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Frequently Asked Questions

Tristano & Tristano, Ltd. provides skilled, experienced representation in the following areas.

Alimony

Alimony, now called maintenance, is also subject to many misconceptions and starts many really unfair for one person to all of a sudden be left with a much lower standard of living once the other person leaves or if the marriage has become unbearable and the low income person can no longer bear to be married.

Therefore, courts can award maintenance to even things up a bit. For under $250,000 yearly family income there is a formu The court must look at the income and property of each person, the earning potential of each person, each person’s needs, the standard of living established during the marriage, how long the marriage lasted, the age and health of each person and various contributions made by each person during the marriage. It’s important to note that the court may award temporary maintenance during the time a case is pending in court.

Broadly speaking, unless the parties agree otherwise, in writing, maintenance is taxable to the person who gets it and deductible by the person who pays it. Also, unless the parties agree otherwise, maintenance will stop whenever either person dies or the person getting maintenance remarries or starts conjugally cohabiting on an ongoing basis – living as man and wife but not being married.

Courts in Illinois have the power to award maintenance for either fixed or indefinite periods of time or on a permanent basis. Generally speaking, awards of maintenance on a permanent basis are relatively rare these days. Much more common are awards of what we call “rehabilitative maintenance.” The basic idea behind that kind of maintenance is that the maintenance should be awarded for a period of time necessary to help the person getting the maintenance on his or her feet. In fact, for a number of years there was a general trend toward getting people to work if they are capable of doing so, however, there has been a recent resurgence in long term alimony.

In some cases, maintenance can be awarded for a set period of time. In other cases the maintenance award is made modifiable, or reviewable, to see if the person getting the maintenance continues to need it. You need to have an attorney look at your specific situation to let you know what kind of maintenance is best for you situation or what kind is likely to be awarded by a court.

Another important thing to keep in mind: the law says that maintenance can be awarded “without regard to marital misconduct” and it can be non-modifiable if the judge orders it or the parties agree. You can even agree to make it continue after the recipient remarries.

Basics-The Reality of Divorce

Most people are nervous and upset when they first come in to see us. We say things and they don’t hear every word. Sometimes clients have talked to two or three different lawyers – not to mention their friends and relatives. Different versions of the law and facts are jumbled in with their pain and anxiety. For many people who hire us it is the first time they have ever used a lawyer for anything but a house closing or traffic ticket. Sometimes they are more afraid of lawyers than ending their marriage. And there are a few who have so prepared themselves for war and the end of their lives as they know it that they will not consider anything but bloody combat.

If you belong to that first group – the distraught and disoriented – you should be concerned. Make no mistake – a divorce may be the most serious thing you do and you owe it to yourself to ask questions and understand what is taking place.

If you are among the second – the Green Beret, ready to defend your rights and future – you first must step back and consider the nature of the battlefield, your goals and the costs. One of the main problems is that divorce is an unusual area of law. The judges in a divorce case have more power than in most other types of cases. Unfortunately, divorce cases involve not simply dollars and cents but feelings of pain, anger, betrayal, desperation and hostility to mention a few.

In all honesty, the judicial process is not an ideal way of dealing with the issues and problems that arise when you end a marriage. But it’s the best . . . well that’s too h3 . . . O.K., it is the only real system we have and, in the majority of cases, a just result is obtained. Unfortunately it is extremely expensive and can go on for what seems like forever. Before we get into the nuts and bolts of how you get divorced let’s get a few things very clear.

First — it is our sincere belief that if you are not sure that your marriage is over court is the last place to try to save it. And most times lawyers are the worst people to ask to help you. If your spouse is starting the process then you may not have a choice. It’s appropriate and smart that you get information and know what your rights are in case a divorce comes about. You should see a lawyer who does quite a bit of family or domestic relations law (the nice name for divorce law). You should cover your backside and protect your kids. Keep your eyes open and ask questions.

And for goodness sake, take your family and friends with a grain of salt. They love you or they may be jealous of you. They may be smart or dumb, committed to you or just butting in. But they should not be your legal advisors. Their role is to provide support – emotionally and at times monetarily – but not to be your unpaid, untrained yet thoroughly involved and out for blood amateur attorneys.

