It was a dream come true for a little girl in Bolivia: a family who wanted to adopt her. But more than three years later, the family from west suburban Aurora is still trying to bring 5-year-old Cecilia home. Attorney Brad Giglio of Mevorah Law Offices LLC says the feds have told him and his clients to be patient. Read more from CBS Chicago. Support Bringing Cecilia Home on Facebook.
On February 21, 2014, Illinois became the 16th state in the United States to start offering marriage licenses to same-sex couples after passing the Religious Freedom and Marriage Fairness Act (RFMFA). This provided same-sex couples the opportunity to finally be able to enjoy the privileges and rights allotted to married couples within the state, which extended to all facets of life such as tax benefits, inheritance rights, and other estate planning matters.
For many, this freedom to marry offered a considerable change to their current life. Before the passing of the Religious Freedom and Marriage Fairness Act, and before the destruction of the Defense Of Marriage Act (DOMA), only civil unions were offered to same-sex couples, which provided acknowledgement of the union but little to no legal benefits. With marriage equality now becoming a legal standard, same-sex couples are curious as to their newfound rights and privileges.
Right to Marry Under Illinois Law
Now under Illinois law, all persons are eligible to marry except if:
- They are blood relatives;
- They are legally married to another person; or
- They are younger than 18 years old, barring certain parental exceptions.
Also under Illinois law, couples must acquire a marriage license, which is valid the day after the day of issue to 60 days after its issuance.
How Does this Apply to Same-Sex Civil Unions?
It is important to note for couples everywhere that civil unions are still offered and legally valid within Illinois. The passing of the RFMFA does not invalidate a civil union, but couples who were originally united under a civil union may convert it into a marriage by applying for a marriage license. If a couple came together under a civil union during the period of June 1, 2014 and May 31, 2015 and would like it to be converted into a marriage, the marriage will be acknowledged as effective from the date of the original civil union. This provides couples the opportunity to easily convert the civil union into a marriage without any additional steps.
Can an Officiant Refuse to Perform Same-Sex Marriage Ceremonies?
With same-sex couples marrying in Illinois, there is a controversy with regards to whether an officiant may refuse to perform same-sex marriages. This debate is currently under review throughout the United States determining which has more power, the right of freedom of religion or the law of discrimination.
The Religious Exemption to Religious Officiants
Under Illinois’s RFMFA, there is a religious exemption extended to religious officials to decide that performing a same-sex marriage is against their religious beliefs, therefore allowing them to refuse to perform the ceremony. This exemption only applies to religious organizations as defined in the statute, which primarily include churches, mosques, temples, nondenominational ministries, mission organizations, or any other faith-based associations whose principal business is the advancement of religious faith. In addition, this exemption only applies to premises whose primary use is largely by the organization and the members of the congregation.
The Debate Surrounding the “Right to Refuse”— Can This Apply to Everyone?
Recent cases tackled the scope of the religious exemption and what applies. As stated above, the exemption is only for religious association and premises that are used primarily and exclusively by the religious organization. If, for example, the organization has facilities that it rents out to the public for its use, it may not refuse to rent out the facility to the same-sex couple. This is significant as it ensures that the religious organization cannot offer a blanket policy against same-sex couples, especially when the premises are open to the general public who are not members of the congregation.
Finally, it should be stated that private clubs and private entities that are not strictly religious and are defined as above may not apply the exemption and must provide the facilities and services to same-sex couples.
Experienced Family Law Attorneys in DuPage County
Same-sex marriage is an incredible leap in equal rights in Illinois. What affects opposite-sex couples affects same-sex couples as well, and it is important to know what laws apply in same-sex marriage. The family law attorneys at Mevorah Law Offices LLC can help advise you on you and your spouse’s new legal status as a married couple and help navigate any issues surrounding your union. Contact our DuPage County family law attorneys today for a free and confidential consultation.
