Family Law

Family Law

Types of Custody

 

Legal Custody

 

Legal custody of a child is the right and obligation to make decisions about a child’s upbringing.  Decisions regarding schooling, and medical and dental care, for example, are made by a parent with legal custody.  Illinois courts may award joint legal custody to the parents, which mean that the decision making is shared.  If you share joint legal custody with the other parent and exclude him or her from the decision-making process, your ex can take you back to court and ask the judge to enforce the original custody agreement.  You will not get fined or go to jail, but it will probably be embarrassing and cause more friction between the two of you, and it may harm the children.

 

 

Physical Custody

 

Physical custody is the right of a parent to have a child lives with him.  So far, Illinois does not recognize the concept of joint physical custody where the child spends approximately half the time in each parent’s home.

 

 

Sole Custody

 

Sole custody means that only the custodial parent has physical custody and legal custody of a child, and that the noncustodial parent has visitation rights.  Illinois courts are moving away from awarding sole custody to one parent, and they are often enlarging the role a father plays in his children’s lives.  This translates into physical custody for one parent with joint legal custody shared by both, plus a visitation schedule.  Courts may not hesitate to award physical custody to the father if the mother is deemed unfit because of alcohol or drug dependency, an unfit boyfriend or child abuse or neglect charges.  It is understandable that there may be animosity between you and your ex-spouse, but sole custody shouldn’t be sought unless the parent is a direct harm to the children.  Even then courts may simply order supervised visitation, while still allowing joint legal custody.

 

 

Joint Custody

 

Parents who don’t live together have joint custody when they agree, or a court orders them, to share the decision-making responsibilities for, and/or physical control and custody of, their children.  Joint custody can exist if the parents are divorced, separated, no longer cohabiting or even if they never lived together.

 

Usually, when parents share joint custody, they work out joint physical custody according to their schedules and housing arrangements.  If the parents cannot agree, the court will impose an arrangement.  Joint custody has the advantages of assuring the children continuing contact and involvement with both parents, and alleviating some of the burdens of parenting for each parent.

 

 

Joint Custody – The Law

 

  • (a) The dissolution of marriage, the declaration of invalidity of marriage, the legal separation of the parents, or the parents living separate and apart shall not diminish parental powers, rights, and responsibilities except as the court for good reason may determine under the standards of Section 602.
  • (b) Upon the application of either or both parents, or upon its own motion, the court shall consider an award of joint custody.  Joint custody means custody determined pursuant to a Joint Parenting Agreement or a Joint Parenting Order.  In such cases, the court shall initially request the parents to produce a Joint Parenting Agreement.  Such Agreement shall specify each parent's powers, rights and responsibilities for the personal care of the child and for major decisions such as education, health care, and religious training.  The Agreement shall further specify a procedure by which proposed changes, disputes and alleged breaches may be mediated or otherwise resolved and shall provide for a periodic review of its terms by the parents. In producing a Joint Parenting Agreement, the parents shall be flexible in arriving at resolutions which further the policy of this State as expressed in Sections 102 and 602.  For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court may order mediation and may direct that an investigation be conducted pursuant to the provisions of Section 605.  In the event the parents fail to produce a Joint Parenting Agreement, the court may enter an appropriate Joint Parenting Order under the standards of Section 602 which shall specify and contain the same elements as a Joint Parenting Agreement, or it may award sole custody under the standards of Sections 602, 607, and 608.
  • (c) The court may enter an order of joint custody if it determines that joint custody would be in the best interests of the child, taking into account the following:
    1. the ability of the parents to cooperate effectively and consistently in matters that directly affect the joint parenting of the child. “Ability of the parents to cooperate” means the parents' capacity to substantially comply with a Joint Parenting Order.  The court shall not consider the inability of the parents to cooperate effectively and consistently in matters that do not directly affect the joint parenting of the child.
    2. the residential circumstances of each parent; and
    3. all other factors which may be relevant to the best interest of the child.
  • (d) Nothing within this section shall imply or presume that joint custody shall necessarily mean equal parenting time. The physical residence of the child in joint custodial situations shall be determined by
    1. express agreement of the parties; or
    2. order of the court under the standards of this section.
    3. Notwithstanding any other provision of law, access to records and information pertaining to the child, including but not limited to medical, dental, child care and school records, shall not be denied to a parent for the reason that such parent is not the child's custodial parent; however, no parent shall have access to the school records of a child if the parent is prohibited by an order of protection from inspecting or obtaining such records pursuant to the Illinois Domestic Violence Act of 1986 as now or hereafter amended.

