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dupage county prenuptial agreement lawyerIn many cases, couples who are planning to get married may be considering whether they will need the protection of a prenuptial agreement. A prenup can be beneficial in many situations, including cases where one or both spouses own significant assets or have children from a previous relationship. By entering into an agreement that decides how certain issues will be handled if their marriage ends in divorce, a couple can avoid uncertainty, minimize potential disputes, and provide themselves with financial protection. When creating a prenup, it is important to understand how matters related to spousal maintenance (also known as alimony or spousal support) may be addressed.

Modifying or Waiving the Right to Spousal Support in a Prenup

Under Illinois law, a person may have the right to receive financial support from their former spouse if there is a significant disparity between the parties’ incomes. During a divorce, a spouse may ask that spousal maintenance be awarded, and the judge in their case may consider multiple factors to determine whether this type of support would be appropriate. If maintenance is granted, statutory formulas will be used to calculate the amount that will be paid and the duration that these payments will last.

In a prenuptial agreement, a couple may decide ahead of time whether spousal support will be paid, eliminating the need to ask a judge to settle this issue at the time of divorce. A prenup may state that both spouses will waive the right to receive maintenance, or it may specify that one party will receive a certain amount of spousal support for a certain duration. Conditions may be placed on whether maintenance will be paid. For example, the prenuptial agreement may eliminate the right to support if a spouse commits infidelity or only require maintenance if a spouse earns a certain amount of money.

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DuPage County family law attorneyIn many modern marriages, prenuptial agreements are used to provide spouses with protection and make decisions about how certain issues will be addressed if the couple chooses to get a divorce. A prenup can make sure spouses can continue to own certain types of property after their divorce, or it can decide whether a spouse will receive spousal maintenance. A properly executed prenuptial agreement can help spouses avoid uncertainty during their divorce and make sure their financial interests will be protected. However, if disputes arise about the terms of a prenup, spouses should be aware that there are certain issues that may cause an agreement to be invalid.

Enforceability of Prenuptial Agreements

When a couple signs a prenup before getting married, this indicates that they both understand the terms of the agreement and are satisfied with the decisions made. However, disputes can sometimes arise during a divorce in which a spouse may claim that the agreement should not be enforced. When these types of disputes are addressed through litigation, there are only a few reasons why a prenup may be found to be invalid. These include:

  • The agreement was not executed correctly - Both parties must sign a prenuptial agreement before getting married. If one spouse did not sign the agreement, or if it was signed after the date of the couple’s marriage, it may not be valid.

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When You Can Extend Child Support Beyond Age 18

UPDATE: In most cases, non-minor support that is paid after a child reaches the age of 18 is related to college expenses and other costs involved in the child's post-secondary education. Parents who are looking to make sure their child will have the necessary financial resources to pursue a college education will want to understand exactly what types of expenses this support will cover. 

Parents may agree on the amount they will each contribute toward their children's college expenses, or a court may order non-minor support to be paid based on the property owned by the parents or the income they earn. After determining an appropriate amount that parents should contribute, this amount will be equitably divided between the parents. 

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Naperville IL divorce lawyerSpouses need to address many different types of legal and financial matters when getting divorced, and attempting to understand the laws that apply to them and the terminology used in their case can sometimes be overwhelming. Spouses who own assets such as retirement accounts or pensions may have heard that they should use a qualified domestic relations order (QDRO). By understanding what this type of order covers and when it should be used, spouses can make sure they will be able to divide their marital assets correctly while addressing any related financial issues.

Using a QDRO to Divide Retirement Assets

All assets acquired by spouses during their marriage will need to be fairly and equitably divided during the divorce process. In addition to physical property, assets may include retirement savings or benefits that may not be accessible by the spouses at the time of their divorce. Contributions made by a spouse to a retirement savings account or pension benefits that a person earned while married may need to be divided either at the time of divorce or in the future.

Typically, the administrator of a qualified retirement plan that is covered by the Employee Retirement Income Security Act (ERISA) can only pay benefits to the person participating in the plan. A QDRO will allow benefits to be paid to an alternate payee. This order will provide instructions to the plan administrator stating that either a specific monetary amount or a percentage of benefits should be paid to a person’s ex-spouse.