Parents have a defined duty to care for and provide their children with food, clothing, education, and a hospitable environment to live. A parent must also protect his or her children from harm by teaching them about the importance of following laws and regulations that are created for the purpose of child protection.
One of the laws that seems to be most flouted by minors is the National Minimum Drinking Age Act which, in 1984, set the minimum drinking age at a person’s 21st birthday. This is a federal law which states comply with and make it illegal to allow persons under 21 the ability to purchase and consume alcoholic beverages (except in the cases of religious observance).
Underage Drinking Statistics
In 2013, it was estimated that nine million minors, between the ages of 12 and 20, reported to have consumed alcohol in a 30-day period. According to the National Survey on Drug Use and Health, the percentage of alcohol consumption increases with age, finding that between the ages of 12 and 16, the percentage of alcohol consumption increased by 18 percent. Between 16 years old and 20 years old, the percentage of alcohol consumption increased by 52 percent.
Clearly, alcohol consumption becomes more prominent with minors the older they get.
Illinois’ Social Host Liability Law
The ability of minors to obtain alcohol usually comes from another source. The trend seen is that parents buy their children alcohol for their parties, thinking that if their children are going to drink, they would prefer that they do the drinking at home under their supervision and not in an unknown, uncontrolled environment.
Illinois has a significant number of minor consumption and possession of alcohol laws. On January 1, 2013, Illinois passed the social host liability law, which now imputes liability on parents for any injury or damage that occurs as a result of providing alcohol to their children and/or their children’s friends.
Social Host Liability Law: Parents Can be Both Civilly and Criminally Liable
According to Illinois’s social host liability law, parents can be held both civilly and criminally liable for any injuries or deaths that occur as a result of their producing alcohol to or permitting their children (and/or the children’s friends) to drink in the home as part of a social gathering.
For liability to be imposed on a parent(s), it must be determined that the parent(s) knew, or had reason to know, that the children were drinking in the residence, or in a hotel/motel that was purchased for the children.
Consequences of the Social Host Liability Law: Class A Misdemeanor
If a parent is found to be liable under the social host liability law, he or she will be guilty of a Class A misdemeanor and may be fined up to $500 for permitting or authorizing their children to drink in the home; it does not necessarily need to be the home, but could be extended to a hotel or motel room if the parent(s) got the room so that the children could drink within.
Parental Liability When Someone is Seriously Injured or Killed
If someone is injured seriously or dies as a result of the underage drinking, then the parent(s) may be found guilty of a Class 4 felony. The application of the Class 4 felony extends to parents if their children and/or someone else’s child dies as a result of their underage drinking and in the situation where their child or someone else’s child kills another (i.e. drunk driving accident) as a result of their intoxication. The parent(s) may have a defense against these charges if the parent(s) did not know nor had reason to know of the underage alcohol consumption, or took reasonable steps to prevent the underage drinking from happening in the first place.
Experienced Family Law Attorneys in DuPage County
Parental liability for the actions of children can be difficult to understand as it may be hard to decipher where child liability ends and parental liability starts. Moreover, if you suspect your underage child’s other parent is providing him or her with alcohol while in their custody, the family law attorneys at Mevorah Law Offices LLC can help. Contact our DuPage County family law attorneys today for a free and confidential consultation.
Legal and physical child custody generally hinges on the decisions of a court. A court will listen to both parents and the relationship that each has with his or her child in question, and will additionally balance a variety of family factors to determine what is in the best interest of the child.
The Best Interest of the Child in Illinois
The following are several factors that a court will weigh and assess in determining what type of custody arrangement is in the best interest of a child:
- The ideal arrangement for each parent;
- The ideal arrangement based on a child’s wishes;
- The relationship and interaction between and among a child, his/her siblings, each individual parent, and any other relative who interacts with the child;
- The extent in which the custody arrangement will alter a child’s daily routine or lifestyle;
- The extent in which the custody arrangement may impact the mental and physical health of a child;
- If there is any past abuse or misconduct (or threat of abuse or misconduct) between a child and a custodial/non-custodial parent.