If you are not certain that your marriage is over do what you must to make sure you have given it every reasonable chance.

It is not being a sap to give it a final try. There is no shame in trying to trust one more time. We have enough business. If you decide never to see us and are able to make your marriage work give us a call and let us know. We are rooting for you to make it. Really.

It sounds corny but you will know when it is over for you. And then you will be ready to do what is necessary. The question of “how will I make it if I leave him” or the fear “she will take me for everything I’ve got” will be there but it won’t matter enough to stop you.

We say all this now, not because we are frustrated social workers, because sometimes we forget to stop and say it often. A good marriage with love, trust, shared experiences and goal – not to mention passion and security – can be one of the most remarkable human activities a person can experience. Even having just some of the things you think your marriage should provide, probably puts you well ahead of the vast majority of people. It shouldn’t be tossed lightly.

Second — keep in mind that the outcome of a divorce matter is determined not only by the law as written but also by the personalities of the judges who make the decisions and experts who help them. Things are not black and white in domestic relations cases. The best lawyer in the world can give you her best opinion of what a judge will do and be dead wrong. To put it bluntly going to trial is in good part – a roll of the dice.

The system is set up with the idea that divorce intimately touches peoples’ lives, and the law is designed to allow judges to consider almost anything they want. Judges are only human and the system can’t do everything. If you and your spouse need the court to decide things about your lives and family – eventually the court decides. But it will be just one woman or man making the decision. No jury – just a judge. There is no magic way for the judge to know who is telling the truth, no DNA test to determine the best parent.

Sometimes judges do great work . . . sometimes you would be better off without them. Sometimes your lawyer can do everything right and the other lawyer everything wrong and still your case ends up in the toilet. No honest, experienced, realistic lawyer can absolutely guarantee a specific result.

And there is no such thing as a divorce case being really over. If you win in the trial court your spouse can appeal. If you win the appeal your spouse can take the fight into the street and battle you through the kids or just flat out refuse to obey the court. Just because a judge orders it doesn’t make it happen. You can spend years enforcing a decree – costing time, tension and expense. And sometimes it just can’t be done. No matter what.

That is why almost any nearly reasonable settlement is to be preferred to even the best trial result.

So if you can safely talk to the other side even while you are in court, do it! Take control of your own future and your children’s future. Learn what you are entitled to receive. Then consider settling for a little less to get on with your life. Don’t get ripped off but remember getting that last dollar or extra hour with the kids can be terribly expensive in more ways than one.

Third – the legal system can’t and isn’t meant to deal with every problem; right every wrong and vindicate all just causes. The Courts just can’t do it. They don’t have the people or the money. And some say they don’t have the right to mix in to every part of our lives.

In the Domestic Relations Division – on a good day when almost everybody shows up – we have 40 judges. Remember, Domestic Relations deals with much more than divorce (officially called Dissolution of Marriage).

It also covers:

  1. Parentage (paternity)
  2. Child support collection for unmarried parents
  3. Child support collection for married parents
  4. Domestic Violence
  5. Custody
  6. Enforcement of the last 30 or 40 years of court orders

And almost any other problem that occurs between:

  1. Married couples
  2. Once married couples
  3. People who have children in common
  4. People who think they may have children in common
  5. Couples living together
  6. Couples who have once lived together

The list is endless and so are the numbers of people who are in Court.

Now take those 40 judges and presume they all work 48 weeks per year (actually if they take all the time they are entitled to take it is more like 44 weeks per year for a judge who has been around).

Since court normally runs from 9:00 a.m. to 12 p.m. and 2 p.m. to 4:30 p.m. this is 5½ hours a day less say ½ hour for recesses, court reporters being late, etc. Figure, to be fair, 5 hours a day x 5 days a week x 48 weeks or 1200 judge hours per year. Take that times 40 judges and you 48,000 hours of judge time per year.

Sounds like a lot, doesn’t it?

Not when you split those hours among the 50,000 to 75,000 cases that are in the system each year (and that is conservative). Mathematically, that means at best 57.6 minutes per case and at worst 38.4 minutes per case per year. Depressing isn’t it?

Things are not quite that bad. Most cases are settled between the parties before trial. In our experience, even in our office which handles a lot of heavily contested matters, less than one case in 20 goes to trial on all issues.

