge will hold a custody hearing to determine what is in the “best interests of the child.” At this hearing, your child or children could have their own attorney appointed which will act as their advocate. Such an attorney is called a Guardian ad Litem.

So what are the factors to determine where a child is placed and whether there is joint or sole custody. This isn’t “Good parent vs. bad parent” thing. Rather, the judge will attempt to determine what is in the best interests of the child considering several factors including:

* where the child wishes to be placed or which parent should have custody.
* what the parents want to do.
* are there other siblings involved and how does the child interact with them. How does the child fit in to his or her current surroundings.
* the character of the parents. Has their been physical or mental abuse. Do the parents have a criminal history.

Additional factors the Judge considers is the child’s adjustment to his home, school and community; and the willingness of each parent to facilitate and encourage a close relationship between the other parent and the child.

Every case is different and that’s why you need a strong advocate. Here at Miller Law Offices, we understand what’s at stake and want to put your best foot forward. We know that going through a custody battle means you might not be thinking clearly. Our years of experience will help draw out the answers to pertinent questions and we’ll work aggressively to protect your rights.

Grounds for Divorce In Illinois

Logo

 

3C[1]-1000-ffccccccWhite-3333-0.20.3-1

Contemplating filing for divorce is a major decision. One that will change the lives of the parties in ways they often did not contemplate. Very few people come out of the divorce better off financially and emotionally; at least not at first. The income of the parties must now support not just one household, but two. Children must now spend time between two households and not just one. However, filing for dissolution of marriage (divorce) is very often the first step towards a better, brighter and happier future for most people.

Most people have heard of “fault” and “no-fault” divorce states. California is perhaps the best known “no-fault” state. “No-fault” states have essentially gotten rid of the requirement or the ability of parties to allege wrongdoing by the other spouse in order to obtain a judgment of dissolution of marriage (divorce). Those state’s that are “no-fault” states recognize that if one adult no longer wishes to remain married to the other then that in and of itself is good enough a reason to not force the individual to remain married to the other or make them have to allege marital misconduct on the part of the other spouse.

Illinois on the other hand is a bit of a hybrid state. In Illinois, a party can still allege fault grounds or can in the alternative allege no-fault grounds in their petition for dissolution of marriage. To help the reader better understand the options available to them, the following is a list and description of the fault and no-fault grounds in Illinois. The requirements for fault and no-fault grounds are as follows:

  1. One of the spouses was a resident of this State (or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained) for 90 days preceding the commencement of the action or making of the finding of residence. (750 ILCS 401 (a)
  1. Grounds
  1. Without cause or provocation: (750 ILCS 401(a)(1))

i.Respondent was at the time of marriage and is impotent;

ii.Respondent was already married;

iii.Respondent committed adultery;

iv.Respondent deserted Petitioner for at least one year;

v.Respondent is guilty of habitual drunkenness for 2 years;

vi.Respondent is guilty of gross and confirmed habits caused by the excessive use of addictive drugs for 2 years;

vii.Respondent attempted to kill wife;

viii.Respondent is guilty of extreme and repeated physical or mental cruelty;

ix.Respondent has been convicted of a felony;

x.Respondent has infected the other with a sexually transmitted disease.

  1. No Fault: (750 ILCS 401(a)(2)

i.The parties have lived separate and apart for a continuous period of 2 years;

ii.Irreconcilable differences have caused an irretrievable breakdown of the marriage; and

iii.Efforts at reconciliation have failed or future attempts would be impracticable and not in the best interest of the family

The perceived advantage to alleging no fault grounds is that it is thought to reduce animosity between the parties which in turn can result in a more amicable resolution of such issues as child custody, child support and the division and distribution of marital assets. Additionally, the level of proof required to “prove up” the divorce is less involved and less costly to the parties.

This article is not all inclusive and is not a substitute for retaining the services of an experienced attorney. However, hopefully, you have been provided with a basic understanding of the various grounds for divorce.

LEGAL DISCLAIMER:

The use of the internet or this form of communication with the firm or individual member of the firm does not establish an attorney-client relationship. The information provided above is not to be considered legal advice and is intended for educational purposes only.

Miller Law Offices represents clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Pekin, Bartonville, Morton, Washington, Eureka, Pontiac, Cambridge, Dunlap, Bloomington, Normal and cases in Peoria County, Henry County, Livingston County, McLean County, Tazewell County, Knox County and Woodford County.

Article Author: C. Matthew Miller

C. Matthew Miller is the sole practitioner at Miller Law Offices, P.C. He has been recognized by the National Trial Lawyers as a Top 100 Trial Lawyer and the American Society of Legal Advocates as a Top 40 Criminal Defense lawyer Under 40 in the State of Illinois. Mr. Miller concentrates his practice in Criminal Law, DUI, Criminal Record Expungements, Divorce and Child Custody.Logosnew-Miller-Avvo-badge

Effective January 1, 2015: New Law Regulating Spousal Maintenance

Logo

 

3C[1]-1000-ffccccccWhite-3333-0.20.3-1

 

NEW SPOUSAL MAINTENANCE LAW EFFECTIVE JANUARY 1, 2015

A new public act dramatically changes how spousal maintenance (alimony) is determined for divorcing couples whose combined gross income is less than $250,000.

