Posted on

Divorce with Minor Children

Parenting Time in an Illinois Divorce with Children

When parents of minor children file for divorce, one of the most important decisions are those regarding parenting time and decision making. Divorces with minor children can be much longer, and more stressful. All issues pertaining to the children are laid out in what the Illinois Courts call an Allocation Judgment or parenting plan.

Allocation Judgment

Illinois statute now provides for an Allocation Judgment that determines parenting time instead of the former terms of “custody” and “visitation.” An Allocation Judgment determines all issues pertaining to children such as parenting time schedule, holiday schedule, parental decision-making responsibilities such as medical, education, religion, and extracurricular activities for the children.

Parenting Plan

Courts require a clear, well laid out plan that provides stability for children. Each party shall file their proposed parenting plan within 120 days of filing or receiving notice of filing for dissolution of marriage or a parentage case. A parenting plan must be in writing and signed by both parties. Generally, a parenting plan will not be amended prior to two (2) years after the initial parenting plan is filed unless a substantial change in circumstance can be proved, or upon agreement of the parties.

Best Interest of Children During a Divorce

The court’s main concern is the best interest of the children. It is always best for parents to come to an agreement on these matters. If not, the next step would be for the parents to attend mediation to try and resolve their differences. If mediation does not work, then the Court will be forced to make these decisions for the parents. It is important as divorcing parents to put any animosity towards the other parent aside to determine what is in the best interest of their children.

Parenting time

There is no one size fits all when it comes to determining parenting time. The court will presume both parents are fit to exercise parenting time unless evidence is shown otherwise that parenting time would endanger the child’s physical, mental, or emotional wellbeing. Absent an agreement by the parents, the courts will make this determination.

The court will consider numerous factors in deciding parenting time such as: each parent’s wishes; the child’s wishes depending on the child’s age and ability to express his or her desires; the amount of time each parent spent performing caretaking functions with the child prior to filing; and the distance between each parent’s home. 750 ILCS 5/602.7 provides a full description of numerous factors the court will assess in making this determination.

Decision-making

The Allocation Judgment determines which parent has decision making responsibilities in regards to:

  1. Medical;
  2. Education;
  3. Religion; and
  4. Extracurricular activities.

All of these categories can be made jointly by both parents; one parent only; or a combination. For example, father makes the decisions about medical treatment, and mother makes decisions regarding education. These four factors must be included in an Allocation Judgment.

Contact Us Today

If you are contemplating filing for divorce and have minor children, it is important to start thinking about these decisions right away. Contact a divorce attorney at Villadonga & Villadonga Attorney’s at Law today at 847-298-5740 to discuss a divorce with minor children.

*The contents contained herein are a synopsis of the law and is by no means a full rendition of the law. Use of this website does not create an attorney-client relationship with the user and Villadonga & Villadonga Attorneys at Law. While this page contains information about legal issues, it is not intended as legal advice or substitute for personalized advice from an attorney.

Posted on

Prenuptial Agreements in Illinois

A Prenuptial Agreement sets forth financial responsibilities and debts are managed during a marriage and if a divorce occurs. Numerous issues are addressed in prenuptial agreements such as:

  • Division of Property
  • Asset Allocation
  • Maintenance (spousal support)
  • Division of Debts
  • Death benefits

Prenuptial Agreement Requirements

A prenuptial agreement must be in writing and signed by both parties. Each party must freely and voluntarily enter into the prenuptial agreement free of duress from the partner or others. While a prenuptial agreement is signed before marriage, it does not take effect until the marriage occurs. A full financial disclosure has to be completed by each party and shared with the other person. This includes debts and assets, bank accounts, retirement accounts, and any property owned.

