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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

Divorce by Publication: The Case of the Missing Spouse

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divorce by publication, DuPage County family law attorneys, no fault divorce, missing spouse, abandoned spouse, deserted spouse, divorce agreementIn 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;
  • Adultery;
  • 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.

Revenge Porn Law Signed by Illinois Gov. Quinn at the End of 2014

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DuPage County family law attorneys, felony, Illinois felony, Mevorah Law Offices LLC, revenge porn, revenge porn law, revenge porn legislationAt 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.

Crackdown on the Abandonment and Transfer of Unwanted Adopted Children

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DuPage County family law attorneys, Illinois adoption, transfer custody, unwanted adopted children, adopted children, unwanted child, rehoming childrenAdoption 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.

New Amendment Expands Role of Guardian Ad Litem

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DuPage County family law attorneys, family law issues, guardian powers, Mevorah Law Offices LLC, role of guardian ad litem, guardians ad litem, family disputesIn 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.

Children, Disabilities, and Child Support

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child support, children with disabilities, disabilities, DuPage County family law attorneys, Mevorah Law Offices LLC, special needs childrenThere 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” Defined

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.

Health Insurance and Divorce: Protecting Your Coverage

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DuPage County family law attorney, health insurance and divorce, Mevorah Law Offices LLC, post-divorce, private health insurance coverage, health insurance coverage, divorce settlementDivorce 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.

The Legal Ins and Outs of Marrying a Foreigner

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marrying a foreigner, DuPage County family law attorney, Mevorah Law Offices LLC, citizen status, marriage abroadLove between an American and a non-U.S. citizen has been written about and enjoyed by many for years. With increased globalization of the world, the are vast opportunities for Americans to meet and fall in love with non-U.S. citizens who are either living in the United States temporarily or who they met while abroad.

If you are a U.S. citizen interested in marrying a non-U.S. citizen, there are considerations and requirements, especially those regarding family law, that must be considered and satisfied before you can say “I do,” and before your partner may be legally allowed to remain in the United States as your spouse.

Marriage within the United States

Prenuptial Agreements: Before marriage, sponsors who are looking to bring their foreign spouses to the United States should first consider any financial disparities between one another. If possible, a prenuptial agreement should be discussed at the outset of a marriage to protect financial interests, but also to outline specific requirements such as the citizenship of any future children and where they should receive their education. Even if a prenuptial agreement has been signed between a couple, a sponsor may not be completely off the hook for any future liabilities that may result from the dissolution of the marriage.

Green Cards: The foreign spouse of a marriage that is two years old or less may receive conditional permanent residence allowing for him or her to remain in the country with his or her sponsor (the American spouse). The couple, after the marriage has lasted for two years, will be under the microscope to ensure that the marriage is still functioning and that there is no fraudulent activity. Permanent status via a green card is given if the couple satisfies all the requirements and have been evaluated by officials. Those who fail must return to their countries of origin.

It is important to remember that a foreign spouse needs to file to remove the temporary residence status, because once the temporary green card expires, the spouse will be considered illegally in the country. Living with an expired temporary green card for more than six months will put a three-year no-entry bar on the foreigner; living with an expired card for more than one year could lead to a 10-year no-entry bar. Once the temporary status has been applied for removal, the green card becomes permanent.

Sponsor Liability: By marrying a foreigner, a sponsor (the American spouse) must assert to the U.S. government that he or she will be responsible for his or her foreign spouse for at least 10 years. This is to ensure that if there is a dissolution of marriage, the foreign spouse (and his/her children) will not become a ward of the state, and the sponsor is financially responsible for the spouse and children for 10 years.

Validity of Marriage Abroad

If an American spouse and foreign spouse get married abroad, it is up to the applicant to prove with evidence that his or her marriage is valid based on the standards of the place in which the marriage took place. Generally, marriages abroad (with a marriage certificate as prima facie evidence of valid marriage), are valid in the United States, except for the following:

  • Polygamous marriages;

  • Marriages, civil unions, or domestic partnerships that are not recognized in the country in which they took place;

  • Marriages that violate public policy of the state in which the couple resides (such as violating age requirements in the state of Mississippi if the couple is now living in that state);

  • Proxy marriages, where one of the parties is not present, unless the marriage was later consummated; and

  • Marriages or relationships entered into for the purpose of fraud (such as marrying solely for a green card).