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DuPage County family law attorneyIf you are a parent who is getting divorced, issues related to your children will be some of the most important matters that you will need to resolve. As you work to negotiate a divorce settlement with your spouse, you will create a parenting plan that fully details all decisions related to the allocation of parental responsibilities (child custody) and parenting time (visitation). The determination of how you and your spouse will divide the time that your children will spend in each of your homes will affect many other issues in your case, so you will want to make sure you have addressed this issue properly and made arrangements that will provide for your children’s best interests.

Common Parenting Time Arrangements

There are a multitude of different ways that parents can divide parenting time. When making these decisions, parents should consider the roles that they have played when caring for their children in the past, the feasibility of a proposed schedule, and how they can maintain consistency for their children and work together as co-parents to meet their needs. Some common ways of dividing parenting time include:

  • 50/50 schedules - If both parents have played equal roles in raising their children and providing daily child care, they may be able to maintain these roles by creating a schedule in which they will each have equal amounts of time with the children. In these cases, parents will need to make sure arrangements are in place for transporting children to and from school or daycare, and they will both need to have time in their work schedules to care for their children on a daily basis and on weekends. Parents may use a 2/2/3 schedule in which children stay at each parent’s home for two days during the week while alternating three-day weekends between parents, or they may alternate weeks with each parent or use other arrangements for sharing equal amounts of parenting time.

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DuPage County postnuptial agreement lawyerMost people are familiar with prenuptial agreements that may be signed before a couple gets married. While these agreements can be especially beneficial in situations where one or both spouses own substantial assets before they get married, a prenup can help any couple decide how they will handle certain matters if they ever get divorced. However, what many people may not know is that these types of agreements can also be made after getting married. While some may wonder why a postnuptial agreement would be necessary if a couple did not create a prenuptial agreement, there are many different reasons that couples may choose to enter into these types of agreements.

Situations Where a Postnuptial Agreement May Be Needed

As with prenups, postnups can specify how the division of marital property will be handled during a potential divorce, as well as whether either spouse will pay spousal support to the other. Some examples of cases where spouses may wish to create a postnuptial agreement include:

  • Business ownership - If either spouse starts a new business venture during their marriage or acquires an ownership interest in a business, the business will be considered marital property that may be divided between spouses in the case of divorce. This can raise concerns about whether the business will be able to remain operational, which may also affect the income-earning potential of the business owner. To protect a business from dissolution, a postnuptial agreement can specify how the spouses will divide business assets if they get divorced, such as by stating that one spouse will retain ownership of the business, while the other will receive other assets of a similar value.

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DuPage County property division attorneyWhen spouses choose to end their marriage through divorce, they will need to address and resolve multiple different financial issues. During the process of dividing marital assets, real estate property owned by either or both spouses will be one of the key issues to consider, since these are likely to be some of the most valuable assets a couple owns. In addition to determining how to handle ownership of their marital home, couples may also need to consider other properties they own, such as vacation homes or commercial properties. To ensure that these assets are addressed properly, it is important to work with an experienced divorce lawyer, as well as other experts who can perform appraisals of property and provide guidance about financial decisions.

Factors to Consider When Dividing Real Estate and Other Marital Property

If a couple’s marital home or any other piece of real estate property was acquired during their marriage, it will usually be considered a marital asset that will need to be divided along with other property. However, even if real estate was owned by one spouse before getting married, it may be converted from separate property into marital property if both spouses used the property, made improvements, or contributed to mortgage payments and other expenses related to the home. In some cases, a spouse who owns real estate that is considered separate property may be required to repay the other spouse for their contributions to increased property values or equity in the home.

Divorcing spouses may sell their marital home and divide the proceeds from the sale, or one spouse may retain ownership of the home, while the other spouse receives other marital property of a similar value. When selling real estate property, spouses should be sure to understand whether capital gains taxes will apply to the profits they earn. If one spouse will own the home, the mortgage will usually need to be refinanced, and the other spouse will need to be removed from the home’s title and deed. A spouse who plans to maintain sole ownership of their home should be sure they will have the financial resources to make mortgage payments and pay other ongoing expenses, including utilities, maintenance, and property taxes.

