Family Law Issues
This article is designed to be a primer on issues and considerations in an action for dissolution of marriage. Misinformation, in the form of “I heard it from a friend, who talked to a lawyer once,” is a dangerous basis for decision-making. The purpose of this article is to highlight some of the basic issues involved in matrimonial cases. Each topic will be taken as a different bullet point; however, it is important to remember that financial issues must be considered in context; for example, it is impossible to consider the amount of maintenance that is appropriate before dealing with a distribution of assets and debts as well as child support and other financial matters.
Child Custody and Visitation
The Court will, and therefore the parents must, consider factors including the child’s relationship with each parent, including who has historically been the child’s primary caregiver, each parent’s ability to care for the child, the willingness of the parties to facilitate a strong bond between the child and the other parent, and, when age appropriate, the wishes of the child. A question that often comes up is when the child is able to make the decision for him or herself regarding where he or she will live. The short answer is 18. Until that time, the court will determine who has custody of the child. At the same time, however, as the child grows older the court will grant more deference to the child’s wishes, if those wishes are based upon mature reasoning.
Custody can be vested with either parent, subject to visitation with the other parent. In the alternative, the parties can be awarded joint custody. Joint custody is a court determination that both parties will share custody of the children pursuant to the terms of a joint parenting agreement. The joint parenting agreement will establish each parent’s custodial time with the child. In addition, it will provide a list of matters that will be jointly decided by the parties, such as where the children will go to school, their religious upbringing, non-emergency medical and other healthcare, the child’s extra curricular activities, such as high-school sports and other matters that the parties agree should be jointly determined. The time that each parent has with the child in a joint-custody arrangement is whatever the parties can agree, ranging from an allocation more typical of visitation, such as alternating weekends and holidays, to a more or less equal division of time between the parents. Finally, the parties must agree on a method to resolve disputes, typically a mediator.
If the parties are unable to agree upon a joint custody arrangement, one of the other parties will have custody of the children. The custodial parent is the primary caregiver for the child, determining where the child will go to school, appropriate medical care and similar issues typically resolved by a parent. A parent not awarded will be awarded visitation with the child absent a showing that visitation posed risks to the child. Visitation will typically involve alternating weekends, alternating holidays, some time during the week, such as several hours on a weeknight and time in the summer. The use of the term “reasonable visitation” in an order is occasionally seen, but it is usually an invitation to later problems. As the parents’ and children’s interests change, the ability to agree on a “reasonable” visitation schedule becomes more difficult. It is better to have a specific visitation schedule; if the parents get along well and a specific need or request comes up, such as switching weekends, parents are free to deviate from the order for that purpose.
Under Illinois law, both parents owe a duty of support to their children. The Marriage and Dissolution of Marriage Act provides that the non-custodial parent will pay child support based upon his or her net income. Net income is defined in the statute as gross income from all sources less properly calculated taxes, Social Security, FICA, mandatory union dues, health insurance premium for the dependent child and expenses incurred in earning the income (such as payments on a mechanic’s tools). Under current law, child support is at least 20% for one child, 28% for two children, 32% for three children, 40% for four children, 45% for five and 50% for six or more children. As a practical matter, these guidelines are used to set child support absent special circumstances that justify a court in deviating up or down from those percentages. These special circumstances include, but are not limited to, a child with special needs, such as additional expenses for physical therapy, or a parent earning a very substantial income, which would permit the support to deviate lower than the statutory percentage.
For the last several years, child support has typically been taken directly from the payor parent’s pay through withholding. Recent problems with the State Disbursement Unit have led many attorneys to try to avoid the State Disbursement Unit with its attendant problems.
In addition to this cash payment by the non-custodial parent, responsibility for the child’s health expenses must also be addressed. This could include a provision in the order directing one or both parents to provide health insurance for the child, and allocating responsibility for expenses not covered by insurance. This responsibility would depend upon the parties’ respective incomes. In addition, special expenses such as parochial school or daycare expenses can also be addressed.
Public offices, such as the Illinois Department of Public Aid, obtain location information from employers, labor unions, and others about putative fathers and other non-custodial parents in order to establish paternity or to establish, enforce or modify an existing child support obligation.
Child Support Liens
Placement of lien
A lien arises by operation of law against the real and personal property of the non-custodial parent for each installment of overdue support owed by the non-custodial parent. 750 ILCS 16/20(e). First, however, a transcript or certified copy of the lien must be filed in the Office of the Recorder in the county in which the real estate is located. 735 ILCS 5/12-101. The recorded order for support secures each and every payment, although it may be recorded only once and payments may last 20 years into the future. The State’s Attorney may institute an action for child support payments upon the filing of a verified complaint by someone owed child or spousal support. 750 ILCS 16/5.