Joint Child Custody
Joint child custody is considered, in the eyes of the state, the gold standard. If both parents can be involved, that is usually in the best interests of a child. Before granting joint child custody, a court does take into consideration the following factors:
- The ability of each parent to cooperate and agree on the best parenting plan for each child;
- The residential and financial lifestyle of each parent; and
- If there is any history of past abuse or misconduct which would make it dangerous for a child to be in contact with either parent or an acquaintance of either parent.
The Effect that Social Media Sites Have on Custody Arrangements
With the increased use of technology and social media, courts have been taking into consideration other factors: each parent’s presence and behavior on social media sites like Instagram and Facebook.
Recently, there have been quite a few cases where misconduct and certain behavior that a parent has exhibited on social media websites has seriously impacted the legal and physical custody arrangement previously made.
In one case, a parent tricked his ex-spouse into exchanging lewd and lascivious videos on Facebook (the eight-year-old child served as cameraman of the videos) and introduced the videos as evidence of neglect and abuse of the child. Ultimately, the endangering of the child on both the part of the ex-wife who requested her child to tape the videos, and the ex-husband who had tricked the wife into taping the videos in the first place, forced the court to revoke custody of the child from both the ex-spouses and place the child in custody with a third party.
In another case, one parent who had posted terrible things about her child on Facebook had that post used as evidence to revoke her custody rights. Clearly, social media is having a significantly negative impact on custody rights and the best interest of the child.
The Other New Factor: How Much of a “Helicopter-Parent” Are You?
So what has been found to help your custody case? Ultimately, showing evidence of being a “helicopter-parent” is extremely useful.
A “helicopter-parent” is a coined term for a parent who intensely hovers around his or her children and smothers his or her children with surveillance. A recent study has shown that judges are more likely to grant custody to parents who can show evidence of them being “obsessive, helicopter-parents.”
The following are qualities of a “helicopter-parent” in the eyes of the court:
- Parents who know the name of their child’s teachers or friends;
- Parents who attend classes with their child; and
- Parents who coach their child’s sport team.
Experienced Family Law Attorneys in DuPage County
These are just some of the newest factors taken into consideration in child custody cases. Child custody and the best interest of the child analysis is one that can be highly subjective and determined by a court. It is important to not only put your best evidence (and foot) forward, but also to have an experienced family law attorney by your side. The family law attorneys at Mevorah Law Offices LLC can help guide you through the child custody negotiations. Contact our DuPage County family law attorneys today for a free and confidential consultation.
In our increasingly connected and globalized world, exposing our children to international travel, language, and culture is extremely beneficial to their development and teaches them adaptability. Making the decision to go abroad, whether for a short time or for a longer duration, can be an already difficult decision. It can become impossible if you are a divorced parent who shares custody with your ex-spouse and there is little to no trust between you too.
Traveling Abroad: Preliminary Matters to Discuss and Consider
Taking a child abroad (or letting an ex-spouse take a child abroad) can be extremely difficult, especially when the post-divorce relationship between parents is acrimonious. The biggest concern may be present when one of the parents is from another country and would like to bring the child abroad to visit his or her family, but the other spouse is worried that his or her spouse may abduct the child. What can divorced parents in this situation do to assuage each other’s concerns about the motives of the other?
First and foremost, there should be a discussion about the trip abroad—including where they will be going, to whom they will visit, and the length of the trip. It is also important to speak to an attorney about the trip, especially an attorney who understands the ins and outs of international family law that may apply in the case of child abduction.
Will the Trip Infringe on Legal and Physical Custody Decrees?
If the trip will infringe on legal and physical custody decrees, then the court may need to sign off or decide on the change. Legal and physical custody decrees are binding unless the parents agree to make a change to the status or the court steps in to resolve disputes regarding new amendments to the legal and physical custody arrangements.
What is the Status of the Child’s Passport?