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DuPage County divorce lawyerIf you are like most people living in the United States in the 21st century, you use social media on a daily basis. Apps and websites such as Facebook, Twitter, Instagram, and TikTok allow you to connect with friends and family, follow news stories, and communicate with others who share your interests. However, this level of connection may also have its drawbacks, especially if you are going through a divorce. As you go through the process of ending your marriage, you should take steps to protect your privacy and avoid any issues that could affect your divorce case.

Social Media and Privacy Concerns

During the divorce process, making sure your personal information is private is likely to be a major concern. If you and your spouse have shared a computer or other electronic devices, you may have had access to each other’s social media accounts. To ensure that your spouse cannot log into your account to view your personal information or make posts in your name, you will want to change your passwords, and you may also want to update your account settings to make sure you can only log in from certain devices.

You should also be aware of privacy settings on the posts you make. While you may be able to restrict access to certain posts so they can only be viewed by your close friends or family members, you should be prepared for the possibility that your spouse could still view this information. For example, a mutual friend may decide to take a screenshot of a message or photo you posted and send it to your spouse. To make sure your privacy is protected, you may want to avoid posting or sharing any information that you would not want your spouse to see.

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Naperville IL paternity attorneyFor many parents, the identity of a child’s father is not in question. In fact, under Illinois law, a mother’s spouse is presumed to be her child’s legal parent, as long as the child was born during the couple’s marriage or within 300 days after the couple was separated, got divorced, or one partner died. However, this means that if a child is born while a couple is unmarried, or if a situation does not meet the criteria described above, paternity will need to be established to ensure that the father will be recognized as the child’s legal parent. Paternity may also need to be addressed if the identity of a child’s father is in doubt or is known to be someone other than the mother’s spouse.

Establishing Paternity in Illinois

The simplest and most common way of establishing paternity is for both parents to fill out and sign a Voluntary Acknowledgment of Paternity (VAP) form, which can be done at any time after their child is born. This form can be provided by a hospital, and it is also available on the website of the Illinois Department of Healthcare and Family Services, at a local county clerk’s office, and other sources. By filling out this form, the parents will both recognize that a man is the child’s father. This will allow him to be listed on the child’s birth certificate, and he will have full parental rights regarding the child.

Paternity can also be voluntarily acknowledged if the biological father is a person other than the child’s presumed parent. In these cases, the presumed father may submit a Denial of Parentage form, and the biological parents may submit a VAP. The mother, the presumed father, or the child may also submit a petition in court to declare the nonexistence of the parent-child relationship. This type of legal action must be initiated within two years after the petitioner knew or should have known the facts of the case. For example, a presumed father must file this type of petition within two years after he first discovers that he is not a child’s biological father.

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Naperville high asset divorce attorneyGetting a divorce will require spouses to address many different legal and financial issues, and this process can become very complicated, especially in cases where a couple has a high net worth. Sometimes, a spouse may try to take advantage of the complex nature of these proceedings and attempt to unfairly influence the division of marital property by hiding certain assets from their partner. If you believe that your spouse is concealing assets from you or is otherwise refusing to meet their legal obligations during the divorce process, you will want to work with an experienced divorce attorney to determine how to proceed.

Common Methods of Concealing Marital Assets

A spouse may attempt to hide money, property, or other assets because they do not think their former partner should receive certain items, or they may do so out of an attempt to make things more difficult for the other spouse. A person may also believe that they should receive a greater share of the marital estate because they earned the majority of the family’s income. However, attempting to illicitly claim assets outside of the standard procedures for dividing property is illegal. All of a couple’s assets, including their marital property and the separate property each spouse owns, should be disclosed during the divorce to ensure that all aspects of the couple’s financial situation are considered when dividing marital assets.

Some ways that a spouse may attempt to conceal marital property include:

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Naperville parental alienation attorneyWhen parents choose to get divorced, they will need to address a wide variety of legal issues related to their children, and they will need to determine how they can continue to work together as co-parents to meet their children’s needs in the years following the end of their marriage. Since divorce can be an emotional and stressful process, parents’ negative attitudes toward each other may spill over into their interactions with their children and affect children’s relationships with both parents.

