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Aurora Adoption Attorney Helps Family Adopt Bolivian Child

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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.

Written by Staff Writer

March 22nd, 2014 at 2:55 pm

Challenges to Collecting Child Support

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Chicago family law attorneys, child support, collecting child support, Illinois Marriage and Dissolution of Marriage Act, Mevorah Law Offices LLC, non-custodial parentIllinois Law 

When a couple divorces in Illinois, in most cases, the non-custodial parent will be required to pay child support to the custodial parent. The law governing child support payments in Illinois is the Illinois Marriage and Dissolution of Marriage Act (“Act”). Under the Act, a couple can negotiate on their own what terms they want to work out for payment or, if the couple cannot agree, the court will arraign a structured payment plan that is in the best interests of the child or children.

Enforcement Mechanisms

Just because the court orders a parent to pay child support, it is not guaranteed that payments will be enforced or that the custodial parent will receive the money. The court does have mechanisms in place to collect payment, like garnishing the non-custodial parent’s wages.

Garnishing wages is the most effective way of ensuring compliance. Illinois has a flat percentage formula: 20 percent is deducted from a non-custodial parent’s wages if the couple has one child; 28 percent if they have two; and 32 percent if they have three or more children together. There is a cap that limits the deduction to no more than 65 percent of a paycheck, regardless of the number of children the couple has together. This money is sent to the State Disbursement Unit, which then mails the check to the custodial parent.

There are other punishments if a non-custodial parent fails to pay child support. The court can take away the non-custodial parent’s driver’s license or passport. The court can also enforce other financial penalties, such as withholding federal tax refunds or placing a lien against property of the non-custodial parent. However, the court only uses these methods if other, less punitive actions have failed.

Revolving Door into the Courtroom

Unfortunately, even when the court has enforcement measures in place, custodial parents sometimes end up going back to court multiple times to obtain the court-ordered child support. There are several hurdles that the court faces in enforcing payment. If a parent moves around frequently it may be difficult to track the parent down and the parent may move out of the court’s enforcement jurisdiction.

Another hurdle the court faces is if or when to modify the payments. If a parent is constantly changing jobs, he or she may not have a steady income and cannot consistently pay support each month. Sometimes the parent may be acting fraudulently by underreporting his or her income or identifying his or her occupation as “self-employed” and hiding possible earnings.

Most states, including Illinois, get federal funding to assist parents in getting child support payments. In many counties, there are child support enforcement divisions that assist parents with establishing paternity, and then, once paternity is established, seek enforcement of payment by the non-custodial parent.

In some cases the non-custodial parent will refuse to pay or is unable to pay if they are jobless or in jail. Courts are reluctant to threaten jail for failure to pay child support because they have found that it just leads into pattern of non-payment and jail time.

Alternative Methods of Collection

Some frustrated custodial parents are looking to collection agencies to collect on non-payment of child support. There are many agencies that specialize in enforcing collection of child support payments. In Illinois, there is no statute of limitations for enforcing payment. These agencies have the manpower and time to further investigate the issue, which the overburdened courts are unable or unwilling to do. However, it is at a significant cost to the custodial parent, as collection agencies in return may ask for a hefty percentage of money that they end up collecting as a fee for their services.

Resources

For more information about family law issues, including apply for and collecting child support, please contact the experienced Chicago family law attorneys at Mevorah Law Offices LLC. We can assist you with any family law-related issues you may be facing.

Guardianship in Illinois

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Chicago family law attorneys, guardianship, Illinois Probate Act, types of guardianship, adoption options, award of custody, Mevorah Law Offices LLCWhat is Guardianship?

Guardianship is a court process that grants a non-parent legal custody of a child. Guardianship allows a non-parent to act in place of a parent to make decisions that will affect the welfare of a child. Guardians have to guarantee that the child receives food, clothing, and shelter, as well as an education and appropriate medical care.

Unlike with an adoption, a guardian can be appointed without having to end the birth parents’ rights over the child. The court has jurisdiction until the child turns 18 years old. The court has to rule out the options of adoption and of a possible permanent return of the child to the parental home before it will award guardianship. The child’s parents may agree to the guardianship. If the parents do not agree, they will be offered a chance to object to the guardianship in court unless their parental rights have already been taken away.

Who Can Act as a Guardian?