When planning to travel abroad, it is important to find out the status of the child’s passport. If the child’s passport was issued during the marriage, it cannot be revoked. As long as the child has a valid passport, he or she may travel, regardless of any other body of law that says otherwise. The custodial parent should keep the passport with him or her or may want the court or attorney to maintain the passport for safe-keeping. It should also be written in the custody agreement the scope of the use of the passport. For example, the agreement should dictate where the passport should be held at all times, who should have access of it, and whether express consent is needed from just the custodial parent or both.
How to Protect Your Child from Abduction
If one parent decides to let his or her ex-spouse take their child abroad, there are certain procedures that can be put into place to protect your child as best as possible. These include the following:
- “Ne Exeat” Bond: An Abduction Guarantee: Get or require a “Ne Exeat” bond. The “Ne Exeat” bond is a form of insurance where the bond uses collateral or works to guarantee that the parent who would like to the take the child out of the country cannot abduct the child. The “Ne Exeat” bond, which means “he shall not depart,” requires the traveling parent to post up a certain amount of money or collateral with the court that will provide financing to the non-traveling parent to pursue an international custody claim/legal action in the case that the traveling parent violates the custody agreement. The traveling parent is required to notify the court of the details of the itinerary.
- Notify the U.S. State Department: Alert the U.S. State Department and enroll your child in the U.S. State Department’s Children’s Passport Issuance Alert. The CPIAP is a program by which the State Department will contact all parents of the child if an application for a passport has been submitted. This will ensure that all express consents from all parties are genuine and the child is in fact permitted to travel.
Experienced Family Law Attorneys in Lombard
An experienced family law attorney at Mevorah Law Offices LLC can help guide you through an investigation and bring up any misconduct to the attention of the courts. Contact our Lombard family law attorneys today for a free and confidential consultation.
In Illinois, couples may decide to divorce either by claiming that a divorce is fault-based or no fault-based. A no fault divorce basically provides that there are no specific reasons for which a couple may decide to divorce, other than their desire to separate. However, there are fault-based reasons by which a spouse may use.
Fault-Based Grounds for Divorce in Illinois
The following are the fault-based grounds for a divorce in Illinois:
- Impotence throughout the marriage;
- The spouse was already married at the time of the second marriage;
- Habitual drunkenness for two years;
- Use of addictive drugs for period of two years;
- The attempted murder of the spouse;
- Extreme and repeated physical or mental cruelty;
- Conviction of a felony or crime;
- Infection by one spouse of another of a sexually transmitted disease; or
- Abandonment or desertion by one spouse for one year.
These fault-based grounds may be invoked by one spouse against another in support of a divorce. As part of a divorce, the spouse attempting to invoke a fault-based divorce must file a summons and petition of divorce to his or her spouse.
But what happens when a husband or wife is abandoned or deserted, and his or her spouse cannot be found?
Illinois’s View on the Missing Spouse
Illinois does not require a spouse to remain married to a spouse who has disappeared. A spouse may be considered “disappeared” if he or she has left the state on his or her own volition, or if he or she never returned home as a result of the actions of another.
Illinois permits that an abandoned or deserted spouse may request a court, in lieu of an in-person summons, the ability to provide service by publication.
Service and Divorce by Publication in Illinois
Service and divorce by publication is a court’s answer to a missing spouse. Due process provides that all spouses must be notified and given the opportunity to be heard before their rights are altered by the judgment of a court.
In the case of a divorce, both sides are given the opportunity to be heard so a divorce agreement is as equitable as possible. Service by publication in Illinois provides that the information about a divorce needs to be published in a local newspaper; the newspaper must be one that a missing spouse would be most likely to read. Therefore, one should publish a notice in a newspaper in the last known area that a missing spouse was living, or even in a favorite newspaper of the missing spouse.
Burden on the Deserted Spouse before Publication
Before service by publication is permitted, a deserted spouse is required to do a full-faith investigation of the last whereabouts of his or her missing spouse. This could mean not only making phone calls to his or her spouse’s family, friends, and other contacts, but also hiring a private investigator.
