Visitation…your right of access to your child.

All parents who are not granted custody are entitled to visitation with the minor child or children unless restricting or denying visitation is in the child or children’s best interest.  There must be some identifiable or manifest circumstance that would negatively impact the child’s health, safety or well-being.  The exact language granting visitation is found in the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607):

607 (a)   A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral or emotional health.

In essence, non-custodial parents are entitled to access to their children under just about most circumstances barring some serious issues with the non-custodial parent’s behavior or living conditions.  A few examples might include, driving with the child while drunk or otherwise incapacitated by non-prescription drugs; violent behavior against the custodial parent (in the presence of the child) or violent behavior against the child, other forms of physical or emotional child abuse (sexual, psychological and the like), and dangerous or non-existent living conditions of the non-custodial parent might raise some issues related to overnight visitation, but would probably not defeat the general right to visitation.

Visitation is appropriate either in person and via electronic communication and is allowed through email, telephone, instant messages, video teleconferencing and other electronic methods.  750 ILCS 5/607 (a)(2).

Visitation is an exceedingly valuable right granted to non-custodial parents by our laws.  It is not just the other side of child support, and is specifically separated from the payment of child support under Illinois law (the old “no money, no visit” doctrine is improper).

Obtaining Attorney Fees From Your Spouse

More often than not a client will ask about the possibility of having his or her spouse pay for attorney fees incurred in the litigation.  In each instance, I am careful to remind each client that the person hiring the lawyer is primarily responsible for his or her fees.  Nevertheless, there are specific instances where the other party can be compelled to pay attorney fees for the other side.

Generally, the Illinois Marriage and Dissolution of Marriage Act (IMDMA) allows fees from the other party during the proceeding under section 501 (c) (1) [interim (temporary) fees], section 503 (j) [final contribution to fees from the former spouse], and 508 (a) – (c), final fees, fees necessary to enforce the judgment or order of the court, ancillary or additional litigation, and appeals, among other reasons.

The main thrust in just about all of the fee-shifting provisions of the IMDMA is reasonableness.  The court is seeking to balance the financial playing field between spouses in order to allow them to litigate their issues fairly.  Our legislature has decided that it is unfair to allow the spouse with superior financial resources to overpower the less financially capable spouse.  This is why our courts see attorney fees as either dissipation (the use of marital resources for a non-marital purpose) or as an advance against that spouse’s share of the marital estate.  This approach allows the court to evaluate the reasonableness of the fees as well as balance the financial resources of the parties to compensate for any shortfall on one parties’ part.

NEW MAINTENANCE RULES (Effective 01/01/15)

Well, it was bound to happen. The Illinois Legislature has enacted new rules regarding maintenance (formerly known as alimony). Over the years, maintenance payments covered a patchwork of varying amounts and duration. In some cases, maintenance was allowed, and in some seemingly similar circumstances, maintenance was not allowed, or allowed for a markedly different duration or for a significantly higher or greater amount. In many of those instances an evaluation of the “factors” could still not explain the differences. Some litigants began to feel that the award of maintenance as more of a “crap shoot” than anything for which they could adequately plan.

Here is the “skinny” on the changes:

Under 750 ILCS 5/504 (a) the court must first determine whether a maintenance award is appropriate, after consideration of all relevant factors, including:

(1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance;
(2) the needs of each party;
(3) the present and future earning capacity of each party;
(4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;
(5) the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment;
(6) the standard of living established during the marriage;
(7) the duration of the marriage;
(8) the age and physical and emotional condition of both parties;
(9) the tax consequences of the property division upon the respective economic circumstances of the parties;
(10) contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;
(11) any valid agreement of the parties; and
(12) any other factor that the court expressly finds to be just and equitable.

Once the court determines that an award of maintenance is appropriate from an analysis of the above factors, then the court will determine whether the maintenance award is based upon “guidelines.”

Under 750 ILCS 5/504(b-1)(1)(A):

Guidelines maintenance is determined by taking 30% of the payor’s gross income minus 20% of the payee’s gross income. This primary maintenance amount is then subject to a “cap” by adding this amount of primary maintenance to the gross income of the payee. The primary maintenance added to the gross income of the payee cannot be more than 40% of their (both parties’) combined gross income.

Under 504 (b-1)(1)(B):

The duration of an award under paragraph (1) shall be calculated by multiplying the length of the marriage by whichever of the following factors applies: 0-5 years (.20); 5-10 years (.40); 10-15 years (.60); or 15-20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order either permanent maintenance or maintenance for a period equal to the length of the marriage.

The remaining sections of the new maintenance statute require the judge to make specific findings of fact that support the award of maintenance or the refusal to award maintenance. There are also rules requiring the court to state its reasons for deviating from the above guidelines.