Experienced Family Law Attorneys in DuPage County

If you are considering marriage with someone from another country, it is important to know all the requirements and hurdles that you and your future spouse may face. However, you do not have to face them alone. An experienced DuPage County family law attorney from Mevorah Law Offices LLC will be able to guide you through the legal proceedings and help keep your marriage and citizen status on track. Contact Mevorah Law Offices LLC today for a free and confidential consultation.

Wage Garnishment: When an Ex Dodges Child Support Payments

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Illinois family law attorney, income withholding, income withholding notice, Mevorah Law Offices LLC, wage garnishmentChild support is extremely important after the split of a couple. Generally, child support is either outlined within an agreed-upon divorce settlement decree between the couple, or it is ordered by the court based upon certain factors such as income and the extent of custodial responsibility between the parents.

Too often, however, some parents may evade their responsibilities to their children and voluntarily choose to not pay the required child support amount. In this situation, Illinois allows for wage garnishment, a process by which the parent’s wages are reduced by a certain amount until his or her dues are paid.

Income Withholding for Support Act

Illinois has set in place the Income Withholding for Support Act with the purpose of ensuring that child support and the needs of the child outlined by court orders and divorce decrees are honored. While skipping town may be one “sleuthy” way in which a parent may avoid the periodic payments, if the court can find where he or she works, then the court may take out the child support payments from his or her salary or bank account. This is known as wage garnishment.

In Illinois, to enforce a wage garnishment against the delinquent spouse, the obligee (or the spouse receiving child support) must prepare an income withholding notice to be presented to the employer of the obligor (the delinquent spouse).

The Income Withholding Notice to Employers

The income withholding notice must include all of the relevant information, including the dollar amount that the obligor is deficient. The dollar amount, however, may not be a more than a certain percentage of the obligor’s income (which is determined on a state-by-state level). The income withholding notice puts the employer on notice that he or she has a duty to withhold a certain amount of the obligor’s income until the arrearage has been paid off. The employer may be subject to a $100 per day penalty if the employer deliberately fails to comply with the wage garnishment. It is important, however, as seen in a recent Illinois Supreme Court case, that the income withholding notice has all of the required information or else the employer will not be required to comply.

In this recent Illinois Supreme Court case, it was determined that the income withholding notice provided to an employer was statutorily deficient because the obligee failed to include the deficient spouse’s Social Security number. Clearly, it is essential that all relevant material about the obligor has been supplied before the notice may take effect.

Illinois Family Law Attorneys to Force Child Support Payments

The Income Withholding for Support Act is just one of the means by which Illinois may enforce these important child support payments. There are a variety of other means by which a spouse may force the arrearage of his or her delinquent ex. An experienced Illinois family law attorney at the Mevorah Law Offices LLC can access your case and determine whether wage garnishment or another method could be used to gain pending child support. Contact us today for a free and confidential consultation.

Written by Staff Writer

December 2nd, 2014 at 7:00 am

The Double Standard of Visitation Rights in Illinois

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child custody, divorce settlements, DuPage County divorce attorney, Mevorah Law Offices LLC, traditional families, visitation rights in IllinoisWith the status quo of “traditional” families being amended to include the increasingly more common combinations of families that are now present in American society, certain laws in Illinois are still championing the role of the “traditional” family. One of the most recent laws, which affects the rights of married and unmarried fathers and their relationships with their biological children, creates a double standard that espouses the married, but divorced father, over the rights of the unmarried, biological father.

Recent Case Designating the Double Standard

In a recent case, the Illinois Supreme Court reviewed the standard and burden of proof that would be applied to the biological father regarding his visitation rights with his biological child. In this case, a woman, who was married, had a one-night stand with another man. As a result, she became pregnant and gave birth to a child. The law creates a rebuttable presumption that any child that is begot from a marriage is the child of the husband. In this case, the husband, who was not the biological father, was presumed to be the biological father of the child and paternity was designated to him. The man from the affair, after seeing photos of the child posted onto a social media site, noted similarities between him and the child, and paternity was established between him and the child. The husband, who had been presumed to be the father of the child, later divorced the woman.

The biological father petitioned the court for visitation rights to the child. The standard for determining the rights of the biological father in the face of the husband who had been married to the woman has led to split court decisions, and had to be decided.

Illinois’s Visitation Rights Debate

Visitation rights of the biological father in Illinois have been the subject of a much heated debate in Illinois. Courts have been split on the issue of the type of burden of proof the biological father needs to show to establish visitation rights. Prior to this case, the majority of the decisions within the Appellate level pointed to the “serious endangerment” standard outlined in the Illinois Marriage and Dissolution of Marriage Act, which was applied equally to both married and unmarried, noncustodial parents.