The extent that a deserted spouse must search is not defined or qualified, but a court must find that a deserted spouse did all that was in his or her power to locate the missing spouse.
The Procedure after Publication and Notice
Once a service by publication and a notice has been published in the newspaper, a missing spouse has a certain number of days in which he or she can make his or her appearance known to the court. He or she must file a counter-petition and let the court know of his or her acknowledgment that divorce proceedings have begun against him or her.
However, if a missing spouse does not come forward, a divorce may be granted by the court in favor of the deserted spouse. Issues like child support, alimony, or property distribution will remain unresolved until a missing spouse is found or comes forward.
Family Law Attorneys in DuPage County
A missing spouse can bring lots of emotional trauma and confusion throughout his or her absence. The complexities of divorcing a missing spouse should not be one of them. An experienced family law attorney at Mevorah Law Offices LLC can help guide you through the service and divorce by publication process. Contact our DuPage County family law attorneys today for a free and confidential consultation.
At the end of a marriage or relationship, it is normal for there to be feelings of hurt, anger, frustration and hate. Generally, people who are dealing with these feelings find ways in which to vent out these negative feelings so that one day they may piece themselves together and hopefully find happiness, whether in themselves or later with another. Part of the venting may take place through friends, family, a therapist, and/or social media. However, what one vents out onto social media may have a serious and criminal effect on a person’s future.
The Crime of “Revenge Porn” Nationwide
In only a couple states has there been drafting of regulations against what has become known as “revenge porn.” California was the first state to pass legislation and convict someone for “revenge porn.” Illinois finally passed its own specific legislation, criminalizing the trend. Governor Pat Quinn signed into law in the last few days of December the revenge porn legislation categorizing the crime as a felony under Illinois law.
“Revenge Porn” in Illinois
Revenge porn, or as defined under Illinois law “the non-consensual dissemination of private sexual images,” is a term describing the use of any photograph, film, recording, or other depiction or portrayal of a person’s intimate parts or while engaged in a sexual act, which has been intentionally disseminated.
Requirements of the Law in Illinois
In order to be in violation of the law, the offender must:
- Have intentionally disseminated the image of another;
- Show an image that depicts a person who is at least 18 years of age, and is identifiable by the photograph or image;
- Show an image in which the person depicted has his or her intimate parts exposed, wholly or partially, and/or involved in sexual activity; and
- Have obtained a picture where a reasonable person would know that the image was a private communication between the person depicted and the receiver of the phone.
Exceptions to the “Revenge Porn” law in Illinois
There are three exceptions to this law:
- First, it will not be considered in violation of the law if the person has given consent to the images dissemination;
- Second, if the image was created in a commercial situation or there was voluntary exposure in public; and
- Third, if the image is disseminated for a lawful public purpose.
Revenge porn is aptly name for the situation where a disgruntled ex posts or sends his or her spouse’s naked photos out as a form of punishment for the end of the relationship. Most states, nationwide, do not have any legislation out there banning the practice, and for those states, victims of this crime either have no recourse or may be able to file for harassment and/or claim civil damages for defamation. Revenge porn is a separate crime from child pornography offenses, which apply if the revenge porn depicts a minor under the age of 18; this would constitute a more serious crime.
The Future of Revenge Porn Law
Critics of the law believe that the laws against revenge porn violate free speech. However, the law does not believe that posting nude photos of an ex to settle a score is valid free speech. It is only a matter of time before more and more states follow the trend and prohibit all forms of revenge porn in the future. The Illinois Revenge Porn law goes into effect on June 1, 2015, and hopefully many newly-divorced individuals can breathe a sigh of relief of having dodged that bullet.
Family Law Attorneys in DuPage County
Revenge porn is a form of vengeance from one ex-spouse to another. With the new law passed, it will not be so easy to get away with this behavior or any other type of misconduct such as hiding assets. An experienced family law attorney at Mevorah Law Offices LLC can help guide you through the investigation and bring up any misconduct to the attention of the courts. Contact our DuPage County family law attorneys today for a free and confidential consultation.
