Calabrese Associates, P.C.

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Recent blog posts

Divorce Requires Adjusting Your Retirement PlanDivorce can upend your carefully made plans for your future, including your retirement. If you are approaching retirement age, you may have already figured out:

  • How much money you will need to support yourself and your spouse during retirement;
  • What lifestyle you will be able to live; and
  • How much you need to contribute to your retirement accounts in order to reach your goal.

However, your retirement plan assumed that you would be married. Having a spouse allows you to pool your retirement money together and share in your expenses. As a single retiree, you may have less financial resources to work with. There are a couple of ways that divorce can drain your retirement accounts.

Marital Property

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Advantages and Disadvantages of Postnuptial AgreementsPostnuptial agreements are often grouped in the same discussions as prenuptial agreements. Both are legal documents that help spouses predetermine the terms of a hypothetical divorce, including:

  • Defining marital and nonmarital properties;
  • Determining how marital properties would be divided;
  • Protecting spouses from nonmarital debt; and
  • Setting the expectations for spousal maintenance.

By definition, the difference between a prenuptial and postnuptial agreement is that postnuptial agreements are reached after the spouses have married. Spouses may opt for a postnuptial agreement if it is too late to create a prenuptial agreement or they need to change the prenuptial agreement. However, spouses can have different reasons for creating a postnuptial agreement than they would for a prenuptial agreement.

Changing Relationship

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11 Factors Courts Consider When Ruling on Child RelocationIllinois law prohibits a divorced parent from relocating with a child without notifying the other parent and receiving court approval. There are no exceptions for cases in which the other parent has little parenting time with the child or is deemed unfit. Unless the other parent has lost his or her parental status, a relocation order must be obtained if a parent wishes to move a child:

  • More than 25 miles if living in Cook, DuPage, Kane, Lake, McHenry or Will County;
  • More than 50 miles if living in any other county in the state; or
  • More than 25 miles if the new location is in another state.

Child relocation disrupts the allocation of parental responsibilities for the other parent. Regular parenting time may be impractical if the child lives too far away. However, the relocating parent and the child may benefit from the move. Illinois law lists 11 factors that a court should consider when deciding on a child relocation request:

  1. The Reason for the Move: The relocation should have some direct benefit for the parent or child. For instance, a parent may relocate because of a new career opportunity that will allow him or her to better support the child.
  2. The Reason for the Objection: If the parent who is not relocating wishes to block the move, he or she can explain how the move would disrupt his or her parental rights.
  3. Parental Fitness: The court will examine whether either parent has a history of not fulfilling his or her parental responsibilities.
  4. Educational Opportunities: The court may favor a move that puts a child in a better school district.
  5. Extended Family: It is often beneficial for a child to live near other relatives. The court will consider whether the move results in the child being closer or farther away from relatives.
  6. Impact of Relocation: A move may improve a child’s standard of living but may also be emotionally traumatic.
  7. New Parenting Agreement: The move would likely require changing the allocation of parental responsibilities. The court wants to see whether the parents can still create a reasonable agreement.
  8. Child’s Wishes: The court will only consider what the child wants if the child is mature enough to give a reasoned explanation.
  9. Appropriate Arrangement: The moving parent must have the necessary resources in order to support the child in the new location. A younger child may struggle with a more disruptive parenting arrangement that results from the move.
  10. Continued Relationship: The court wants to minimize any effect that the move would have on the relationship between the child and the objecting parent.
  11. Other Factors: Either parent can present other reasons that moving or not moving would be in the best interest of the child.

Relocation Orders

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New Law Provides Guidelines for Collaborative NegotiationsIllinois recently approved the Collaborative Process Act, which outlines the collaborative law process of negotiating divorce and family law issues. Collaborative law is a relatively new form of alternative dispute resolution that incentivizes cooperation and open sharing of information. Both sides and their legal counsels sign an agreement in advance, stating that the counsels will withdraw from the case if a resolution is not reached. Advocates for the process believe Illinois’ new law will increase awareness and encourage its use by establishing standards and guidelines. The act, which goes into effect on Jan. 1, describes the requirements and limitations of the collaborative process.