IMDMA authorizes the courts to award joint custody over the objection of either or both parents.

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Custody and Visitation

 

Child custody is the right and duty to care for a child on a day-to-day basis and to make major decisions about the child.

 

In sole custody arrangements, one parent takes care of the child most of the time and makes major decisions about the child.  That parent usually is called the custodial parent.  The other parent generally is referred to as the noncustodial parent.  The noncustodial parent almost always has a right of visitation, a right to be with the child, including for overnight visits and vacation periods.

 

As with financial issues in a divorce, most husbands and wives have reached a agreement on custody before they go to court.  Fewer than 5 percent of parents have custody of their child decided by a judge.  When parents cannot agree on custody of their child, the court decides custody according to the best interest of the child.  Determining the best interest of the child involves consideration of many factors.

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Child Support

 

Parental Obligation

 

Under Illinois law, parents have an absolute legal obligation to contribute to the economic support of their children regardless of whether they are married, whether the children live with them, and whether the relationship between parent and child is a happy one.  This obligation becomes an issue in proceedings involving dissolution of marriage, custody, and paternity.  Such proceedings, when they involve children, typically result in the court’s ordering one or both parents to pay money either to the other parent or to some third-party provider (of services for the children) for the children’s expenses and also to provide health or medical insurance for the benefit of the children.  The duration of these obligations is set by statute, and the courts typically require that they be secured by life insurance (or other security) sufficient to cover the outstanding obligations in the event that the paying parent dies before the obligation is terminated or fulfilled.

 

The money that one parent pays another for the children’s expenses -- i.e., the child support payments -- is intended to cover both “fixed” or necessary expenses such as housing, food, clothing, and medical costs and any miscellaneous expenses such as education, recreation, and vacation.

 

Illinois law is clear: Both parents share the financial responsibility for the support of their children, though not necessarily equally, whether or not any marriage takes place, during the marriage, and after any judgment for dissolution of marriage is entered.

 

 

Minimum Percentage Guidelines

 

The guidelines set forth have been held valid against a multipronged challenge that they violated the state constitutional requirement of separation of powers, the state constitutional prohibition against special or local legislation, the state constitutional provision ensuring a remedy for injuries, and the state and federal provisions requiring both substantive and procedural due process and equal protection.

 

The current statutory percentages for setting what the statute calls “minimum” but in practice is frequently “standard” support are set forth in IMDMA § 505(a)(1):

Number of Children  Percent of Supporting Party’s Net Income

1 20%
2 28%
3 32%
4 40%
5 45%
6 or more 50%

 

These percentages are -- theoretically, at least -- mathematically applied to the net income of the parent required to pay support to yield a support figure, which is entered into a support order and also into a notice of withholding to be served on the supporting parent’s employer for automatic wage deductions unless other arrangements are made.

 

“Net income” is defined as the total of all income from all sources, minus the following deductions:

  • (a) Federal income tax (properly calculated withholding or estimated payments);
  • (b) State income tax (properly calculated withholding or estimated payments);
  • (c) Social Security (FICA payments);
  • (d) Mandatory retirement contributions required by law or as a condition of employment;
  • (e) Union dues;
  • (f) Dependent and individual health hospitalization insurance premiums;
  • (g) Prior obligations of support or maintenance actually paid pursuant to a court order;
  • (h) Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts.  The court shall reduce net income in determining the minimum amount of support to be ordered only for the period that such payments are due and shall enter an order containing provisions for its self-executing modification upon termination of such payment period.

