Litigation and courtroom advocacy

When you decide to go to court, decisions about what will happen to you and your family are placed in a judge's hands. The attorney you choose to represent you is of vital importance. We will give voice to your concerns in courtroom litigation and will be responsible for preparing your case for trial.

Litigation services

We are experienced trial advocates who will protect your rights and pursue your family's best interests in court. Our knowledge of the law, trial experience, and analytical skills often prove to be our client's best asset in courtroom litigation and family mediation.

When you retain our services, we evaluate your legal alternatives and discuss your risks and opportunities with you. These discussions determine the most appropriate course of action. Our hands-on approach to cases makes the difference in representation of our clients.

We work with clients to identify the root cause of the conflict and engage in pioneering legal and investigative work to produce the best possible outcomes. When needed, we consult with forensic accountants, appraisers, psychologists, and valuations experts to:

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Nothing means more to M. Scott Gordon than family.  That is why his firm works so hard to achieve results that are in your family's best interests.

Benefit from his experience with family law litigation. Call today: (847) 329-0101.

Mediation

Until only a few years ago, most people were unclear as to what mediation was and how it worked. While mediation is not suitable for all couples, it is certainly suitable for most families. In fact, Judges in Illinois are required to send couples to mediation regarding their children if they cannot agree upon custody and visitation issues. Unfortunately, the requirement does not apply to financial related issues.

What is mediation? Mediation is where the couple meets with a trained professional who helps guide the parties towards a settlement of the issues that need to be decided in a divorce. The mediator does not impose solutions, but rather helps couples come to reasonable agreements.

Most people getting divorced have difficulty communicating and it is common for them to feel that mediation "wont work for them". However, a trained mediator can often focus couples on their immediate problems and needs. Although divorce is often accompanied by anger, distrust, and feelings of hurt, most (but not all) people do not want to spend lots of time and money in divorce litigation. They instinctively understand that compromises will need to be made, and that there is a substantial risk to having their divorce issues resolved by a Judge.

One of the advantages of mediation is that the parties can devise creative and workable solutions to their problems in ways that a Judge will not. For example, both parties may initially claim in the divorce that they each want full custody of the children. If that issue is presented at trial to a Judge, the Judge is required to rule in favor of one party and against the other. However, the parties in mediation may discover that their reasons for requesting full custody of the children are not necessarily incompatible. How? Often, one party is pursuing full custody because they are concerned that their access to their children will be limited and that they will have no say in the upbringing of their children after the divorce. Alternatively, a party may request full custody because they fear for their financial future and they cannot imagine life without child support. Mediation allows the parties to explore these concerns, and we have often seen how a mediated settlement can take into account everyone's needs and concerns.

Another advantage of mediation is that it allows the parties to "open up" with the other spouse in a controlled environment. Most mediators will have the parties sign a mediation agreement, which should include a clause, which makes the mediation sessions confidential and where each party agrees to not call the mediator as a witness at any court preceding. This is very important, because it allows the parties to discuss possible settlement options openly without being concerned that these discussions will later be used against them if a mediated settlement is not obtained.

Mediation and other alternatives to litigation

When appropriate mediation and other alternatives to litigation are often faster and more cost-effective than courtroom litigation. We offer mediation and conflict resolution services directly to parties in family law litigation, and we also offer legal assistance and advice to clients who are using third party mediators and need guidance as they proceed through the mediation process.

Mediation, conflict resolution and collaborative law

Mediation, conflict resolution, collaborative law: We offer all of these services to clients.

Mediation is where parties hire us to assist them in resolving their divorce or other family law dispute in a cooperative manner. In this situation, where we are hired as the mediator, we do not represent either party and act as trained neutrals to assist the parties in resolving their conflict. Often, each party will have their own outside attorneys they can consult for advice during the negotiation and mediation process.

Collaborative law is where each party hires an attorney who agrees to resolve the family law dispute through negotiation and without resorting to courtroom litigation. In some cases, this may be appropriate.

Representation in mediation. We often represent one party who has agreed with their spouse to use the services of a mediator. Even in those situations, each party can benefit from having an attorney who represents their interests and can give them advice and guidance as they seek to negotiate a peaceful resolution to their case.

Contact us

Family matters to M. Scott Gordon. That is why our firm works so hard to achieve resolutions to each case that are in your family's best interests.

Benefit from his extensive experience with mediation. Call today: (847) 329-0101.

Appeals

M. Scott Gordon & Associates concentrate in the practice of family law, and are well suited to assist you in an appeal of any decision of a Circuit Court within our state.

The most important issue to remember is that a Notice of Appeal must be filed within 30 days of the entry of a final Order. This does not mean that the actual appeal must be filed within 30 days, but rather that a simple Notice of Appeal is required. If a timely Notice is not filed in the proper time, the right to an appeal is waived and the Circuit Court Order or Judgment will stand.

If you are considering an appeal, you should contact an attorney immediately. It is important to remember that the Court of Appeals does not take testimony from the parties, but rather only considers the briefs that are filed by the attorneys in the appeal and the court record from the Circuit Court. Therefore, it is very important to make sure that you "make your record" in the lower court. Sometimes, a client will ask whether certain actions we take as attorneys (for example, hiring a court reporter to type a transcript of a court proceeding) is necessary. My response is always that we need to make a record of the case. Otherwise, the only record of a Hearing, for example, that survives is the court Order that is issued. Without a record of the proceedings, an appellate court can not refer to what happened at the court Hearing. This can often be the difference between winning and losing your appeal.

Divorce

Illinois courts gain jurisdiction, or power over the divorce, if one of the parties has resided in the state of Illinois for at least 90 days. Many issues need to be decided in a divorce, and this article is only regarding how the court dissolves the marriage.

In 1977, the Illinois legislature rewrote the divorce laws in our state. The statute, which was eventually adopted and is still with us today, is known as the Illinois Marriage and Dissolution of Marriage Act.

