Posted on May 16, 2022 in Divorce

While unfortunate, it is extremely common for divorce, orders of protection, and criminal domestic violence cases to be intertwined. In many situations, divorce and/or parentage cases begin with the filing of a civil order of protection, typically an emergency petition and mostly without notice to the other party. Orders of protection are governed by the Illinois Domestic Violence Act of 1986. Orders of protection protect family or household members from the actions of another. In order to obtain an order of protection, the petitioner must prove: a) that the respondent is a relative or household member, b) that the respondent has abused the petitioner, and c) that the Court has jurisdiction of the matter. “Abuse” is a broad term under the Illinois Domestic Violence Act, and is defined as: physical abuse, harassment, interference with personal liberty, intimidation of a dependent, or willful deprivation.  What classifies as abuse under these broad definitions varies case by case and is impacted by both the severity and frequency of the circumstances.

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 Posted on April 04, 2022 in Divorce

For most parents, the issue of when and under what circumstances they will see their children is of utmost concern in their divorce or parentage case. In fact, the allocation of parenting time between parents can often be one of the most challenging issues for attorneys to address in a case since each family’s circumstances are so unique. For many parents who have been extremely involved in their children’s lives, the hope is for an equal (“50/50” or “shared”) parenting schedule. As lawyers, we are often asked whether a shared parenting schedule is the starting point in Illinois. However, an equal parenting schedule is not the default as it is in some other states. Therefore, it is important to understand when an equal parenting time schedule might be appropriate and what key elements would support the implementation of a 50/50, or shared schedule.  

It used to be the case that Courts viewed equal parenting schedules with extreme caution, especially in cases where the parents do not get along and have too much animosity toward one another that they are unable to effectively co-parent.   However, in more recent times, shared parenting schedules are implemented much more frequently.  In Illinois, the law requires the Court to allocate parenting time in accordance with the children’s best interests. There are many factors that the Court will look at to determine what is in the children’s best interests in a given case, but perhaps one of the most important is “the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” This factor is particularly significant as it relates to a request for a 50/50 parenting schedule, because both parents need to be able to communicate and cooperate with one another in order to make an equal parenting schedule successful. 

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 Posted on February 02, 2022 in Divorce

If you or your ex-spouse is planning to retire soon, you may be wondering how it may affect your maintenance obligation or award. In general, maintenance is modifiable unless you and your ex-spouse specifically agreed upon divorce that maintenance would be “non-modifiable” which is rare (and actually considered a property settlement). Depending on what the divorce decree says, the payor spouse may still have an obligation to pay maintenance even after they retire. For example, if you were ordered to pay permanent maintenance to your ex-spouse, that obligation would likely continue even after retirement but possibly with a substantial reduction, depending on the circumstances of your case.

Illinois law contains several scenarios in which a maintenance obligation would automatically terminate including the remarriage of the party receiving maintenance, the death of either party, or the cohabitation of the party receiving maintenance with another person on a resident, conjugal basis.  What is important to note is that the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) does not contain a provision that allows maintenance to automatically terminate upon retirement.  Termination is different than modification, however, and the statute does afford the payor spouse the ability to file a petition with the court seeking to modify their maintenance payments based upon their retirement or other reason they are unable to pay the ordered amount.

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 Posted on January 18, 2022 in Divorce

 What is parentage and how is child support established for unwed parents?

Parentage refers to a person who is the legal parent of a child, which may not necessarily be the natural or biological parent. In legal actions where a parent is seeking child support or allocation of parenting time and parental responsibilities, parentage or paternity is the first issue that needs to be determined to establish standing.

 In Illinois, the presumption is that when parents are married or in a civil union within three hundred days prior to the birth of a child they the parents of the child. This presumption does not exist for unwed couples. Therefore, parentage must be established prior to an order for child support, parenting time, or parental responsibilities is entered by the courts.  Under the Illinois statutes, every child is entitled to physical, mental, emotional, and financial support from his or her parents regardless of the legal relationship between the parents.

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 Posted on December 07, 2021 in Divorce

Selecting an attorney to represent you in your divorce proceedings is undoubtedly one of the most important decisions you have to make when beginning the process of dissolving your marriage. 

In many ways, choosing the right attorney to represent you in divorce proceedings can have a lasting impact on your future and set the foundation for whether or not you will be successful in your matter. At McSwain Nagle Giese & Rapp, P.C., all initial consultations with each of our attorneys are free of charge for the first thirty (30) minutes. To best prepare for your consultation, we have compiled a list of essential questions to ask during your initial consultation in order to choose the best attorney for you.

How long have you been practicing law and what percentage of your practice is family law?

It is important to ask your potential attorney how long he or she has been licensed as an attorney and whether they practice mostly in domestic relations.  This will give you an idea of their level of experience and if she or he can handle the issues your case presents.  Obviously, the more complex the case, the more experienced of an attorney you will be seeking. Although you can probably imagine that with experience comes higher hourly rates. Further, attorneys that have been practicing for a substantial period of time, as well as those who are actively involved in the legal community, are more likely to have worked with the judges and opposing attorneys in your case. 

