While these parents undertake 529 accounts and other savings plans for their children, many parents may be unaware of what happens to these accounts when they get divorced. It may surprise some to learn that the costs of education may be included or addressed as part of a parent's child support obligation.
]]> Typically, a child's educational expenses are addressed during the divorce process. This can include discussing who helps pay for a child's college education, particularly if the parents have already set up savings accounts that need to be addressed by the court.The divorce settlement can establish a framework for handling these accounts. For instance, if the parents have a 529 or other savings account, that account might be frozen after the divorce in order to protect it from being intruded upon by the other spouse. This action would also preclude a parent from using the funds for a child in a new marriage, to the detriment of the first child.
Courts might also decide to split up the accounts and let each parent save for the child's education separately. This can be effective where the parents have different investment strategies. The court could even mandate spouses to contribute a certain amount toward the child's education.
Ultimately, while education expenses can become part of a child support payment, courts will look at various factors in its consideration. These factors include the income of each parent, the financial resources of the child like scholarships or financial aid and the child's academic performance.
Source: US News & World Report, "Discuss college savings during divorce process," Reyna Gobel, April 29, 2013
]]>Despite the high regard many Illinois residents hold for their pets, the law treats these animals like other pieces of marital property. Typically, Illinois courts try to divide a couple's assets equitably, but determining who gets a pets can be tricky because of the sentimental value involved in the animal.
]]> If a couple cannot determine themselves who gets to keep the pet, the court may look at which spouse brought the pet into a marriage, or which spouse needs the pet more or has more ties to the animal, in undertaking the division of property. For instance, in one case, a wife was awarded a golden retriever because the pet had assisted her in her recovery from alcoholism.
Conversely, the court might award the pet to the spouse who can better provide for the animal. This might include looking at which spouse keeps the family home, if the home is necessary for the pet, as opposed to a spouse who lives in an apartment that does not allow animals.
Finally, while it is unique, there have been courts to award joint custody or even financial support for pets. Another option if individuals desire to keep the family pet is to negotiate for the pet with the other spouse.
Source: Slate, "In honor of Kim Kardashian: tips from the nation's top divorce lawyers on when, where, and how to split," Amanda Robb, April 23, 2013
]]>The law is no different, as laws that were passed several decades ago can seem out of date and in need of updating in today's society. A recent bill proposed in the Illinois House is attempting to do just that in the area of child visitation rights.
]]> The bill, proposed by a committee studying current divorce and child custody laws, could alter the visitation time a noncustodial parent spends with a child in the physical custody of the other parent. The current laws have been on the books for more than 35 years, which have prompted the proposed changes.Specifically, the bill would allow the child to spend at least 35% of time with each parent. The goal would be to make the transitions between parents less disruptive, both for the parent and child. The bill would also afford the non-custodial parent unique decision-making power.
Typically, the parent afforded physical custody in the court's child custody decree has more power and influence over the visitation rights of the non-custodial parent. Parents are expected to work with each other in establishing a schedule, however, if at all possible.
If parents have conflict between each other, a judge is more likely to impose a fixed visitation schedule. Such a schedule can also provide more stability for the child.
Ultimately, it remains to be seen whether the proposed changes affecting visitation time will pass into law. In any event, it is essential to work with a qualified family law attorney to determine how to best approach visitation, whether from the perspective of the custodial or non-custodial parent.
Source: CBS St. Louis, "Illinois House considers changes to divorce laws," April 15, 2013
]]>Even in these instances, however, some may feel the justice system takes too long to decide cases, or that matters could be taken care of without attorneys and judges. To be sure, for some people, this is a possibility, including those who go through a summary divorce.
]]> For instance, a judge in one state has started a one-day divorce program, aimed at those who may not be able to afford an attorney. The program helps couples negotiate their divorce agreement and prepare the necessary paperwork. That day, the couple can go before the judge to obtain the finalized judgment of dissolution of marriage.Other states offer summary divorce proceedings, which is a simplified and faster method of obtaining a divorce. However, eligibility for this procedure is generally limited to those who were married for a short time, have no minor children and have no significant assets.