All states in our country have "no-fault" divorce. Illinois is a bit unusual in that, compared to other states, it has both fault and no-fault divorce. In order for a court to grant a divorce (known in Illinois as a "Dissolution of Marriage"), the court must make a finding that there is either (a) fault on the part of one spouse as set forth in the statute or (b) that neither spouse is at fault, but "irreconcilable differences have caused the irretrievable breakdown of the marriage and efforts at reconciliation have failed or that future attempts would be impracticable and not in the best interest of the family".

In order for the court in Illinois to grant a no-fault divorce, the husband and wife must live separate and apart for a continuous period in excess of two years and irreconcilable differences must be found to have caused the irretrievable breakdown of the marriage and further efforts at reconciliation have failed or future attempts at reconciliation would be impracticable and not in the best interest of the family. The two-year separation requirement, however, can be reduced to six months if the parties sign an affidavit which waves the two-year separation requirement. Although many divorces in Illinois start off by alleging fault committed by the other spouse, the vast majority of cases eventually settle based upon no-fault of either party.

What if the husband and wife decide, during their separation, to try "one more time" to repair their marriage; does that negate the original separation period? No. The law wants to encourage couples to attempt reconciliation, and they do not want to discourage people from making these attempts. Specifically, the statute states that "at any time after the parties cease to co-habitat, the following periods shall be included in the period of separation": (a) any period of co-habitation during which the parties attempted to reconcile under the guidance of a therapist, counselor, etc. or (b) any period of co-habitation under written agreement of the parties to attempt to reconcile.

Lastly, what does "live separate and apart" mean? Although the statute is not clear, our courts have interpreted the phrase to include periods when the parties resided in the same residence, but had clearly not lived as husband and wife. For example, many couples find it difficult to live in separate residences immediately because of financial constraints. However, they may live in separate bedrooms and not engage in sexual relations. Our courts have found that sort of arrangement can be considered living separate and apart.

In order for an Illinois court to grant a Dissolution of Marriage based upon fault of one spouse, the court must find one of the following: that, without cause or provocation by the petitioner: (1) the respondent was at the time of such marriage, and continues to be naturally impudent, (2) the respondent had a wife or husband living at the time of the marriage, (3) the respondent had committed adultery subsequent to the marriage, (4) the respondent has willfully deserted or absented himself or herself from the petitioner for the space of one year, including any period during which litigation may have pended between the spouses for dissolution of marriage or legal separation, (5) the respondent has been guilty of habitual drunkenness for the space of 2 years, (6) the respondent has been guilty of gross and confirmed habits caused by the excessive use of addictive drugs for the space of 2 years, (7) has attempted the life of the other by poison or other means showing malice, (8) has been guilty if extreme and repeated physical or mental cruelty, (9) has been convicted of a felony or other infamous crime, (10) or the respondent has infected the other with a sexually transmitted disease. "Excessive use of addictive drugs", as used in this Section, refers to use of an addictive drug by a person when using the drug becomes controlling or a dominant purpose of his or her life.

All states in the United States completely revamped their divorce laws in the 1970ís. Illinois passed their new statute, the Illinois Marriage and Dissolution of Marriage Act, in 1977. The political battled in our state was quite fierce, and one of the main opponents to liberalized divorced laws was the Roman Catholic Church, amongst others. One of the compromises contained in our current state statute was to allow parties to settle divorce type issues (relating to, for example, property and children) without asking for a divorce. Although divorce has become quite common in our society, there are still a number of people who object to completely dissolving their marriage, either because they want or need some the protections afforded in a divorce or are opposed to divorce based upon religious grounds. Many people do not get divorced because they need the health insurance provided by the other spouse, or they have been married many years and are elderly, etc.

The compromise in Illinois was to allow "legal separation". Essentially, any person living separate and apart from his or her spouse without fault may have a remedy for reasonable support and maintenance while they still live apart. Hence, by filing a Petition for Legal Separation with a circuit court in any county in our state, the court can award support and deal with other issues between the parties without terminating the marriage. Once the Judgment for Legal Separation is entered by the court, property can be subsequently acquired and held separately as non-marital property.

It is important to understand that the other spouse is not prohibited from filing his or her own Petition for Dissolution of Marriage and requesting that the court completely dissolve the marriage.

Unmarried parents of a child often assume that they have the same rights as do married parents of a child. While in many ways this is true, there are important differences that need to be recognized.

One of the most important distinctions is that unmarried parents should seriously consider having a court case in Illinois, even if the parties are living together as a family unit. Why? One reason is that it is important for the father of the child to properly establish his paternity of that child. This can be accomplished in Illinois by merely completing the state form entitled "Voluntary Acknowledgment of Paternity". Many couples complete this form at the hospital when the child is born, in order for the father to be listed on the child's birth certificate.

However, it is important to establish that the family is living together as a unit. One problem when a family unit dissolves and the parents are not married is that, for example, one parent takes the child and moves to another location. At that point, the other parent has no officially outlined rights as to the child. Of course, that other parent has rights, but if there has never been a court case, that parent would need to "start at the beginning" and go to court to enforce his or her rights. If there was already a case on file with the court, it is much easier and quicker to establish temporary and long term rights for each parent after the break up of the family unit. Unfortunately, we have seen far too many examples of a parent who suddenly leaves the family home with the child and refuses to allow the other parent to see that child. The other parent then usually calls the police, who inform them that, since there is no court order, a Judge must determine each parent's rights and responsibilities. This inevitably creates a crisis situation, which is in nobody's interest.

Another important aspect of the Illinois Parentage Act of 1984 is that it allows a custodial parent to claim child support back until the date the child was born. However, if the parties were living together as a family unit, it would not be appropriate to award child support for those time periods. By filing a case in court when the family is living together as a unit, it not only establishes each parties' rights with respect to the child but also becomes a record that the family is living together as a unit. We have seen many cases where the question of back child support becomes hotly contested, and the question is often whether the parties were living together as a family unit during certain time periods.

Another important aspect of the law is that both the father and mother have the right to challenge whether or not the father is, in fact, the natural father of the child. However, many people do not realize that this right is limited. How? Once paternity is established, either by the court and/or acknowledged (agreed to) by the parties, it is very difficult to "undo" this determination.

