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Recent Blog Posts
President Signs International Child Support Convention
President Obama recently signed the instrument of ratification for the Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance. The purpose of this Convention is to establish uniform, simplified, cost-free rules and procedures for processing child support cases on an international level. Ratification of this Convention is groundbreaking; prior to the Convention, there were no standardized and efficient procedures for international child support cases, and each country had different costly and time-consuming procedures to follow. This Convention represents the first global child support treaty ratified by the United States. Now, American children who have a parent living in a foreign country who is party to the Convention will have additional recourse to collect the financial support that they need in a much more timely manner.
Women Suffer Most in Gray Divorces
While experts and researchers tend to disagree on the exact rate of divorce in the United States today, they are in agreement on one issue: the rate of divorce for couples over the age of 50 is on the rise. According to a recent Forbes article, the rate of “gray divorces” has actually doubled over the 20-year period from 1990 to 2010. These divorces tend to involve couples who have been married for many years, which can create huge financial changes for both parties. However, women, in these divorces, tend to suffer most.
How Your Age Impacts Your Divorce
The reality is that when divorce occurs later in life, the impact on your finances is larger. Once you reach retirement age, you are likely to be living on a fixed income, perhaps from Social Security benefits and pension or other retirement benefits. When you abruptly go from two sources of income to one, your budget and expenses will necessarily change. This is usually not a positive change, especially for the woman, who statistically is likely to have had less income over her lifetime than the man. This can cause the woman's retirement benefits to be substantially less than her husband's benefits. Women may be able to draw Social Security benefits from their spouses' earning records, even following divorce, in some situations. However, that source of income is not a guarantee and is not available to all women at the time that they may need it the most.
What Happens if You Marry or Divorce a Foreign Spouse?
While many foreign nationals marry U.S. citizens or permanent resident aliens solely for love, some see this type of marriage as a way to bypass the typically lengthy immigration laws and enter the U.S. quickly. In fact, some immigration officials estimate that fraudulent marriages may occur in anywhere from 5 to 15 percent of these types of marriages. While immigration authorities may never discover some fraudulent marriages, those that they do discover can result in serious consequences for the parties involved.
Obtaining a Temporary Green Card Through Marriage
In order to marry a foreign national, a U.S. citizen (or a permanent resident alien) must file an immigration application to sponsor a foreign spouse and grant him or her legal status to remain in the U.S. For a marriage that is less than two years old, immigration officials will grant the foreign spouse conditional permanent residence, or a temporary green card, which permits him or her to live in the U.S. on a temporary basis.
Your Divorce and the Gains Tax Exclusion
Many couples who are facing divorce often question what to do with the marital residence, which often is the parties' most valuable asset and an asset that neither spouse may be able to maintain on his or her own. As a result, many individuals in this situation opt to sell the marital home, either during or just after their divorce. A recent online article highlights the potential benefits of the federal gains tax exclusion that divorcing couples can receive if they decide to sell the marital residence. These benefits may allow you and your spouse to receive proceeds from the sale of the home free of federal income taxes, which can give you the money to downsize into a more affordable home.
How the Gains Tax Exclusion Works
If a couple decides to sell their home, they potentially may be able to receive gains from the sale of up to $500,000 without any federal income tax being assessed on those gains. Even if the couple is separated, they may still be eligible for the joint exclusion if they were still legally married at the end of the year in which the home is sold. If the couple is already divorced, however, and the spouse who receives the home through the divorce proceedings wishes to sell it, he or she can still receive tax-free gains of up to $250,000. If the parties still co-own the home and they are newly divorced, they potentially can each have gains of up to $250,000 free of federal income taxes, assuming that they meet the additional eligibility requirements described below.
Am I Allowed to Move With My Child?
In the past, a parent typically could relocate with his or her child anywhere within the state of Illinois. If the parent wanted to move outside of Illinois, he or she would have to obtain permission from the Court in order to do so. Changes to the Illinois Marriage and Dissolution of Marriage Act (IMDMA) that took effect on January 1, 2016, however, dramatically changed the rules for a parent who wants to relocate with his or her child where the parents are divorced or otherwise separated and draws a sharp distinction between the requirements for a parent moving with a child and relocating with a child.
Moving With Your Child
If the parent with which a child spends most of his or her time wants to move, he or she is generally able to do so without the permission of the Court. Under Illinois law, “moving” refers to a parent living in a new home that is no more than 25 miles away from the original home that is located in Cook, DuPage, Kane, Lake or Will Counties. Moving also includes moving to a new home that is no more than 50 miles away from the parent's original home if it is located in a county other than those previously mentioned. Despite this ability to move without Court involvement, however, a parent still should provide the child's other parent with his or her new address and telephone number.