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Child Support and Visitation

 

Child support and visitation are independent rights and obligations.  If a parent is not receiving child support, the remedy for that parent is to go to court (or activate a wage withholding order) to collect child support.  The parent who is supposed to receive child support may not deny visitation or contact with the child because support was not paid.

 

Similarly, if visitation or contact with the child is blocked by the custodial parent, the legal remedy for the noncustodial parent is go to court to obtain an order enforcing visitation.  The noncustodial parent may not cut off or reduce child support because the custodial parent interfered with visitation.

 

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What Court Can Hear a Custody Case?

 

Under the IMDMA, the case jurisdictional requirements are simple:

 

(a) A court of this State competent to decide child custody matters has jurisdiction to make a child custody determination in original or modification proceedings as provided in Section 4 of the Uniform Child Custody Jurisdiction Act as adopted by this State.

 

The circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if:

  1. this State
    1. is the home state of the child at the time of commencement of the proceeding, or
    2. had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or
  2. it is in the best interest of the child that a court of this State assume jurisdiction because
    1. the child and his parents, or the child and at least one contestant, have a significant connection with this State, and
    2. there is available in this State substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or
  3. the child is physically present in this State and
    1. he child has been abandoned or
    2. it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
  4. a.  it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs 1., 2., or 3., or   another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and b.  it is in the best interest of the child that this court assume jurisdiction.

(b) A court, once having obtained jurisdiction over a child, shall retain such jurisdiction unless it concedes jurisdiction to a foreign state or none of the parties to the action, including the child, remain in Illinois.

 

(c) Except under paragraphs 3. and 4. of subsection (a), physical presence in this State of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this State to make a child custody determination.

 

(d) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.

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Invalidity of Marriage

 

Distinctions Between Declaration of Invalidity of Marriage and Dissolution of Marriage

 

A declaration of invalidity of marriage proceeding is an action to obtain a judicial ruling that a valid marriage never took place due to some defect existing at the time the marriage ceremony occurred and that the marriage, in fact, is not legally valid and does not legally exist.

 

A dissolution proceeding is an action to sever a valid marriage for legal reasons (known as grounds for dissolution) that occur after a valid marriage is entered into.

 

 

Distinctions Between Prohibited and Voidable Marriages

 

Prohibited Marriages

 

Prohibited or void marriages, even though entered into with all procedural regularity, produce no marital status.  Prohibited marriage is a nullity from the beginning.  Either party can have it so declared.

 

A judicial declaration that a marriage is void publicizes that fact, but legally it is not necessary to do so. However, certain practical considerations make it prudent to have the marital status declared a nullity in order to avoid subsequent disputes over inheritance and legal ownership of property.

 

IMDMA prohibits bigamous marriages, marriages between an ancestor and a descendent or between siblings, whether by half or whole blood or by adoption, marriages between an uncle and niece or an aunt and nephew, whether the relationship is by half or whole blood, and marriages between cousins of the first degree.  However, a marriage between first cousins 50 years of age or older is not prohibited.

 

 

Voidable Marriages

 

A voidable marriage is one that is subject to being declared invalid for some legal defect existing at the time it was contracted.  Such a marriage is valid (not void) for all purposes until a judicial declaration of invalidity (DIV) is obtained by one of the persons permitted to bring a DIV proceeding to set it aside.  The DIV proceeding must be brought within the time prescribed under the IMDMA and must be predicated on the grounds set forth in the IMDMA before a void judgment can be entered.