As most people understand, the paternity can easily be determined by a DNA test. What many people do not realize is that you can not request a DNA test at anytime. A common scenario is where the parties agree in court (or at the hospital on a voluntary acknowledgment of paternity) that the man is the father of the child. Once a court, for example, has accepted this acknowledgment of paternity, the father no longer has the absolute right to demand a DNA test. The lesson to be learned is that if either party has any doubts as to paternity, they should insist on a DNA test. Before paternity is established, either party has the right to insist on the DNA test; afterwards, they do not (unless both parties agree to the test). Finally, many unmarried parents assume they have the same rights as married parents. While this is true in many regards, it is not true in all regards. For example, in a divorce case, the court has the right to regulate whether or not a custodial parent can move out of state with the child. Under the Illinois Parentage Act of 1984, the court has no real authority to block this removal of the child from Illinois. However, a non-custodial parent can, with the assistance of an attorney, negotiate a settlement in any custody matter in court which specifically includes language that requires the custodial parent to seek court permission before permanently removing the child from Illinois (similar to the divorce rules). This is an added measure of protection that a non-custodial parent can secure from the court.

Legal Separation

All states in the United States completely revamped their divorce laws in the 1970s. Illinois passed their new statute, the Illinois Marriage and Dissolution of Marriage Act, in 1977. The political battled in our state was quite fierce, and one of the main opponents to liberalized divorce laws was the Roman Catholic Church, amongst others. One of the compromises contained in our current state statute was to allow parties to settle divorce type issues (relating to, for example, property and children) without asking for a divorce. Although divorce has become quite common in our society, there are still a number of people who object to completely dissolving their marriage, either because they want or need some the protections afforded in a divorce or are opposed to divorce based upon religious grounds. Many people do not get divorced because they need the health insurance provided by the other spouse, or they have been married many years and are elderly, etc.

The compromise in Illinois was to allow "legal separation". Essentially, any person living separate and apart from his or her spouse without fault may have a remedy for reasonable support and maintenance while they still live apart. Hence, by filing a Petition for Legal Separation with a circuit court in any county in our state, the court can award support and deal with other issues between the parties without terminating the marriage. Once the Judgment for Legal Separation is entered by the court, property can be subsequently acquired and held separately as non-marital property.

It is important to understand that the other spouse is not prohibited from filing his or her own Petition for Dissolution of Marriage and requesting that the court completely dissolve the marriage.

Division of Property

Courts in Illinois have the power and authority under the Illinois Marriage and Dissolution of Marriage Act to divide marital property "equitably". We need to answer whether property is marital or non marital, whether any non marital property was converted into marital property, and whether the court should order any reimbursement in the marital and non marital estates or contributions from one to the other.

Distinction between marital and non-marital property

All property acquired during the marriage is marital property (unless under specific exceptions, listed below) and should be divided by the court "equitably". The term "equitable" is not the same as "equal". Our courts have broad discretion in dividing marital property, and they have not hesitated to divide that property on an unequal basis where the facts make such a division appropriate. In making these decisions, courts and attorneys are guided by case law and Section 503 of the Illinois Marriage and Dissolution of Marriage Act. Section 503 states specifically that marital property shall be divided "without regard to marital misconduct in just proportions". This is important to understand, as many people believe that the non-financial misconduct of their spouse during the marriage will effect how property is distributed. As you can see, the law instructs judges to not consider marital misconduct when dividing marital property.

What do judges consider when deciding on how to divide marital property in an "equitable manner"? Some of the factors include (a) duration of the marriage, (b) relevant economic circumstances of each party, (c) the age, health, station, occupation, income, skills/employability, non marital assets and the needs of each party, (d) division of property in addition to any maintenance, or in lieu of maintenance, (e) reasonable opportunity of each party for future acquisition of assets and income, and (f) the tax consequences of the property division for each party.

It should also be remembered that a court has the power to determine if any spouse has "dissipated" any property. Broadly speaking, "dissipation" is when one party spends marital assets on purposes "unrelated to the marriage". The best example of this is when on party spends marital assets on their new girlfriend or boyfriend. However, the concept of "dissipation" is much broader and is designed to protect the innocent spouse from the wasteful spending of the other spouse.

What is non-marital property? It is property (a) acquired by gift or inheritance, (b) acquired in exchange for property acquired before the marriage by gift or inheritance, (c) acquired after a Judgment for legal separation, (d) excluded by valid agreement of the parties, (e) acquired before the marriage, (f) acquired by judgment from party to the other. The increase in value of these properties is also non-marital, although contributions of marital assets will need to be reimbursed.

It is important to remember that non-marital property can be converted into marital property. For example, a home acquired by one spouse before marriage is generally non-marital. However, that can be changed if, for example, the spouse changes title into the names of both spouses. That change could convert the property into a marital asset.

Marital Residence

The largest, or one of the largest, assets for most families is their marital home. Once the divorce case is filed with the court, what happens during the divorce? What happens after the divorce is completed?

It is important to understand that neither party can have the other party removed from the marital residence just because a divorce case has been filed. While Illinois courts have the power to order one party to leave the marital residence, they generally will not do so unless that party has somehow become a danger or threat to the other party or the children.

If there is no threat or danger, but rather the situation at home has become unpleasant and stressful for two people to live together during the divorce, this can be an added incentive to both parties to not drag out the divorce proceeding. However, this right to remain in the marital residence can also be used by one party to badger and harass the other party to either leave the marital residence or settle their divorce case on less than favorable terms.

How can an attorney help? If the situation is merely unpleasant and stressful (which is normal during a divorce proceeding), it would be very difficult to have the other spouse removed from the home. However, there are times when one spouse will behave in a manner that is designed to exert pressure on the other spouse in ways that are difficult to prove in court. For example, the most common "low level" form of harassment is verbal; small comments here and there that are designed to make life for the other spouse untenable. It is important that your attorney be kept informed of these developments, so that your rights can be protected. It is possible to have a spouse removed from the home for non-physical, mental abuse.