Illinois Spousal Maintenance Guidelines and Your Divorce
When a judge issues a spousal maintenance or spousal support order, one spouse must pay a certain amount of money on a regular basis to the other spouse. You only receive maintenance if the judge decides that you need it and your spouse has the ability to pay it. The Illinois Marriage and Dissolution of Marriage Act (IMDMA) contains uniform guidelines for spousal maintenance orders in Illinois divorce proceedings. The goal of the guidelines is to make spousal maintenance awards in divorce more consistent and to let you know what to expect if you get spousal maintenance in your Illinois divorce.
Application of the Spousal Maintenance Guidelines
The spousal maintenance guidelines apply only when the judge already decided that maintenance is appropriate. To determine whether spousal maintenance is appropriate in your case, the judge must consider several factors, including the following for both parties:
The Right of First Refusal
In Illinois, before agreeing to a custody arrangement, divorcing couples are required to consider including a right of first refusal provision in their parenting plans. This means that before a parenting plan can be approved, parents must consider including a guarantee that anytime the custodial parent needs someone to care for the children, he or she must ask the other parent first before engaging the services of a babysitter or other family member.
Current Law
According to Illinois law, if a Family Court awards parenting time to both parents, it must consider whether one or both parties should be awarded the right of first refusal, which would give the non-custodial parent the first opportunity to care for the child if the custodial parent intends to leave for a significant period of time.
Parents are encouraged to come to an agreement regarding first refusal rights without the aid of the Court. However, in instances where this is not possible, or if the court finds that the agreement is inconsistent with the best interests of the child, the judge must consider adding the right to the terms of the parenting plan.
Enforcing Child Support: Part 2
Child support is important for parents' and children's financial stability, but sometimes, the payor parent fails to make payments. In Illinois, the custodial parent has several enforcement options. The parent may garnish the nonpaying parent's wages, seek contempt charges in court or seek driver's license suspension. Parents also have other options for enforcement through the courts or by reporting the nonpayment to Child Support Services.
Liens
Since a child support order is a Court Order, unpaid child support judgments may be enforced by the same methods as any other judgment. The Court may place a lien on the delinquent parent's bank accounts; real estate; cars; lawsuit settlements, including workers' compensation claims or other assets. If the parent does not pay the child support amount, the sheriff may seize the parent's property, sell it and pay the custodial parent out of the proceeds.
Enforcing Child Support: Part 1
Every child in Illinois has the legal right to receive financial support from both parents. This responsibility does not end simply because parents divorce or separate. The payment of child support can be extremely important for a child's or parent's financial stability, but sometimes, the payor parent fails to make payments. In Illinois, the custodial parent has several enforcement options.
Garnishing Wages
If a parent wants to enforce a child support order without going to court, he or she may send a Notice to Withhold Income for Support both to the parent and to the parent's employer. The parent's wages will be garnished, and the child support will be paid directly out of the parent's paycheck. Sometimes, however, the parents have previously agreed not to pursue income withholding, and this option is not available. Fortunately, several other enforcement methods are possible in Illinois.
Court Rules Wrongful Death Settlements Constitute Income
Calculating child support is one of the most important aspects of a custody case, as the result has the significant likelihood of affecting a child's life for years to come. Often, a change in one of the parents' financial circumstances, such as a new employment opportunity, requires courts to reevaluate that person's monetary contribution. In a recently issued opinion, an Illinois Court of Appeals clarified what constitutes a material change in circumstances such that child support must be modified.
In re Marriage of Fortner
In 2002, Rob Fortner and Shelley S. Scanlan were married and subsequently had a child. In 2003, the couple separated, and an Illinois court ordered that Mr. Fortner pay $313.11 a month in child support. In 2014, Mr. Fortner successfully brought a wrongful death claim against the hospital that treated his father during a fatal heart attack. After deductions for attorney's fees and other costs of litigation, Mr. Fortner received $169,725.48. Ms. Scanlan then filed a motion to modify child support based on Mr. Fortner's changed circumstances, although Mr. Fortner argued that the settlement did not constitute increased income for purposes of child support allocation.
Introducing The Law Office of Nicholas W. Richardson
Nicholas W. Richardson is an experienced divorce lawyer and mediator whose comprehensive legal knowledge, commitment to clients and reputation for results bring lasting solutions to your problems.
The Law Office of Nicholas W. Richardson, P.C. serves clients in Illinois cities such as Palatine, Schaumburg, Inverness, Arlington Heights, Rolling Meadows, Glenview, Hoffman Estates, Bartlett, Des Plaines, Elk Grove Village, Mt. Prospect, Niles, Prospect Heights, Skokie, Streamwood, Barrington, Buffalo Grove, Wheeling, and others throughout Cook County, DuPage County, McHenry County, and Kane County.
Results listed are not a guarantee or indication of future case results.
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