Priority and Duration of Lien
In Illinois, a lien on real property for past-due child support has priority over any subsequently recorded lien, providing notice to subsequent purchasers, assignors, or encumbrances. 305 ILCS 5/10-259(d). The lien is inferior to the lien for general taxes, special assessments, and special taxes levied by any political subdivision or municipal corporation of the State. 305 ILCS 5/10-25(d). The judgment acts as a lien on real estate for seven years from the time it was entered, unless the judgment is revived before the seven-year period lapses. 305 ILCS 5/12-101(d). The lien secures all past-due installments or payments of child support, but not to the extent that those payments are shown paid by the clerk of the circuit court’s records or the records of the state agency receiving payments. Thus, the amount of the lien is determined by the amount of the overdue child support payments outstanding at the time of an inquiry.
Methods of Enforcing Lien
The State holds the lien on all legal and equitable interests of responsible relatives in the amount of past-due child support. 305 ILCS 5/10-25(a). The State’s lien is enforceable upon the recording or filing of a notice of lien in the recorder’s office of the county or counties in which the real estate is located. 305 ILCS 5/10-25(d). The State may foreclose the lien in a judicial proceeding to the same extent and in the same manner as in the enforcement of other liens. 305 ILCS 5/10-25(i). The procedure to levy on a child support judgment is the same as for other judgments, found in the Code of Civil Procedure at 735 ILCS 5/12-115 et seq.
Release of Lien
A child support lien may be released in Illinois by the following steps. First, the obligor must record a notice of filing and an affidavit stating that all payments have been made. Second, these documents must be recorded with the recorder in the county in which the lien appears on record. Third, proof of service of notice and affidavit upon the obligee must accompany the request for release. If the state or the obligee does not object within 28 days of the notice, then the lien is released. 735 ILCS 5/12-101(c).
Removal from the State Following Divorce
Illinois law provides that neither parent can remove the children from the State of Illinois on a permanent basis without obtaining leave of the court to do so. The court will assess whether it is in the best interests of the children that the court allows them to be removed from Illinois. Factors include a comparison of the child’s schooling, home environment and other opportunities at present residence and at the proposed out-of-state residence, the ability to work out a reasonable visitation schedule with the non-custodial parent, the parent’s reason for seeking removal, the other parent’s reason for objecting to removal and other factors.
Children Born Out of Wedlock
The Appellate Court has held that Section 609 of the Marriage and Dissolution of Marriage Act does not apply to cases under the Parentage Act, despite the incorporation of many other provisions from the Marriage and Dissolution of Marriage Act into the Parentage Act, such as child support, custody and visitation. As a result, the Courts have held that the custodial parent of a child born out of wedlock does not need any approval from the Court to remove the child from the State of Illinois.
Recent cases add a twist to that simple story, however. In these cases, the Courts have looked at the statute concerning visitation, and provided that visitation is modifiable on a showing of the best interest of the child. If it is not in the child’s best interest that visitation be amended to accommodate the custodial parent’s move out of state, the Court can refuse to modify the visitation schedule. The custodial parent can move to Florida, but must make sure that the child is available for visitation every other weekend, etc., in Central Illinois. Obviously, this is a back-door means of denying leave to remove the child from the state.
In short, do not simply conclude that because there is a better job with better money in Oklahoma City, or that the new husband lives in Indianapolis, it is legal to move your child there. For detailed analysis of whether removal is likely to be granted, please call our office and schedule an appointment.
Either party may remove the children for vacation without order of the court, provided that the parent tell the other parent that they are leaving and an address and telephone number where the children may be reached while out of state.
Maintenance, previously known as alimony, is a payment from one ex-spouse to the other. Maintenance may take the form of maintenance in gross, which is a lump-sum payment in lieu of periodic payments. It may also take the form of rehabilitative maintenance, designed to allow the ex-spouse to get on his or her feet by obtaining necessary education, recover from health problems or obtain suitable employment. Permanent maintenance is appropriate if it is clear that the ex-spouse will never be able to support him or herself in an appropriate manner due to age, health problems, disability or similar factors.
Distribution of Assets and Debts
Marital property includes all property acquired by either party during the marriage, with the exception of gifts or inheritances to a single spouse. Non-marital assets include assets of the parties acquired before the marriage and not transferred into marital assets, as well as the gifts and inheritances just discussed.