Child Support: Additions to regular support

The Illinois legislature has recently enacted a law that allows the courts to specifically include additional child support amounts to the set guidelines. Under 750 ILCS 5/505 (a)(2.5):

The court, in its discretion, in addition to setting child support pursuant to the guidelines and factors, may order either or both parents owing a duty of support to a child of the marriage to contribute to the following expenses, if determined by the court to be reasonable:

(a) health needs not covered by insurance;
(b) child care;
(c) education; and
(d) extracurricular activities.

Paying attention to the above amendment should place both custodial and non-custodial parents on alert to the possibility of added financial exposure regarding children’s needs. Custodial parents now need to consider requesting (and being prepared to prove the reasonableness of) additional support for before and after-care costs needed to allow that parent to continue employment. Tuition and fees for children who attend private school (especially where the choice was made some time prior to the breakdown of the marriage)is now “in play” in the settlement negotiations between parents. Note also that the costs associated with school-sponsored athletic, artistic, and cultural events is now subject to court determination of reasonableness in terms of cost and best interest of the child or children standard. This consideration probably extends to non-school associated athletic, artistic and cultural activities as well.

Understand also that “education” encompasses a wide array of academic enrichment, tutorial and supplemental expenditures for the child or children of the parties. These costs can range from tutoring, mentoring, additional books, supplies, enrichment classes, test preparation courses, religious education, boy scout and girl scout costs, and other costs tied to the education of the child or children.

What to do? Make sure that you keep proofs of payments for non-reimbursed health related costs for the child or children, and keep accurate records and proofs for babysitting, daycare, before and aftercare, and other such costs. This means paying by check, or some other verifiable method of payment. At the end of the day, you and your child or children’s parent are going to have to try to maintain some semblance of communication; even if the communication is between a trusted intermediary. Believe me, it is better than having the conversation in the courthouse hallway during a contested hearing on child support modification under the new statute.

Divorce and Marital Settlement Agreements

The vast majority of divorces are resolved with some form of agreement. In Illinois, these agreements are known as Marital Settlement Agreements (MSAs). These agreements generally set out the terms and conditions under which the various disputed issues are resolved. Chief among the matters generally in dispute include child custody and visitation (who will be the physical custodian and how much child support will be paid, deciding which party is responsible for which debt, asset allocation (who gets what, and in what percentage), whether maintenance (formerly known as alimony) is paid or waived and barred by the parties, and other matters.

Oftentimes, the various elements of a MSA result from rulings on motions heard by the preliminary or trial judge. Various motions for child support, maintenance (alimony), minor’s educational expenses contribution, contribution to on-going marital debts, exclusive possession of the marital residence, and the like are heard by either individual calendar judges or (in Cook County, Illinois) preliminary calendar judges.

There are also provisions for pretrial conferences that take place when the parties have disclosed enough initial information back and forth to determine what is agreed upon, and what is not. The attorneys for both sides schedule a pretrial before the judge hearing prejudgment matters (your individual or preliminary judge), and the judge listens to the positions and rationals of both counsel. The judge presents the two attorneys with his or her recommendation for settlement, and this recommendation is communicated to the clients. The recommended settlement position is often enough to move the parties closer to agreement without having to endure the cost and trauma of a contested trial.

Post-Judgment Educational Expense Contributions

Well, it’s August again.  And it is time for the annual post-judgment petitions for educational expense contributions for college costs.  Our domestic relations statute allows for the parties to defer decisions about college educational expenses for their children until a time after the divorce when the issue of college costs arises.  The actual citation for the rules and procedures is found in the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/513):  

         Support for non-minor children and educational expenses:

(a) The court may award sums of money out of the property and income of either or both parties or the estate of a deceased parent, as equity may require, for the support of the child or children of the parties who have attained majority …

The statute goes on to list the various terms and conditions needed to file and prove the right to require contribution from your child’s or children’s parent spouse for college educational expenses.  What does this mean for you?

Most importantly, it is necessary to have an idea of what your child or children’s overall college costs are going to be.  Virtually all colleges and universities will issue an award letter to a student (or have this information available on-line).  The usual approach is to be given an “aid package” that allows the student to “accept” or “reject” various grants, scholarships, loans, work-study awards, and other forms of financial assistance.  Depending upon the college or university, there may be a formal award letter that indicates your expected family contribution. It is this “contribution” figure that will form the basis of the request to your child’s other parent.  Note well the use of the words other parent, because the Paternity Act borrows from and treats children from parents who were not married similarly.

It is recommended that you begin the process of negotiation for college expense contributions well in advance of the start of the new college year.  The spring prior to fall enrollment is not too soon to get an idea as to whether you will be faced with resistance from your child’s parent regarding sharing college expenses costs.

Finally, be aware that there is much more to college contribution costs than room, board, books, fees and tuition.  Understand that there are costs for transportation, to and from school, living expenses while away at school, laundry, paper, supplies, computer access charges, minor fees and expenses, and even some portion of the family’s utility and other expenses for children who are living at home and commuting to college.