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barrington divorce lawyerMost marriages begin with high hopes, and the prospect of divorce seems unlikely, if not impossible. Unfortunately, statistics show that 40-50 percent of marriages end in divorce. Although nobody wants to go through the divorce process, there are things you can do to make it go more smoothly. 

Being cautious about your choice of divorce attorney and choosing someone who has experience and skill can make a difference in how well your divorce is managed. Here are some of the things you should consider when looking for a divorce attorney. 

  • Understand your wants and needs – You may not want to litigate your divorce in court, so an attorney with experience in mediation and negotiating out-of-court settlements may be your best fit. If you know that you are heading toward a high-conflict divorce, you may need someone who will be aggressive on your behalf. Whatever your circumstances, a realistic assessment of your wants and needs will help you choose the right attorney. 

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st. charles divorce lawyerFinding out your spouse has thousands of dollars in gambling debt can be one of the most difficult things that can happen when you are getting divorced in Illinois. Yet for some spouses, this is exactly what happens during the divorce process. For some chronic gamblers, their addiction is out of control and can drive their family to the brink of insolvency. 

The non-gambling spouse who has filed for divorce may be worried about whether he or she has to pay half of their partner’s gambling debt. What happens to all that money? And what if their shared credit, such as a home equity loan, was leveraged in order to get more money for gambling? 

Illinois is an Equitable Division State

Luckily for the non-gambling spouse, Illinois divorce law mandates that marital assets and debt be divided equitably, rather than equally. This means that the judge will consider who brought money into the marriage, who spent it, and why. For example, if a couple has $300,000 in total assets at the time of the divorce, but would have had $400,000 if the husband had not gambled away $100,000, it would not be unusual for the wife to be given $200,000 and the husband $100,000. 

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kane county divorce lawyerThe outcome of a divorce decree is legally binding on both parties, and there are consequences for failing to adhere to the terms of the order. However, circumstances change, and people may find themselves unwilling or unable to abide by the terms of their divorce order or may believe their spouse is violating the terms. For example, your former spouse may not pay the required amount of child support, or you may need to move out of state and will require a change in your shared parental responsibilities. 

If you find yourself in this situation, you can take action. Although some things, such as property division, are finalized and highly unlikely to change following a divorce decree, other things can change. 

Which Issues Can Be Modified? 

  • Child support is one of the most commonly modified parts of a divorce decree. Typically, the change in a parent’s income must be substantial to modify the required child support payments. A change in a child’s needs may also require a change in child support payments. For example, if a child is diagnosed with a learning disability and requires extensive educational support, a parent’s child support payments may be modified to reflect the new expenses. 

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Posted on in Divorce

st. charles divorce lawyerDeciding whether or not to get divorced is one of the most difficult choices a person will make in his or her lifetime. Divorce is often disruptive to day-to-day life, emotionally challenging, and expensive. One of the factors complicating divorce is knowing whether you have really reached the point when you are ready to legally end the relationship. You may wonder if you have sufficient justification or whether you are being reasonable.  Here are the top five most common reasons couples give for divorce. If you recognize yourself in any of these situations, it may be time to contact the attorneys with the Law Offices of Benedict Schwarz, II PC. 

Lack of Commitment

When two people are not absolutely sure that they are in the marriage for life, that lack of commitment can lead to divorce. Commitment is key to making a marriage work because it gives couples incentive to work through their issues, rather than avoid them. Often, couples who have been married for many years will credit their marital success to commitment, rather than being deeply in love or incredibly attracted to each other. 

Infidelity 

Finding out that your significant other has engaged in an emotional or physical relationship behind your back can be devastating. Many couples who have a cheating partner cannot overcome the violation of trust and feelings of betrayal the infidelity causes between them, and divorce is the inevitable outcome. 

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kane county family law attorneyUnder Illinois law, a couple has the ability to enter into a prenuptial agreement that defines each spouse’s interests in marital and non-marital assets. A prenup can be especially helpful if the marriage later ends in divorce, as it can allow the spouses to smoothly divide their property and resolve questions of spousal maintenance on their own terms. However, there are cases in which a prenuptial agreement can be an additional source of conflict during the divorce process, particularly when a spouse tries to claim that an agreement is invalid and unenforceable.

