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Child Custody – In Illinois, child custody is based on the best interest of the child. As a preliminary matter in determining the best interests, a court will often look at who has been the primary care-taker of the child. Specifically, the court will ask the following questions, among others, in making the determination of who the primary care-taker has been: who prepares the child’s meals; who prepares the child for school, both in the morning, and in terms of the child’s homework; and when the child is sick, who stays home with the child?
Additionally, as the child grows older, he or she will have an increased input into who the child’s custodian will be. However, one should be extremely cautious about trying to influence a child’s decision in a custody dispute. The psychological effects to the child of being asked to choose a parent are devastating. Another reason for refraining from influencing a child concerns the effects of such action if an attorney for the child is appointed for the minor child. Specifically, such an attempt to influence the child will be readily apparent to that attorney, and such attempted influence may weigh against that parent. Typically, the statutory factors governing a custody battle involve the following eight factors:
- the wishes of the child’s parent or parents as to his custody;
- the wishes of the child as to his custodian;
- the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interests;
- the child’s adjustment to his home, school and community;
- the mental and physical health of all individuals involved;
(6) the threat of violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person;
(7) the occurrence of ongoing abuse as defined in section 103 of the Illinois Domestic Violence Act whether directed against the child or directed against another person; and (8) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the other parent and the child.
Please understand that the application of what law a court will apply may vary, depending on the facts of each particular case. If you have any questions, or wish to discuss your particular case, please feel free to call our offices at (312) 454-1500.
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Child Support – The amount of child support due to the custodial parent (or residential custody in cases of joint custody), from the non-custodial parent, will depend on a variety of factors. However, the court is guided by certain statutory guidelines depending on the net income of the party paying support, (for example, if one child is involved, the court will typically allow for child support in the amount of 20% of the person’s net income). It is possible that the court will often vary from the guideline figures, if the obliged party can show a hardship.
Additionally, the law in Illinois has been interpreted to provide that under certain circumstances, the custodial party can seek a contribution to the child’s day care costs, education costs and other needs from the other parent.
Further, if the child is mentally or physically disabled, support may continue until after the child reaches the age of majority.
If you have any questions, or wish to discuss your particular case, please feel free to call our offices at (312) 454-1500.
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Visitation
– Generally, a party not granted custody has the right to visit with the children on a regular and consistent basis. A typical visitation agreement will cover all holidays, weekends, birthdays, and extended visitations over school breaks.
Additionally, grandparents, great-grandparents, or siblings of any minor child are permitted to seek visitation with a child. This permission is often helpful when a party tries to limit the relationship a child has with his grandparents or other sibling.
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Maintenance or Alimony - Maintenance, which was formerly alimony, is experiencing a resurgence in Illinois. Significant factors in determining whether your case would qualify as one where an award of alimony would occur concerns the difference in income of the spouses, as well as the life style the parties’ lived in during the marriage. There are various types of maintenance awards which the court will consider, including maintenance in gross ( a lump sum award of maintenance), or rehabilitative maintenance, which is designed to allow the spouse an opportunity to "get back on his/her feet." In a Marital Settlement Agreement, the structuring of a maintenance award is very significant, as if the Agreement is improperly worded, the award of maintenance may run indefinitely. If you have any questions, or wish to discuss your particular case, please feel free to call our offices at (312) 454-1500.
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Property Distribution - Property distribution in a divorce case is an area which is often misunderstood, not only by the divorcing parties, but often by attorneys who do not practice in the Domestic Relations Division. Illinois Courts will distinguish between marital and non-marital property to distribute the property between parties. In general all property acquired during a marriage, by either spouse, is considered marital property.
However, there are exceptions to this rule. For example, property acquired by gift, legacy or descent (i.e. inheritance), is considered non-marital, regardless of whether the property was acquired after the marriage. Second, property acquired in exchange for property acquired prior to the marriage, or other non-marital property, will be considered non-marital property. Third, property acquired after a Judgment of Legal Separation will be determined to be non-marital. Fourth, property excluded by a valid agreement of the parties’ will be non-marital. And finally, property acquired prior to the marriage will be determined as non-marital property.
Pension funds often are part marital, and part non-marital, and any questions regarding the division of any property, or your rights in property, whether marital or non-marital, should be discussed with your attorney. If you have any questions, or wish to discuss your particular case, please feel free to call our offices at (312) 454-1500.
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College
Expenses for the Children of the Marriage
Courts will generally divide the expense of sending a child to school (including tuition, room and board books, fees, etc.) between the parties’, after considering the resources available to the child. Typically, the court will split these college expenses based on the incomes of the two parties’. However, what the parties are able to afford is also a consideration. For example, if a child desires to go to Harvard, while the parents can only afford a state school, the parties’ should not be expected to pay the Harvard tuition. If you have any questions, or wish to discuss your particular case, please feel free to call our offices at (312) 454-1500.
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