 

Marriages that are voidable and subject to being declared invalid are marriages that were

  1. entered into by one or more parties who lacked “capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs or other incapacitating substances;”
  2. entered into “by force or duress or by fraud involving the essentials of marriage;”
  3. entered into when either one of the parties lacked “the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was solemnized the other party did not know of the incapacity;”
  4. entered into when a party to the marriage “was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial approval;” or
  5. prohibited pursuant to IMDMA §212(a) (§301(4)).

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Dissolution of Marriage

 

Section 401 titled “Dissolution of marriage” provides that:

 

(a) The court shall enter a judgment of dissolution of marriage if at the time the action was commenced one of the spouses was a resident of this State or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained for 90 days next preceding the commencement of the action or the making of the finding; provided, however, that a finding of residence of a party in any judgment entered under this Act from January 1, 1982 through June 30, 1982 shall satisfy the former domicile requirements of this Act; and if one of the following grounds for dissolution has been proved:

(1) That, without cause or provocation by the petitioner: the respondent was at the time of such marriage, and continues to be naturally impotent; the respondent had a wife or husband living at the time of the marriage; the respondent had committed adultery subsequent to the marriage; the respondent has willfully deserted or absented himself or herself from the petitioner for the space of one year, including any period during which litigation may have pended between the spouses for dissolution of marriage or legal separation; the respondent has been guilty of habitual drunkenness for the space of 2 years; the respondent has been guilty of gross and confirmed habits caused by the excessive use of addictive drugs for the space of 2 years, or has attempted the life of the other by poison or other means showing malice, or has been guilty of extreme and repeated physical or mental cruelty, or has been convicted of a felony or other infamous crime; or the respondent has infected the other with a sexually transmitted disease. “Excessive use of addictive drugs,” as used in this Section, refers to use of an addictive drug by a person when using the drug becomes a controlling or a dominant purpose of his life; or

(2) That the spouses have lived separate and apart for a continuous period in excess of 2 years and irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family. If the spouses have lived separate and apart for a continuous period of not less than 6 months next preceding the entry of the judgment dissolving the marriage, as evidenced by testimony or affidavits of the spouses, the requirement of living separate and apart for a continuous period in excess of 2 years may be waived upon written stipulation of both spouses filed with the court. At any time after the parties cease to cohabit, the following periods shall be included in the period of separation:

   (A) any period of cohabitation during which the parties attempted in good faith to reconcile and participated in marriage counseling under the guidance of any of the following: a psychiatrist, a clinical psychologist, a clinical social worker, a marriage and family therapist, a person authorized to provide counseling in accordance with the prescriptions of any religious denomination, or a person regularly engaged in providing family or marriage counseling; and

   (B) any period of cohabitation under written agreement of the parties to attempt to reconcile.

In computing the period during which the spouses have lived separate and apart for purposes of this Section, periods during which the spouses were living separate and apart prior to July 1, 1984 are included.

(b) Judgment shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for child custody, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property. The court may enter a judgment for dissolution that reserves any of these issues either upon (i) agreement of the parties, or (ii) motion of either party and a finding by the court that appropriate circumstances exist.

 

The death of a party subsequent to entry of a judgment for dissolution but before judgment on reserved issues shall not abate the proceedings.

 

If any provision of this Section or its application shall be adjudged unconstitutional or invalid for any reason by any court of competent jurisdiction, that judgment shall not impair, affect or invalidate any other provision or application of this Section, which shall remain in full force and effect.

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Divorce Against the Absent Spouse

 