What happens to the marital residence after the divorce? If the marital residence is martial property, the court has the power to order the division of the property, including "the desirability of awarding the family home, or the right to live there and for reasonable periods, to the spouse having custody of the children". Often, the marital residence is the only substantial asset owned by the parties, and it is sold if neither party can afford to buy the other's share in the home. However, the court can allow the spouse who obtains custody of the children to stay in the house after the divorce, if it does not result in a "hardship" for the non-custodial spouse. If the house is retained for a period of time by the custodial parent, the residence would be sold in the future at a specified time, and the proceeds divided between the parties.

Child Support

Illinois courts have the power to award child support to any parent, for the benefit of their children, usually to the parent who is the primary care giver for the parties children. Child support is generally not available where both parties and the children remain living together during the pendency the case. It is available in divorce, legal separation, and parentage cases, both during a case and thereafter.

Unlike maintenance (alimony), which is not set according to any specific guidelines, child support in Illinois is set pursuant to a guideline based upon the net income of the "obligor" (the parent who will be paying child support). The guidelines are as follows:

Number of Children Percent of Supporting Parent's Net Income

Although the child support is set pursuant to a percentage of net income, a specific dollar amount is listed in the court order as the child support obligation. In cases where an obligor's net income varies, the court will average that person's net income, with the result that the child support obligation will be the same amount from paycheck to paycheck based upon the average. This is sometimes difficult for obligors whose income varies widely, but it is the standard method of setting child support in Illinois. While it may seem fair to have a percentage of each paycheck and whatever the obligor actually made on each check removed, Illinois law requires that a specific dollar amount be ordered by the court.

What is "net income"? Net income is defined in our law as "the total of all income from all sources, minus the following deductions": (a) federal and state income tax, (b) social security payments, (c) mandatory retirement contributions required by law or as a condition of employment (most employees pay voluntary contributions to retirement), (d) union dues, (e) dependent and individual health insurance, (f) prior obligations of support or maintenance actually paid pursuant to a court order, and (g) expenditures for repayments of debt that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, and reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts.

Although our courts have the power to set child support above or below the above listed guidelines, it is difficult to have a court make these deviations, as Illinois courts generally like to stay within the guidelines. However, you should make sure your attorney takes advantage of all possible deductions (if you are paying support), or (if you are receiving support) that you verify all income from all sources (second jobs, investments, etc) to make sure you receive the correct amount.

Maintenance

Section 504 of the Illinois Marriage and Dissolution of Marriage Act sets forth the guidelines for awarding maintenance (otherwise known as alimony) to a spouse. Maintenance is only available to those who have been married, and is not an option for unmarried couples. Maintenance may be granted by a court on a temporary of permanent basis for either spouse in amounts as the courts deems just, without regard to marital misconduct, after considering the following:

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 or delayed 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 a 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 circumstance of the parties;
10. Contributions and services by the party seeking maintenance to the education, training, career or 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.

One of the primary factors to consider, if both parties are able bodied, is the age of the party seeking maintenance, the length of the marriage, and whether that party made certain professional/career sacrifices in order to raise the family. The most common maintenance case is where a spouse stopped working to stay at home to raise the parties' children. In those situations, one of the questions is how long it will take that spouse to rehabilitate him or herself and get back into the workforce. Another question is what the life style of the parties was during the marriage. For example, if the working spouse during the marriage made a very large income, the non-working spouse may have difficulty in maintaining the life style to which they have been accustomed without continued support from the other spouse. However, if the working spouse always was able to simply "make ends meet", there may not be sufficient funds to award maintenance (or very little), especially if the party being asked to pay maintenance is already paying child support.

Clients often find it frustrating that the maintenance law in Illinois does not have a percentage schedule, as with child support. Yet it is understandable that the law is left for individual Judges to determine the need and appropriate amount of maintenance. Each family situation is different, and maintenance needs to be determined on an individual basis. 

Failure to Pay Child Support

Although there has been a lot of press over the past few years about "deadbeats" who fail to pay their child support, the problem of unpaid child support continues in Illinois and nation wide. Fortunately, parents who are owed child support that has not been paid have a variety of tools at their disposal to obtain the needed support that is already owed. For parents who are behind in their support, it is also important to understand these tools that can be used.

The most common proceeding against a parent who fails to pay their child support is a Petition For Rule To Show Cause. In this petition, the parent who is owed support requests that the "obligor" show the court why he or she should not be held in contempt for their failure to pay child support. Assuming that the parent is unable to show any reason why they have not been paying child support, our courts will generally enter an order of contempt. The contempt of court can then be purged (removed) by the obligor making accelerated child support payments. The court also has the power to award attorney's fees and most courts are happy to oblige.

There are not many defenses for an obligor to defend against nonpayment of child support. If an obligor became unemployed it was his or her obligation to file a motion with the court to reduce their child support obligation until they found new employment. Another common problem is where an obligor made cash child support payments and there is no record of these payments. Since it is the obligation of the parent who pays child support to prove that they have made the payments, it is insufficient to argue that the payments were made in cash (unless the other parent acknowledges that the payments were made).

When a court orders an obligor to make payments on past due child support, they will often order a large down payment on the balance due within a short period of time and an accelerated payment schedule on the balance. For many parents who are owed child support, this can be unsatisfactory and frustrating. In some cases tens of thousands of dollars can be owed and a more immediate payment of the total amount due is desired. Yet even if a court does not order a complete immediate repayment on the total amount due, the parent who is owed the obligation of support should make sure their attorney obtains a judgment for any amounts that are to be repaid in the future. Attorneys have a wide array of legal mechanisms at their disposal to enforce a judgment, and these should be used.

What about the parent who owes an obligation of support and is unemployed? Although these can be difficult situations, a party should make sure they: (a) have the court order that the obligor maintain a job diary, and this should be reviewed meticulously at the next court date with the judge, (b) order the obligor to participate in a government sponsored job placement service, and (c) have that parent complete a financial disclosure statement to be reviewed by the court and the attorneys involved (it is often interesting to see how unemployed persons manage to survive for month on end when they are allegedly not working at any job).

Lastly, an underused mechanism that was added to our statute allows the court to suspend an obligor's drivers license if there is a child support arrearage in excess of 90 days of support. We have found that this is a most useful tactic, in that it tends to compel obligors to "work a little harder" to find the money needed to pay off the child support arrears.