A prenuptial agreement should not be unconscionable, meaning, it is so far one sided that it would be unfair to the other party. It is also important to have legal representation on both sides. Even if one spouse hires an attorney to draft the prenuptial agreement, the other party should hire an attorney to review it to make sure you understand what you are signing. Just like other types of contracts, a prenuptial agreement is a legally binding contract, and having a family law attorney review it is imperative. At Villadonga & Villadonga Attorneys at Law, we can review the prenuptial agreement and advise of the legal ramifications.

Can a Prenuptial Agreement be Modified?

Yes, a prenuptial agreement can be revoked or modified if signed and agreed to willingly by both parties. Otherwise the terms remain in effect. Spouses can also enter into what is called a postnuptial agreement where after the parties are already married, they can set out terms to adhere to if one party were to file for dissolution of marriage.

Child Support and Custody in a Prenuptial Agreement

A prenuptial agreement cannot waive or prevent a spouse from receiving or paying child support. As public policy, children need to be provided for, and no agreement regarding child support payments can be determined in a prenuptial agreement. Likewise, child custody arrangements should also not be included in a prenuptial agreement. Limitations can be placed on the amount of maintenance (formerly known as alimony or spousal support) a spouse can receive upon divorce. However, there can be caveats to this as well.

Why get a Prenuptial Agreement?

While some think a prenuptial agreement means you do not trust your soon to be spouse, it can ease the fears of what would happen if you were to get divorced. Many people feel more comfortable having a plan in place. Contact Villadonga & Villadonga Attorneys at Law today to discuss the benefits of having a prenuptial agreement for your specific situation.

Contact Us for a Prenuptial Agreement 

If you need a prenuptial agreement drafted or reviewed, contact Villadonga & Villadonga Attorneys at Law today at 847-298-5740.

The contents contained herein are simply a synopsis of the law and is by no means a full rendition of the law or what will happen in your case. Use of this website does not create an attorney-client relationship between the user and Villadonga & Villadonga Attorneys at Law. While this site contains information about legal issues, it is not intended to be  legal advice or or a substitute for advice from an attorney.

 

Posted on

Establishing an Unmarried Father’s Rights to his Children

Unmarried Father’s Rights to his Children

If you are a father of a child that was not born of a marriage, establishing rights to your child is a difficult process. The first step is to establish paternity. This can be done by signing a Voluntary Acknowledgement of Paternity sometimes known as “VAP” at the hospital at the time the child is born. This will then be filed with the State of Illinois, and the father will usually be named on the birth certificate of the child. Both the mother and father should sign this document. The Voluntary Acknowledgment of Paternity is only for unwed parents. If a woman gives birth to a child while she is married, there is an automatic legal presumption that her husband is the father.

Establishing Paternity for Custody and Visitation

If there is no Voluntary Acknowledgement of Paternity signed, then either the mother or father can petition the court for genetic testing to establish paternity. The parties can stipulate that there is no dispute as to who is the father of the child. As an unwed father, you have no rights to your child until you file a petition with the court. This is a civil matter, meaning you cannot call the police on the mother of your child and tell them to force her to give you time with your child. A dispute like this has to be filed in civil court in front of a family court judge.

Petition for Allocation of Parental Responsibilities

In filing a Petition for Custody or Visitation, this is a crucial first step. Paternity establishes a legal relationship between a father and child. This unfortunately has to be done if the mother of your child is denying you visitation with your child. After it is established that you are the biological father of the child, you can then ask the judge for custody, visitation, and decision making regarding the child. The judge can also determine child support and can require one party to provide medical coverage for the child.

Allocation of Parental Responsibilities

Unfortunately, these cases tend to favor the mother. A father will have to show the court what the best interest of the child is; each parents’ desired parenting time; the mental and physical health of all parties involved; the distance between each parents’ home and travel time; and any prior conduct, be it positive or negative, in regards to the child or caretaking to name a few 750 ILCS 5/602.7.

It is essential as an unwed father to establish parentage and petition the court for allocation of parental responsibilities to have involvement in your child’s life. Contact Villadonga & Villadonga Attorneys at Law at 847-298-5740 today to see how we can help.