Adoption in the United States can be a rigorous process. Prospective parents must submit a cumbersome amount of data to adoption agencies; everything from their Social Security data to their home life is scrutinized under the microscope, and after an extensive waiting period, the couple eventually become parents.
Adoption through an agency requires serious hoop-jumping, and with good reason: agencies want to ensure that the children are placed in good home situations with food, clothing, an opportunity to receive education, and loving parents to care for them. This is the idyllic scenario and not one that always comes to fruition as parents and adopted youth may find themselves incompatible. However, parents cannot just return their adopted children just because they are not up to their expectations … or can they?
Rehoming in the United States
Rehoming, the term referring to the process of adopted parents transferring custody of their adopted youths, is a trend that has started to gain the attention of lawmakers who are interested in prohibiting this practice. Currently, rehoming is a legal practice in almost every state in the country; there are no federal laws prohibiting the placing of your adopted child on the Internet to be transferred to a stranger.
Commencement of the Criminalization of Rehoming in the U.S.
States, however, are beginning to crack down on the practice and install their own laws to criminalize the practice. Wisconsin, in April of this year, was the first state to make the practice of rehoming illegal, requiring rehoming without a license by the state to be penalized. Offenders of the rehoming law may spend up to nine months in jail and/or be fined $10,000. Louisiana followed Wisconsin’s practice and also prohibited illegal adoptions.
Rehoming is Still a Legal Practice Nationwide
Though a few other states are considering installing the ban in their own states, the vast majority make rehoming relatively easy by requiring for execution either a power-of-attorney or a notarized statement transferring custody from one to another. This makes the practice easily perpetuated; children, through this process, can now easily be transferred from one home to another without the state requiring any sort of background check of the prospective parents nor the home life that the child will be introduced to. Safety is the first priority in organized adoption. Illegal adoptions, however, might as well be an underground unwanted children swap.
The Serious, Negative Effects of Rehoming on Children
Rehoming can have serious, negative impacts on children. First, the identity of the those who wind up becoming the new guardians of the rehomed children must be analyzed. If they are going through this medium of adopting children through an online advertisement, then there are probably valid reasons why they were denied from adoption proceedings through reputable agencies. Though rehoming remains largely an unreported occurrence, re-homed children who were evaluated spoke of physical, sexual or emotional abuse from their new “custodians.” There is also the initial trauma of being abandoned by their adopted parents in the first place.
Family Law Attorneys in DuPage County
Rehoming, though not an illegal practice in Illinois, is still ethically reprehensible. If you would like help adopting a child, it is important to go through the process as required by reputable adoption agencies. Adoption agencies evaluate your information with a fine-tooth comb to make sure that adopted child and prospective parents are a compatible match. An experienced family law attorney at Mevorah Law Offices LLC can help you through the complexities of the adoption process. Contact our DuPage County family law attorneys today for a free and confidential consultation.
In most legal matters, the law focuses on empowering all members of society to make legal decisions that are best for themselves. However, sometimes the rights of many are restricted because they lose their ability to make decisions for themselves; the courts then step in and take action on their behalf to ensure that their interests are protected. This can lead, unfortunately, to a population that is left unable to act in their own legal best interests. This happens largely when a man or woman becomes incompetent either through age and/or disability, and the courts provide these wards with a guardian ad litem to represent them in legal family law issues concerning them.
It is important at any age, and with any disability, that citizens of our society still have their rights adequately represented. In family disputes, minors are provided with their own guardians ad litem to make sure that, though they are considered “incompetent” because they have not reached the age of majority, their rights are still protected even in the face of family disputes.