Getting back to point three. Practically, because going to court for anything involves 1 to 2 hours of attorney time – sometimes more, seldom less – and costs $200, $300, $400 or more each time we go to court – YOU IGNORE THE SMALL STUFF

That’s right you heard it here, lawyers saying, “Don’t go to court over the small stuff.” Don’t run into court because:

  • He returned the kid 15 minutes late
  • The child support which was due on Monday wasn’t paid until Wednesday

Don’t spend $600 or $700 because Halloween is on her day and she won’t agree to split it. Don’t blow $500.00 because a $40.00 dollar insurance co-payment wasn’t refunded to you.

It’s not worth it because it costs way too much in your time, money, energy and aggravation. And, just as importantly, it externalizes (out sources to you business people) the decision making processes of marriage partners and parents.

What does “externalization of the decision making process” mean? It means that you and the person that you used to have sex with, sleep with, share the same bathroom and perhaps plan for the future with and confide in – the two of you (and soon your kids) learn to use third parties to regulate your lives. Soon the Court, the police, social workers, your lawyers are needed to do what the two of you should be able to do for yourselves. You run to them so they can tell you: which bedroom to sleep in, what food to buy, who can take the kids to the doctor and what car you can use. As petty as you think two people can get with the help of skilled lawyers you can learn new ways to elevate the insignificant to monumental proportions.

Given the year or two that court can take if everyone is fighting a couple can be well trained in using strangers instead of their own good sense to run their lives. Once you and your spouse or the child’s other parent develop these patterns they can be very hard to break. And you then have the privilege – we’re being sarcastic – you have the curse of passing this behavior on to your children. Sometimes you have to go to Court because:

  • There is a sincere difference of opinion and a decision is necessary to move things along and avoid more conflict
  • One side is just stupid, nasty, or destructive
  • You and your partner came into the legal system already totally unable to communicate
  • There is a real threat to a party, child or marital asset be it physical, emotional or financial

But only for the big stuff. One of the hardest parts of our job is telling the person who pays us when to bit the bullet. Believe us. It is much easier to go into court and scream and holler than say “swallow it.”

Before we go on I want to stress a few things again. This information is in no way intended to be a “do-it-yourself’ guide. We couldn’t possibly cover every situation that could come up and everybody’s situation, as I’ve said before, is a little different. You should always have an attorney representing you to help you through the process and to make sure your rights are fully protected and looked after. Also, throughout this guide I refer to divorce. But many of the same things apply for paternity (getting named as a parent when you were not married) and support (getting money from the other parent).

Children

It’s now time for us to talk about the most difficult thing in any divorce – the children. Sometimes a divorce can have devastating effects on children, effects that last a lifetime. You must make all decisions regarding the children based on their best interests. Not for leverage. Not for revenge. Not because it is cheaper or easier. But for them.

If any point I make stays with you let it be this. In the years we have been practicing – nearly forty years between us – I have never seen a judge…another lawyer…any sheriff, intentionally harm a child.

But we have seen more moms and dads than we care to remember do such crummy rotten things that we have felt ashamed to be parents. If your spouse is going to use the children to hurt you or for purposes of securing economic advantage then we need to talk. If you are going to use the children to hurt your spouse or for purposes of securing economic advantage, then save your money – most lawyers, including us, don’t want to represent you.

Just want to make it clear how we and the vast majority of lawyers we know feel about this type of “litigation technique.”

And no matter what anyone has told you, the only time a child decides where she or he wants to live is when they are 18 years of age. Of course the older a child gets the more weight a judge will give to his or her wishes. So the issue of children breaks down into support and custody. We will take the easier one first.

Discovery

Okay, a divorce is coming and you think you have grounds. Before we or any other lawyer can tell you what is fair – in the way of money and kids – we need to know the facts. If you are not completely sure of all of the facts – how much your spouse earns or can earns, what the house is worth or the pension plan, where all the money went; etc. – you can use the court to conduct “discovery.” In brief, discovery is the formal process to gather information about your husband or wife, their assets, how much they make, etc. Whatever information might be relevant to your case and would help a judge in making a decision at trial, we gather through discovery. A lot of the process requires your cooperation and some time from you. There are a number of ways of gathering information in the discovery process, and they often require you to work closely with our staff so that we can be sure we are providing you the best possible service and obtaining for you the best possible result.

