May 14, 2020
Generally in Joliet or anywhere in Will County, Illinois, it does not matter who is first in filing for a divorce. The person to file for the divorce first is known as the Plaintiff or the Petitioner, while the other person is the Defendant or Respondent. It is possible that the party to file for the divorce first may incur more court costs than the Defendant. Some of the cost that the Plaintiff may incur comes in through filing and service fees. It has also been noted that the Plaintiff may gain extra duties because they initiated the filing. For example, the Plaintiff will be required to show up in court for a final court appearance for a process which is called a prove up.
Additionally, if the case goes to trial, the Plaintiff will also be given the opportunity to present evidence first. These extra duties can either be an advantage or a disadvantage depending on how some may view it. Either way, the extra duties are not substantial in nature. All in all, the person who files first does not get any preferential treatment because they initiated the cause of action.
If you are going through a divorce in Illinois and need legal representation or are contemplating filing for a divorce in Illinois and need some legal advice or assistance, contact Hamilton & Antonsen at 815.729.9220 to set up a complimentary consultation with an experienced divorce attorney.
May 14, 2020
In Joliet and Will County, Illinois, joint custody in a divorce means that both parents may have maximum involvement in the lives of their children. Joint custody requires parents to agree and cooperate on all important decisions regarding the child. Some of these include education, religion and health care.
A Will County court will award joint custody only when it is in the best interests of the child. Both parents must enter a Joint Parenting Agreement which will indicate the residential parent, and the parent responsible for paying support to the residential parent. This “residential” status does not benefit the parent in any way, it is only used to indicate the main residence of the child.
The parents will make a schedule that works best for them and their family. The agreement must address each parent’s powers, rights and responsibilities for major decisions. After the parents come together on an agreement they will submit the agreement to a judge for approval. If no agreement can be reached by the parents a judge will have to decide what is best for the child.
In a joint custody proceeding, a Joliet or Will County judge will consider many factors when deciding what living arrangements are best suited for the child’s needs. These considerations include:
- The agreement between parents
- The desires of the child
- The relationship with the child and his parents and other siblings
- The child’s need to adjust to his home, school and community
- The mental and physical health of all parties involved
- The willingness and cooperation of each parent in facilitating and continuing a close relationship with the child
In Illinois, courts distinguish between legal and physical custody. Legal custody gives a parent the right to make important decisions about raising the child. Physical custody refers to where the child actually lives.
A major common misperception about joint custody is that joint custody means equal parenting time. Joint custody only means that both parents have legal custody over the child and must agree on important decisions. Parenting time for non-custodial or non-residential parents is the same in both sol and joint custody situations. An award of joint custody will also not preclude the residential parent from moving out of state. A residential parent cannot unilaterally move out of state absent an agreement by both parents or an order of the court.
If you have any questions regarding joint custody and your parental rights in Joliet or Will County, Illinois, contact Hamilton & Antonsen at 815.729.9220 to set up a free consultation.
May 14, 2020
“Maintenance” is the very same thing as alimony in a divorce; we simply don’t call it that anymore. Maintenance is also sometimes referred to as “spousal support.” It is a court-ordered provision paid to one spouse by the other upon divorce, often in fixed intervals for a finite amount of time.
Contrary to common belief, maintenance is not based on gender. In Will County and the state of Illinois, an ex-wife is no more entitled to support payments than is an ex-husband. Instead, maintenance is typically paid to the spouse that earns less during the marriage, especially if that spouse has made significant financial and/or career sacrifices to raise children or look after the home. That is, the “stay-at-home mom” or “stay-at-home dad” would, under the appropriate circumstances, be the party more likely to receive maintenance if the couple gets divorced.
Yet there is no single factor that guarantees either spouse will receive maintenance. The judge presiding over the divorce case is given a lot of discretion on the matter. Divorce law in Will County and the state of Illinois says a judge may grant maintenance “in amounts and for periods of time as the court deems just.” The statute delineates 12 factors a judge should consider when determining whether maintenance is appropriate and to whom it should be given. These factors include:
- the duration of the marriage (e.g., the under-earning spouse in a marriage of 25 years is much more likely to receive court-ordered maintenance than if the marriage lasted only 3 years);
- the needs of each party (the spouse requesting maintenance must demonstrate an actual financial need for things like food, shelter, electricity/gas, etc., and the other spouse must be fiscally able to pay the requested maintenance);
- the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance;
- the present and future earning capacity of each party (e.g., if one spouse is disabled and unable to work, s/he is more likely to be awarded support);
- 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 (this factor is sometimes referred to as the “Homemaker Contribution”);
- 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;
- the standard of living established during the marriage;
- the age and the physical and emotional condition of both parties;
- the tax consequences of the property division upon the respective economic circumstances of the parties;
- contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;
- any valid agreement of the parties (prenuptial and post-nupital agreements will generally be enforced); and
- any other factor that the court expressly finds to be just and equitable (notice how this leaves the matter open to the judge’s discretion).