The jurisdiction of the court is limited under the IMDMA, and a court does not act in dissolution areas under the unlimited jurisdiction conferred on the court by the 1970 Illinois Constitution.  In order to bring an action for Dissolution of Marriage a petitioner must satisfy two jurisdictional requirements under the IMDMA.  The first is the necessity of establishing residency, and the second is establishing grounds for the dissolution.  Proper service of summons is also required. A person may have more than one residence but can have only one domicile.  To establish residency, one must establish physical presence in the location coupled with an intention of remaining in that location.  Residency of either party will satisfy the jurisdictional requirement under IMDMA.  The jurisdictional residency requirement does not require the party bringing the action to remain in the state for the entire 90-day period as long as the party does not acquire another domicile. The court need not make a specific finding of residency as a jurisdictional prerequisite to a valid order.  A general finding that the court has jurisdiction over the person and the subject matter is sufficient.  However, subject matter jurisdiction cannot be conferred on the court by agreement or consent of the parties.  Where a written waiver of the required two year waiting period necessary to obtain dissolution of marriage on grounds of irreconcilable differences was not filed, the court was without subject matter jurisdiction to enter an order of dissolution. A divorce action is a “quasi in rem proceeding,” and personal jurisdiction over the defendant is not required to dissolve the marriage; the only aspects of the proceeding requiring personal jurisdiction over the defendant are orders granting custody, disposing of property, or requiring the defendant to pay money.  If the court lacks personal jurisdiction over the defendant, it may dissolve the marriage but must reserve other issues requiring personal jurisdiction over the defendant.

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Enforcement of Child Support

 

State and federal governments have a variety of techniques for enforcing payments of child support.  The most common is a wage deduction order, by which an employer sends a portion of the obligor-parent’s wages to a state agency that then sends the money to the parent who has custody of the child.

 

Beginning in 1994, all new child support orders were required to provide for an automatic deduction from the obligor’s wages.  The wage deduction takes effect immediately unless the parties have agreed otherwise or unless a court waives immediate deductions from wages.  Even with such a waiver or agreement, the order must provide that a wage deduction will begin without returning to court if the person owing child support falls more than thirty days behind in payments.  Wage withholding can be used to collect current support as well as past-due support.

 

Wage deduction orders are effective in collecting support if the parent is regularly employed and does not change jobs frequently.  If the parent loses a job, there is, of course no wage from which to make a deduction.  If the parent changes jobs, the new employer must be served with a deduction notice before wages are withheld.  If a parent is self-employed, the parent is still obliged to send payments, but the person to whom support is due cannot look to an independent employer to make sure that payments are sent on time.

 

For parents who are behind in support payments, the state also can intercept federal and state tax refunds.  This is a useful remedy if the obligor-parent has a sizable refund due.  If the obligor filed a joint income tax return with a new spouse, the new spouse can show the enforcement authorities the portion of the income tax refund that belongs to him or her so that the spouse's portion of the refund will not be intercepted.  As a matter of pragmatics, the tax intercept usually is helpful for only one year.  Once an obligor-parent has had a substantial tax refund seized, that parent often adjusts deductions of taxes from wages so that refunds in future years will be minimal.

 

In addition to seizing tax refunds, states also can place liens on property, such as real estate and automobiles to obtain past-due support.

 

Another penalty that states may impose on parents who have not paid support is a finding of contempt of court.  A finding of contempt of court means that the person charged with contempt has willfully not done something that he or she has been ordered to do by the court--in this case, to pay child support.  A finding of contempt of court can result in a fine, a jail term, or both.  If the parent cannot pay support for a good reason, such as loss of a job without fault of the parent, a court will not find the parent in contempt, but the obligation to pay support continues.

 

To enforce child support orders when the child lives in one state and the obligor lives in another state, the laws can be used to establish support orders and collect payments.  The main law in this areas is the Uniform Interstate Family Support Act (UIFSA).

 

Attorney fees can be assessed against the party who was supposed to pay support, but did not.  In that case, the parent who was supposed to pay support will pay for the attorney of the other parent in addition to his or her own attorney fees.

The following is a checklist of techniques for collection of past-due child support:

 

Wage withholding orders--These are entered by a court and served on the employer of the parent who owes support.  (The person who owes support is called the “obligor”) The employer sends payments to the government, which then sends support payments to the parent to whom support is owed.

 

Tax refund intercepts--The government sends a notice to the Internal Revenue Service or the state department of revenue, directing that the obligor's tax refund be sent to the government for payment of support.