For couples in a high asset divorce, there is often a need for a complex property division of marital assets. This includes obtaining complex valuation of certain assets, and making sure a spouse obtains an equitable distribution of the property.
Accordingly, qualified representation and judicial involvement is a necessity in these cases, due to the nature of the divorce. While it can be frustrating that the process takes some time, the process is designed to allow discovery to take place where all information is brought to light, and for couples to obtain the necessary valuations on property interests. At the end of the day, spouses can then obtain an equitable distribution and move on with their lives after the divorce.
Source: Huffington Post, "Quick divorce: Sacramento judge starts one-day divorce program," April 12, 2013
]]>Yet, in many marriages, one spouse does not earn income and may stay at home, perhaps supporting children. Even if both spouses work outside the home, one spouse may earn substantially more than the other. In these cases, when a couple gets divorced, the economic effects can be particularly harsh on the spouse who earns less income or no income at all. To remedy the inequities of this situation, courts provide for orders of spousal support to assist the disadvantaged spouse during his or her time of financial need.
]]> When a divorce is filed, it brings to light the economic issues existing within a marriage. For instance, when "Game of Thrones" star Lena Headey recently filed for divorce from her husband of five years, it surprised some to learn that Headey claims she has less than $5 in her bank account. Headey and her husband both sought money from the couple's $46,000 tax refund, including Headey, who said she was living on credit and struggling to make ends meet.Fortunately, Headey is expecting future payment from her television work, which could help solve her financial woes. For others who get divorced and are struggling to meet ends meet on their own, however, a large future payday is no certainty.
In such cases, a court may limit the unfair economic effects between spouses by ordering one spouse to make monthly payments of alimony to the other. Courts have broad discretion in setting an award of alimony, unlike other areas like child support where there are strict guidelines to follow. Courts may look at the duration of the marriage, the financial condition of the parties and the couples' standard of living, among other factors.
With an award of alimony, a spouse can be rehabilitated until the spouse receives the education or training needed to become self-supporting. Accordingly, while a divorce may bring to light financial issues in the couple's marriage, disadvantaged spouses have some recourse so they are not left in the dark.
Source: Los Angeles Times, "Lena Headey's divorce reveals 'Thrones' star's money problems," Nardine Saad, April 4, 2013
]]>Typically, child custody is determined by looking at the best interests of the child. This standard is intentionally broad, and can include examining factors like the wishes of the child, the ability of parents to provide a stable environment and the mental and physical health of the parents, among other factors.
]]> The court will also look at whether a parent has engaged in excessive discipline, or other forms of abuse, including sexual abuse. Under current Illinois law, however, if a woman is raped by the father of the child, the father's custody and visitation rights may only be restricted if there is a criminal rape conviction against the father of the child.One woman is attempting to lower the standard of proof in such situations. The woman, an attorney, is advocating for a change in the law that would make it enough to restrict an attacker's rights if the woman provides a rape by clear and convincing evidence.
Clear and convincing evidence is a legal standard employed by courts under certain circumstances, and generally means the woman must show it is highly probable the event occurred. It is still a very high standard of proof, higher than the preponderance of the evidence standard used in civil cases, but lower than the beyond a reasonable doubt standard used for criminal convictions.
The proposal has moved forward to the next stage of the legislative process, although it remains to be seen whether the law will be changed. In either event, individuals who have suffered rape or abuse by another parent should work with a qualified family law attorney to determine the best way forward in a child custody proceeding.
Source: WUIS, "Illinois attorney looking to close child loophole," Mar. 25, 2013
]]>Prenuptial agreements may be particularly common in a high asset divorce. For example, former football and baseball star Deion Sanders recently battled in court over a prenuptial agreement between he and his wife. The couple, who announced they were splitting up in 2011, have had a prolonged divorce involving contested issues of child custody, child support and property division.
