WHAT SHOULD I DO WHEN MY EX ISN'T FOLLOWING A COURT ORDER?

A lot of people involved in a divorce think once the final judgement is entered, the hard part is over. However, many different post-decree issues can arise as a result of one party not following the court order. In this case, the complying party will first need to file a Petition for Rule to Show Cause with the court, asking the court to determine from the opposing party why the judgement isn't being followed.

If a party is willfully violating an order, he/she can be held in contempt of court and be ordered to pay compensation to the opposing party. However, if the violation is not willful, for example if a party is supposed to make a lump sum payment and simply doesn't have the money, the court will try to work out a resolution to reach the end result indicated by the judgement.

If you are experiencing a situation like this, contact our divorce attorneys for a free consultation to discuss your options.

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NEW DIVORCE LAWS IN ILLINOIS

As of January 1, 2016, the Illinois Marriage and Dissolution of Marriage was written with significant modifications. We are going to be taking a look at these over the next several posts, but the question addressed today is "Which cases do these new laws apply to?" The new law is quite specific of when it is applicable.

First of all, it will apply to all divorce petitions and cases filed after the rewrite became effective, January 1, 2016. However, it will also apply to divorce cases filed before January 1, 2016, which are not yet resolved, meaning that if the case is still active as of January 1, 2016, and no judgment for dissolution has been entered prior to that date, the new legislation will apply. Finally, it will also apply to post judgment matters filed after January 1, 2016, even if the original judgement was entered under the old law. These post judgment matters usually apply to modification of support, maintenance, or custody.

It is important to have an experienced divorce attorney on your side who understands these laws. Contact the attorneys at Hubeny & Zaba, LLC with any questions.

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HOW IS MAINTENANCE (ALIMONY) CALCULATED IN A DIVORCE?

Prior to recent developments, there was no easy way to calculate maintenance in a divorce. There was no formula to use, and maintenance was simply based on a variety of factors, such as length of the marriage, standard of living of the parties, employability of the receiving party, etc. However, Illinois has since developed a maintenance calculator that is meant to provide a guideline for attorneys and judges. It takes into account all of the factors that the court would usually consider in order to provide a projected maintenance amount. This is intended to assist attorneys and parties with negotiating settlement terms by offering estimates or guidelines. It is still relatively new so it is difficult to judge its effectiveness yet, but it hopefully can reduce the amount of litigation over maintenance and provide some stability to that area of divorce.

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HOW ARE CHILD-RELATED ISSUES HANDLED DURING THE DIVORCE PROCESS?

In most Illinois counties, judges will require the parties enter into a Joint Parenting Agreement which will outline the rights and obligations of each party in regards to the children.  It will outline custody, visitation, support, etc.  If the parties are not able to reach an agreement regarding these issues, most judges will order mediation.  If you are facing a divorce with minor children, contact one of our divorce lawyers today for more information.

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HOW DO I GET CUSTODY/VISITATION OF MY CHILD IF THERE WAS NO MARRIAGE?

Depending on what county is the proper venue, the process may be slightly different.  For example, in Cook County, there is a separate court to deal with parenting cases where no marriage is involved.  However, the proceedings will be similar to domestic relations cases.  The process will begin with one party filing a petition asking the court for specific relief.  The court can order mediation, conduct a hearing, or the parties could negotiate and settle the matter in their own.  If that is done, both parties will enter into an agreement outlining the terms of the settlement.  If the parties cannot come to an agreement, the court will listen to evidence and make a binding determination in the case.  If you find yourself in a situation where you would like to pursue custody or visitation of your child, contact one of our family law attorneys today.

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HOW AND WHEN DO I GET AN ORDER OF PROTECTION?

If a person believes they are in danger or harassed because of previous behavior or threats from a spouse or other family member, they can apply to the court for an order of protection.  An order of protection is a court order requiring or preventing a person from engaging in certain behavior in order to protect another individual.  If it is an emergency, you can apply for an emergency order at the local circuit courthouse and it will be heard the same day.  If a person is facing serious bodily injury or harm, they should always contact the police first.  If you believe you may need an order of protection, contact one of our family law attorneys today to see if you qualify and to discuss the process.

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WHAT IS AN ANNULMENT?

In general, the terms "divorce" and "annulment" are used somewhat interchangeably, however, they do refer to quite different actions.  In Illinois, an annulment is a legal action to declare a marriage invalid, whereas a divorce is simply the dissolution of a valid marriage.  In both cases, the parties would no longer be married at the conclusion of the proceeding, however, an annulment would go one step further and declare that a marriage was never in effect.  If you have questions related to divorce or annulment, contact a divorce attorney below by clicking on the link and giving us a call.

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WHAT IS AN ORDER OF PROTECTON?

In divorce cases, sometimes a party may feel threatened, intimidated, or harassed.  If this occurs, the affected individual may file for an order of protection from the offending party, which is a court order requiring a person to comply with the ruling or preventing them from engaging in certain actions.  An order of protection can be temporary, typically 2-3 weeks, or plenary, which can be up to two years.  If you are being threatened or harassed, contact one of our attorneys today to discuss a possible order of protection.

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WHAT IS A GAL AND WHAT IS THEIR ROLE?

A GAL, or Guardian Ad Litem, is an attorney assigned to represent the interests of a party who cannot represent themselves.  In family law, a GAL is often assigned to represent a minor child or special needs individual.  They are assigned by the judge in the given case and can serve a very important role.  Typically, they will gather information from the other parties involved in the case in order to make certain recommendations to the judge, which can hold significant weight in a case.  It is important to work with the GAL if one is assigned to your case to ensure they recommendations and opinions are fully informed.