 

Liens on property--A lien can be placed on the real estate, automobile, or other property of the obligor.  If support is not paid, the property can be confiscated and sold.  Alternatively, the lien may stay on the property until it is sold by the obligor, at which point, the debt must be paid before the obligor receives any proceeds from the sale.

 

Contempt of court--The person to whom support is due or the government can ask a court to hold the obligor in contempt of court for willful failure to pay support.  If found guilty of contempt of court, the obligor can be jailed, fined, or both.

 

Revocation of licenses--States will revoke the driver's license or professional licenses of persons who have not paid child support.

 

Interstate collections--In addition to the remedies just listed, state and federal statutes are available to facilitate enforcement of support orders when the obligor and the person to whom support is due live in different states. State and federal prosecutors can help with interstate collections.

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Frequently Asked Questions

 

What is child support?

 

Under Illinois law, parents have a legal duty to support their children.  When one parent moves out either through divorce or separation, the parent who no longer lives with the children may be required to pay child support.  Usually the court will order the parent to pay child support as part of a divorce, legal separation or parentage case.  In cases where the child is receiving welfare benefits or the mother has sought a child support, the Illinois Department of Public Aid may enter an administrative order for support.

 

The parent ordered to pay support is called the obligor.  The parent who receives child support is called the obligee.   An employer of the obligor may be required to withhold child support from the obligor's paycheck and pay it over to the obligee.  The employer is called the payor.

 

 

How is child support paid?

 

Anytime child support is ordered in court, a separate form called a Uniform Order for Support must be entered.  The Uniform Order for Support is a court order that details all the child support provisions in one document.  This support order, by law, requires that child support be deducted directly from the obligor’s paycheck, unless the parties agree to, and the court approves, some other type of payment plan.

 

The Uniform Order for Support also directs that a Notice to Withhold Income for Support be sent to the paying parent’s employer (the “payor”).  The Notice to Withhold Income for Support is not a court order, but it must adhere to the child support provisions in the Uniform Order for Support.  The Notice to Withhold Income for Support directs the paying parent’s employer (“payor”) to take out the child support from the obligor’s paycheck and send it to the State Disbursement Unit.  The State Disbursement Unit then sends it to the obligee.  The State Disbursement Unit, and the Clerk of the Circuit Court for the court that entered the Uniform Order for Support, keep a record of payments.

 

 

Does my support stop automatically when my last child turns 18?

 

It depends on the age of your support order.  The law now requires that a Uniform Order for Support must contain a termination date for child support.  The termination date will be on the child’s 18th birthday, or if the child will turn 18 while still in high school, then the child’s expected graduation date at the end of that school year.  If you have multiple children, then the termination date will be on your youngest child’s 18th birthday or on that child’s expected graduation date.  Check your Uniform Order for Support.  If it specifically states a termination date, your support terminates by law on that date.  Then check the Notice to Withhold Income for Support to make sure your employer also knows to stop withholding on the termination date.

 

Older support orders often do not contain a termination date.  Also, in newer Uniform Orders for Support it is sometimes accidentally omitted.  You generally have the right to terminate your child support obligation when your child turns 18.  If you have an older order, or a new order with no termination date, you should contact an attorney to discuss your right to terminate your support obligation when your youngest child turns 18.

 

 

What if I lose my job and can't pay child support?

 

With few exceptions, Courts will only change child support as of the date a petition to change child support is filed in the child support case.  So, if you are ordered to pay child support and later lose your job, you should ask the court that entered the order to modify your child support order as soon as possible.  If the child support order is not changed, then the amount you owe will continue to add up even though you are no longer working.

 

 

What if my child's other parent stops paying child support?