Approved Subjects

The law defines terms relating to the collaborative process, including which issues qualify as collaborative process matters:

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Posted on in Divorce

Dating as a Single Parent After DivorceIt is unwise to quickly jump back into dating after you have completed your divorce. You need time to heal from your marriage, including:

  • Coming to terms with why you divorced;
  • Adjusting to your post-marriage lifestyle; and
  • Feeling emotionally ready to start a new relationship.

Even after you feel ready, there may be others who need time to recover from the divorce. Children can be upset when they see one of their parents dating someone new. You must be conscious of your children’s reaction when starting a new relationship after divorce.

Understanding Children’s Emotions

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Former Husband Loses Appeal in Spousal Maintenance CaseAn Illinois appellate court recently denied a man’s petition to vacate an agreement that obligated him to pay $500,000 in spousal maintenance to his former wife. The man claims he signed the agreement under fraudulent circumstances because his former wife concealed significant financial assets. Previously, an Illinois trial court determined that the man’s claim had no standing and ordered him to pay the remainder of the maintenance agreement, as well as his former wife’s attorney fees.

Case Background

In 2006, the woman filed a petition of indirect civil contempt against the man for failing to comply with the spousal maintenance payments that they agreed to in their 2001 divorce. The woman claimed that the man was not remitting parts of his income that came from his social security benefits and various trusts. In 2009, the man agreed to pay the woman $500,000, which included paying $350,000 immediately and the remaining $150,000 by December 1, 2013. The man made the initial payment but later disputed the agreement and refused to pay the final $150,000. The man filed a petition to vacate the agreement shortly after the deadline passed for him to make the final payment. He claimed that the agreement is fraudulent because the woman failed to disclose during the negotiations that she had a bank account containing $500,000. The woman responded that the money was a loan from her son and the man was aware of the loan. The trial court sided with the woman in June 2016, leading to the appeal.

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Preparing For Your Initial Divorce ConversationDivorce is a monumental event that will affect your life and the lives of your family and friends. However, your divorce will start as a conversation between you and your spouse, with a stark message: “I do not want to be married to you anymore.” It can be difficult to build up the courage to have that initial conversation because you anticipate the pain and turmoil that it will cause. Your initial reactions can set the tone for whether your divorce will be amicable or combative. You cannot control how your spouse will react to your request for a divorce, but you can prepare for the conversation in an attempt to minimize conflict.

Be Gentle

Leading up to the conversation, you may have accepted that your marriage is beyond repair and divorce is what will make you happy. Do not assume that your spouse has come to the same conclusion. Recognizing conflict in a marriage is different from wanting to end the marriage. If your spouse is surprised by your divorce request, he or she will likely be angry and upset. You should anticipate this response so that you can:

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Posted on in Paternity

Contesting Your Paternity of a ChildEstablishing paternity after a child is born is important for all parties involved. The father gains the allocation of parental responsibilities. If the parents are not together, the mother can collect child support from the father. The child knows who his or her father is and can decide whether to pursue a relationship later in life. The father is most often the mother’s current or most recent romantic partner, but there are exceptions. A presumed father who believes he is not the biological father must make a choice: 

  • If no one else claims paternity, he can accept responsibility as the child’s legal father; or
  • He can deny his paternity, which may require going to court.

Unmarried Men

If your current or former girlfriend has a child out of wedlock, you can legally establish yourself as the father by signing a Voluntary Acknowledgement of Paternity. However, you should wait on signing the document if you have a reasonable doubt that you are the father. Once you have signed a VAP, you have 60 days to cancel it. After that, a court will rescind your paternity only if you can prove you signed the document under fraudulent circumstances or duress. If you refuse to sign a VAP, the mother may take you to court to establish paternity. The court will determine whether you are the father and what parental responsibilities and obligations to assign to you.

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Reducing Capital Gains Tax When Selling Marital HomeThe marital home – or more specifically, the value of the marital home – can be a hotly debated subject when dividing properties in a divorce. Only one spouse can keep the home, and the other spouse will need fair compensation in money or assets. Some spouses instead choose to sell their marital home and split the revenue from the sale. Each spouse can receive a substantial payout from the sale to go towards his or her post-divorce life. However, lucrative sales will incur the capital gains tax. The timing in which divorcing spouses sell their marital home can reduce their tax obligation.