The court must always consider the best interests of the child when determining guardianship. In doing so, the court will look at the following factors:

  • The wishes of the child (a child over 14 must give consent);

  • The wishes of the guardian and his or her relationship with the child;

  • The child’s ability to adapt to the new home, school, and community environments; and

  • The physical and mental health of all parties involved.

In the process, the Illinois Department of Children and Family Services (DCFS) will also perform an investigation, a home study, and a criminal background check.

A person is qualified to act as a guardian if the court finds that the proposed guardian:

  • Is at least 18 years old;

  • Is a United States resident;

  • Is not of unsound mind;

  • Is not disabled; and

  • Has not been convicted of a felony.

Custody and Guardianship Statutes

Illinois has specific statutes that provide for an award of custody:

  • The Probate Act;

  • The Illinois Marriage and Dissolution of Marriage Act ;

  • The Illinois Parentage Act of 1984;

  • The Illinois Domestic Violence Act of 1986;

  • The Adoption Act; and

  • The Juvenile Court Act of 1987.

The Illinois Probate Act

The statute governing guardianship in Illinois is the Illinois Probate Act.

There are three types of guardianship under the Probate Act:

  • Person – when the minor owns no property and has no income;

  • Estate – when the guardian cares for, manages, and invests in the property owned by the minor; and

  • Person and Estate – when the guardian acts on behalf of both the person and the estate.

The Illinois Probate Act was amended in January, 2011. It eliminated the standard of “parental fitness” for appointing a guardian. It now also allows for a non-parent to have standing in court. Under the amended law, the court will determine if the parents have voluntarily relinquished physical custody of a child, failed to appear in court after getting proper notice of a court hearing, or consented to the guardianship.

Discharge of Guardianship

Parents can discharge a guardianship. The standard of proof for both sides is clear and convincing evidence. The parents must establish there has been “a material change of circumstances.” Once the parents can establish this, then the guardian has to prove that end the guardianship is not in the best interests of the child.

The court will look at the following factors to determine the best interests:

  • How the child interacts with the parent and anyone living in the parent’s household;

  • Whether the parent can provide a safe environment for the minor;

  • How stable are the parties involved;

  • How long the child has lived with the guardian and how the child has adjusted to his or her environment; and

  • What the visitation dynamics are between the parent and child and how the guardian controls visitation.

Resources

For more information about family law issues such as guardianship, please contact the experienced Chicago family law attorneys at Mevorah Law Offices LLC. We are prepared to assist you will all your family law needs.

States Debate over Child Custody Laws

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Illinois family law attorney, child custody laws, sole custody, types of custody, joint custody, awarding custody, Illinois child custodyChild Custody

The Illinois Marriage and Dissolution of Marriage Act is the law that governs how child custody is determined in Illinois. When we think of the word “custody,” we sometimes view it in terms of the time spent with a child regardless of whether the courts award joint or sole custody. However, custody in Illinois actually has to do with determining which parent has the decision-making power over the child. The length of time a parent spends with the child is not the focus of the determination.

Types of Custody 

There are two types of custody in Illinois: sole custody and joint custody.

Sole Custody

Sole custody refers one parent having the right to make all major decisions for the child. These decisions include health care options, where the child goes to school, and what religion the child will take.

Joint Custody

Joint custody refers to both parents having the right to equally participate in all major decisions for the child. This requires a situation in which both parents demonstrate a willingness and ability to work together in the best interest of the child. This includes all the same decisions awarded with sole custody. However, if there is a medical emergency, both parents must approve what course of action will be taken. The physical time spent with each parent does not need to be split evenly. Generally, when joint custody is awarded, the child will reside mostly with one parent. This parent receives what is known as “residential custody.” The residential custodian is often awarded child support from the non-residential parent.

How is Custody Determined by a Court?

A court will decide what is in the best interests of the child when awarding custody. There are several factors the court will review to make this determination, including:

  • What the parents’ want;
  • What the child wants;
  • How the child interacts with his or her parents, siblings, and other close family members;
  • How the child is adjusting to the home, school, or local environment;
  • The mental and physical health of all parties;
  • Any threat to the child’s physical or emotional health in either home environment. This can include physical, verbal or emotional abuse by anyone towards anyone;
  • How the parents interact with each other; and
  • The sex offender status of either parent.

National Debate on Changing Child Custody Laws

Advocates for changes in the current law argue that the best interests of the child means equal time or more evenly distributed time spent with both parents. These advocates are against laws awarding sole custody to one parent, and would like the law to spell out a minimum percentage of time a child should spend with each parent.