 

Sometimes there is a simple way to start collecting your support when the obligor stops paying.  This applies when the obligor changes jobs and does not give the new employer the Notice to Withhold Income for Support.  Rather than taking the obligor back to court, you can send a new Notice to Withhold Income for Support to the new employer.  Remember, it is not a court order, so you do not need the court to authorize a new one.  Your right to send a new Notice to Withhold Income for Support comes from a law called the Income Withholding for Support Act.  It says that anytime an obligor misses a payment, you can send a new Notice to Withhold Income to the new employer as long as your Notice to Withhold requests withholding of the exact support amount as stated in your last child support order.

 

More often, however, your situation is more complicated.  You may not know if there is any current employer, or you may no longer even know the whereabouts of the other parent.  You can always ask the court to enforce the child support order on your own.  If you want help a lawyer to help enforce your child support order, you should contact either a private lawyer or the Illinois Department of Public Aid (even if you are not receiving public aid benefits). 

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Guardian Ad Litem

 

Before the enactment of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) in 1977, there was no statutory authority providing for legal representation of a child in dissolution of marriage or post-judgment proceedings.  However, there was authority for the appointment of a guardian ad litem to promote the best interests of the child in domestic relations proceedings.
Statutory change occurred when courts began to recognize that parents are under no legal obligation to act as advocates for their child in domestic relations proceedings.  The United States Supreme Court recognized the competing interests between parent and child in custody disputes, finding that decisions vital to a child’s well-being frequently cannot be left to the discretion of the parents because the estrangement of husband and wife often beclouds parental judgment with emotional prejudice.
IMDMA grants Illinois courts the power to appoint an attorney and/or a guardian ad litem to represent the interests of the child:

 

The court may appoint an attorney to represent the interests of a minor or dependent child with respect to his support, custody and visitation.  The court may also appoint an attorney as the guardian-ad-litem for the child.  The court shall enter an order for costs, fees and disbursements in favor of the child’s attorney and guardian-ad-litem, as the case may be.  The order shall be made against either or both parents or any adult party, or against the child's separate estate.
IMDMA ensures that the child’s due process and constitutional rights are protected and provides for an independent voice to be presented to the court so that the needs and interests of the child are accurately portrayed, thereby aiding the court in determining what is in the best interests of the child.

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Judicial Supervision

 

(a) Except as otherwise agreed by the parties in writing at the time of the custody judgment or as otherwise ordered by the court, the custodian may determine the child’s upbringing, including but not limited to, his education, health care and religious training, unless the court, after hearing, finds, upon motion by the noncustodial parent, that the absence of a specific limitation of the custodian's authority would clearly be contrary to the best interests of the child.

 

(b) If both parents or all contestants agree to the order, or if the court finds that in the absence of agreement that child’s physical health would be endangered or his emotional development significantly impaired, the court may order the Department of Children and Family Services to exercise continuing   supervision over the case to assure that the custodial or visitation terms of the judgment are carried out.

 

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Maintenance (Alimony)

 

The statute providing for Maintenance is IMDMA:

  • (a) In a proceeding for dissolution of marriage or legal separation or declaration of invalidity of marriage, or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a temporary or permanent maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, in gross or for fixed or indefinite periods of time, and the maintenance may be paid from the income or property of the other spouse after consideration of all relevant factors, including:
    • (1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance;
    • (2) the needs of each party;
    • (3) the present and future earning capacity of each party;
    • (4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having foregone or delayed education, training, employment, or career opportunities due to the marriage;
    • (5) the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment;
    • (6) the standard of living established during the marriage;
    • (7) the duration of the marriage;
    • (8) the age and the physical and emotional condition of both parties;
    • (9) the tax consequences of the property division upon the respective economic circumstances of the parties;
    • (10) contributions and services by the party seeking maintenance to the education, training, career, or career potential, or license of the other spouse;
    • (11) any valid agreement of the parties; and
    • (12) any other factor that the court expressly finds to be just and equitable.
  • (c) The court may grant and enforce the payment of maintenance during the pendency of an appeal as the court shall deem reasonable and proper.
  • (d) No maintenance shall accrue during the period in which a party is imprisoned for failure to comply with the court's order for the payment of such maintenance.
  • (e) When maintenance is to be paid through the clerk of the court in a county of 1,000,000 inhabitants or less, the order shall direct the obligor to pay to the clerk, in addition to the maintenance payments, all fees imposed by the county board under paragraph (3) of subsection (u) of Section 27.1 of the Clerks of Courts Act. Unless paid in cash or pursuant to an order for withholding, the payment of the fee shall be by a separate instrument from the support payment and shall be made to the order of the Clerk.