Reasons to Sell

A home is often the most valuable property in a marriage, in both monetary and personal terms. Spouses may have an emotional attachment to the home, especially if they have children. However, selling the home is the most practical option in some divorces:

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Do Not Underestimate the Impact of Divorce on Your ChildrenDivorced spouses may feel relieved to have ended their contentious marriage. The hostility between them made their lives miserable. If the former spouses are parents, they may believe that the divorce will benefit the children, as well. After all, children feel stressed and unhappy when living with parent who are often fighting. However, children are unlikely to view the divorce in that way. The positives that come from not witnessing their parents' hostile relationship are outweighed by feelings of loss and betrayal. Parents must understand how their divorce will affect their children.

Through a Child’s Eyes

For children, there is no fresh start or optimism after their parents separate. The divorce has abolished the two-parent home that they knew and replaced it with an unfamiliar living arrangement. Normally, parents put their children's needs first. A divorce tells the children that their parents' needs are more important than keeping the family together. Though they may not say it, children can blame their parents for not saving their marriage. If not their parents, they may blame themselves. Adults understand that divorce is a natural and often necessary outcome when spouses have irreconcilable differences. For children, divorce is unnatural because it destroys their family.

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Structured Settlements Defer Compensation for Marital PropertyMarital properties in a divorce must be equitably divided between the two parties, according to Illinois law. However, cleanly dividing the properties can be challenging or, in some cases, seemingly impossible. Properties can differ based on their assessed value and liquidity. Some of the most valued properties in a marriage, such as real estate, are not liquid, unless the parties agree to sell the property and split the proceeds. For instance, only one spouse can receive the marital home, and the other spouse must be compensated for the assessed value of the home. If a non-liquid asset is by far the most valuable property in a marriage, the remaining properties may be insufficient in value to serve as compensation. In such cases, parties in a divorce can agree to a structured settlement that will compensate a spouse over time.

Deferred Payments

The division of property for many divorces is a lump-sum settlement, in which both parties immediately receive the full value of their share of the assets. A structured settlement defers compensation, which one party will repay the other over time. So, a spouse who receives the marital home in the divorce may compensate the other spouse through monthly payments, often including interest. The court considers the owed payments to be part of the marital properties that are divided.

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Change of Circumstances Allows Immediate Modification to Parenting TimeWhen former spouses determine parenting time during a divorce, they are creating a schedule that works best at that moment. The needs of children and parents change as they get older. So, it is natural that a parenting time schedule will need to change at some point. A court must approve any modifications to a written parenting time agreement for them to be legal. The difficulty of the process may depend on: 

  • How significant the changes are;
  • How much time has passed since the agreement was created; and
  • Whether both parents agree to the changes.

New Laws

If your parenting time agreement was approved before 2016, you may hear unfamiliar terms when you return to court to modify it. For instance, your parenting time schedule may have been called a visitation schedule. Illinois enacted new divorce laws in 2016, and the new terms reflect a change in philosophy for creating parenting agreements. Parents are allocated responsibilities instead of being granted custody, and parenting time is one of the primary responsibilities. The language in your visitation agreement may be out-of-date, but the agreement can still conform to the law. As long as the court is satisfied that the agreement is in the child’s best interest, you may be able to preserve the parts that you do not want to change.

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How Social Media Can Hurt Your Divorce CaseMany users of social media have gotten into the habit of oversharing personal information. They have an unfounded belief that only a select group of friends will see what they post online. A savvy user knows not to post embarrassing or incriminating information about themselves to Facebook, Twitter, or any of the other popular social media applications. People going through a divorce must be even more cautious about how they use social media. A divorce attorney will investigate the opposing spouse’s social media accounts for evidence to use against him or her. Seemingly benign posts can damage someone's reputation in the context of a divorce. Divorce courts are given discretion in settling cases, and damaging social media posts may affect the:

There are several instances in which social media can be used against you during a divorce.

Attacking Your Spouse

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High Income Divorce Can Change Child Support CalculationsThe process for determining child support payments is mostly standardized during Illinois divorce cases. An Illinois divorce judge is likely to adhere to the state’s child support formula, which was recently changed to an income shares model. The parents’ net incomes are combined, and each parent will pay a proportionate percentage of child expenses based on comparative income and the division of parenting time. Illinois’ child support law gives divorce courts discretion in determining the payment in certain circumstance. Thus, child support in high income divorces may be calculated differently than when using Illinois’ standard model.