Presently, judges have discretion to calculate maintenance without using a statutory formula similar to the one that applies to child support awards, instead relying on the following list of factors:

  1. the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance;
  2. the needs of each party;
  3. the present and future earning capacity of each party;
  4. any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone education, training , employment, or career opportunities due to the marriage;
  5. the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of the child making it appropriate that the custodian not seek employment;
  6. the standard of living established during the marriage;
  7. the duration of the marriage;
  8. the age and the physical and emotional condition of both parties;
  9. the tax consequences of the property division upon the respective economic circumstances of the parties;

(10) contribution and services by the party seeking maintenance to the education, training , career and career potential, or license of the other spouse;

(11) any valid agreement of the parties; and

(12) any other factor that the court expressly finds to be just and equitable.

(b-5) Any maintenance obligation including any unallocated maintenance and child support obligation, or any portion of any support obligation, that becomes due and remains unpaid shall accrue simple interest as set forth in Section 505 of this Act.

(b-7) Any new or existing maintenance order including any unallocated maintenance and child support order entered by the court under this Section shall be deemed to be a series of judgments against the person obligated to pay support thereunder. Each such judgment to be in the amount of each payment or installment of support and each such judgment to be deemed entered as of the date the corresponding payment or installment becomes due under the terms of the support order, except no judgment shall arise as to any installment coming due after the termination of maintenance as provided by Section 510 of the Illinois Marriage and Dissolution of Marriage Act or the provisions of any order for maintenance. Each such judgment shall have the full force, effect and attributes of any other judgment of this State, including the ability to be enforced. A lien arises by operation of law against the real and personal property of the obligor for each installment of overdue support owed by the obligor.

(c) The court may grant and enforce the payment of maintenance during the pendency of an appeal as the court shall deem reasonable and proper.

(d) No maintenance shall accrue during the period in which a party is imprisoned for failure to comply with the court’s order for the payment of such maintenance.

(e) When maintenance is to be paid through the clerk of the court in a county of 1,000,000 inhabitant or less, the order shall direct the obligor to pay to the clerk, in addition to the maintenance payments, all fees imposed by the county board under paragraph (3) of subsection (u) of Section 27.1 of the Clerks of Courts Act. Unless paid in cash or pursuant to an order for withholding, the payment of the fee shall be by a separate instrument from the support payment and shall be made to the order of the Clerk.

THE NEW LAW

Effective January 1, 2015, there will be a mathematical formula for calculating maintenance based on the gross income of the parties and the length of the marriage. This formula will eliminate a lot of the guess work in calculating maintenance and limit the judges’ wide discretion which they presently possess. Presently, maintenance decisions vary widely from case to case, judge to judge, and county to county.

Under the new formula maintenance should equal 30% of the payor’s gross income minus 20% of the payee’s gross income but is not to exceed 40% of the parties’ combined gross income when added to the payee’s gross income.

For example: The soon to be ex-husband grosses $60,000 a year and his wife makes $30,000. 30% of $60,000 is $18,000 and 20% of $30,000 is $6,000. Subtract $6,000 from $18,000 and you get $12,000. The Husband would owe the wife $12,000 a year in maintenance. However, the maintenance award plus the payee’s gross income cannot exceed 40% of the couple’s combined gross. Together, the couple grossed $90,000 a year. 40% of the couple’s gross income is $36,000. So the wife would only receive $6,000 a year in maintenance and not $12,000.

Additionally, a separate formula will be implemented to determine the duration of the maintenance award. For a marriage that lasted under 20 years, the length of the award would be 20% of the time the couple was married. For example, 2 years of maintenance for a 10 year marriage. However, for marriages exceeding 20 years the award could be for the duration of the marriage or permanent.

LEGAL DISCLAIMER:

The use of the internet or this form of communication with the firm or individual member of the firm does not establish an attorney-client relationship. The information provided above is not to be considered legal advice and is intended for educational purposes only.

Miller Law Offices represents clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Pekin, Bartonville, Morton, Washington, Eureka, Pontiac, Cambridge, Dunlap, Bloomington, Normal and cases in Peoria County, Henry County, Livingston County, McLean County, Tazewell County, Knox County and Woodford County.

Article Author: C. Matthew Miller

C. Matthew Miller is the sole practitioner at Miller Law Offices, P.C. He has been recognized by the National Trial Lawyers as a Top 100 Trial Lawyer and the American Society of Legal Advocates as a Top 40 Criminal Defense lawyer Under 40 in the State of Illinois. Mr. Miller concentrates his practice in Criminal Law, DUI, Criminal Record Expungements, Divorce and Child Custody.