When one parent attempts to negatively influence their children’s attitudes toward the other parent, this is known as parental alienation. Whether it is done intentionally in hopes of gaining an advantage in decisions about child custody or is a by-product of a parent’s emotional difficulties during the divorce process, parental alienation should be addressed promptly to ensure that it does not cause harm to the children or affect the other parent’s parental rights.

Signs of Parental Alienation

Parental alienation can take a variety of forms. It can involve overt comments by a parent about their former partner to their children, such as blaming them for the divorce or claiming that they do not love their children or want to spend time with them. In many cases, parental alienation is more subtle, consisting of activities such as removing a parent as a contact at children’s schools or scheduling activities that the children would enjoy during the other parent’s parenting time.

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Naperville IL parenting plan attorneyOut of all the issues that divorcing couples must decide on, the allocation of parental responsibilities and parenting time can often be the most difficult. Even in the most amicable of divorces, child custody decisions can become heated. This is why it is important to have a skilled DuPage County family law attorney working for you when drawing up an equitable parenting plan agreement.

Important Considerations in an Illinois Parenting Plan

Although it may seem impossible to be proactive for every situation that may come up, there is a range of decisions that you and the other parent will want to make sure you address in order to avoid serious parenting disagreements in the future. These topics include:

  • A basic parenting time schedule – The parenting schedule should clarify how much time the child will spend with each parent. The schedule should also spell out clearly who will be responsible for transporting the child for parenting time exchanges. If there are no safety concerns, and both parents get along fairly well, exchanges are usually done at each other’s homes. However, if there is too much acrimony between parents, then a neutral location may be better. In cases where safety is a concern, such as when domestic violence has been an issue, then locations such as police departments may be chosen.

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Naperville IL divorce attorneyFiling for divorce is a momentous decision. Before you begin the process, it is a good idea to ensure that you are prepared in every way possible. The last thing you want is to be knee-deep in divorce proceedings and realize you are unprepared to navigate a critical question. 

Preparing For Divorce Financially

The first thing any professional will recommend is to begin saving money. It is not only attorneys that cost money—you will likely encounter many different bills, and without your spouse’s income, it may be harder to pay them. It is imperative, however, that you do not attempt to hide your assets, at least not money such as your paycheck that can be considered marital property. Illinois is an equitable distribution state, meaning that marital property is distributed to the spouses in the most equitable manner possible upon a divorce. Concealing money that is earmarked as marital property, as spouses’ paychecks usually are, can lead to accusations of hiding assets.  

It is also a good idea to consult a financial professional sooner rather than later, bringing any financial documents you have so that you can develop a realistic picture of your finances at the outset of a divorce. A professional will be able to give specialized, individualized advice as to whether you should take the step of closing joint accounts or opening a private account, or what to do with certain assets like stocks and retirement accounts. These instruments are so individual, and each situation so unique, that often, only a professional can assess your potential financial issues with any degree of accuracy.

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Can I Become My Sibling’s Legal Guardian in Illinois?Unfortunately, not all children have two parents who love and properly care for them. Some children must endure the tragedy of losing one or both parents at a young age, while others have their parents stripped from them as decided by the court system. In most cases, these difficult decisions being made by the court are in the best interests of the child, even if the child is too young to see it that way. If family members are unable to care for the adolescent, they will be entered into the foster care system to be taken care of by volunteer foster families. However, for those who have siblings age 18 or older, they may have an alternative option: legal guardianship.

What Is Legal Guardianship?

Many children who are on the brink of joining the foster care system have spent much of their lives caring for themselves or have been lucky enough to have an older sibling who has taken on a parental role in their lives. However, without legal guardianship rights, the child will not be able to remain in their care. Illinois law allows all adolescents to have at least one legal guardian, and in the absence of their parents, a close family member may take on this role. Children over the age of 14 can grant consent to guardianship requests, but those under this age must rely on the court’s decision. In Illinois, anyone who is age 18 or older, is of “sound mind,” has not been convicted of a serious crime, and is deemed acceptable by the court can apply to be the person’s guardian. The qualifications may seem somewhat minor, but the court’s impression of the guardianship applicant can make or break your case.

What Does the Court Look For?