Reasons to Invalidate a Prenup in Illinois

In most cases, prenuptial agreements are valid and legally enforceable, and they cannot be dismissed simply because a spouse is no longer satisfied with terms they had previously agreed to. However, you may be able to make the case that the court should not enforce your prenup if you have evidence of at least one of the following:

  • You were never legally married after signing the prenup. A prenuptial agreement only takes effect upon marriage, so if you decide not to go through with the marriage, or if the marriage is void for whatever reason, your partner cannot lay claim to any of your assets that the prenup may have granted them.

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kane county divorce lawyerIn recent years, pets and companion animals have taken on an increasingly important role in our lives. Recent studies show that over 75 percent of pet owners consider their pets to be members of the family, and that viewing pets this way is even beneficial for the owner’s physical and mental health. However, family law statutes throughout the U.S. have been slower to adopt this view, with many states still treating pets as equivalent to other forms of property in divorce cases. Illinois is one of the rare early exceptions, having enacted laws specifically addressing companion animals in divorce cases in 2018.

Which Spouse Keeps the Pets?

The Illinois Marriage and Dissolution of Marriage Act now specifically references companion animals in several places, recognizing that when a couple owns a pet together, ownership of and responsibility for the pet is an important part of the divorce resolution. For example, the law allows spouses to create an agreement regarding possession and care of their pets. In many cases, these agreements include visitation schedules, or even arrangements similar to parenting time in which the pets will live with each spouse on certain days. A companion animal ownership agreement is also noted as a necessary part of a joint simplified dissolution of marriage for couples who have pets.

In cases of contested pet ownership, the law allows a spouse to petition the court for temporary possession of their pet during the divorce process, or more permanent terms for pet ownership in the final divorce resolution. When making a decision, the court will consider whether the pet is a marital asset, typically meaning that it was adopted during the marriage. However, the court will not simply treat a pet as any other type of property, but will instead consider the animal’s well-being and whether continued joint ownership would be appropriate. The court will also exclude service animals from these decisions, ensuring that an animal trained to assist one the spouses will be able to stay with that spouse.

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st charles paternity lawyerAccording to recent statistics from the Pew Research Center, around 35 percent of unmarried parents are in cohabiting relationships. This includes many parents who have a child without getting married, but continue to live together in a committed relationship. In a case such as this, you might assume that establishing legal paternity is unnecessary, as the child’s father is living with the child and actively involved in raising him or her. However, failing to take the steps to definitively establish paternity can be a costly mistake in the long run.

Does Cohabitation Create a Presumption of Paternity?

In Illinois, there are certain situations in which a man is automatically presumed to be a child’s legal father. This includes when the man is married to the child’s mother when the child is born, as well as when the man is in a civil union or “substantially similar legal relationship” with the child’s mother, such as a domestic partnership or common law marriage established in another state. However, cohabiting alone does not qualify as a substantially similar legal relationship. This means that even if a man lives with his child, he may not be recognized as the child’s father under the law.

Taking Steps to Establish Paternity

There are several major downsides of failing to establish legal paternity after a child is born. It will be more difficult for the child and the child’s mother to secure child support from the father, and the child will also not have access to other benefits through the father, including inheritance rights, insurance coverage, and government benefits. Also, if the man’s relationship with the mother ends, he will not have the right to petition for parental responsibilities and parenting time unless he has been recognized as the child’s legal father.

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Kane County spousal maintenance lawyerThe years after a divorce can be a difficult transition period for many people. You may still be tied to your former spouse through elements of your divorce order, while at the same time trying to move forward with your life. Often, your past and future can influence each other in complicated ways, including when it comes to the legal terms of your divorce resolution. One situation to pay close attention to is starting a new romantic relationship during an active spousal support order.

Effects on the Spouse Who Receives Support

In Illinois, spousal support orders usually last for a limited time, so as the receiving spouse, you will need to prepare for the payments to end eventually. However, a new romantic relationship can lead to the end of spousal maintenance sooner than you expect. Spousal support will not end simply because you start dating new people, or even because you enter a committed relationship with someone new. However, if the court determines that you are in a cohabiting relationship, the maintenance order can be terminated effective on the date the cohabitation began.