 

The contents contained herein are simply a synopsis of the law and is by no means a full rendition of the law or what will happen in your case. Use of this website does not create an attorney-client relationship between the user and Villadonga & Villadonga Attorneys at Law. While this site contains information about legal issues, it is not intended to be  legal advice or or a substitute for advice from an attorney.

Posted on

Marital vs. Non-Marital Property in an Illinois Divorce

Marital Property 

A contention point in most divorce cases is determining what is marital property and what is non-marital property. Marital property can be divided during a divorce proceeding. 750 ILCS 5/503 states that marital property is all property, including debts and liabilities that were acquired by either spouse during the marriage. Even if a spouse’s name is not on a title or deed, it can still be marital property if marital funds were used. Retirement accounts such as pensions, 401(k), 403(b), and IRA’s are deemed marital property even though they belong to one spouse only.

Other examples of marital property include: the marital home, vehicles, and bank accounts. Illinois courts divide marital property equitably, which does not always translate to an equal 50/50 split. There is a presumption of marital property for anything acquired after the date of marriage that must be refuted by clear and convincing evidence from the statutory provisions of non-marital property.

Non-Marital Property

In simpler terms, non-marital property is anything acquired before marriage, gifted to one spouse only, or bequeathed to one spouse via inheritance. Non-marital property generally is not subject to division in an Illinois Divorce. There are certain caveats to this such as if the non-marital asset was commingled with marital assets or put in your spouse’s name. The non-marital property has to retain its identity throughout the marriage. Often times, during a marriage, non-marital property can be transmuted into marital property. This is why it is imperative to obtain a Family Law Attorney to assist you in determining what is marital property and what is not.

Yours, Mine, or Ours?

Do not think that because you or your spouse filed a petition for dissolution that means that starts the clock on non-marital property. Pending a case for dissolution of marriage, you are still legally married. That means anything you acquire during the dissolution proceedings can be deemed marital property. Until a judgment is entered, you are still legally married. Contact Villadonga & Villadonga today at 847-298-5740 to learn more how we can help you with your Illinois divorce and division of marital and non-marital property.

 

*Nothing contained herein is legal advice or meant to establish an attorney-client relationship. This is a general synopsis of law and is by no means a full description of the legal process or outcomes.

Posted on

How to Obtain An Order of Protection

You can file a petition to obtain an order of protection against a family member, household member, a high-risk adult with disabilities, or even a child. 750 ILCS 60/201. To obtain an order of protection, you must file a written petition with the Clerk of the Circuit Court stating when and where the abuse occurred. A sworn affidavit must also accompany your petition. A parent can add children as protected parties to the order of protection if the abuse occurred in front of the children, or if the children were also being abused. Similarly, if you reside with others in the same household, you can include the people you reside with as protected parties under the order of protection.

Many people think you can get an order of protection against anyone, even a friend. This is not correct. If you do not have a familial relationship to the person, reside together, or are or were formally in a dating relationship with that person, then you cannot get an order of protection. In that case, you would file a petition for Stalking No Contact order. There is no relationship requirement to obtain a stalking no contact order, but you will still have to prove that the person has harassed or stalked you.

An Order of Protection is a civil matter, not criminal. There are certain circumstances in which the state’s attorney can seek a criminal protective order correlating to a criminal case. If that is not the situation, then you will file your petition for order of protection in front of a civil judge. There are numerous remedies a person can ask for in a petition for order of protection: prohibit further abuse or neglect; no contact by any means; stay away from the home or place of work of the victim; stay away from the children’s schools; exclusive possession of the shared home; suspend parenting time; and more.

Villadonga & Villadonga represents clients seeking to obtain an order of protection and defending against orders of protection. Contact us today at 847-298-5740 about assisting you with an order of protection.

 

*Nothing contained herein is legal advice or meant to establish an attorney-client relationship. This is a general synopsis of law and is by no means a full description of the legal process or outcomes.