There are different types of discovery. One thing we almost always do is to send out a list of written questions called interrogatories to the other party. The other side is then required to supply written answers to the questions and must swear that the answers given are true. Another very common discovery method is to send out a request for documents that provide information about the case. These documents are usually things like bank statements, credit card statements, real estate papers, etc.

Often, we will also take “depositions.” A deposition is when we sit down with your husband or wife, or perhaps some other person, and ask them questions. We are allowed to ask almost anything in a deposition and the person we are asking questions of (the “deponent”) has to give an answer. The deponent is under oath, and his or her answers are taken down word for word by a court reporter and certify that the written version is what was said by the deponent after being sworn to tell the truth.

We sometimes need to bring in experts to give their advice on particular matters related to the divorce and occasionally it is necessary to call these experts as witnesses should the case go to trial. Some of the types of people we might call on as experts in a divorce case include doctor’s mental health professionals, accountants and appraisers. We’ll be talking more about experts in a little bit.

We also can issue subpoenas requiring production of documents from almost anyone like banks, accountants, real estate brokers – almost anywhere information may be found.

Finally, in a divorce case, one of the most common discovery devices you’ll run into – in Cook County anyway – is something called a 13.3 affidavit. This is a detailed financial statement that Cook County courts require you to fill out. It includes information about your income, expenses and your assets.

Remember – it is always your right to have discovery done, and it is always in your best interests that we find out whatever information we can. However, having said that, we are mindful that many of you are looking for a simple, uncontested divorce. Going through the discovery process does cost money and you may only be looking for a peaceful resolution to the whole matter. And it could be you know everything about your spouse and your money or even that you have no money. If that’s the case you can waive your right to discovery. In practice this is done frequently in uncontested cases. However, always be aware that discovery is your right when going through a divorce and if you waive that right you are taking the risk that you don’t know everything. You may say that the expense and time are not worth it. And we will listen. But you need to know what your rights are. Just make sure that you don’t wake up one day regretting not having done what you could have to protect your finances and children.

The House

There are lots of fights about the family home. While a court can give the house or at least the use of the family home to the custodial parent there is no hard and fast rule that the wife gets the house. The court must consider the availability of other housing for the custodial parent as well as the children’s relationship to the neighborhood. Although it is common for the custodial parent to be given the home either for a period of time or permanently it is not necessarily so.

Many needless fights are caused by people not really knowing what their home is worth. One of the reasons we recommend using a state licensed and certified appraiser is that we think their estimates tend to be more accurate than say a real estate sales person who may have mixed motives in telling you what your house is worth.

Moving Children

What happens when a parent with custody of a child wants to move to another state and take the child with them to the new home? Unless there is some specific agreement between the parties governing such a situation, the law states that a child can only be removed by a custodial parent when such removal would be in the child’s best interests. Basically, it’s the responsibility of the parent seeking the removal to show that the move is in the child’s best interests. Factors that courts consider in determining whether removal is the right thing to do include the likelihood that the move will enhance the quality of life for the child and the custodial parent, the motives of the custodial parent in seeking the removal, the motives of the non-custodial parent in resisting the removal, the importance of the child’s relationship with the non-custodial parent and other family members, and whether a realistic and reasonable visitation schedule can be worked out if the removal was allowed.

Pensions

Another big asset in many marriages is pension, profit sharing, 401(k) or retirement plans of one or both of the parties. Potentially a lot of money is involved. What happens if the husband and wife are both relatively young, say in their thirties, and one or the other already has accumulated some benefits? No one can use them for years. One option is for one to buy the other out but, generally, neither party has that kind of money available. We use what’s called a Qualified Domestic Relations Order, QDRO for short, to split up that type of property. A QDRO is essentially a separate order entered by the court which directs the administrator/trustee of the plan to pay out the benefits in a certain way at some point in the future. Often, this point in the future is twenty years or more. While it might be tempting to worry about the future later a QDRO is a way of protecting the future and is very common in divorce cases. In the past the only major drawback is that QDROs were not available in many state and local government pension situations but we now have Qualified Illinois Domestic Relations Orders (QILDRO) which can divide pensions with some few but significant drawbacks. First and foremost is that your spouse has to agree to the division via QILDRO and that surviving spouse benefits are not available. Both QDROs and QILDROs can take a very long time (six months or more) before it is approved and binding, since the pension fund has a very long time to approve the form of the order. But at least we now have QILDROs and there is some protection for the spouse of a civil servant. There can be direct pay of municipal pensions to the other spouse as there has been in private pensions for years.

