For many couples, using mediation during their divorce saves them time, money, and stress. In traditional divorce court litigation, spouses must present their arguments to a judge and then rely on him or her to decide crucial things such as the allocation of parental responsibilities, parenting time, child support, and spousal support. In contrast, mediation allows spouses to directly negotiate the terms of their divorce agreement, resulting in an outcome that is far more likely to be mutually satisfying.

Although mediation has its advantages, it is not right for every couple. In this article, we will dispel some common myths about divorce mediation so readers can have a clearer picture of whether mediation is likely to be helpful. Keep in mind that this article is not meant to replace the valuable advice of an Illinois divorce attorney.

Divorce Mediation Myths

Mediation Is Just Like Couples’ Therapy - Although a skilled mediator will try to develop and encourage communication between spouses, he or she will not attempt to reconcile the spouses and save the marriage. The goal of mediation is to negotiate important issues about which spouses disagree. Childcare responsibilities, finances, and asset division can all be part of the mediation process, but airing personal grievances and trying to rectify them is not.

Two and a half years ago, Governor J.B. Pritzker signed a bill into law that changed the way marijuana is treated in Illinois. The Illinois Cannabis Regulation and Tax Act (ICRTA) decriminalized the use and possession of recreational marijuana and opened the door to private businesses selling it to citizens. Although marijuana remains illegal on the federal level, the ICRTA halted criminal punishment of marijuana users and even allowed Governor Pritzker to pardon thousands of previous marijuana convictions.

The ICRTA also included provisions that prevent marijuana use, by itself, to be considered as a factor when judges make decisions about the allocation of parental responsibilities and parenting time. No employee of an Illinois court - including child representatives like guardians ad litem - may discriminate against a parent based on the fact that they use marijuana. However, this does not mean that parents in Illinois can use marijuana however they please.

Do Not Allow Marijuana Use to Interfere with Parenting

Like parents who drink alcohol, parents who use marijuana must refrain from using it in a way that interferes with their parenting abilities. Best practices for marijuana use include:

Married parents can claim their child as a dependent exemption on their joint tax return. After divorce, however, only one parent can claim a child as a dependent for tax purposes. Because the ability to claim dependent exemptions can make a major difference in a parent’s finances, being able to claim your child as an exemption is often as good as money itself. Understandably, the tax implications of divorce can be a topic of contention.

Include Child Tax Exemptions in Your Divorce Decree

In the midst of divorce negotiations, who gets to claim a child as a dependent exemption is often forgotten until after the divorce is finalized. This could be a costly mistake. Illinois no longer uses the terms “custodial parent” or “child custody,” but the IRS still does. The IRS sees the parent who spends the most time with the child as the custodial parent, and unless parents specify another arrangement, the IRS default is that the custodial parent gets to claim the child as a dependent on their taxes.

However, if parents are proactive about arranging exemption claims, they can do it however they wish. They may alternate years, or, if they have multiple children, agree to split the exemptions so each parent may claim one or more children. Include the discussion about child-dependent exemptions in the broader conversation about asset division, child support, and spousal maintenance. Parents who work cooperatively can usually come to a holistic financial resolution that suits them both better than if a judge were to make the decisions for them.

The end of the summer holidays can be bittersweet. Children are torn between sadness that school is starting again and excitement to see their friends; parents are sorry to be spending less time with their children, but relieved to get back on a regimented schedule. For parents who are recently divorced or separated, navigating the back-to-school experience can be hectic.

Deciding who will buy school supplies, who will provide after-school childcare, and who will monitor homework and attend parent-teacher conferences are all things to be considered. Each family’s situation is different, but there are some steps you can take that will make the transition easier for everyone.