However, those who are in favor of the status quo, like the Cook County Public Guardian’s Office and Illinois State Bar Association, argue that having strict requirements about custody will take away a judge’s ability to determine the best interests of the child. They fear a cookie cutter answer will not allow the judges to make critical decisions about the child’s welfare.

Illinois is one of seven states currently dealing with legislation proposing changes to the laws as part of a larger national debate on the issue. The most recent legislation proposed in Springfield would ask judges to consider equal time for both parents but would not make it a requirement. It would also create a 90-day deadline for custody disputes. The most recent proposal was approved by the House in April and is now in the Senate for debate.

Resources

An experienced attorney will always stay abreast of national and state laws regarding child custody and other family law matters. For more information about family law issues, please contact the experienced Lombard family law attorneys at Mevorah Law Offices LLC.

Financial Infidelity in Marriage

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Researchers who study marriage dynamics and the causes of divorce have focused most of their efforts on studying the effects that physical or emotional cheating have on a marriage. However, until recently, very little research had been done to study the effects that “financial infidelity” had on relationships. Financial infidelity occurs when one partner hides what he or she does with his or her money from the other partner. It could take the form of spending money behind the partner’s back, maintaining separate credit cards or secret accounts, stashing away money, or borrowing from others without the partner’s knowledge.

Research Studies

According to a National Endowment for Financial Education (NEFE) study conducted by Harris Poll in January 2014, one-third admitted to financial infidelity. Most notably, however, was that 76 percent of those adults said the infidelity had an effect on the relationship.

The national survey polled 2,035 respondents who were at least 18 years old. The poll found that three in 10 have kept secret things such as cash, bank accounts, statements, or bills from their partner. Sixteen percent said they have lied about the amount of debt they have, and 14 percent admitted not telling the truth about how much money they earn.

The reasons for lying about finances varied greatly. Thirty-five percent of respondents said that they wanted some of their finances to remain private; 16 percent were too embarrassed to tell their significant other about their financial problems; and 15 percent said finances had never been discussed in their household.

For the partners who were in the dark about the finances, 47 percent said the issue led to an argument, 33 percent said it resulted in less trust in their relationship, and an astounding 13 percent said the financial infidelity actually led to their divorce.

Identifying the Issue

Red Flags

Signs of financial infidelity may be similar to those of physical or emotional infidelity. For example, a partner may find a receipt for a purchase made by the other partner in which he or she were unaware. A partner may also notice purchases on monthly statements that he or she are unable to account. There also may be behavior changes on the part of the deceiving partner. A partner may act differently when the issue of money arises, or he or she may get defensive or avoid the topic completely.

Addressing the Issue

It is important to address the issue calmly and in an appropriate manner. Bringing the topic up to your partner will most likely be an uncomfortable conversation, and it may also lead to an argument if you approach your partner in an accusing or blaming way. Make sure you know ahead of time what you want to get out of the conversation and to approach it when you and your partner are alone and at an appropriate time.

Resources

In some cases, financial infidelity may actually be unforgivable, and may lead you to want to seek a divorce. For more information about family law issues and for help filing a divorce, please contact the experienced family law attorneys at Mevorah Law Offices LLC.

Back to the Basics: Do’s and Don’ts of Prenuptial Agreements

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disposable marriage, legally enforceable contract, Mevorah Law Offices LLC, prenup, prenuptial agreementsSay the word “prenup” and many will immediately shudder. At best, it seems a tool for the rich and famous. At worst, it conjures images of a disposable marriage. The truth is neither. Prenups are for people with assets of any kind. Getting one only means that you are thinking about your future, and not necessarily thinking that your marriage will fail.

What is a Prenuptial Agreement?

Prenuptial agreements (also known as antenuptial agreements) are simply contracts made between two people before they marry. The agreement memorializes what will happen if the couple divorces or if one spouse dies before the other.

What Are the Requirements for Forming a Valid Prenuptial Agreement?

Illinois law allows married persons to enter into contracts with each other. This law sets the legal foundation for prenuptial agreements. If you look at the statute, you will notice that it is remarkably brief. It allows couples to create prenups. However, it does not say what the prenup can or cannot look like.