The Role of Guardian Ad Litem
Generally the role of guardians ad litem is limited in scope due to a reduced amount of legal disputes in which minors would find themselves. The situation becomes more complicated in the case of men and women who become wards due to age and/or disability, and have had a lifetime of contracts and legal relationships in which they are embroiled. Tying up loose ends due to age and/or disability is rarely easy, and in the past, guardians’ responsibilities were left solely to the governing of the wards’ estate and those issues surrounding them.
The Recent Amendment to Expand Guardian Powers in Family Law Issues
In a recent amendment to the current Probate Act, guardians were given the power to go beyond control of the wards’ estates but are now permitted to file a petition for marriage, dissolution of marriage, or adoption depending on the best interests of the ward. The new act dictates the following:
If the ward filed for marriage, dissolution of marriage, or an adoption before being found incompetent, the guardian may continue with the petition.
The guardian may still file for marriage, dissolution of marriage, or adoption if the court finds by clear and convincing evidence that it would be in the best interest of the ward.
Why is This Important?
This is an important expansion of the role of guardians and the rights of their wards. As a vulnerable member of society, there are times where a marriage, divorce, or an adoption can impact the life of the ward. For example, a ward who has been found to be incompetent can easily be manipulated or taken advantage of by a competent spouse. There are also significant benefits for a ward to be married to a spouse who has agreed to take care of the ward; marriage also provides financial benefits and tax breaks.
Best Interests of the Ward
To determine whether these actions are in the best interest of the ward, the court may weigh the following:
The necessity of the action;
The consequences of the action;
Possible risks of the action;
Alternatives to the action and their risks; and
The views of the family and friends of the ward on the proposed action.
Experienced Family Law Attorneys in DuPage County
When a family member becomes a ward of the state due to age and/or disability, there may not always be enough time before he or she is declared incompetent to easily resolve pending legal issues. An experienced family law attorney at Mevorah Law Offices LLC can help untangle many of these complex issues and help provide you insight into the role of guardian ad litem to protect your loved one. Contact our DuPage County family law attorneys today for a free and confidential consultation.
There are specific laws put into place that require parents to fulfill their obligations and ensure that their children are physically, mentally, and emotionally cared for. Even during a divorce between two parents, there are legal regulations that are in effect to ensure that no matter what a financial situation ends up being post-divorce, the children of the marriage are cared for by both parents. This support extends until the children are no longer minors, after which the law assumes that the children are able to support themselves. But what if they cannot?
Children with disabilities require more financial, physical, mental, and emotional support than other children. What also makes these children different from others is that they may still require this support after they are no longer minors. Nationwide there has been a significant amount of case law which indicates that parents do have a duty to support financially children with disabilities well beyond reaching the age of majority.
Non-Minor Children with Disabilities in Illinois
In Illinois, according to the Illinois Marriage and Dissolution of Marriage Act, support for non-minor children may be awarded by either or both parties to ensure that a child who is mentally or physically disabled has the financial means necessary to be supported. This support award may be requested either before or after a child has reached the age of majority. The line being drawn can be a controversial one when defining “disability” in terms of receiving support.
Disability is a term of art that may be difficult to define, but whose definition is extremely important, especially when determining if a child may receive financial support after reaching the age of majority. “Disability” has been defined nationwide in economic terms, using the standard of whether or not a non-minor child is unable to earn a living to adequately care for himself/herself due to a mental or physical disability.
What does “Earning a Living” Mean in this Context?
A non-minor child does not have to be living below the poverty line; he or she only needs to show an inability to afford reasonable living expenses. Generally, courts require that there be a causal relationship between his/her infirmity and the inability to support himself/herself financially. It is not enough that a person cannot support himself/herself; it has to be because of his or her disability that he or she cannot support reasonable living expenses.
How Does the Court Decide Awards for Non-Minor Children?
How much may be awarded to a non-minor child depends on the balancing of a few factors. The court assesses:
The financial status and condition of both parents;
The standard of care and living that the child would have had but for the divorce; and
The earning capacity of the child.
When Does the Disability Need to be Discovered?