• Do your best to cooperate with your ex – Former spouses often have hard feelings towards each other, but getting your child ready for school is a crucial time to put those differences aside and work as a team. Prioritize the things that really matter, and try to let the rest go. Using shared calendars and an email address that is exclusively for child-related communication can help you and your ex avoid hostile face-to-face conversations.
• Plan ahead with your child’s school – Talk to your child’s teacher about the recent change in your family situation. The more openly you communicate with the teacher, the easier it is for the teacher to accommodate you and your child. Make sure the school has a list of adults who are allowed to check out or pick up your child, including stepparents or grandparents. Consider attending parent-teacher conferences with your ex so you can share your concerns and make appropriate plans for your child’s academic future.
• Be flexible about costs – Decide ahead of time who will pay for certain expenses, but be prepared for unexpected costs to pop up. After a backpack gets left in your ex’s home for the umpteenth time, you may decide to keep a spare in your home even if you have to pay for it yourself. If your child needs supplies, avoid holding them over the child’s head until your ex pays their fair share. Prioritize your child’s education, and work the details out behind the scenes.

Speak with a Naperville, IL Family Lawyer

A seasonal scheduling change does not have to mean you are facing conflict when it comes to working with your ex. At Calabrese Associates, we have experience helping clients arrange parenting plans that work for everyone. Whether you are involved in the divorce process right now or are hoping to modify an existing parenting plan, we can help. Call us today at 630-393-3111 to set up your confidential consultation with a skilled DuPage County family law attorney.

Whether due to a new job or wanting to be closer to friends or family members, divorced parents may want to move away for a number of reasons. For divorced parents, however, moving with kids may not be simple. They have to get permission from the court and the other parent to move out of state. If your child’s other parent wants to relocate and you disagree with the relocation, it is important to understand your rights and responsibilities. A skilled family law attorney can help you contest the relocation and assert your rights. 

Factors Courts Consider Before Letting a Parent Relocate 

Before a judge can approve a relocation with a child or Illinois, he or she has to first make sure that the move reflects the best interest of the child. Here are the different factors a judge considers before deciding to approve or deny a relocation request:

• Why a parent wants to move

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Illinois law requires both parents to financially contribute to their children’s needs, even if they are divorced. However, either parent may petition the court to amend the order if their circumstances have changed. If your financial or employment circumstances have recently changed or your child’s needs have changed, you may be able to ask the court for a child support modification.

When Parents Can Request Child Support Order Modification

Child support orders are eligible for a review and possible modification every three years. However, if you can prove to the court that you have had a drastic change in circumstances, you may be able to modify your order even sooner than that. Here are several situations that may make you eligible for a child support modification:

• The child’s needs have substantially changed. For instance, if your child has been diagnosed with a health condition that requires extensive treatment, you may ask the court to require the other parent to help pay for the costs associated with the treatment.

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A divorce can become even more complicated and stressful if you and your spouse have a high net worth. If you are thinking about getting a divorce and you or your spouse own high-value or complex assets, it is critical to have a skilled Illinois divorce attorney on your side.

Different Ways a High Net Worth Makes Your Illinois Divorce More Difficult

If you and your spouse are wealthy, you can expect your divorce to have more complexities than a traditional divorce. Here are a few ways the process may be more complicated than a typical divorce.

• Divorce proceedings may last longer. If you and your spouse have more assets than the average married couple, it stands to reason that it will take more time to divide them. 

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If your ex has not been following the child custody order or parenting plan that is in place, you may feel angry and frustrated. You want the child custody arrangement to go as smoothly as possible, but your ex refuses to cooperate. Although this is indeed a difficult situation, you can take steps to rectify it.

Common Examples of Child Custody Violations

Sometimes parents refuse to abide by a child custody order. This can make a difficult situation even more trying. Here are a few common examples of child custody violations:

• Refusing visitation time to the other parent

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Disagreements about financial issues are one common issue that can cause a marriage to break down, and these types of disputes are likely to continue into the divorce process. Matters related to money can be difficult to resolve, but under the law, spouses are entitled to a fair and equitable division of marital property, which includes all assets and debts acquired during a couple’s marriage. Unfortunately, some spouses do not agree with this idea, and they may believe that they are entitled to certain assets or that the other spouse should receive less. In many cases, a person will attempt to hide assets to avoid having to divide them with their spouse. If you are concerned that your spouse is attempting to conceal marital assets, you will want to understand how to uncover these activities and bring them to the court’s attention to ensure that your marital property can be divided fairly.