Defining a cohabiting relationship can be complicated, but in general, the court will consider things like the length of the relationship; the amount of time the partners spend together, including overnight stays; how they spend that time together; and whether they share property, expenses, or joint financial accounts. If the partners legally marry, the case becomes much more straightforward, and maintenance obligations will end on the date of marriage.

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St. Charles family law attorneyMany divorcing couples consider the option of mediation to help them resolve the issues at hand. Mediation can be beneficial for many reasons, including its general affordability, efficiency, and privacy in comparison to a divorce trial. However, if you are feeling frustrated or hurt by your spouse, the thought of meeting with them for mediation may be unpleasant. It is important to understand how the mediation process works so that you can decide whether it is something you are comfortable with.

The Traditional Mediation Process in Illinois

Traditionally, divorce mediation involves scheduled sessions during which the spouses will meet at a neutral site, with a neutral mediator guiding negotiations to help them find common ground and reach an agreement. This means that for at least part of the process, you will likely be speaking with your spouse face-to-face. However, you may ask to speak with the mediator privately if you have something to say that you would prefer your spouse not to hear. You can also request to have your own attorney present for mediation so that you have someone who can help you protect your interests. Even if you and your spouse are prone to conflict on your own, the structure of mediation may be able to help you civilly resolve your differences.

The Virtual Mediation Alternative

With recent improvements in communication technology, and especially in the wake of the COVID-19 pandemic, virtual mediation has become a more popular alternative to the traditional face-to-face process. During virtual divorce mediation, you, your spouse, and the mediator will likely be speaking directly to each other at the same time, but you will not have to be in the same location. This can not only create an additional buffer between you and your spouse, it can also fit more conveniently into your schedule and allow you to be in a place of comfort while it happens.

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Kane County parenting time attorneyThe summer months are a time when children often have less structure to their schedules because of the extended break from school. This can come with many benefits, including time to relax, participate in other activities, spend time with family, and take trips. However, it can also be a source of stress for parents, especially those who are recently divorced, as they try to adapt to the changes that summer brings. If you are going through a divorce, planning for summer break in your parenting agreement can help you prepare for many of the challenges you might encounter. Here are some things you may want to address in your parenting plan.

Shifting the Balance of Parenting Time

During the school year, it may be in a child’s best interest to spend the majority of the time during the week with one parent, so as to minimize interruptions to their daily routine. However, this may not be as important during the summer when children do not have as many schedule commitments. With this in mind, you might consider allocating more summer parenting time to the parent who has less time throughout the rest of the year. This arrangement often works especially well when parents live far apart, making regular travel between homes more difficult.

Setting Expectations for Travel

Many parents plan family vacations or trips during the summer, and it may be a good idea to address this directly in the parenting plan. For example, you could specify certain weeks when each parent can travel with the children, perhaps taking into consideration a fair allocation of summer holidays when parents have time off work. You should also include expectations for notifying each other about travel plans, as well as communication with your children while they are on a trip with the other parent.

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St. Charles IL divorce attorneyIf you have received property through an inheritance from a family member or close friend, it is likely something that you hold very dear. You may see it as a representation of that person’s legacy, and in many cases, it also has substantial monetary value. The thought of losing your inheritance or having to divide it in a divorce can be concerning. Fortunately, Illinois law often allows you to protect inherited property during the divorce process, but there are some possible exceptions that you should be aware of.

Inherited Assets Are Usually Non-Marital Property

According to Illinois law, most property that either spouse acquires during their marriage is considered to belong to the marital estate, and this means that both spouses have the right to a fair share of it in the event of a divorce. However, the law lists several forms of property that are considered non-marital assets. One example is “property acquired by gift, legacy, or descent,” which includes assets acquired through a will, trust, or intestate succession. Provided that you alone are the named or qualifying beneficiary, you will likely be able to keep all inherited property in the divorce. If your spouse is willing, creating a postnuptial agreement after receiving an inheritance can provide additional protection for your assets.