Though the statute does not specify, your agreement is more likely to be upheld if the following requirements are met:

  • The agreement is in writing;
  • It is signed by both parties, and notarized;
  • The contract was made by the parties in contemplation of their marriage;
  • Both parties entered the contract voluntarily;
  • The agreement was made an appropriate time before the wedding took place;
  • Each party was represented by separate legal counsel;
  • There was full disclosure of assets and finances;
  • Acceptance of the agreement was not a condition of marriage; and
  • The contract was not unconscionable.

Two points deserve clarification. First, what does it mean to make the agreement an “appropriate time” before the marriage? This simply means that the court will look unfavorably on agreements that are sprung on one party a few days (or hours) before the wedding. The amount of time that the court deems appropriate will vary depending on the other facts of the case. Second, what does it mean for a contract to be “unconscionable”? An unconscionable contract is one that is so grossly unfair that the court cannot allow it to stand. The court will determine unconscionability by looking at the facts of the case.

Note that prenuptial agreements are generally held to be valid, regardless of any marital misconduct that contributes to the termination of the union. However, the parties can choose to take marital misconduct into account when drafting their contract. For example, the prenup might specify that a spouse guilty of adultery will receive less spousal support than they would if the marriage was terminated because of irreconcilable differences.

What Can a Prenup Contain? 

So long as the above requirements are met, parties are allowed a great deal of discretion in crafting their agreements. For example, in the case of a divorce, they can:

  • Decide in advance the terms of their divorce or dissolution;
  • Agree on the division of their assets;
  • Set an amount of spousal support;
  • Divide debts brought into the marriage; and
  • Protect the assets that each party has brought into the union.

What Can a Prenup Not Contain?

Parties have a lot of freedom to create their prenuptial agreements, but that freedom is not absolute. Public policy generally prohibits parties from:

  • Forcing the religion of one partner on the other;
  • Deciding child custody or child support in advance; or
  • Setting the terms so that they promote or encourage divorce.

Contact an Illinois Family Law Attorney

If you are thinking about entering a prenuptial agreement, contact an Illinois family law attorney today. Though only you and your partner can decide if a prenup is right for you, an attorney can help you discover what assets should be included in your agreement, help you brainstorm what terms you want included (or not), and draft a legally enforceable contract. Please contact the experienced family law attorneys at Mevorah Law Offices LLC for support today.

Maintaining Marriages While Taking Care of Aging Parents

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aging parents, Illinois family law attorney, marriage, Mevorah Law Offices LLC, fostering your marriage, marriage trendsTaking care of aging parents can be an incredibly stressful experience. It is not uncommon for it to take a heavy toll on you, your spouse, and even on your marriage. The married couple needs to strike a balance between their needs as a couple and the needs of aging parents.

Avoid the trap of overcaring, as one author puts it. This happens when well-intentioned loving people sacrifice their marriages in which they have invested years because they spent all their time and emotional energy on family caregiving responsibilities.

Below are some important tips for fostering your marriage while at the same time caring for your aging parents.

All Topics are Fair Game

Married couples should talk about everything. No topic should be taboo and holding back feelings or concerns will only lead to later fights and misunderstandings. Communicate openly and loudly. Although it may at times feel awkward, expressing your feelings and concerns about caring for the aging parent will allow each partner to distress and vent his or her frustrations in a healthy way.

Listen

Pay attention to what the other partner says. Actually try to understand his or her perspective instead of just listening to the words he or she is saying. Do not try to anticipate what he or she will say, nor try to think ahead to how you will respond. Let your partner talk freely and uninterrupted. Repeat back what he or she says to you to make sure you really do understand. You need to listen to your partner to know if he or she is on the same page about what strategies and techniques will be successful to adequately take care of an aging parent, while at the same time, addressing his or her individual needs.

Do Not Blame or Shame

Do not blame anyone for the situation. Do not become resentful of the aging parent or of your partner who may not share in some of the burdens of being a caregiver. Try to find ways to enhance your role as caregiver and get the support you need when things become too much.

Work Together

Work with your partner and other family members to divide up chores and household tasks so the burden on one person is not disproportionate should the aging parent need special attention or help.

Be Alone

Make sure to set aside some time in your week to be alone in your physical space and in your thoughts. This act is not selfish. It is necessary to reclaim energy and push forward.

Keep the Candle Lit

Make sure you and your spouse have alone time. Do not neglect your own relationship when taking care of others. Set up a time for date night or a quiet romantic evening. Enlist help from friends, family, or a professional health care aid to take care of the aging parent so that you can have time alone without having to worry about the aging parent’s condition.