]]> Sanders' wife argued the prenuptial agreement should not be enforced because it was partially forged. However, an arbitrator in the couple's divorce case recently decided the agreement was signed by both spouses and was valid. Therefore, the agreement, which sets forth the division of property, will be enforced.While the argument did not carry the day in the Sanders' divorce, a common attack on a prenuptial agreement is that the agreement was not properly executed, or signed, by both parties. Like any contract, prenuptial agreements must be signed by the parties in order to be considered valid. Unlike many other contracts, prenuptial agreements must also be in writing in order to be enforced.
Aside from forgery arguments, often times prenuptial agreements are challenged based on the provisions contained in the agreement. For instance, while the agreement can cover financial aspects like property division, it cannot set a party's child support obligations.
Thus, in the Sanders' divorce, the child support issue had to be determined separately from the issues contained in the prenuptial agreement.
Ultimately, prenuptial agreements may control property division if they are held to be enforceable. The validity may be addressed in each case, however, under any number of challenges.
Source: NBC DFW, "Prenuptial agreement will stand in Sanders divorce," Mar. 20, 2013
]]>As discussed previously in this blog, these changes can include things like the payor getting a new job or losing a job, which can impact the amount of monthly payments. However, even if income remains the same, other changes can impact the existing order.
]]> For example, if the payor or payee changes his or her residence to another state, certain steps may need to be taken to continue the child support payments. Typically, if the payor moves states, the custodial parent must rely on the Revised Uniform Reciprocal Enforcement of Support Act to continue collecting payments. This law directs individuals with respect to enforcing child support orders across state boundaries.However, individuals should also understand their rights when a change in residence occurs. For example, if a custodial parent registers the old state judgment in the new state that the custodial parent moved to, this does not necessarily mean the new state can increase the amount of child support payments.
If the noncustodial spouse has little to no contact with the new state, that state may not have personal jurisdiction over the individual, and thus it could not modify the earlier judgment. Accordingly, it would violate the payor's due process rights for that state to modify the earlier judgment.
Source: Boston Herald, "Dad questions another state raising child support," Gerald L. Nissenbaum, Mar. 17, 2013
]]>The child support order includes the terms of the child support matter, such as instructing a party to make periodic child support payments in a certain amount. The order usually identifies the paying party and the party who receives payments, and establishes the precise amount that needs to be paid. In addition, the order may set out the procedure for payment, such as making paycheck deductions every two weeks.
]]> Finally, a child support order typically establishes the penalties for failure to pay child support, if the parent fails to make the court-ordered payments. This is a key part of any child support order, in that it provides some idea of how the order will be enforced.Generally, a number of means are available to collect child support, including the seizure of property, interception of tax refunds and wage garnishment. A non-paying party may also be held in contempt of court for violating the court's order.
These enforcement mechanisms are not mere threats. For example, a former Chicago alderman was recently sentenced to 30 months probation and ordered to pay over $100,000 due to his failure to pay child support for his two daughters. The man had failed to make payments since 2011. Accordingly, he pleaded guilty to criminal failure to pay child support and was placed on probation, which could terminate earlier if he fulfills his $143,837 child support obligation.
The case demonstrates the effectiveness and importance of child support orders. This is true both for the parent who is seeking to receive child support payments, as well as the parent who is under court order to make payments, such as the man above.
Source: Chicago Sun-Times, "Judge orders former Chicago alderman to pay $143,000 in child support," Rummana Hussain, Mar. 8, 2013
]]>According to a new study, it is not just the economy that can set people back on retirement planning. Those individuals going through a divorce may also feel a significant hit, if they do not plan properly.