Remember, you’re always entitled to do discovery to find out exactly what your husband or wife has. You also have the right to have an expert appraiser value real estate to get an idea as to exactly what a piece of property is worth and an actuary or accountant to evaluate pensions or businesses. Only an expert in finance can really tell you what things are worth today.

Physical Setup of Court

The main courthouse in Cook County is located in the Daley Center, the square steel and glass building with Picasso’s big bird in front of it. It is the block between Randolph, Washington, Dearborn and Clark. Most of our divorce cases are handled in this building although some are handled in the various Municipal Court Houses like Bridgeview, Rolling Meadows, etc. There is also an Expedited Child Support Court downtown at 32 W. Randolph. (Who says that humor doesn’t have a place in the law – notice the use of expedited in relation to any court action.) When you have retained your attorney and come in for your strategy session your lawyer help you decide which courthouse you can and should go to. It is an important but not always critical decision for an experienced attorney since it involves evaluating what judges are sitting in each court house and tactical considerations such as attorney, witness and client availability. It’s common sense the closer your side is to the court house the better.

In addition to different Courthouses, Cook County has a unique organizational system within the divorce division.

It probably won’t surprise you to learn that Cook County is reputed to have the biggest divorce caseload of any court in the world. Over the years, the powers that be have tried different approaches to dealing with this huge number of divorce cases. Remember a divorce case can continue long after the marriage is ended. Because a judge says something does not mean that everyone obeys – just like laws don’t everyone from stealing or cheating on their taxes. Lawyers refer to the parts of a divorce case as: pretrial, trial and post decree. Now let’s get more specific.

In Cook County the main portion of the Domestic Relations Division is broken up into teams. Each divorce case at the Daley Center is assigned to one team of judges in the Domestic Relations Division. Each team has a team leader or preliminary judge. This judge hears all matters related to a divorce before the case actually goes to trial for example: temporary support; custody; occupancy of the residence; orders of protection. Each team then has approximately three judges to whom a case might be assigned out for trial. Finally, each team also has a post decree judge who handles any matters related to your divorce after the divorce decree is actually entered. These types of matters would include things like changes in child custody or a change in the amount of child support or maintenance to be paid.

The set up for the court system is really organized the way a case proceeds. Before a judge finally pronounces your marriage over you are in the pretrial phase.

If you and your spouse don’t work everything out that has to be decided to end your marriage then you have to go to trial – just like O. J. but with no jury, no cameras, no reporters, no money and most of the time with no good reason to do so. This is called the trial phase and the judge rules on custody (if need be), support, division of property, maintenance (that’s alimony). When it is all written down the judge’s ruling is known as a judgment after she or he signs it and the clerk of the court stamps it. Judgment is entered.

After judgment is entered (a divorce or finding of custody, etc.) you return to court to change things or to enforce the existing judgment. That is called the post decree phase. Now, as we said before, the court administration has tried different ways of handling the tremendous caseload and currently there’s an experiment going on. Some cases, instead of being assigned to a team of judges, are sent to an individual judge who is responsible for the case from beginning to end, all the way through including any post-decree matters that might arise. I should mention that all cases that go to the suburban courthouses are currently assigned to one individual judge who hears everything rather than a team of judges.

Probably the most important thing to realize is that when a case is in the Domestic Relations court system, it often takes a considerable length of time to have a contested matter resolved. Some matters can take two or three years although that would be unusual. While this might seem like a long time, in general – and there are exceptions that experienced divorce lawyers will tell you about – the judges in this division are pretty good about moving cases along and divorce cases actually end up going on for a much shorter length of time than many other kinds of contested cases.