State Guidelines

In response to the new child support law, the Illinois Department of Healthcare and Family Services created a new income shares table for determining child support obligations. The table uses the parents’ combined monthly net incomes and the number of children they have to calculate how much of their incomes should go towards supporting their children. Each parent pays a share of the child expenses that is proportionate to his or her share of the combined incomes. However, the table ends at a combined monthly income of $30,024.99. Illinois law states that the court can use its discretion in determining child support when the combined income exceeds the limits of the table. The only stipulation is that the child support obligation shall not be less than what is listed for the highest income in the table.

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Preparing a Legal Guardian for Your ChildrenProtecting your children means preparing for their needs in case you can no longer be their parent. Your death, incapacitation or incarceration would prevent you from performing your parental duties. Planning for your absence is particularly important for single parents. If the other parent is not available to assume the allocation of parental responsibilities, your children must have a legal guardian to care for them. You can appoint a standby guardian to immediately take care of your children in the event that you are no longer able to.

What Is Guardianship?

A guardian is a person that a probate court appoints to oversee a child’s care when a parent is unable to. The legal parent retains his or her parental rights during guardianship and may reassume parental responsibilities once a court determines he or she is capable of doing so. To qualify as a guardian, a person must be:

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Safeguarding Your Business During DivorceBusiness interests are regarded the same as other properties during a divorce. If your business is classified as a marital property, it is part of the equitable division of property between spouses. While you both have a stake in it, the business may be more important to you if you are the primary owner and operator. It is your life’s work, as well as your main source of income. During the divorce, you want to:

  • Maintain control of your business; and
  • Keep the assets that your business needs to succeed.

In order to protect your business during a divorce, you may need to compromise on other marital properties.

Business as a Marital Property

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Unfit Parent Claim Can Restrict VisitsIllinois law presumes that both parties in a divorce are fit parents, allowing them an equal right to the allocation of parental responsibilities. The parenting time and decision making may not be evenly split between the parents, but the divorce settlement will give reasonable responsibilities to each side. However, a court can limit or deny a parent’s responsibilities if it determines the parent is a threat to the child. Unfit parents may be required to use supervised visits in order to see their children.

Determining Unfitness

A parent can claim that the other parent is unfit during or after the divorce. Because of the presumption of fitness, a parent who believes his or her former spouse is a danger to their children must provide evidence to support the claim. A court needs documentation or reliable testimony that a parent may harm a child’s physical or mental health, such as:

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Getting Divorced After a Short MarriageAfter their actual honeymoon, newly married couples typically go through an extended honeymoon period, when the excitement and happiness of marriage outweighs any negatives. Researchers estimate that the honeymoon period typically wears off after three to five years, when stresses test the strength of a marriage. Some marriages do not survive the test, as studies in the U.S. show that approximately 20 percent of first marriages and 31 percent of second marriages end within five years. In rare cases, a couple may not need even a year to realize they made a mistake. Settling a divorce after a short marriage involves many of the same issues as longer marriages, but the duration of the marriage may affect how the issues are decided.

Division of Property

Illinois requires divorcing spouses to equitably divide their marital property, but a court is allowed to consider the duration of the marriage when determining the division. Courts will generally put greater importance on fairly dividing property in cases involving longer marriages, though there is no official number of years that are required for a longer marriage. For short marriages, it is also important to distinguish between marital and non-marital property. Spouses who have not been married for long are less likely to have accumulated shared assets, including:

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How to React When Divorce Catches You by SurpriseEveryone would like to believe that they understand the status of their marriage well enough to know when a divorce is imminent. However, some people are caught off guard when their spouse asks them for a divorce. Suddenly being served with divorce papers can be emotionally jarring. Your immediate reaction may be to ask yourself:

  • How did I miss the signs of my marriage falling apart?
  • Can I save my marriage?
  • What will happen to me and my children after a divorce?

While it is natural to feel shocked, you must prepare yourself for what is likely an inevitable divorce.

Legal Representation

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Summer Break Planning for Divorced FamiliesSummer break is just around the corner for children in school. While this is normally a happy family time, it can be a shock for children whose parents have recently divorced:

  • Spending more time at home may remind them that their family has broken up;
  • Family summer traditions may be changed or eliminated; and
  • Summer parenting time schedules can greatly vary from the regular schedule.

Parents entering the first summer after a divorce may need to change the normal summer routine to prevent their children from getting the summertime blues.

Dealing with Absence 

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