Methods of Uncovering Hidden Assets

Understanding the intricacies of your family’s finances can often be difficult, especially if your spouse has been primarily responsible for managing money during your marriage. By gathering the right information and looking through financial records, you can make sure you know the full extent of the assets you own. Some steps you can take to find out whether your spouse has attempted to hide assets include:

• Review tax returns - Looking over the joint tax returns you have filed with your spouse will help you understand the income you have earned and give you an idea of how much savings you should expect to have. This will allow you to identify any discrepancies, as well as foreign bank accounts, real estate holdings, or other investments you may not have known about.

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When parents who have minor children decide to end their marriage through divorce, they will need to address multiple issues related to child custody. As parents work to negotiate a parenting plan, they will decide how parenting time (formerly known as visitation) will be divided. While this will entail creating a schedule that states when children will live in each parent’s home or spend time in the care of a parent, parents will also want to make sure other issues related to parenting time are addressed properly.

Additional Parenting Time Concerns

In addition to providing a complete understanding of when children will stay with each parent, a parenting plan can also address rules and issues that affect parenting time, including:

• Communication - Both parents will want to maintain communication with their children, and one parent may want to check in on them while they are with the other parent. However, a parent may be concerned that too much communication with the other parent would interfere with their parenting time, or they may not necessarily want to give the other parent a window into their home. Parents can set rules for the appropriate times for calls between parents and children and the methods of communication they may use (such as phone calls, video calls, text messages, or email).

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In 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.

In many cases, when a child is born, the identity of the parents is known. If a child’s mother is married, her spouse will be presumed to be the child’s legal parent. If a mother is unmarried, paternity may be established by submitting a Voluntary Acknowledgement of Paternity (VAP) form. However, there may be some cases in which the identity of the child’s biological father is in doubt, or a person who is presumed to be a child’s father or who has signed a VAP may later find out that they are not the child’s biological father. In these cases, parents will need to understand the procedures that must be followed to dispute paternity.

Denial of Presumed Parentage

A man is presumed to be a child’s parent if he was married to the child’s mother at the time of the child’s birth or if the couple was divorced or legally separated within 300 days before the child was born. If a presumed father believes that he is not the child’s biological father, he can sign a denial of parentage document. However, a denial of paternity will only be valid if the child’s biological father has signed a VAP and the presumed father has not previously signed a VAP or been adjudicated as the child’s father in family court.

Challenging a VAP

In some cases, a man who believes he is a child’s father may voluntarily acknowledge paternity, only to learn at a later date that someone else is the biological father. Within 60 days after signing a VAP, a person may rescind their voluntary acknowledgment by signing a Rescission of Voluntary Acknowledgement of Paternity and submitting it in family court. After the 60-day period, a person will need to challenge a VAP in court, and they will need to do so within two years after the VAP was signed.

Families commonly move to new homes for a variety of reasons, including when a parent is pursuing employment opportunities or because a person wants to live closer to their extended family members. Moving is a decision that married couples or unmarried partners make together. However, it can become more complicated for divorced parents or unmarried parents who do not live together. One parent’s choice to move could affect the other parent’s ability to spend time with the couple’s children, especially if they plan to move a significant distance away from where they currently live. In these situations, a parent may need to request a parental relocation officially. The case may need to be heard in family court, where a judge will decide whether to allow the move and determine how to modify the couple’s parenting plan.

Factors Considered in Parental Relocation Cases

When a parent plans to move, and they have the majority of the parenting time with their children or an equal amount of parenting time as the other parent, they must notify the other parent at least 60 days before the date they will be moving. For parents who live in DuPage County or other nearby counties, moving at least 25 miles away from their current home will be considered parental relocation. If the other parent objects to the move, the parent who is planning to move must file a petition in family court asking for permission to relocate.