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HOW IS DIVORCE MEDIATION CONDUCTED?

A lot of clients are unsure about the process and cost of mediation in a divorce.  Generally, the judge will order mediation if the parties cannot agree on the settlement terms.  The  mediator will be an impartial divorce attorney whose job it is to facilitate negotiations and hopefully reach a resolution.  The parties will usually split the cost of mediation, which can cost between $100-$300 per hour.  After mediation is completed, the case will be sent back to the courts and the mediator will provide an update to the judge.  If an agreement is not reached at that point, the parties will prepare for a trial on the unresolved issues.

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IS THE RESPONDENT REQUIRED TO APPEAR AT A DIVORCE PROVE-UP?

Generally, the judge will not require the respondent to appear in court at the prove-up for a divorce, assuming all required documents have been executed prior to the court date.  If this has been completed, a judge will only require the petitioner to appear at the prove-up and answer the required questions.

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WHAT IS A PRETIRAL COURT DATE?

In a divorce case, if the parties are unable to settle their issues outside of court, the judge will generally schedule a pretrial court date.  This court date is one last attempt to reach a settlement agreement, and the judge is involved to assist with facilitating negotiations.  The judge will not make any formal rulings at this time, however, he or she will offer advice and recommendations to the attorneys in an effort to bring the parties closer together in negotiations.  If a resolution is not reached, the case will usually be set for trial at this point.

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WHAT IS A LEGAL SEPARATION?

A legal separation, as opposed to a common separation, requires that a case be filed with the local court and a court order being entered granting the separation.  The benefit of a legal separation is that you can legally divide property, obtain child support and maintenance, and do many of the other items you can accomplish with a divorce.  However, with a legal separation, the parties are still married.  Therefore, they are not free to marry other individuals, but the parties can still remain on their spouse's insurance.  For more information and to see if a legal separation is right for you, contact one of our divorce attorneys today.

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WHAT HAPPENS IF A PARTY DIES DURING A DIVORCE CASE?

Unfortunately, parties sometimes due during the divorce proceedings.  Typically, this will stop the proceeding or cause a petition to be dismissed.  However, a party's estate could be liable for debts to another party such as unpaid child support or maintenance. 

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IF I MOVE AWAY FROM THE MARITAL RESIDENCE, IS THAT ABANDONMENT?

Abandonment is a term often used by clients in Illinois, however, it is not correctly understood by most.  If a party moves out of the marital residence, it will not necessarily be viewed negatively by the court.  Again, abandonment is not a legal term used by the court.  Instead, the only way it will be used against a party in a divorce proceeding is if the party moving out of the residence was providing necessary financial support to the other party and/or the children of the couple, and he or she fails to do so after vacating the residence, leaving the other party unable to pay required bills or expenses.  In this instance, the court may enter an order that the vacating party continue to provide support to the other party. 

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FINANCIAL DISCLOSURE

After the initial pleadings have been filed in a divorce case, each party will have to complete a financial disclosure statement, which has a different name in each county.  The purpose of this form is for each party to disclose their income, expenses, assets, and liabilities to the opposing party so each party will have full knowledge entering negotiations or trial.  These disclosures are signed under oath and under penalty of perjury to ensure accuracy and completeness.  Contact one of our divorce attorneys for more information.

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WHAT HAPPENS IF MY SPOUSE DOESN'T PAY SUPPORT/MAINTENANCE?

When a spouse defaults on court mandated payments, you should file a petition in the court for Rule to Show Cause.  Your spouse will then have to appear in court to explain why he/she has not been making payments.  If the spouse simply doesn't have the money to make the payments, the court will generally try to set up a schedule where they will pay as mush as they can, and the remainder will accrue in an account that will have to paid off in the future.  If the spouse has the money, but is willfully withholding payments, then it can be much more severe.  The court can impose penalties as they see fit, including holding that spouse in contempt of court.  For more information, you can contact a divorce attorney with our firm at the link below.

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ILLINOIS MANDATED MEDIATION

When two parties cannot come to an agreement on an issue during a divorce case, state law mandates that the parties must attend mediation before the court can hold a hearing on the issue.  The mediator is typically a neutral third-party divorce attorney who will help facilitate negotiations.  The mediator has not power to issue a ruling on the issue, however, they can report on the mediation proceedings to the court.  Both parties should make a good-faith effort to resolve the issues during mediation because of the cost, time, and unpredictability of a court hearing.

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WILL I HAVE TO ATTEND COURT DURING MY DIVORCE CASE?

Typically, you will need to make at least one, and likely a couple court appearances during your divorce case.  If there are any hearings or a trial scheduled, you will need to be present at these times in order to testify and offer any relevant evidence.  At the very minimum, you will usually have to attend the prove-up date, which is where the settlement agreement or decree is approved by the court.  You will not need to attend the vast majority of the other court dates as long as you have an attorney representing you and he/she appears on your behalf.

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SHOULD I CHANGE THE BENEFICIARIES OF MY LIFE INSURANCE TO MY CHILDREN AFTER A DIVORCE?

This is a topic that is addressed in almost all divorce decrees.  The court wants to make sure the party or parties earning wages have life insurance to protect the children in case of an untimely death.  Generally, the divorce decree will state that the children of the couple must be the beneficiaries of the policy, and the surviving parent will be named as custodian of the policy if the children are under age.  Sometimes, a party can name a different relative as custodian, such as a sibling or parent, but generally the decree will require the surviving parent to serve in such position.  There is also usually a minimum amount of insurance coverage stated in the decree.

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