As is the case with all Illinois legal proceedings involving children, the court’s main purpose is to make a decision in the best interests of the child. There are a few considerations that the court will keep in mind when hearing a guardianship case:

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How to Encourage Your Fiance to Enter Into a Prenuptial AgreementThere are situations where creating a prenuptial agreement is both prudent and necessary. For instance, you may have significant premarital assets that could potentially become entangled with your marital assets. A prenuptial agreement would clearly identify the properties that belong to you in the event of a divorce. However, asking your fiance for a prenup can be uncomfortable. If you ask in the wrong way, you risk damaging your relationship and possibly endangering your marriage. To avoid a negative reaction, you should discuss getting a prenuptial agreement in a way that allows your fiance to feel comfortable and in control of the process.

Start the Conversation Early

You can broach the subject of getting a prenuptial agreement before you get engaged, letting your partner know that it is something you are considering. That way, your fiance should not be caught off guard when you talk about it after your engagement. Ideally, you want to negotiate and complete the agreement months before your wedding. There are several reasons why a last-minute prenup is a terrible idea:

  • Your fiance may feel like you are pressuring them if you ask for a prenuptial agreement only a few weeks before the wedding.
  • A divorce court may later find your agreement to be invalid if your spouse claims they signed it under duress.
  • Your fiance needs time to consider your request and find their own legal representation.
  • The weeks leading up to a wedding are already hectic and stressful without adding the need to negotiate a prenuptial agreement.

Make It a Collaborative Effort

Though you may have a greater interest in creating a prenuptial agreement, your fiance needs to feel like an equal partner in the process. This starts with being honest about why you want a prenup and explaining how the agreement could benefit you both. Encourage your fiance to hire their own family law attorney to make sure they have someone who is representing them throughout the process. Conduct the negotiations in a way that gives your fiance an equal voice in deciding on terms of the agreement. Creating a prenuptial agreement together can be practice for how you will collaborate when you are married.

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How to Know When You Need a Postnuptial AgreementCouples have the option of creating a prenuptial agreement before they get married, but some never act on it. There could be several reasons for this, such as:

  • Believing it is unnecessary given their level of personal assets
  • Feeling uncomfortable with the idea of preparing for a hypothetical divorce
  • Simply not thinking about getting a prenup or knowing what it is

Now that you have married, you still have the opportunity to create a postnuptial agreement. Like a prenuptial agreement, a postnuptial agreement can decide how you will divide your marital properties, define which properties are separate, and determine whether one of you will owe spousal maintenance to the other. If you did not feel a need to create a prenuptial agreement, you may ask why you would want to create a postnuptial agreement. There are several financial factors that could cause you to change your mind on creating an agreement:

  1. You Have Started or Grown a Business: Many couples begin their marriages owning few valuable assets. Starting a successful business or practice means that you now own valuable property. Businesses that are created or see growth during a marriage are considered marital property. During a divorce, your spouse would have a right to an equitable share of your business. With a postnuptial agreement, you can state that you would keep complete control of the business in the event of a divorce.
  2. You Stopped Working During Your Marriage: It is common for a spouse to take time off from work in order to raise children. Even if you did not leave your job, you may have reduced your hours or passed up opportunities for career advancement, which makes you more reliant on your spouse’s income. You would be entitled to spousal maintenance if you divorced, and it may be easier to negotiate the maintenance amount now in a postnuptial agreement than during a divorce.
  3. You Received an Inheritance: People can suddenly come into possession of valuable properties, such as when they receive an inheritance from a family member. Inheritances are not marital properties when they are gifts meant for one person. However, the longer you possess the inheritance, the more likely it is that it will mingle with your marital properties. A postnuptial agreement can define which properties make up your inheritance.

Contact a Naperville, Illinois, Family Law Lawyer

Creating a postnuptial agreement does not have to be an awkward experience. At Calabrese Associates, P.C., we work with many couples who have decided to make a prenuptial or postnuptial agreement for practical reasons. To schedule a consultation with a DuPage County family law attorney, call 630-393-3111.

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How to Become the Guardian of a Minor in IllinoisThere are situations in which a child’s parents may be unable or unavailable to perform their basic duties as a parent. If that happens, another adult can become the legal guardian of the child, either on a short-term basis or until the child becomes an adult. The guardian is authorized to make decisions about the child just as if they were the child’s parent. If you wish to become a child’s guardian, you will need to receive court approval. There are several important facts about guardianship in Illinois that you should understand.