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Settlement Agreement

 

The law governing marital settlement agreements is set forth primarily in IMDMA, which was derived from the Uniform Marriage and Divorce Act (UMDA), as drafted by the National Conference of Commissioners on Uniform State Laws.

IMDMA provides as follows:

  • (a) To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into a written or oral agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them and support, custody and visitation of their children.
  • (b) The terms of the agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.
  • (c) If the court finds the agreement unconscionable, it may request the parties to submit a revised agreement or upon hearing, may make orders for the disposition of property, maintenance, child support and other matters.
  • (d) Unless the agreement provides to the contrary, its terms shall be set forth in the judgment, and the parties shall be ordered to perform under such terms, or if the agreement provides that its terms shall not be set forth in the judgment, the judgment shall identify the agreement and state that the court has approved its terms.
  • (e) Terms of the agreement set forth in the judgment are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.
  • (f) Except for terms concerning the support, custody or visitation of children, the judgment may expressly preclude or limit modification of terms set forth in the judgment if the agreement so provides. Otherwise, terms of an agreement set forth in the judgment are automatically modified by modification of the judgment.

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Post-Nuptial Agreements

 

“Post-nuptial agreements” are defined as agreements or settlements made after marriage between spouses still married to determine the rights of each in the others’ property in the event of divorce or death.  They take the form of separation agreements, property settlements in contemplation of a separation or divorce, or property settlements where there is no intention of the parties to separate. There are five types of post-nuptial agreements in Illinois:

  1. Marital Settlement Agreements;
  2. Separation Agreements incorporated into judgments for legal separation;
  3. Separation Agreements not incorporated into judgments for legal separation;
  4. Amended Premarital Agreements; and
  5. Agreements entered into between spouses that attempt to dispose of property and/or rights to maintenance in the event of divorce and/or death but that are not made in contemplation of separation or divorce (classic post-nuptial agreements).

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Temporary Custody Order

 

  • (a) A party to a custody proceeding, including a proceeding to modify custody, may move for a temporary custody order. The court may award temporary custody under the standards of Section 602 and the standards and   procedures of Section 602.1, after a hearing, or, if there is no objection, solely on the basis of the affidavits.
  • (b) If a proceeding for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed, any temporary custody order is vacated unless a parent or the child's custodian moves that the proceeding continue as a custody proceeding and the court finds, after a hearing, that the circumstances of the parents and the best interest of the child requires that a custody judgment be issued.
  • (c) If a custody proceeding commenced in the absence of a petition for dissolution of marriage or legal separation, under either subparagraph (ii) of paragraph (1), or paragraph (2), of subsection (d) of Section 601, is dismissed, any temporary custody order is vacated.

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The Best Interest of the Child Test

 

  • (a) The court shall determine custody in accordance with the best interest of the child.  The court shall consider all relevant factors including:
    • (1) the wishes of the child's parent or parents as to his custody;
    • (2) the wishes of the child as to his custodian;
    • (3) 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 interest;
    • (4) the child's adjustment to his home, school and community;
    • (5) the mental and physical health of all individuals involved;
    • (6) the physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person; and
    • (7) the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person; and
    • (8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
  • (b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.
  • (c) Unless the court finds the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, the court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child. There shall be no presumption in favor of or against joint custody.

 

 

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