Child Support Collections

What all parents need to know

What is the best way to collect or pay child support? Why is there so often confusion as to what has actually been paid on old support orders? This should be a simple process, yet as many people involved (either as parents, attorneys or Judges) know, the "process" can be frustrating, confusing and down right nerve wracking. A recent article in a Chicago legal newspaper had a headline that even attorneys are "baffled" by the way the collection process works!

Most custodial parents only want to receive the correct amount of child support and most non-custodial parents want to pay child support, as long as it is the correct amount and someone is correctly recording the amounts paid.

There has been a lot of press in the past few years concerning the issue of child support collections, most of it negative. Parents who are owed support have trouble collecting, and many parents who pay are often trapped between competing court and administrative orders, with the added headache of seized tax refunds where often no arrearage is actually owed.

A few years ago, major Illinois employers had the child support collection law changed so that orders issued now by any Illinois court must state that the support is to be paid by the employer directly through the state distribution unit ("SDU"), or that the parent is to make payments privately to the other parent, without any obligation by the employer to withhold child support. In other words, employers are no longer required (with orders entered now on) to withhold child support and send it directly to the custodial parent. For parents, it is important to know how your support is paid.

Direct payments

Do you receive or make payments directly to or from the other parent? If so, ask yourself if it might be better for the support to be taken out of the parent's pay check by his or her employer and sent through the SDU. Sometimes, parents believe (or are convinced by the other party) that it is more efficient to just have a parent pay support directly. The problem is that this can produce unneeded problems for either parent. For someone receiving support, child support can become a battle of nerves over (a) threats to not pay or (b) payments are delayed out of spite or anger. For those paying support, there is no clear record of payments made. Although canceled bank checks are proof of payment, these can become lost. In addition, the state may be involved in your case without you realizing it, and if payments are made directly between the parties, the state can mistakenly report you to the tax authorities as being delinquent on your child support. This can result in seized tax returns (which are very difficult to recover) and a mark on your credit report.

Payments through the SDU

Much of the problem a few years ago (and the bad press) resulted when the law was changed. Before, the individual counties in Illinois (all 102 of them) acted as distributors of child support for parents in their counties. The change in the law consolidated that job into the hands of the SDU in DuPage County. Simply put, the new SDU was not able to suddenly handle the thousands of checks it was receiving each week, with the added burden of a computer system that was useless.

The good news is that the SDU now has sorted out the problems, by and large. For most people, the SDU benefits both parties. I now generally recommend to clients that they have child support withheld by the employer and paid through the SDU. The result should be a clear record of payments, which benefits everyone; it makes child support payments automatic, which reduces stress for both parents; and helps (but does not guarantee) to keep the state administrative child support authorities from incorrectly believing a parent is delinquent in child support payments.

Lastly, for parents who pay support, you should find out if there is a state administrative case regarding your child support. Most parents assume that, once a case is filed in Court, that the court case is the only case. This is not necessarily true. Often, the state administrative authorities monitor child support payments, and if their records indicate an arrearage, they can (a) have tax refunds withheld; (b) put a mark on your credit; and (c) refer the matter to the State's Attorney for possible legal action. If there is a companion state administrative case regarding your support, make sure their records are correct. It can save you a lot of headaches.

College Expenses

Although a child of married parents has no legal basis to have a court order that their parents pay for college education, our Supreme Court has ruled that divorced or unmarried parents of children may be ordered to assist a child with educational expenses. Although most people assume that this applies only to post high school educational expenses, section 513 of the Illinois Marriage and Dissolution of Marriage Act states clearly that a court has the authority to "make provision for educational expenses" not only for college or other professional training "after graduation from high school, but also to any period during which the child of the parties is still attending high school, even though he or she attained the age of 18. The educational expenses may include, but shall not be limited to, room, board, dues, tuition, transportation, books, fees, registration and application cost, medical expenses including medical insurance, dental expenses, and living expenses during the school year and periods of recess, which sums may be ordered payable to the child, to either, or to the educational institution".

Our courts have great flexibility in awarding payments under Section 513, and it often comes as a shock to a parent that they can be "on the hook" for these obligations. However, as with most family law related issues, it is important to have an attorney who can make sure that each party's responsibilities, and that of the child (now adult), are properly reviewed and shown to the court. Section 513 states that the court must review (1) the financial resources of both parties; (2) the standard of living the child would have enjoyed had the marriage not have been dissolved; (3) the financial resources of the child; and (4) the child's academic performance.

In a recent matter that was handled by our law office, a parent sought to have the other parent pay 100% of the college tuition, fees, books, and private apartment housing of the 21-year-old child. In reading the petitioning parent's motion, you would not know that the student had failed more classes than he had passed, had refused to work, even during periods when he was a part time student or during the summer when he would not go to school at all, and that the petitioning parent had increased their own standard of living substantially since the time of the divorce.

Good attorneys who practice in this area of law know that they will often need to "dig deep" into the facts to protect their client and to make sure that all parties are "paying their fair share".

Custody

Probably the most difficult aspect of any legal case is the question of child custody. Section 602 of the Illinois Marriage and Dissolution of Marriage Act requires a court to determine custody in accordance with the best interest of the child. The court shall consider all of the following:

1. The wishes of the child's parent or parents as to his custody;
2. The wishes of the child as to his custodian;
3. The interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;
4. The child's adjustment to his home, school and community;
5. The mental and physical health of all individuals involved;
6. The physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person;
7. The occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person; and
8. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

Often, couples can agree that a child will live primarily with one parent. However, the court must decide if one party shall be granted sole custody or if the parties will have joint custody of the child. If a parent has sole custody of a child, that parent is able to essentially make all decisions regarding the child. What if the parents agree that the child will remain primarily with one parent, but the other parent insists upon joint custody? If the parties have joint custody of the child, the court will designate one of the parents as the residential parent for the child, and the parties will make major decisions involving the child jointly. Generally, this involves larger issues surrounding education, health and religious upbringing. Under a joint parenting agreement, the residential parent for the child makes the typical day to day decisions effecting the child.