That’s a pretty important word – “contested.” What most divorce lawyers mean by a contested case is any case where a judge – remember we don’t have juries in divorce – has to decide any issue whether it be: custody, support, maintenance, cutting up real estate or dividing pots and pans is contested. Your case is contested if you and the other side do not voluntarily agree on all issues. Many times I have clients say, “He or she won’t fight but they won’t agree.” Refusing to take the steps to tell the court you and the other side are not in agreement is the same as fighting – it’s a contested case – with all the expense and time involved.

Much of the time and cost involved results from the requirements of “due process” and the system being overcrowded. Remember, in divorce cases just like in any other kind of case, the parties and their lawyers have to follow a certain set of rules and procedures. These rules and procedures are put in place to make sure everybody’s rights are protected, and following these rules and procedures often involves time. That’s “due process”. Nothing gets done overnight and although it’s always in everybody’s best interests to get things concluded quickly we have to follow the law and jump through the hoops.

Many people are under the impression that if your husband or wife does not want to “give” you a divorce, they can keep you married against your will. The reality is that although your husband or wife might be able to make things difficult for you, they cannot really prevent you from getting a divorce if you really want one. In old times, even before we started practicing law, one had to do a lot more to get a divorce. It was like the old west – there had to be a good guy and bad guy to battle it out. Today, we have what is commonly called a “no-fault divorce.” This kind of divorce actually relies on the legal grounds of irreconcilable differences.

Clients often ask what precisely is meant by “living separate and apart.” Does it mean that you have to live in separate buildings, different towns, and another state? No! All it really means is that your marital relations have come to an end. You can actually be living in the same residence during the required time period and still use the grounds of irreconcilable differences. However, the key is, to be blunt, that you and your husband or wife has ceased sexual relations during that time period. As you can see, this ground for divorce is very easy to show to the court and is very non- accusatory in nature. No one is blamed for anything. No one is at fault.

Property Division

How is property divided? In Illinois, property is classified into two main types: “marital” and “non-marital.” Only marital property is divided by the court. Whatever is your non-marital property remains yours. The real question then is how we tell if property is marital or non-marital.

All property acquired by either spouse after the wedding is marital property. There are however, a number of exceptions to this general rule. Any property given to a party as a gift or property that a party inherits, even during the marriage, remains as that party’s non-marital property. Any property that is acquired in exchange for a party’s non-marital property will also be considered non-marital property. Generally, any property acquired before the marriage by a party remains that party’s non-marital property even though it may increase in value during the marriage – unless that increase is due to the investment of marital funds or labors.

There is one major exception to the exceptions. In certain cases, if you buy a house on your own, even in your own name, the house you buy might become marital property if you bought it while you were planning to get married. This will depend on the exact circumstances surrounding the purchase. Now by this point you may be thinking to yourself, about your lawyer, “What? I’m paying this firm all this money so he can put me to sleep. Just shut up and tell me what I get to keep and what I have to give up!”

You’re probably wondering what difference it makes whether the property is considered marital or non-marital. Well, basically, you keep your own non-marital property and the marital property is thrown into the pot.

Does all marital property get divided 50/50? Not necessarily. Remember when we said judges are given a lot of discretion in divorce cases. This is one of those areas that they get to use great discretion – dividing up marital property – but only if the property is determined by the court to be marital. Theoretically judges are not allowed to do whatever the heck they want. The law gives them guidelines they are supposed to follow, although the guidelines aren’t perfectly clear. And, practically, divisions of property can be 50/50, 60/40, even 90/10.

The law sets out factors for judges to weigh when dividing marital property. The judges can look at what each person contributed to acquiring the property, even if your contribution was staying at home and taking care of the kids. The courts will take into consideration whether you went out and blew a lot of money on yourself after you had already made up your mind to get divorced. The judge will look at how long you’ve been married, each person’s age, health, job prospects and opportunities and any special needs that one person or the other might have. The reality of the situation is that in many cases, the facts do call for a fifty-fifty split. But how does a court determine what exactly is to be given to each person? First each piece of property has to be valued in dollars. A bank account is easy – it’s in dollars already – but a pension is a different matter. In some cases where the value of particular pieces of property isn’t clear appraisers and other experts need to be brought in.