When Can an Inheritance Become Marital Property?

However, under some circumstances, property received through inheritance is subject to division in a divorce. This may be the case if:

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St. Charles IL family law attorneyAs a parent, negotiating for a parenting time schedule that allows you as much quality time with your children as possible is a crucial part of the divorce process. Perhaps equally important, however, is ensuring that when your children do stay with you after the divorce, they feel comfortable and welcome in your home. Transitioning from one household to two is often a difficult adjustment for children, and your efforts to make your house feel more like home can go a long way toward making the change less stressful.

Creating a Comforting Home For Your Children

While it is sometimes possible for one parent to stay in the family home after a divorce, in many cases, both parents will need to find a new home. Here are some things to keep in mind that can help you make an unfamiliar location homier for your kids:

  • Give your children a dedicated space. Giving your child their own room, especially one that they can personalize to their liking, can help them feel like your new house is truly their home. If a separate room for each child is not possible given your living arrangement and financial resources, work with your kids to set aside smaller spaces where they can take comfort.

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Kane County family law attorneyIn Illinois, child support is an important obligation for all unmarried parents, as it works to ensure that their children’s needs are provided for. However, child support can also be a source of confusion and consternation for parents with complicated or unusual financial circumstances. Many parents who are ordered to pay child support receive some or most of their income from self-employment or a business or professional practice that they own. In these cases, determining a parent’s child support obligation is not always straightforward.

The Basic Child Support Calculation in Illinois

Since 2017, Illinois has used a standard calculation to determine each parent’s expected financial contribution to provide for their children’s basic needs. This calculation uses an “income shares model” in which a parent’s support obligation is based in large part on their portion of the combined net income of both parents. This means that for a child support order to be equitable, it is important to have an accurate understanding of each parent’s income.

Net income not only includes income from employment, but also many other sources. Even parents whose income is primarily from wages paid by an employer will need to report other sources of income for the purposes of calculating child support, and this can include income from a side business. For parents whose primary source of income is their own business, it will be important to thoroughly review the business’s revenue and expenses.

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St. Charles IL divorce lawyerThe process of legally ending a marriage can take many months even after a divorce petition has been filed. However, for many couples who separate before seeking a divorce, the process can be much longer. Some people are separated for years before finally making the decision that divorce is the best option. If this is true for you, you may find yourself dealing with some of the following legal issues during the divorce process.

Demonstrating Irreconcilable Differences

In order for a divorce to be granted in Illinois, the petitioner must demonstrate that the marriage has failed due to irreconcilable differences. This is a minor obstacle for most couples who are in agreement about getting a divorce, but it can be a bigger challenge when one spouse is opposed. However, if you and your spouse have already been living apart from each other for at least six months, with or without a judgment of legal separation, the court will consider this as irrebuttable evidence of irreconcilable differences, meaning that the divorce can proceed despite a spouse’s possible objection.

Revisiting Spousal Maintenance and Child-Related Issues

If you have petitioned the court for a judgment of legal separation prior to filing for divorce, it is likely that you have already reached an agreement with your spouse regarding spousal support, child support, and the allocation of parental responsibilities throughout the separation period. This may help you to simplify the divorce process if this arrangement continues to meet everyone’s needs and you can agree to continue it under the same terms after the divorce. However, if your circumstances have changed substantially during the separation, or if you are no longer satisfied with the agreement, you will have the opportunity to renegotiate the agreement during the divorce process.

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Kane County divorce attorneyGetting a divorce is not a decision to take lightly, and in many cases, it is a good idea to try to work out your differences with your spouse, possibly with the assistance of couple’s counseling or therapy, before resorting to ending your marriage. However, you may find that despite your best efforts to save the relationship, divorce is still your preferred solution.

At this point, you may have the question: Is there anything my spouse or the court can do to stop the divorce from moving forward? Fortunately, the short answer is no, but in some cases, you could find yourself having to go through additional steps to demonstrate that ending the marriage is the best option, including attending a court-ordered conciliation conference.