If joint custody is envisioned, the parties will need to enter into a Joint Parenting Agreement, which will govern specifically how joint custody will operate in their case. When is joint custody suitable? Our courts have held that joint custody is proper when the parties are able to communicate reasonably regarding issues involving the child. Although many parents are unable to communicate and have decided to divorce, many parents are still able to discuss issues involving their child. What I advise my clients is that joint custody, in the long run, is better for both the parents and the child if the parents are able to communicate. Parents who communicate after a divorce are not only helping themselves, but are helping their child adjust to the divorce. Parents who continually fight before, during, and after a divorce put a tremendous amount of stress on a child, and this is obviously unhealthy. However, I also tell my clients that if they are unable to cooperate regarding the child with the other parent, entering into a Joint Parenting Agreement is not recommended. Parties who are simply incapable of cooperating regarding the child are setting themselves up for failure and future conflicts if they bind themselves to a Joint Parenting Agreement.

Visitation

Section 607 of the Illinois Marriage and Dissolution of Marriage Act sets forth the visitation rights that are to be granted to a parent who is not granted custody (or physical possession) of a child. All parents who are not granted custody or who are not designated the residential parent for a child are "entitled to reasonable visitation rights unless the court finds, after a Hearing, the visitation would endanger seriously the child's physical, mental, moral or emotional health". In other words, it is presumed that the non-custodial parent will have reasonable visitation rights with the child, and the only way to challenge that presumption is for the custodial parent to file a Motion with the court, requesting a Hearing.

It is not uncommon for a custodial parent to state that he or she is "uncomfortable" with the non-custodial parent having substantial time with the child. Often, the custodial parent was used to always being around the child when the parties were a family unit, and now that each parent will have individual time with the child, the custodial parent may be nervous about the new situation. Perhaps the other parent will not be able to care for the child, or will be reckless. Unfortunately, some custodial parents use visitation as a way to attempt to control the non-custodial parent, as some parents use child support as a control tool. However, any custodial parent who challenges the visitation rights of the non-custodial parent needs to show the court that there are specific reasons why that parent should not have reasonable visitation.

What is a "reasonable" visitation schedule? As with child custody, the court is dictated by the best interest standard. Generally, parents will have every other weekend with the child, and perhaps more time during the week. There is no model visitation schedule in the law, and the parents are free to develop their own visitation schedule, as long as it is in the best interest of their child.

Grandparent Visitation

The state of grandparent visitation rights in Illinois has been changing during the past few years. After a United States Supreme Court decision wiped out most grandparent visitation laws, most states (including Illinois) rewrote their laws to comply with the decision. In 2004 the Illinois legislature adopted many changes, and allowed grandparents (as well as great-grandparents and siblings) to file petitions for visitation rights in court if an “unreasonable denial” of visitation by a parent takes place and at least one of the following conditions exists: (a) one parents is incompetent as a matter of law or deceased or has been sentenced to prison for at least one year; (b) the parents are divorced (or are in the process of a divorce) or are legally separated and at least one parent does not objection to the grandparent visitation; (c) the grandparent of a parent whose parental rights have been terminated by the court (other than a juvenile court) seeks visitation (this does not apply in unrelated adoption cases); and (d) a grandparent of a child born out of wedlock seeks visitation (so long as the parents are not living together and paternity has been established for the father).

Sadly, there are all too many grandparents, great-grandparents or siblings of a parent who are denied visitation with a child. While it is always preferable for the adults to cooperate and allow a child to have access to extended family members, it is comforting to know that a grandparent can turn to our courts to seek access to a child, if that access is denied.

Removal of Children from Illinois

For a parent who is (or was) married to the other parent of a child, a court in Illinois must grant permission to remove that child permanently from the state. Section 609 of the Illinois Marriage and Dissolution Of Marriage Act guides the court, and a parent may seek to remove a child from the state both during a divorce or afterwards. It should be noted that, although many sections of the Illinois Marriage and Dissolution of Marriage Act apply to unmarried couples, our courts have ruled that section 609 does not apply in cases involving unmarried parents. This is a very important consideration in custody cases involving such unmarried parents. Please see our articles regarding custody and paternity.

Section 609 of the Illinois Marriage and Dissolution of Marriage Act states that:

• 609 (a) The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interest of such child or children. The burden of proving that such removal is in the best interest of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.

Beyond the specific language of the statute, courts in Illinois have developed specific guidelines to assist them in determining if a parent should be granted permission to remove a child from the state of Illinois. Such considerations include:

1. The likelihood that the move will enhance the general quality of life for both the custodial parent and the children;
2. The motives of the custodial parent in seeking to move (is it to frustrate visitation?);
3. The motives of the non-custodial parent in opposing the removal;
4. Visitation is very important and is in the best interest of the children: can it reasonably be preserved after a removal?

For any parent who desires to seek court approval to remove their child from the state, it is important to seek the advice and assistance of an attorney to help in the planning of such a move. As can be seen from the guidelines listed above, our courts pay special attention to the motivations and forethought put into such a move by the parent, as well as its effect on the child.

Dependent Exemptions

Who can claim for income tax purposes?

Many clients are confused as to how dependency exemptions may be claimed for income tax purposes. Custodial parents often assume they can claim the exemption, while parents who pay child support believe they are entitled to the exemption. Federal law states that the custodial parent is entitled to claim the dependency exemption unless the custodial parent has signed a written statement that he or she will not claim the exemption. In other words, if your divorce or custody Judgment is silent on the issue, the custodial parent is automatically entitled to claim the exemption, because there is no signed waiver. However, many Judgments incorporate settlement agreements that assign the exemption in some (or all) years to the non-custodial parent, and this is proper and acceptable for the IRS.

Can Illinois courts order a custodial parent to sign a declaration that they will not claim the exemption, and thus effectively assign it to the non-custodial parent? Yes. This issue has been addressed by our courts, and Judges in Illinois do have this authority to order a parent to sign the assignment.

The dependency exemption is often raised in settlement negotiations. How much is it worth to each party? That, of course, depends. One way to determine its value in "hard numbers" is to ask your accountant or attorney (if the attorney has the right tax software program) to calculate the value for each party based upon their respective incomes.