One other thing about property. It’s important to remember just what we mean when we talk about property. Property is not only your house, your cars, your boat, and your jewelry and other things like that. It also includes your cash on hand, your bank accounts, your stocks and even things like a family business. Your smaller items like clothes, silverware, blankets and pillows are also property. Obviously some of these things cause bigger fights than others and some are more difficult to put a value on than others.

Support

Children
It’s now time for us to talk about the most difficult thing in any divorce – the children. Sometimes a divorce can have devastating effects on children, effects that last a lifetime. You must make all decisions regarding the children based on their best interests. Not for leverage. Not for revenge. Not because it is cheaper or easier. But for them.

If any point I make stays with you let it be this. In the years we have been practicing – nearly forty years between us – I have never seen a judge… another lawyer… any sheriff, intentionally harm a child.

But we have seen more moms and dads than we care to remember do such crummy rotten things that we have felt ashamed to be parents. If your spouse is going to use the children to hurt you or for purposes of securing economic advantage then we need to talk. If you are going to use the children to hurt your spouse or for purposes of securing economic advantage, then save your money – most lawyers, including us, don’t want to represent you.

Just want to make it clear how we and the vast majority of lawyers we know feel about this type of “litigation technique.”

And no matter what anyone has told you, the only time a child decides where she or he wants to live is when they are 18 years of age. Of course the older a child gets, the more weight a judge will give to his or her wishes. So the issue of children breaks down into support and custody. We will take the easier one first.

Child Support
With that having been said, the most common question involving children is, “How much is child support?” Unlike maintenance, there are pretty exact guidelines setting child support to be paid by a non-custodial parent. Child support is based on a percentage of the paying parent’s “net income” for the purpose of calculating child support.

Section 505 – the child support law says:

  1. (3) “Net income” is defined as the total of all income from all sources [this includes overtime and bonuses side jobs and tips – explanation added], minus the following deductions:
  2. (a) Federal income tax (properly calculated withholding or estimated payments),
  3. (b) State income tax (properly calculated withholding or estimated payments),
  4. (c) Social Security (FICA payments),
  5. (d) Mandatory retirement contributions required by law or as a condition of employment,
  6. (e) Union dues,
  7. (f) Dependent and individual health/hospitalization insurance premiums,
  8. (g) Prior obligations of support or maintenance actually paid pursuant to a court order,
  9. (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 determine the minimum amount of support by using the following guidelines:

Number of Children

Percent of Supporting Party’s Net Income

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

A judge in some situations can award child support in amounts either above or below the percentage guidelines. This might occur when a child has special needs or where the paying parent has an extremely large income. Realistically, the average child does not need 20% of a net income of $200,000 for support. A court can award child support on a temporary basis while the case is pending using the same guidelines. Child support is not intended to be a jackpot for custodial parents – if a division of income between spouses is due it should be as maintenance. We can give you a good idea whether your particular situation is one where a judge might go above or below the guidelines. However, I can tell you that in the vast majority of the cases, the guidelines are in fact followed.

A few more answers to often asked questions.

“If I have joint custody does it lower my support?”
Not normally. If the other side has primary physical possession or is the residential parent then child support is per guidelines.

“Why do I have to pay on overtime – it’s not guaranteed?”
A judge has to base her or his decision upon a pattern of earnings. If you have consistently gotten overtime then the support will be based upon your average salary – with the average being based on the last year or two.

“No one needs that much money for a kid, do they?”
You have to remember child support goes towards all the expenses of a child – food, clothing, a portion of the rent or mortgage, part of the utilities, car expenses etc.

“How am I supposed to live?”
Good question. Sometimes we don’t have a really good answer. The brutal fact is that many people sharing all expenses are just making it with both parents working. When you have two households everyone suffers. You take the extra job, make the clothes go a little bit farther and do without. You borrow from friends and family and are generally in tight circumstances. Thank god, kids grow up, but until they do, they come first and you tighten your belt until they are on their own.