Keep Healthy

You cannot properly take care of others if you are not taking care of yourself. Sleep well, eat healthy and get plenty of exercise. You will need all the energy you have got to take care of a parent whose health is failing him or her.

Resources in Illinois

Maintaining a marriage and caring for aging parents can be difficult, and may take a toll on everyone involved. For more information or help regarding family law issues, please contact the experienced family law attorneys at Mevorah Law Offices LLC. We serve clients in Chicago and the surrounding areas.

Taking on a Spouse’s Debt during Marriage

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debt, debt during marriage, Illinois family law attorney, marriage finances, pre-marriage debts, spouse's debt, premarital debtCommingling Lives

When a couple decides to marry they are choosing to come together and combine all aspects of their lives. They consolidate their living space, blend their families, and join finances. Unfortunately, joining finances sometimes also means taking on the other spouse’s individual debts.

Am I responsible for my spouse’s debt when I get married?

Marriage is a symbolic joining of two parties into one unit. Marriage is also a contract. When you first get married, there are many ways to avoid taking on your spouse’s debt. However, how you go about managing your finances throughout the marriage will determine if you will be responsible for the debt later on in the marriage or upon divorce.

Make sure to be clear in whose name the debts will be titled. If you do not want to be liable for the debt, make sure your name is absent from the title. Also, depending on the state in which you reside, different property laws may apply to ownership, division, and debt.

Community Property States

Nine states in the U.S. are considered community property states: Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington, and Wisconsin. Under community property law, you are jointly responsible for debt incurred by either spouse during the marriage but are not responsible for any debt incurred by your spouse prior to marriage.

Any debt opened during the marriage in one spouse’s name will be considered a joint debt for which the other spouse is responsible. Community property states do, however, allow spouses to contract out of such restrictions by signing agreements stating that each spouse’s debts will be dealt with separately.

Common Law States

Forty-one U.S. states are considered common law property states. In a common law state, you are not responsible for your spouse’s debts prior to the marriage and you are also not responsible for your spouse’s debts incurred during the marriage. Under common law, only the person whose name is on the debt is responsible for repaying the debt. There are exceptions to the common law rule if the debt accrued from joint household expenses. These may include items such as food, clothing, and shelter.

Joint Accounts

If you open a joint account with your spouse, you will be held jointly liable for any debts that occur on the account. It does not matter whether you live in a community property or common law jurisdiction. It also does not matter whether you have ever accessed the account yourself. Any agreement you sign (even as a co-signer of debt) is considered your debt should the spouse default on it.

As a joint account holder, anytime you sign into your spouse’s pre-marriage account, you are assuming liability for that debt going forward. You may also take on a spouse’s pre-marriage debt if you consolidate accounts from before and after the marriage or if you refinance debt together under a joint account.

Credit Reports

A credit report is a document that lists out an individual’s credit history. It does not combine a married couple’s history into one report once they get married. Despite the fact that you and your spouse will maintain individual credit histories, your spouse’s bad credit can still affect your finances during the marriage.

If you apply for a credit card, car loan, or mortgage for a home, both you and your spouse’s credit history will be looked at and factored into the determination. If your spouse has bad credit, you may be denied a loan or offered unfavorable rates even if you have a good credit history.

Lopsided Debt

According to a study by the advocacy and research group, the Institute for College Access & Success, the average 2012 graduate finished with $29,400 in debt. However, they also concluded that almost 30 percent of 2012 students graduated without any debt at all. The overall conclusion is that it is a likely scenario that when a couple decides to marry after graduation, one spouse may have debt and the other may be debt free. This leads to the issue of one spouse assuming the pre-marriage debts of the other.

Resources in Illinois

It is important to understand all debt-related and other family law issues that arise during a marriage or divorce. If you have any family law questions, please do not hesitate to contact an experienced Illinois family law attorney at Mevorah Law Offices LLC.

Illinois Dept. of Children and Family Services Faces Funding Issues

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child neglect, child welfare, child welfare officials, children and family services, combat child abuse, DCFS, Illinois DCFS, Illinois family law attorney, Mevorah Law Offices LLCChild Welfare

Keeping children away from harm and making sure they are part of a loving and safe home environment is a top priority for any federal or state government. Child welfare in Illinois is safeguarded by the Illinois Department of Children and Family Services (“DCFS”).