Adoption

M. Scott Gordon & Associates are able to assist clients with this important area of law. Whether you are seeking to have your spouse adopt your child from a previous relationship, you are attempting to adopt a child to start or expand your own family, or if you are attempting to adopt an adult, we can help you with this process.

Unmarried Parents

Unmarried parents of a child often assume that they have the same rights as do married parents of a child. While in many ways this is true, there are important differences that need to be recognized.

One of the most important distinctions is that unmarried parents should seriously consider having a court case in Illinois, even if the parties are living together as a family unit. Why? One reason is that it is important for the father of the child to properly establish his paternity of that child. This can be accomplished in Illinois by merely completing the state form entitled "Voluntary Acknowledgment of Paternity". Many couples complete this form at the hospital when the child is born, in order for the father to be listed on the child's birth certificate.

However, it is important to establish that the family is living together as a unit. One problem when a family unit dissolves and the parents are not married is that, for example, one parent takes the child and moves to another location. At that point, the other parent has no officially outlined rights as to the child. Of course, that other parent has rights, but if there has never been a court case, that parent would need to "start at the beginning" and go to court to enforce his or her rights. If there was already a case on file with the court, it is much easier and quicker to establish temporary and long term rights for each parent after the break up of the family unit. Unfortunately, we have seen far too many examples of a parent who suddenly leaves the family home with the child and refuses to allow the other parent to see that child. The other parent then usually calls the police, who inform them that, since there is no court order, a Judge must determine each parent's rights and responsibilities. This inevitably creates a crisis situation, which is in nobody's interest.

Another important aspect of the Illinois Parentage Act of 1984 is that it allows a custodial parent to claim child support back until the date the child was born. However, if the parties were living together as a family unit, it would not be appropriate to award child support for those time periods. By filing a case in court when the family is living together as a unit, it not only establishes each parties' rights with respect to the child but also becomes a record that the family is living together as a unit. We have seen many cases where the question of back child support becomes hotly contested, and the question is often whether the parties were living together as a family unit during certain time periods.

Another important aspect of the law is that both the father and mother have the right to challenge whether or not the father is, in fact, the natural father of the child. However, many people do not realize that this right is limited. How? Once paternity is established, either by the court and/or acknowledged (agreed to) by the parties, it is very difficult to "undo" this determination.

As most people understand, the paternity can easily be determined by a DNA test. What many people do not realize is that you can not request a DNA test at anytime. A common scenario is where the parties agree in court (or at the hospital on a voluntary acknowledgment of paternity) that the man is the father of the child. Once a court, for example, has accepted this acknowledgment of paternity, the father no longer has the absolute right to demand a DNA test. The lesson to be learned is that if either party has any doubts as to paternity, they should insist on a DNA test. Before paternity is established, either party has the right to insist on the DNA test; afterwards, they do not (unless both parties agree to the test). Finally, many unmarried parents assume they have the same rights as married parents. While this is true in many regards, it is not true in all regards. For example, in a divorce case, the court has the right to regulate whether or not a custodial parent can move out of state with the child. Under the Illinois Parentage Act of 1984, the court has no real authority to block this removal of the child from Illinois. However, a non-custodial parent can, with the assistance of an attorney, negotiate a settlement in any custody matter in court which specifically includes language that requires the custodial parent to seek court permission before permanently removing the child from Illinois (similar to the divorce rules). This is an added measure of protection that a non-custodial parent can secure from the court.

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Identity theft

Often close to home

People often think of identity theft as a crime by a nameless, faceless person. However, a recent New York Times article reveals that half of all identity theft victims know the perpetrators of the crime. For example, the NYT article uses an example of a former spouse who used the children’s social security number to apply for nine credit cards in their names; she obtained two. This was the beginning of a nightmare not only for the former spouse, but also for the parties’ children. Although the former spouse is now in jail, it has caused so much havoc that the children’s credit history (who are still minors) are ruined and can possibly effect their applications for financial aid for college, buying a house, etc.

What can you do to prevent this kind of crime by a family member, ex-spouse, etc.? First, always insist that any documents filed in court by your attorney have your social security number blacked out. These court files are open to the public, and have a wealth of information for would be thieves. Second, regularly check your credit history through the three major credit reporting agencies. The example above was not detected by the former spouse for five year; by then, the damage had been done. Lastly, keep sensitive information in a secure area of your home, in a locked filing cabinet or some other place. It is not just former spouses who commit these crimes; they can also be house guests, plumbers/electricians or other workers around the house, housekeepers, etc.

Orders of Protection

There is widespread confusion about “orders of protection” and what our courts have the power to order. First, it should be remembered that, not too many years ago, our courts had limited power or desire to get involved in many situations where there are allegations of violence or abuse. Also, most local police departments would not respond to domestic violence calls, since it was considered a “family problem.” Couples were to work it out amongst themselves, and abuse of the elderly was not even recognized. The problem was that nobody wanted to talk about this “private” violence, and that is why statistics of domestic abuse are now soaring; while abuse may be up, the reason for the upturn is rooted in an increased willingness to report and monitor the problem.

In 1986, our state passed the Illinois Domestic Violence Act of 1986 (the “Act”). It allows a person (like a spouse) to immediately go into Court and obtain an Order of Protection. The petition filed can be with or without notice to the other party, and the Judge can issue an Order right away. If the other party is not given notice, an Order of Protection will be issued if the judge believes that the harm alleged would be likely to occur if the notice were given. Here’s how it works.

What is covered by the Act? Essentially, it is the “abuse” of a “family or household member” by anyone in that household, or in a home or shelter where a family is housed. Our courts do include in the definition people who are or were in an intimate relationship with the other party, such as girlfriends/boyfriends, former spouses, etc. In addition, the Act protects “high-risk adults” with disabilities, who can be anyone over 18 that has a physical or mental problem that prevents them from seeking and obtaining protection.

What is “abuse’ in the eyes of the law? “Abuse” can be:

1. Physical abuse. This is where one knowingly or recklessly uses force, restraint, sleep deprivation or “conduct that creates the imminent risk of harm.” In many ways, this is the easiest type of abuse to understand.