]]> The study looked at baby boomers, who are divorcing at high rates, in part because of the longer life spans of today's Americans. Indeed, one in four divorces came from individuals aged 50 and older in 2010.Of course, older individuals tend to have built up more assets, making for a more complex property division upon divorce. The impact to retirement income can be particularly significant if individuals fail to plan for their life after divorce.
This is because retirement income is now split in half among the divorcing spouses, who will spend the money separately, which costs more. Experts noted it can cost more to retire as two single people, rather than a married couple. For some, this may mean delaying retirement or adjusting previously thought out plans.
It is not all doom and gloom, however. Individuals can adjust their retirement plans while going through a divorce. Proper planning is paramount in any divorce, according to experts who discussed the study above.
For instance, by working with a qualified divorce attorney and financial planner, who work together on a favorable settlement, individuals can properly adjust their retirement plans to account for their new lifestyle. Indeed, in complex property division cases, attorneys might work with a team of experts who specialize in certain areas, which can help a person obtain a favorable divorce settlement and move on with their lives. Accordingly, in these complex cases, it is all the more important to utilize the professional experience of a qualified attorney and other experts.
Source: USA Today, "Boomer divorce: a costly retirement roadblock," Rodney Brooks, Feb. 26, 2013
]]>As discussed previously in this blog, there are a number of penalties for failure to pay child support. There are also a number of tactics that can be taken to enforce child support obligations, such as garnishing a person's wages.
]]> However, those are all steps that occur after a person who is failing to pay child support is located, which can be a battle in itself. As a general matter, it is best to have as much personally identifying information as possible to locate the noncustodial parent. Information such as a social security number, contact references, workplace details and other information can make a huge difference when it comes to locating a person. This is particularly true if the noncustodial parent is not a former spouse of the parent who is trying to collect child support.State and federal agencies may also assist in locating a parent who is not paying child support. Some states might, for example, place the names of deadbeat parents on websites or billboards. Of course, these state resources are less helpful when the target parent is not located in the state. Often times, in these situations, custodial parents may need to handle the investigative work themselves.
Fortunately, even the most evasive of noncustodial parents may be tracked down to pay their court-ordered obligation. For instance, a man named the most wanted deadbeat parent, for his failure to pay $1.2 million in child support, was recently arrested and charged. The man is facing up to 4 years in prison, after he was caught trying to enter another country.
Ultimately, custodial parents should seek out assistance in locating non-paying parents. This includes working with a qualified family law attorney, who can advise as to the best resources for tracking a person down, and how to enforce child support obligations once the person is found.
Source: CNN, "Man pleads guilty to owing $1.2 million in child support," Julia Talanova, Feb. 22, 2013
]]>As discussed previously in this blog, there are a number of penalties for failure to pay child support. There are also a number of tactics that can be taken to enforce child support obligations, such as garnishing a person's wages.
However, those are all steps that occur after a person who is failing to pay child support is located, which can be a battle in itself. As a general matter, it is best to have as much personally identifying information as possible to locate the noncustodial parent. Information such as a social security number, contact references, workplace details and other information can make a huge difference when it comes to locating a person. This is particularly true if the noncustodial parent is not a former spouse of the parent who is trying to collect child support.
]]> State and federal agencies may also assist in locating a parent who is not paying child support. Some states might, for example, place the names of deadbeat parents on websites or billboards. Of course, these state resources are less helpful when the target parent is not located in the state. Often times, in these situations, custodial parents may need to handle the investigative work themselves.Fortunately, even the most evasive of noncustodial parents may be tracked down to pay their court-ordered obligation. For instance, a man named the most wanted deadbeat parent, for his failure to pay $1.2 million in child support, was recently arrested and charged. The man is facing up to 4 years in prison, after he was caught trying to enter another country.
Ultimately, custodial parents should seek out assistance in locating non-paying parents. This includes working with a qualified family law attorney, who can advise as to the best resources for tracking a person down, and how to enforce child support obligations once the person is found.