In most states, it is important to determine when a disability arose, as support can only be granted to non-minor children whose disability arose before they reached the age of majority.
Other Issues to Consider for Children with Special Needs
It is best to negotiate into a divorce settlement the financial and emotional support needed for a child who has a disability. There are many issues, beyond financial, that may arise during a divorce when there is a child with special needs involved. The following are some issues that should be considered in a divorce decree that go beyond financial matters:
Who will decide issues regarding education?
Who will decide issues regarding medical/mental health?
Who will decide issues regarding a child’s care at the death of either or both parents?
Who will decide issues regarding a child’s care once he/she has reached the age of majority?
Experienced Family Law Attorneys in DuPage County
Providing for your children can be extremely complex, especially when the children may have disabilities. An experienced family law attorney at Mevorah Law Offices LLC can help resolve many of these issues and carve out in the divorce decree financial and emotional support for your child. Contact our DuPage County family law attorneys today for a free and confidential consultation.
Divorce causes a significant amount of emotional, mental, and physical stress, especially when a divorce is particularly caustic. With all the items that need to be decided on for a divorce settlement, as well as the uncertainty of the final result of a divorce, it may be difficult to ensure that all of your needs properly addressed. In fact, health insurance coverage is one of the many particulars that ends up getting lost in the middle of a divorce settlement.
Study Sheds Light on Loss of Coverage for Many Women Post-Divorce
A recent study, conducted by the University of Michigan and published in the Journal of Health and Social Behavior, evaluated women between the ages of 26 and 64 and found that overall, women’s insurance coverage dropped and remained low for more than two years after the end of a marriage. Additionally, it was estimated that nationwide, 115,000 women annually lose their private health insurance coverage as a result of a divorce. This is a significant number of women who are living post-divorce life without the protection that they would have had had they remained married.
Why Are Many Women Losing Coverage?
Because a significant number of women receive their health insurance coverage under the plans of their husbands, women who divorce their partners end up no longer qualifying as dependents of the insurance plans or may not be able to pay the premiums for other private health insurance options.
It is estimated that almost one-fourth of women who were covered under the insurance policies of their husbands’ employers were no longer covered six months after a divorce. A divorce even affects coverage for women who are insured by plans from their own employers as they may no longer—due to their financial hardship post-divorce—be able to afford this coverage either.
The study goes further and shows that women who are in the middle/moderate-income bracket suffer the most because they cannot pay the insurance premiums of private insurers, but they do make enough income to not qualify for public coverage. The Affordable Care Act, as currently in place, is attempting to reach this middle-ground population. However, with the Act still in its infancy and at the epicenter of debate, its effectiveness is still in question.
Protect Yourself, Protect Your Coverage
There are several ways that you can protect yourself from ending up in this type of situation post-divorce.
At the start of the initial divorce proceedings, begin to think about what your financial circumstances will look like after a divorce. Once you have a range of estimates for what your divorce settlement will look like, start to investigate plans (or look into the coverage offered by your employer if applicable) that may fit with your post-divorce financial situation.
If you are aware of pre-existing health concerns, medical costs and expenditures may be projected and could be negotiated into your final divorce settlement. It may be a possibility that your projected medical costs could be provided for as part of your alimony, thus providing a cushion to investigate further your insurance coverage options.
Speak with a financial advisor or insurance adviser about the myriad of options that may be available, including the Affordable Care Act provisions, COBRA, your own employer’s plan (or the availability of a plan after a certain number of days at a new job), and other government programs (if you are turning 65, you are eligible for Medicare).
Family Law Attorneys in DuPage County
Health insurance coverage at the time of the divorce proceedings may seem like the last issue on your mind. However, it is important to protect yourself, especially once the post-divorce flames have been extinguished. An experienced DuPage County family law attorney at Mevorah Law Offices LLC will be able to provide you with all the necessary guidance and bring to your attention the several issues you may face during and after divorce proceedings. Contact Mevorah Law Offices LLC today to schedule a confidential consultation.