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 Posted on October 29, 2021 in Divorce

It’s no surprise that the ongoing COVID-19 pandemic has flooded the domestic relations courtrooms with a flurry of never-before-seen litigation. The courts are dealing with unprecedented issues such as taking parenting time and parental decision-making away from a parent who refuses to get vaccinated or who refuse to vaccinate a child at the age of 12 and older. Specifically, judges have recently ruled on these issues and relied on the “serious endangerment” and “best interest of the child” standard to restrict parenting time and order mask wearing and/or vaccinations of parents and children. Some litigants (and lawyers) argue that judges are forcing their personal beliefs on the parties and/or taking a political stance, while others believe these judges are playing their part in ending the pandemic and keeping people safe.  Regardless of your personal view on the vaccine or mask mandate, the legal question presented is whether the court has the authority to take such action and if so, what is the burden of proof a litigant must meet

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 Posted on October 05, 2021 in Divorce

Divorce is not only a legal process, but it is also an emotional process. At times, the divorce process can get extremely hectic and litigious between spouses, especially when they have different parenting styles and disagree on how to raise their children. Sometimes, this tension is enough to create doubt that the other parent is properly caring for the children or result in allegations regarding the same. In severe instances, parents, teachers, neighbors, or family members may even contact the Department of Child and Family Services (DCFS) if they believe the children may be in danger. For parents who are going through a divorce, it is important to understand how DCFS investigations work and how they may impact your divorce case.

In Illinois, DCFS is responsible for investigating any reports of possible child abuse and neglect. These investigations typically take 60 days to complete. Its goal is to protect the health, safety, and best interests of a child in situations where that child may be vulnerable to abuse or neglect. In gathering evidence during their investigation, a DCFS investigator will often visit the family home, meet with the child and the parents, and meet with any other individuals living in the home. The investigator will also make contact with the person who made the initial report, although that person’s identity will remain anonymous.

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 Posted on September 23, 2021 in Family Law

The Graduated Driver Licensing is new to many parents with student drivers since these rules were not in place until around 2011.

According to Illinois Law, the purpose of the Graduated Licensing Program is to develop safe and mature driving habits in young, inexperienced drivers and reduce or prevent motor vehicle accidents, fatalities, and injuries by providing for an increase in the time of practice period before granting permission to obtain a driver's license, strengthening driver licensing and testing standards for persons under the age of 21 years, sanctioning driving privileges of drivers under age 21 who have committed serious traffic violations or other specified offenses, and setting stricter standards to promote the public's health and safety. See 625 ILCS 5/6-107.

In other words, Illinois’ Graduated Driver Licensing Program allows teen drivers to gain experience on the road and prove they are good drivers before they “graduate” to fewer restrictions and more driving privileges.

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 Posted on August 27, 2021 in Family Law

When you are arrested or charged with an offense, a criminal record is created, even if the case is dismissed or you are found not guilty. Unless you take the steps necessary to petition the court, the record of the arrest and/or the charges remain on your permanent record. In fact, sometimes these criminal records can be accessed by the public, including your family, friends, employers, trade organizations, banks, and credit agencies. To have your record erased or hidden you must file a Request to Expunge and/or Seal Criminal Records with the court and have a judge approve your Request. There are 3 ways to clear your criminal record: (1) expungement, (2) sealing, or (3) clemency.

An expungement essentially “erases” arrests and court supervisions from your criminal record so it is as if they never happened. Once an expungement is granted, all records of your arrest and charges will be removed from public criminal records and are destroyed. No one, not even law enforcement, will be able to access the expunged records and use them against you. This can be extremely beneficial when you apply for a job, an apartment, a professional license, or any other application that requests information regarding whether or not you have ever been charged or arrested for a criminal offense. In fact, after your record has been expunged, you can answer “no” to any such questions on these types of applications.

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 Posted on July 27, 2021 in Divorce

In some instances, a party files for divorce and then decides that reconciliation may be possible and wishes to stop the divorce proceedings.  It is important to know that just because you have filed a case, does not mean that you are required to get divorced and if you and your spouse decide you wish to attempt reconciliation, you do have options.  At McSwain Nagle Giese & Rapp, P.C. we believe in making all efforts to preserve the family unit and we always encourage parties to pursue their options for reconciliation in safe and healthy marriages.

If the case is being dismissed entirely, there are procedural requirements that must be followed.  The party who files the initial Petition for Dissolution of Marriage is known as the Petitioner in the divorce case. The other party is known as the Respondent. The Respondent can file a counter-Petition in which case they are also known as the Counter-Petitioner.  This is relevant because if you are the Respondent in the case, the Petitioner must agree to the case being dismissed.  If you are the Petitioner, and the Respondent does not agree, you may still be able to withdraw your Petition and close the case, as long as no Counter-Petition or custody proceeding has been filed and you pay the filing fees of the other party. 

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