What about when a parent just doesn’t pay the child support they’re supposed to?
Everybody’s heard about deadbeat dads, and deadbeat moms for that matter. It’s a very sad fact but there are parents out there who do not live up to their obligations. When this happens, you generally have a choice. You can ask the State’s Attorney to represent you or you can get a private attorney. The good thing about the State’s Attorney, of course, is that there’s no charge to you. The bad thing is that, sometimes our clients tell us, they are incredibly slow. Often times it takes them years to do what a private attorney might be able to do in a month or two. That’s not to say that the people working in the State’s Attorney’s office aren’t any good at what they do. It’s just that, as you can imagine, their office is pretty backed-up with cases and they simply cannot pay as much attention to each particular case as a private attorney with fewer cases.

Whoever represents you when trying to collect on support that is owed, the first thing that’s usually done is to petition the court for a rule to show cause. We know, this sounds like a lot of legal mumbo jumbo. What this really means is that we go to the court and ask the judge to order the parent owing support to come in to court and explain why he or she isn’t living up to his or her obligation. If he or she doesn’t have a good reason that parent better either have some money to pay over in court or he or she runs the risk of going to jail for indirect civil contempt of court.

It’s rare that someone goes to jail but it happens and is so distasteful that usually once is enough. Of course since someone is losing their freedom, even with a private attorney representing you, it can take months to have someone incarcerated. Due process and all.

As a parent receiving child support you are entitled to have the support paid via an order for support. When that order is served on an employer the child support amount is deducted automatically from each paycheck and then sent to the custodial parent or through the Clerk of the Court.

In addition to paying support the non-custodial parent has to keep the child on his or her medical insurance. If they don’t have any they can be ordered to reimburse the other parent for the costs of coverage if that parent has it available or to obtain a private policy and show proof of having it.

We mentioned earlier that child support is usually based on a percentage of a paying parent’s net income. That percentage is stated in dollars so an employer does not have to go through any elaborate calculations. Sometimes you can have a judge order a base amount as a minimum, with the other parent responsible for paying the extra directly based on a percentage. While previously percentage orders were subject to a lot of litigation, the legislature has clarified their use and they can be valuable in the case of a widely fluctuating income or an income that is hard to pin down. These orders make for complications and since February of 1998 have been voidable (subject to a court not enforcing them under some circumstances) so you should avoid them.

Modification of Support

What happens if over time a paying parent’s income increases, or decreases, for that matter? Well, whenever one of the parents wants a change in the amount of child support he or she has to file what we call a “Petition for Modification of Child Support.” Generally speaking, before the court will order an increase in the amount of support to be paid you have to show that there is an increased need on the part of the child. You also have to show that there is an increased ability on the part of the paying parent to pay. Both of these must be shown to have occurred since the entry of the most recent support order.

If a paying parent wants a reduction in the amount of support that parent has to demonstrate that the reduction in income was not intentional and will be ongoing. If, for example, a paying parent is laid-off from his job because his company is down-sizing and the only job he can get is one that pays less money, a court will likely grant a reduction in child support because the reduction in income was not his fault. However, if the paying parent decides to just get up and quit his job and not work so that he won’t have to fork over any money then a judge will not be very sympathetic and the original amount of support will still be owed.

The obligation to pay support lasts until the child graduates from high school or turns 19, whichever comes first. This is new and went into effect January 1, 2004. However, the obligation can be extended where the child is mentally or physically disabled and not emancipated.

An issue related to child support but legally very different is payment of educational expenses after high school. Unlike child support for minors, there is no clear-cut mandatory guideline for determining how much a parent is going to be required to pay for post-high school educational expenses. Generally speaking, a parent will be required to contribute to the extent he or she is able. However, it’s important to note that a court makes decisions regarding post-high school education based not only on the financial resources of the parents but of the child as well. In considering the child the Court will look at college savings, summer employment, loans, scholarships and grants. If the child has the ability and aptitude there is a very good chance both parents will have to contribute to college.

There is still another variation in support. As we said earlier, maintenance is usually going to be taxable to the person receiving it and deductible for the person paying it. However, in some cases, the parties might agree to an arrangement known as unallocated maintenance. What this means is that the amounts for maintenance and child support are lumped together and for tax purposes the entire amount is treated as maintenance. Therefore, the amount paid for child support is also taxable to the person receiving and deductible for the person paying.

Illinois Family Law and Divorce Attorneys

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