Source: CNN, "Man pleads guilty to owing $1.2 million in child support," Julia Talanova, Feb. 22, 2013
]]>A new study suggests that the number of divorce filings in Illinois, among some other states, was at its highest period all year during February. What's more, the day after Valentine's Day sees a huge spike in the number of individuals seeking information about divorce.
]]> Of course, interpreting the study is a matter of debate. Some suggest the timing might be more coincidental, given that January is the busiest month of the year for bankruptcy filings, which can be a particularly troubling topic for spouses. Moreover, with the cold weather during this time of year, spouses may see more face-time with each other indoors, which could spur up more disputes than normal.Others are more willing to make a direct tie to Valentine's Day, due to the built-up romance the holiday is supposed to bring. Some individuals might realize they are unhappy following Valentine's Day, leading to the divorce. Others might catch a cheating spouse in the act.
Either way, it appears individuals may be more interested in seeking a divorce this time of year. Often, these individuals may simply need information about how to get divorced, and what happens throughout the process.
One key factor in all of this is the couple's property division. Individuals want to know what the division of property will play out in a divorce, and what property they will be able to keep. Typically, a divorce court will divide the property in an economic and equitable manner. Non-community property states like Illinois look at the financial circumstances of the spouses and their plans for the future.
Property division is tough to predict, although individuals may be able to negotiate for particular pieces of property like the marital home or a business. Ultimately, if a person is beginning to think of getting a divorce around this time of year, or any time, it is essential to speak with a qualified attorney to best determine what property division will likely result.
Source: 5 News, "Day after Valentine's kicks off divorce season," Feb. 15, 2013
]]>For instance, famed actor Tony Danza recently finalized a divorce with his wife of 26 years. However, while the couple filed for divorce in March 2011, they had been separated since 2006. The couple have two daughters together. Danza also has two children from his first marriage, as well as two grandchildren.
While many individuals have heard of a separation, many may not understand what actually occurs in a separation, and how it differs from a divorce. Unlike a divorce, where the marriage ends, the spouses are still legally married in a separation. However, a court order sets forth the rights and duties of the parties in a legal separation.
]]> Of course, this is in reference to a more permanent form of separation. In a trial separation, by contrast, the spouses may be taking some time to live apart to reassess whether to continue the marriage.Like in a divorce, the court in a legal separation will set out obligations for spousal and child support, although it is given a different name. Along these lines, child custody and visitation must also be decided in a legal separation, as the parties are not living together.
Finally, like in a divorce, parties who are legally separated may go through a division of property. The marital property will be divided by the couple's living situation.
Source: LA Times, "Tony Danza's divorce finalized - finally!," Christie D'Zurilla, Feb. 8, 2013
]]>Issues may arise for gay couples in dealing with legal custody of a child after a relationship ends. In a heterosexual divorce, a child custody order will be entered by the court if the parents can not come to an agreement. In a same-sex relationship, however, the second parent's custody rights may be unclear if that parent did not adopt the child and is not the biological parent.
]]> In some states, these second parents have been held to have no legal rights to raise the child, despite acting as a parent for the child's life. Other states may be more lenient, and treat the second parent as a regular, legal parent, if certain criteria are met. This includes looking at the length of the relationship between the same-sex partners, the steps that were taken by the partners regarding joint-parenting and the presence of any parenting agreements.
What's more, heterosexual individuals may run into similar issues if they are not married and not the biological parent of a child. For instance, one man who was the father of a child conceived by an anoymous sperm donor is battling for custody after the child's mother committed suicide. Despite the man's efforts in raising the child, he has no blood relationship to the child and did not adopt the child after birth.
It remains to be seen whether the man will win his custody battle. The only thing that remains clear is the uncertainty of the law in cases such as this, and the need to work with a qualified attorney, who can advise as to the proper steps to obtaining custody in unique situations.
Source: NY Times, "When the law says a parent isn't a parent," Ginia Bellafante, Feb. 2, 2013
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