The Serious Endangerment Standard

The serious endangerment standard stated that  visitation rights are in the best interest of the child, except if there is evidence to suggest that visitation would seriously endanger the child. This language suggested that the court felt that visitation from a noncustodial parent, whether married or unmarried, was a right, and not a privilege. The new standard outlined in this most recent case finds that visitation is a privilege and not a right.

The recent case creates a double standard whereby the standard is laxer for those noncustodial parents who were married to the custodial parents. Married, noncustodial parents enjoy the rights of visitation in the face of evidence to suggest serious endangerment of the child, whereas unmarried, noncustodial parents must show that visitation rights are in the best interest of the child. This thereby shows the Illinois courts’ preference for the married, nuclear family in the face of less traditional forms of family.

The “Best Interest of the Child” Standard

The “best interest of the child” analysis weighs factors to assess how a judgment, like visitation rights, will affect the child in question. The analysis looks at the wishes of the custodial parent, the wishes of the child, the past and future relationship between the child and the noncustodial parent, the mental and physical health of the individuals involved, and the presence or absence of past abuse, among other considerations.

Experienced Family Law Attorneys in DuPage County

The new double standard is not as easy to apply as one would think. If you or a loved one is going through a visitation rights dispute, it is important to request guidance from an experienced DuPage County family law attorney at Mevorah Law Offices LLC. The attorneys at Mevorah Law Offices LLC are experienced in matters relating to divorce settlements, child custody, and maintenance, and additional family law matters. Contact us today to schedule your confidential consultation.

Custody Arrangements: The Right of First Refusal

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child custody rights, child visitation, divorce decrees, DuPage County family law attorney, joint custody arrangements, Mevorah Law Offices LLC, right of first refusalA recent bill signed into law in Illinois will have a tremendous impact on custody and visitation rights. The law amends the Illinois Marriage and Dissolution of Marriage Act by determining that when one of the parties who has custody or visitation rights with the child(ren) must leave the child for a significant period of time with a third party (for example, nanny, family member, or current spouse), then he or she must offer a right of first refusal to the other custodial parent to take care of the child.

Purpose of the “Right of First Refusal” law

The presumption put forward by the court is that it is advantageous and in the best interests of the child to let the child have significant time with both parents. Most divorce decrees keep this presumption in mind and the courts tend to lean on the favor of joint custody arrangements so that the child may spend significant time with both parents.

This “right of first refusal” requires that parents who leave their child with a third party, for a significant period of time, must offer the opportunity first to the other custodial parent before a third party may come in to care for the minor child. However, “right of first refusal” is terminated upon termination of custody or visitation rights.

Issues to Consider for “Right of First Refusal”

The “right of first refusal” is an excellent way to permit increased quality time with a minor child between the parents, but it also leads to complex legal issues with regards to the enforcement of the “right of first refusal.” The vagueness of the law requires that the court, before enforcing the “right of first refusal,” must take into consideration the following:

  • What constitutes a significant period of time? Hours? Days?

  • What type of notification must be used? Phone, email, etc.?

  • How long does the other parent have to respond before a third party may step in to care for the child?

  • What constitutes an emergency where “right of first refusal” is not required?

  • What are the transportation requirements?

  • How close do the parents have to live to each other for “right of first refusal” to be invoked?

How to Make “Right of First Refusal” Work for You

These types of issues have yet to be contemplated and will lead to substantial confusion between parental parties. However, to limit the amount of confusion, if parents are interested in a “right of first refusal,” it may be necessary to amend current custodial or visitation rights to incorporate answers to the above mentioned considerations.

For example, a divorced couple may want to amend and include into their custody agreement that a “right of first refusal” should be invoked when the parent has to go on a work trip that lasts longer than 24 hours. If the couple lives close by and has flexible hours, the “right of first refusal” may be invoked more often as it would be easy to drop the children off with the other parent. It becomes more difficult when parents have rigid schedules and live far away; “right of first refusal” would be hard to enforce if parents live two hours away and a child only needs to be watched for four hours.

Experienced Family Law Attorneys

If you and your divorced spouse are interested in invoking the “right of first refusal,” it is important that both parties seek counsel from their attorneys regarding the ramifications and consequences of “right of first refusal.” Seeking guidance from experienced DuPage County family law attorneys at Mevorah Law Offices LLC will help to identify possible issues that may result from “right of first refusal” and may also help divorced couples navigate these complex issues. Contact Mevorah Law Offices LLC today to schedule a confidential consultation.

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