DCFS is in charge of investigating claims of abuse and, if necessary, removing children from unsafe environments. Because DCFS is tasked with such an important responsibility, it must be adequately funded. It must also be staffed with highly capable and vigilant guardians who will protect vulnerable children in need of care.

Financial and Budgetary Constraints

The budgetary resources for DCFS have always been an issue. The fiscal year begins on July 1st, and Illinois lawmakers are in a tough situation where they may need to make some drastic cuts to funding. It is possible that DCFS could face a 14 percent budget cut this year. This would be the equivalent of a loss of $87 million in state dollars alone. Factoring in federal dollars that are matched to state funding, it could go as high as a $100 million.

The practical result of a cut in funding could mean that DCFS may have to lay off as many as 300 employees of the total 2,600 on its staff. Much of the staff is comprised of social workers who investigate the child abuse and neglect cases. The obvious implications of these layoffs are enormous and alarming.

DCFS will have to reduce the number and type of services it provides. It also means that the length of time it takes to complete the investigations will be increased. If investigations are taking longer, that also means the time it takes to remove a child from foster care and place him or her in an adopted home will also increase.

A key component to combating child abuse and neglect is prevention, and DCFS awareness campaigns are generally the first piece that is cut out under budgetary constraints, since other programs are under strict court mandates.

In recent years, DCFS’ budget has been consistently reduced. These reductions in budget may end up creating more costs down the road. For example, foster care costs more to run than adoption.

Frequent Staff Changes

DCFS has a new Acting Director named Bobbie Gregg who had been serving as interim director for two months. DCFS has had four different chiefs since the start of November of last year. Gregg, a former federal prosecutor, promises more transparency and accountability in the department. One of her first tasks is to begin regularly publishing data on children who died from abuse or neglect who had previous contact with DCFS. The lack of consistent leadership and a consistent message and plan of action can severely jeopardize the functioning of DCFS.

Lessons Learned from Other Broken Systems

The Massachusetts’ Child Welfare Department has been under attack as the Commissioner of the department, Olga Roche, recently stepped down amid the reports of the deaths of three children who were failed by the system.

This past month a four-week-old died. In the child’s case, police told the Massachusetts DCFS in a fax that baby could be in danger, but no action was taken by the department. In the two other cases, a two-week-old baby whose family was being monitored by child welfare officials died, and a five-year-old, whose family was also being monitored, was also found dead.

The Illinois DCFS needs to learn from these horrific Massachusetts examples what the dire consequences are that funding and poor oversight can mean for the welfare of children.

Resources

For more information about family law issues in Chicago, please contact the experienced family law attorneys at Mevorah Law Offices LLC.

Prenuptial & Premarital Agreements in Illinois

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Illinois divorce attorneys, Illinois family law attorney, prenuptial agreements, 750 ILCS 10, Illinois Uniform Premarital Agreement Act, premarital agreements, Martoccio & MartoccioPrenuptial Agreements

The ‘prenup’ is a legal document that has worked its way into the common terminology of the American household. Stories of millionaire-philanthropists marrying partners a fraction of their age usually garner the question, “did they sign a prenup?” As a result, prenuptial agreements are usually recognized as a tool for the rich to ensure that their husband or bride-to-be is genuinely interested in them as a human being, and not attempting to execute a convoluted plan to divest the wealthier partner of their holdings after a divorce.

This ideology, however, only addresses a singular aspect to a complex legal document. Therefore, it is important to discover the actual composition and implications of the well known prenuptial agreement.

It is Not a Prenup

Illinois, through 750 ILCS 10, has enacted the Illinois Uniform Premarital Agreement Act. Under this, the well known prenuptial agreement gains a foothold in the statutory scheme as a premarital agreement. For all intents and purposes, the idea and operation of the premarital agreement is exactly the same as the prenuptial agreement, merely dawning the different title.

You Have to Tie the Knot

More common sense than anything else, the premarital agreement is an agreement between prospective spouses made in contemplation of marriage and is effective upon marriage. A premarital agreement is ineffective against a potential spouse should one party choose not to go through with the marriage. However, that is not to say that domestic partners cannot otherwise enter into agreements; they are just not considered premarital agreements.