2. Harassment. Conduct that has no purpose but to cause emotional distress. Actions included in this category are: creating a disturbance at a person’s school or work; repeated telephone calls to someone at work or their home; “stalking”; improperly concealing or repeatedly threatening to conceal a minor child or to take that minor to another state; or threatening physical violence, force or restraint.

3. Intimidation of a dependent. Persons who are dependent due to age, health or disability, and who are subjected to or witness “physical abuse,” are covered by the Act, even if they are not a family or household member.

4. Willful deprivation. Willfully denying a person who, due to age, health or disability, requires medication, medical care, shelter, food and other essentials.

5. Interference with personal liberty. Engaging in or threatening physical abuse, harassment, intimidation or willful deprivation, which causes another person to do (or not do) something which they want (or do not want) to do.

The Act is useful. Many people hesitate to go to an attorney and the courts for help because they believe it will be a long process until any help is provided. This is unfortunate, because one of the most useful features of the Act is that it is quick and easy to initiate, and yields immediate results. For example, “Mary” recently telephoned my office after her husband had pointed a loaded gun at her head, threatened to kill her, and held her captive in her own home. Eventually, he put the gun away and she called the police, who searched the house after he denied having a gun. The weapon was found (loaded) and the husband was arrested. The first lesson of this episode is that the police do respond to domestic violence calls, and take them quite seriously.

However, while Mary made the best decision to call the police first, the police can only remedy the immediate problem. Eventually, her husband came home and she felt rightfully insecure for herself and her children. What can she do now?

What are the mechanics of asking for an Order of Protection? Mary’s next step was to call an attorney who assisted her in filing an Emergency Petition with the Court for an Order of Protection (an “Order”). Since it was filed as an emergency, the Court could hear it immediately. If Mary meets one of the criteria for an Order (which she certainly does), the Court will grant an Order of Protection ex parte, which means that the Order was entered without her husband having notice. The sheriff then makes service of the Order a top priority, as required by the statute. Once Mary’s husband receives notice of the Order, he cannot enter the home or have any contact with Mary or the children until the next Court date.

The second Court appearance is in no more than 21 days, at which date a hearing on the Petition is scheduled. At this point, Mary’s husband is given an opportunity to respond to the charges made against him. If he is unable to rebut the charges (or fails to come to court), the Court will then issue an Order of Protection which can last up to 2 years (and can be extended if necessary).

What “Protection” is a victim given by the Court Order? Specifically, the Court has the power to enter an Order that accomplishes one or more of the following:

(a) prohibit “abuse” or “neglect’ of a person or the exploitation of a disabled adult (example: misuse of the adult’s assets); (b) grant exclusive possession of the parties’ residence; (c) prohibit the offender from contacting the victim; (d) physical care of any minor children; (e) visitation with the minor children (if any); (f) exclusive possession of personal property; (g) prohibit firearm possession; (h) order payment to the victim for any losses or expenses (including attorney’s fees); and (i) other remedies.

The most frequent question I am asked by my clients is whether they can get exclusive possession of their residence. The answer is fact specific, because the Act requires the judge hearing the Petition to “balance the hardships” between the parties. The court looks to the hardship for the victim, the alleged abuser, any minor children and any dependent adults in the household and how the granting of exclusive possession will impact each. Exclusive possession “is presumed to favor” the victim, and this is a real advantage when this remedy is sought.

Of course, once an Order of Protection is entered, there is no guarantee that the abuser will not violate it; the police are immediately notified of the Order, but guards are not placed outside the victim’s home. However, there are two things to keep in mind. One, the Act recognizes that some victims are in hiding and the Court will accommodate this wish and not reveal a victim’s whereabouts. Two, violation of the Order is considered contempt of Court and can, in certain circumstances, be a crime. This provides substantial teeth to the law and acts as a deterrent in most cases.

Many victims of domestic abuse are either unaware of the legal remedies at their disposal, or do not trust the court system enough to use it. This is unfortunate, as many of these perceptions are rooted in the past, and are no longer founded.

Pre-Marital Agreements

Illinois has enacted the Uniform Premarital Agreement Act. Premarital agreements may be contracted between two prospective spouses with respect to:

1. the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
2. the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
3. the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
4. the modification or elimination of spousal support;
5. the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
6. the ownership rights in and disposition of the death benefit from a life insurance policy;
7. the choice of law governing the construction of the agreement; and
8. any other matter, including their personal rights and obligations, not violation of public policy or a statute imposing a criminal penalty.

The most important thing to remember is that there are certain simple guidelines to follow, and if they are ignored, the agreement will be unenforceable in court. A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:

1. the agreement was not entered into voluntarily;
2. the agreement was "unconscionable" when it was executed;
3. a fair and reasonable disclosure of the property or financial obligations of the other party was not provided before the agreement was entered into (or the right to such disclosure was not voluntarily and expressly waived in writing);
4. did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

Sometimes, parties will attempt to craft their own Premarital Agreement by themselves, without the assistance of an attorney. We strongly advise that both parties have independent attorneys craft and review the Premarital Agreement with each party. Our courts have found that each party needs to have independent legal advice before entering into any Premarital Agreement. Otherwise, the Premarital Agreement will almost certainly be unenforceable.

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Guardianships

Often, it is necessary to ask a court to appointment a guardian for a minor when neither parent is able to care for that child. Any person who is at least 18 years old, of sound mind, not adjudicated a disabled person under the law, has not been convicted of a felony and who the court finds is capable of providing an active and suitable program of guardianship for the minor is qualified to act as guardian of the person or the estate of a minor. In order to appoint a guardian for a minor, a Petition must be filed with the court requesting the appointment. A parent may also designate in any writing, including a will, a person qualified to act as guardian for their child. It is important to note that this designation must be done in a very specific way, as set forth in the law.

In addition, it may be necessary to request a court to appoint a guardian for a disabled adult. The most common situation here is for an elderly person who, with the advancement of age, is unable to care for themselves or their estate. Again, upon the proper filing of a Petition with a court, that court may appoint a guardian for the disabled adult and/or his or her estate.