Marital assets need to be divided equitably, not equally, between the parties. The analysis typically begins with a presumption of an equal division, but the analysis need not stop there. Factors such as those discussed above under maintenance come into play with the division of assets as well, as a husband earning $150,000.00 per year will be in a stronger position to acquire new assets after the divorce than a wife with a high-school diploma and medical problems who hasn’t worked outside the home in 25 years.
The allocation of assets will include assigning responsibility for marital debts. It is important to note, however, that providing in the court order in a divorce case that husband will be responsible for paying a certain creditor will not prevent the creditor from suing wife if husband does not pay. In that case, the remedy is an action to hold the husband in contempt of court for failing to pay this debt. If the husband is unable to pay the debt, however, the creditor may obtain a judgment against both of the parties.
The issue of attorney fees in divorce cases has been rendered substantially more difficult by recent legislation designed to level the playing field in divorces. At the beginning of a case, a petition may be filed seeking temporary fees, and these fees will typically be taken out of marital assets. At the final hearing, a party may seek to have the court order the other party to pay his or her attorney fees or a portion thereof. That court’s decision will be based in part on factors discussed above under maintenance and property.
Two Wrongs Don’t Make A Right
It is a common emotional response that when one party is denied either court-ordered child support or visitation that he or she retaliates by withholding the other. Nonetheless, this is an inappropriate response as a matter of law. The correct response is to address the other party’s violation of the court order while continuing to comply yourself. The typical remedy for a child support arrearage, if the payor has the ability to pay, or for visitation, is an action for contempt of court. Depending on the circumstances, this could be civil contempt, in which compliance with the court order is sought; criminal contempt, in which penalties are sought, such as incarceration, or both. In addition, a petition for visitation abuse may be filed through the domestic relations court or, through the State’s Attorney’s office, in criminal court.
If a child support arrearage has continued for more than 90 days, the court may suspend the child support payor’s driver’s license until the support order is complied with. This often has a useful effect of frightening the support payor, but may also be counterproductive if the loss of the child support payor’s license results in his or her inability to work and earn the money to pay child support. For that reason, the court may also order that a family financial responsibility driving permit be issued for employment and medical purposes.
Modification of Child Support
Child support can be modified upon the showing of a substantial change in circumstances, such as an increase or decrease in the support payor’s income. Visitation may be amended on a showing that it is in the child or children’s best interest that visitation be amended. This could occur because one of the parties moves, changing the practical elements of visitation such as time and distance involved in transporting the children for visitation, changes in a party’s work schedule and other common-sense factors.
With societal changes creating more and more single parent, or no-parent, households, concern rose regarding the right of non-parents who develop significant roles in children’s lives. Grandparental and great-grandparental visitation rights were established in Illinois in 1981 in the Marriage and Dissolution of Marriage Act, with the current version in place since 1991.
Case law that developed over almost twenty years was stood on its head by the U.S. Supreme Court in 2000 with its decision in Troxel v. Granville. In that case, the Supreme Court ruled the Washington state grandparental visitation statute unconstitutional, as it held that the sole surviving parent, who opposed grandparental visitation with the deceased father’s parents, had a fundamental right as a fit parent to make the decision regarding who the child would associate with. Justice Sandra Day O’Conner described the Washington statute as “breathtakingly broad,” as it allowed anyone to petition for visitation rights with the child at any time.
Shortly after the Troxel decision, the Illinois Supreme Court ruled in Lulay v. Lulay that the Illinois statute, section 607(b)(1), was unconstitutional as applied to the facts in that case. Both parents, who had joint custody, were opposed to visitation with the father’s mother and opposed her petition for visitation. The court held that the state had no compelling interest in interfering with the decision of two fit parents who have determined that the visitation should not occur. The court, however, refused to find the Illinois statute unconstitutional per se, leaving the door open to further litigation.
That litigation was not long in coming. In Langman v. Langman, the custodial mother opposed visitation with her deceased husband’s parents. The Illinois Supreme Court ruled that the Illinois statute permitting visitation by grandparents and great-grandparents is unconstitutional. Thereafter, and surprisingly, the Second District of the Illinois Appellate Court last year, notwithstanding the Supreme Court ruling allowed a father to petition to allow his family to visit the child while the father was absent on active military duty. The Court held that he had the right to do so if circumstances are shown and also noted the Soldiers and Sailors’ Civil Relief Act, distinguishing this case where the father petitioned for visitation from those cases in which a grandparent or other family member petitioned for visitation.
Legislation was introduced to avoid the constitutional problems with grandparental visitation, but that legislation is still pending.
It is essential to understand that this is a brief overview of a very complex area in the law. No two cases are identical, as the facts vary from marriage to marriage, and a specific analysis of the facts in each case is essential.