Appropriate Formalities

Premarital agreements are contracts. As such, they follow the tried and true principles requiring the document to be in writing and to be signed by both parties. While contract theory may outline unique circumstances where a contract is enforceable otherwise, premarital agreements must abide by these rules. The only caveat is that they do not require consideration.

Rights, Property, and Laws

Illinois statute outlines the extent that premarital agreements can and cannot affect the outcome of a divorce. Premarital agreements can, for example, contain information with respect to any of the following:

  • The responsibilities of each of the parties either separately or together;
  • The right to do what they wish with any properties or similar assets;
  • The dispensing of property upon dissolution, separation, or even death;
  • The end of spousal support, or the changing of such agreement;
  • The making of an estate planning arrangement to enact the details of the agreement;
  • The ownership rights of any death benefits from a life insurance policy;
  • The choice of law managing the creation of the agreed upon document; and
  • Any other matter, not including personal obligations, which may not be in violation of a law.

However, it should be strongly noted that a premarital agreement cannot modify the right of supporting a child and may not adversely affect any such award or payment of child support.

Getting Out of It

Loopholes in evading premarital agreements are similar to those in contract law. Parties who execute the agreement under duress or otherwise do not execute the agreement voluntarily will not be governed by the agreement, if it can be proved. Unconscionable agreements are also not enforceable.

In order for an agreement to be unconscionable, the person claiming this needs to prove that they were shown an adequate description of the obligations or properties of the spouse, that they did not waive any disclosure right in writing, and that they did not possess, or could not have possessed, a reasonable idea of what the other party owned in terms of finances and properties.

Getting Help in Illinois

Premarital agreements are extremely complex in nature. Not only are you working with family law, but you also must consider specific circumstances at the time of execution, circumstances at the time of divorce, applicability of case law and statute, and the application of contract law. It is important to find competent and experienced legal help with your Illinois divorce.

Our attorneys can help you by providing years of experience with complex divorces, and can assist with the complicated addition of a premarital agreement in your specific case. Contact one of our Illinois family law attorneys today to get the legal help you need.

Establishing Paternity in Illinois

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establishing paternity, paternity in Illinois, mother's rights, father's rights, Voluntary Acknowledgment of Paternity form, VAP form, Illinois family law attorneyParental Rights to a Child

A biological mother’s rights over her child automatically attach if she can prove she gave birth to the child. However, a father’s rights over his child can be much more complicated to determine. In an increasing number of cases, paternity must be established to ascertain a father’s rights to his child.

Paternity is a legal relationship that is created between a father and his child. In Illinois, if the mother was married when the child was conceived or born, her husband during that period of time is legally presumed to be the father of that child.

If the parents of the child were not married to each other when the child was conceived or born, the father is considered to be the “alleged father.” Once designated the status of an “alleged father” it is his responsibility to seek legal paternity rights.

How Do You Establish Paternity?

Under the Illinois Parentage Act of 1984 there are three ways to establish paternity:

  1. Both parents must fill out, sign, and have someone witness a Voluntary Acknowledgement of Paternity form;
  2. The State of Illinois’ Department of Healthcare and Family Services’ (“HFS”) Child Support Services can issue an Administrative Paternity Order; or
  3. A judge can issue an Order of Paternity.

Why Should an “Alleged Father” Establish Paternity?

An alleged father may want to establish paternity so that:

  • The child’s father can make sure he has all his legal rights to his child;
  • The child’s father is able to put his name on the child’s birth certificate;
  • The child can gain access to family medical history;
  • The child can have access to financial or medical assistance;
  • The child has access to Social Security and veteran’s benefits; and
  • The child has access to any family inheritance.

What is the Voluntary Acknowledgment of Paternity?

The fastest and simplest way to establish paternity is to fill out a Voluntary Acknowledgment of Paternity form (VAP) at the hospital when the child is born. The VAP asks for information about the child, the mother, and the alleged father. It must be signed by both mother and father and witnessed and signed by someone who is at least 18 years old.

A VAP can be used to establish paternity at any time for any child who was born to parents that are not married. If you do not sign the VAP at the hospital, you can get a copy of one at a later date to fill out from a variety of locations like the HFS’ Child Support website or Department of Human Services.

Contact an Illinois Family Law Attorney

Establishing paternity can be a complex task for someone not experienced in family law. If you want to establish paternity, or if you have questions about other family law issues in Illinois, please contact the experienced family law attorneys at Mevorah Law Offices LLC.

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