A family court judge will consider the following factors to determine whether allowing a relocation and modifying a couple’s parenting plan will be in the child’s best interests:

Parents who decide to end their marriage and get a divorce will need to address multiple legal issues. Child custody is one of the most important aspects of a divorce case. However, the laws in Illinois use some terminology that may be unfamiliar to many parents, so it is important to understand exactly what will be addressed in these matters.

Understanding the Allocation of Parental Responsibilities

The Illinois Marriage and Dissolution of Marriage Act (IMDMA), the law that governs divorce cases, does not use the term “child custody.” Instead, it refers to the “allocation of parental responsibilities.” Parents will need to address two separate types of parental responsibilities: decision-making and parenting time.

Decision-making refers to what is commonly called “legal custody.” It addresses the parents’ rights and responsibilities in making major decisions about their children’s lives. The IMDMA specifies that there are four areas where parents will make decisions regarding their children: education (where children will go to school, whether they will receive tutoring, etc.), religion (whether children will attend church or other religious services and receive religious training), healthcare (what doctors children will see and what types of medical, dental, orthodontic, or mental health treatment they will receive), and extracurricular activities (the sports, music lessons, drama clubs, scouting organizations, or other activities children will participate in outside of school).

Under the law, adults who are at least 18 years old are presumed to be able to care for themselves and meet their own needs. However, there are some cases where a person may need help from a family member or friend. Those who have physical or mental disabilities may not have the means to support themselves once they turn 18, or elderly people may lose the ability to care for themselves if their health deteriorates. In these cases, another person may be appointed as the disabled person’s legal guardian. Those who are in these types of situations will want to understand the different types of guardianship available in Illinois.

Options for Guardianship

Two main types of guardianship determine the responsibilities a legal guardian will have in certain areas of the ward’s life (the person being cared for). A person appointed as a guardian of the person will provide personal care for the ward, ensuring that they have a place to live and receive the proper nutrition and medical care while also attending to their everyday needs. A person or organization that is appointed as a guardian of the estate will have the responsibility to manage the ward’s property and financial affairs.

For each of the main types of guardianship, a specific form of guardianship will apply depending on the amount of assistance the ward will need and the amount of time a person will serve as their guardian. Depending on the circumstances, a person may be appointed in a:

In most family law cases involving children, child support is one of the most important issues that will need to be addressed. Typically, a child’s custodial parent (the parent who has the majority of the parenting time with the child) will receive child support from the other parent. However, parents may wonder how child support will be handled if they will be dividing parenting time equally. In these cases, additional calculations will usually be necessary to ensure that a child will receive the financial support they need.

Child Support and Shared Physical Care

The state of Illinois uses an “income sharing” method to calculate parents’ child support obligations. Basic child support obligations are determined using a “schedule” that defines an appropriate amount that parents should pay each month based on their combined incomes and the number of children they share. Each parent will be responsible for a percentage of this amount based on the amount they contribute toward the combined income. For example, if one parent earns 55% of the couple’s combined income, they will be responsible for paying 55% of the basic child support obligation. 

Cases where parents share equal or near-equal parenting time are known as “shared physical care,” and in these situations, additional calculations are necessary to determine each parent’s child support obligations. Rules for shared physical care apply in any situation where children spend at least 40% of the parenting time with each parent. This works out to 146 days per year in which children stay overnight at one parent’s home.

In 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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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. 

Spouses 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.

While it is not ordered in every divorce case, spousal maintenance (which may also be known as alimony or spousal support) can be an important factor for some couples. This form of financial support will allow a spouse who relied primarily on their partner’s income during their marriage to support themselves and maintain their lifestyle. However, spousal maintenance will usually only last temporarily, so it is important to understand when it will end and make plans accordingly.

Types of Spousal Maintenance

Depending on a couple’s situation, different types of spousal support may be awarded, and the type of maintenance will affect how long it will be paid. These types include:

• Temporary maintenance - One spouse may be required to pay support to the other during the divorce process to ensure that they will be able to cover their ongoing expenses. These payments will be terminated when the divorce is finalized, and at that point, any support arrangements included in the divorce decree or judgment will go into effect.

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