Understanding the Grounds for Divorce in Illinois

Since 2016, Illinois divorce courts no longer take fault into consideration in a divorce resolution. Instead, the only legally recognized grounds for divorce are irreconcilable differences. In transitioning to a “no-fault” divorce state, Illinois has recognized that couples may have any number of personal reasons for wanting to end their marriage. Irreconcilable differences are much easier to demonstrate than other possible grounds for divorce in the past. However, before granting a divorce, the court still may want to ensure that the couple has made all reasonable efforts to reconcile.

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St. Kane County family law attorney paternity

When a child is born to unmarried parents in Illinois, there are often complicated questions surrounding child support and custody, or even the identity of the child’s biological father. When the parents are in general agreement on the answers to these questions, a Voluntary Acknowledgment of Paternity (VAP) can help to simplify the process. However, in some cases, complications may arise in the midst of an attempt to voluntarily establish paternity, and it is important that parents know how to handle them.

Presumed Fathers and Denials of Parentage

When only one man has a claim of fatherhood, establishing legal paternity can be as simple as completing a Voluntary Acknowledgment of Paternity form, ensuring that both parents and a witness sign it, and filing it with the Illinois Department of Healthcare and Family Services (DHFS). Upon completion, the acknowledged father will have an obligation to contribute to child support, and the parents can petition the court for an order allocating parenting time and parental responsibilities.

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Kane County family law attorney divorce

When it becomes clear to a couple that their marriage has failed, perhaps after many years of stress and unhappiness, it is understandable that they would want to avoid further stress during the divorce process. As such, many couples choose to pursue an amicable divorce, rather than one involving a contested trial. In truth, even amicable divorces can rarely be described as “stress-free,” given the potential for conflict and the many life changes that will ensue, but it is possible to keep stress at a manageable level with the right approach.

Reducing Stress During the Divorce Process

By following these suggestions, you may be able to achieve a divorce that is as stress-free as possible:

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Kane County family law attorney divorce

Ending a marriage is always a difficult process, but it is especially hard when you are trying to divorce a spouse who has been abusive to you or your children. An abusive spouse may try to stop you from filing for divorce in the first place, and they will likely do everything in their power to make the divorce process as difficult as possible, often including threatening your safety. It goes without saying that good faith negotiations are not possible in such circumstances, and your best option for protecting yourself and your interests is to work with an experienced attorney who can stand up for you.

Protecting Yourself and Your Property

Perhaps the most important consideration when divorcing an abusive spouse is securing the physical safety of yourself and your children. If you have been the victim of domestic abuse or you believe you are in danger, you can petition for an order of protection in Illinois court. An order of protection can prohibit your spouse from engaging in acts of abuse, or communicating with or coming near you or your children at home, work, or school. An order of protection can also grant you temporary exclusive possession of your home and other property, or prevent your spouse from taking or destroying marital property.

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Kane County family law attorney prenuptial agreement

When couples choose to create a prenuptial agreement, their reason for doing so is often a desire to clarify each partner’s rights to certain property and assets both during the marriage and in the event of a possible divorce in the future. During this discussion of the couple’s finances, it is also possible, and in some cases beneficial, to determine how spousal support will be handled if the marriage ends in divorce.

Including or Excluding Spousal Maintenance in a Prenup

Under the terms of the Illinois Uniform Premarital Agreement Act, a couple has the ability to address “the modification or elimination of spousal support” in their prenuptial agreement. This means that you and your partner can iron out this often complicated matter well before a potential divorce and when the two of you are on good terms. Your prenup could address details including the amount and duration of spousal support, as well as the method by which it will be paid.

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Barrington divorce attorney child custody

When parents get divorced, it can have a major impact on all aspects of their children’s lives, including their education and academic success. Many children struggle to maintain the same level of focus and performance at school due to the stress of the divorce, and some children have to change schools entirely because of their new living arrangements. However, children are often better able to adapt and succeed when both parents continue to be involved in their education. With this in mind, it is important for Illinois parents to carefully consider how they will share responsibilities related to their children’s education as they work toward a divorce resolution.

Important Educational Responsibilities for Divorced Parents

Several different elements of a divorce resolution can directly or indirectly impact a child’s education. Some of the most notable include:

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