Note that maintenance is awarded or denied without any regard to marital misconduct. This means, for example, if a marriage ends because one spouse cheated on the other, the “bad” spouse will be no less likely to receive maintenance, and no more likely to be ordered to pay maintenance, than if the parties divorced amicably. The main purpose of maintenance payments is rehabilitative, designed to give the under-earning spouse a chance to establish financial independence without taking a drastic blow to their customary standard of living.
Note also that maintenance is entirely separate from child support; the provision of one in no way influences the provision of the other. Yet there are additional differences as well: Unlike child support, the spouse receiving maintenance must pay taxes on it if, and the spouse paying the maintenance is allowed to write it off on their own taxes.
Finally, as mentioned above, court-ordered maintenance payments are usually only temporary, calculated to last only as long as the receiving spouse is believed to truly need it. Yet in some rare cases a court will order permanent (i.e. indefinite) maintenance. This usually only occurs in cases of a lengthy marriage and a disability that permanently prevents one spouse from supporting him- or herself. However, even “permanent” maintenance orders will terminate upon the death of either party, or if the party receiving maintenance remarries (or cohabits with another person on a continuing conjugal basis). Whether cohabitation with an unmarried partner warrants termination of spousal support depends on the specific facts of the relationship.
Because so much is left to the judge’s discretion when it comes to maintenance in an Illinois divorce proceeding, it is essential that you consult an experienced family law attorney familiar with the predilections and proclivities of the different judges in Joliet, Will County divorce courts. To speak to an attorney regarding your situation, please contact Hamilton & Antonsen at 815.729.9220.
Written by: Sarah Hannekin
May 14, 2020
There are two types of child custody in Illinois: sole custody (a.k.a. “full” custody) and joint custody. Custody issues often take center stage in divorce proceedings and may also cause disagreements between unmarried parents. The ferocity of some custody disputes is unsurprising since a parent’s custodial status essentially dictates whether that parent gets any say in a child’s upbringing. A parent’s right to weigh in on parenting decisions is the main difference between sole custody and joint custody.
A parent who has sole custody in Will County, Illinois has the exclusive right and responsibility to make major decisions about a child’s upbringing. These decisions include the child’s education, health care, emotional care, moral guidance, and religious instruction. A parent with sole custody is referred to as the “custodial parent.” He or she can decide if and when to discuss any parenting decisions with the non-custodial parent but has no obligation to do so. In a sole custody arrangement, the child lives with the custodial parent; the non-custodial parent usually gets visitation rights and pays child support.
When parents have of a child, both have agreed to cooperate and consult with one another on all important decisions regarding their child’s upbringing and care. In other words, both parents have the court’s approval to make major parenting decisions, as long as such decisions comply with the Joint Parenting Agreement. The Joint Parenting Agreement is a document drafted by the parents (or their attorneys) and approved by a judge. The agreement lists “rules” that both parents promise to adhere to in the parenting of their child. It lists the responsibilities of each and may include a child support plan. In short, it describes how the parents intend to cooperate to make decisions about their child’s health, schooling, religion, and the like.
Quite commonly the relationship between divorced or separated couples is emotionally turbulent, and one or both refuse to agree on anything. In such a case, joint custody is probably unrealistic. At the very core of a joint custody arrangement is the spirit of cooperation; if two parents cannot cooperate, a judge is unlikely to find joint custody to be in the best interest of the child. Even if the parents do agree on joint custody, the judge must approve their Joint Parenting Agreement to ensure it is fair and addresses all foreseeable issues. The law specifically states that the Agreement must set out “a procedure by which proposed changes, disputes and alleged breaches may be mediated or otherwise resolved.” (Examples of such procedures include mandatory mediation or petitioning the court so that the judge can decide.)
It is important to note that joint custody does not mean the child will spend equal time with both parents. Just as in sole-custody situations, a child in a joint-custody arrangement lives with one parent the majority of the time; this parent is referred to as the “primary residential parent.” The other parent gets visitation and pays child support.
To summarize, the difference between sole (“full”) custody and joint custody lies primarily in the parents’ decision-making responsibilities, rather than in their financial responsibilities. And although Illinois law tries to promote the involvement of both parents in their child’s life, there is no presumption in favor of joint custody.
Parenting is a challenging yet rewarding journey. Divorce often makes this journey a little bit harder. If you or your child’s other parent intends to file (or has already filed) for divorce in Joliet or Will County, it is essential that you consult a divorce attorney experienced in family law and child custody issues to protect your child’s best interests and your rights as a parent. If you have already separated from your ex and wish to change or enforce an existing child custody order, child support order, or visitation order issued in Joliet or Will County, we can help.
To discuss your personal situation with an experienced attorney, please us at 815.729.9220.
Written by: Sarah Hanneken