Who Can Become a Guardian?

You do not need to be related to the child in order to be their guardian, but it is in the child’s best interest if you have some history of interaction. The basic requirements for being a guardian in Illinois are:

  • Being at least 18
  • Being of sound mind
  • Being a U.S. resident
  • Not having a legal disability
  • Not having a felony conviction related to harming or threatening children

When Is Guardianship Allowed?

Granting guardianship presumes that the parents are unable to make decisions regarding their child. Courts will not transfer parental rights to another adult unless there is a strong reason, such as if the parents:

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Cohabitation Agreements Protect Property Rights After BreakupsRomantic relationships are less bound by the need to marry than they were decades earlier. Adults can live together, share their finances and raise a family without ever marrying each other. However, there are institutional benefits to being married, including the rights and protections that you receive if you divorce. Divorcees in Illinois are entitled to an equitable share of their marital properties and are presumed to both have parental rights. Unmarried couples can protect themselves in the event of a breakup by creating a cohabitation agreement, a document that serves a similar purpose as a prenuptial agreement.

Why You Need a Cohabitation Agreement

Most properties that you acquire during a marriage are classified as marital properties, which you each have a fair claim to. The issue is murkier if you have a property dispute after the breakup of an unmarried relationship. The Illinois Supreme Court has denied equitable property rights to unmarried couples in the past. A written cohabitation agreement is a contract that:

  • Defines which properties you will divide in the event of a breakup
  • Divides the properties in a way that you deem fair
  • Creates an obligation for your relationship partner to follow the principles of fairness following your breakup

Cohabiting partners may have many properties that they paid for together or have both invested in, such as a home, vehicle, household appliances, and luxury items. For instance, your partner may have purchased your home on their own, but you may have a financial interest in the property if you have contributed to paying expenses on the household.

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When Does Illinois Allow the Termination of Parental Rights?Illinois family courts rarely decide to terminate parental rights. An unfit parent may lose a significant portion of their allocation of parental responsibilities, but courts want to avoid terminating someone’s parental status and leaving a child with one legal parent. The child support obligation is the most pressing issue because losing financial support from one parent could hurt the child. There is also an emotional benefit to the child knowing they have two parents, even if one is less active in their lives. Despite the negatives, there are two situations in which a court will consider terminating a parent’s rights:

  • Cases involving adoption; and
  • Unfit parent cases brought by the state.

Adoption

As previously mentioned, a family court is highly unlikely to grant a request to terminate the parental rights of one of the biological parents, whether it is voluntary or involuntary. However, it may consider the request if there is another adult who is willing to adopt the child. This adult would most likely be someone who has married one of the biological parents and become a stepparent. The process is simplest when a biological parent voluntarily surrenders their rights as a parent. Contested cases are more difficult because the parent requesting the termination will need to prove that the other parent is unfit and has shown no interest in the child.

Juvenile Cases

The state can initiate a parental termination case on a recommendation from the Illinois Department of Children and Family Services. There are three reasons that the DCFS may claim that a parent is unfit:

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Disproving Paternity Does Not Always Terminate Parental ObligationsIllinois presumes that the husband is the legal father to any child conceived or born during the marriage. The legal father has a right to parental responsibilities and an obligation to contribute to child support in the event of a divorce. The presumed father can declare the non-existence of a parent-child relationship if he learns that he is not the biological father. If the court grants the action, the man can ask to terminate his legal obligations to the child. However, terminating your parental responsibilities takes more than claiming that the child is not yours.

Time Limit

You must file a petition to terminate your paternity within two years of learning that you may not be the father. The two-year time limit can start at any point, as long as you had no reason to doubt your paternity before learning the relevant facts. For instance, an Illinois court recently approved a man’s petition to terminate his parental obligations when his former wife told him that he was not the father of their 12-year-old daughter. A DNA test proved this to be true, and, after hearing testimony, the court believed that the man had not previously known that he was not the father.

DNA Testing

A genetic test is the surest way to determine whether you are the biological father of a child. Illinois law instructs courts to grant DNA testing when either parent or child requests it. However, the court has the right to deny a DNA test if it believes that it is against the best interest of the child for reasons such as:

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