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July 14, 2017

The Basics of Divorce in Illinois

The Basics of Divorce in IllinoisAt O’Dekirk, Allred & Associates in Joliet, we help a number of clients through the basics of divorce in Illinois. If you are looking at the prospect of a divorce, the following overview will help you get an understanding of the process.

Do You Need a Lawyer?

First, it is important to understand that a divorce can have long-term consequences for you. You may not understand or even be aware of all of them, even if you and your spouse agree on everything. Given the potential consequences, getting good legal advice is important and may ultimately result in you needing a divorce lawyer.

Self-representation

Representing yourself is called proceeding “pro se”. If you feel you may pursue representing yourself or cannot afford to hire an attorney, you should contact your local circuit’s domestic relations division. They should be able to provide you with information and resources for “pro se” divorces. You can find local circuit court information at the Illinois State Court website.

Residency Requirement

The law requires that either you or your spouse must have resided in the state of Illinois for the last 90 days prior to filing for divorce in Illinois. Service members who are stationed in Illinois can also legally file for divorce if they have been stationed in the state for a minimum of 90 days. For Illinois courts to make any decisions regarding child custody or visitation rights, the children in question must have been residents of the state for the last six months.

“No Fault” Divorces in Illinois

If a couple has irreconcilable differences, or can no longer get along and have lived apart for at least two years, they may qualify for a no fault divorce. If both spouses agree in writing, the court may consider reducing the separation to six months. In Illinois, even if spouses share the same house, they can meet the requirement of living apart if they inhabit different spaces of their home. The separation can start even if the spouses still share finances and even while there are efforts to reconcile, such as marriage counseling.

“Fault” Divorces

There are several grounds for fault divorce in the state of Illinois. The statutes include:

In Illinois, there is little benefit to establishing a fault divorce. Illinois courts do not take a fault into consideration when deciding to divide property or award alimony. Depending on the nature of the fault though, fault may be taken into consideration during child custody or visitation decisions. An attorney can provide guidance as to whether choosing a fault divorce would be beneficial.

Filing for Divorce

In Illinois, divorce is also called dissolution of marriage. The spouse who wants the divorce files a “Petition for Dissolution of Marriage” with their resident county’s circuit court. The petition must include some basic information about the grounds for dissolution, current living arrangements, and children from the marriage. The appropriate sheriff’s office or process server will “serve” the other spouse with the petition and a summons (also required).

Length of Process

The basics of divorce in Illinois includes a timeframe that can vary widely based on your particular circumstances. If your divorce is uncontested and you are your spouse are in agreement on all the arrangements, your divorce can be as quick as one month. Contested divorce cases, can be lengthy. Some of these cases can take as long as two years or more.

Cost

There is a fee to file your petition and an additional fee to serve your spouse with papers. The total for both is generally around $300. The current specific fees for your area are available from your circuit court office. Attorney, expert, and mediator fees all vary widely and can be unpredictable because of individual rates and time required. The more you and your spouse are in agreement and the fewer issues there are to resolve, the lower your cost will be. If there is a great deal of difficulty reaching agreements, your divorce could become quite expensive.

Joint Simplified Divorce

If you and your spouse meet all the criteria, you may qualify to file a joint simplified divorce petition. This type of divorce is allowed in Illinois if:

If you meet all the criteria, your local court will have the appropriate forms for a joint simplified divorce.

“Prove-Up” Hearings

In uncontested divorces, you and your spouse can enter a Marital Settlement Agreement (MSA) and your divorce can be resolved with a “prove-up hearing” which is a simple court appearance. Your lawyer can lead you through a “prove-up” hearing so that it is not overwhelming. They will ask questions about your Petition and you will summarize your MSA for the court records.

Now that you know the basics of divorce in Illinois, you can contact us here at O’Dekirk, Allred & Associates in Joliet if you need guidance on getting a divorce or need an attorney to help you through the process. We’ll protect your rights and make sure you’re thoroughly represented in case any disputes arise. Our goal is to secure the outcome you deserve.

 


Disclaimer: Blogs and articles by O'Dekirk, Allred and Associates, LLC are for educational purposes only and to give you a general understanding of the law, not to provide any legal advice or be used as a substitute for competent legal advice from a licensed, professional attorney in your state or jurisdiction.

Use all blogs and articles at your own risk. The information presented may not reflect the most current legal developments, verdicts or settlements. These materials may be changed, improved, or updated without notice. O'Dekirk, Allred and Associates, LLC is not responsible for any errors or omissions in the content of this site or for damages arising from the use or performance of this site under any circumstances.

By reading our blog and articles you also understand that there is no attorney-client relationship created between you and O'Dekirk, Allred and Associates, LLC.

June 14, 2017

Illinois Law and Prenuptial Agreements

Illinois Law and Prenuptial AgreementsAt O’Dekirk, Allred, and Associates in Joliet, we have numerous clients who come to us for help in understanding Illinois law and prenuptial agreements. These days, it’s not that unusual for a couple who’s considering marriage to also contemplate whether or not a prenuptial agreement is right for them. The first step is seeing how this arrangement works in the state of Illinois.

The Basics of Prenuptial Agreements

Prenuptial agreements create a financial understanding both during and after a marriage. It’s made before marriage and it is essentially a contract between spouses. Prenuptial agreements determine how a couple will handle their debts, financial issues, and assets both during their marriage and if they ever decide to divorce. They are also used to delineate the financial circumstances of each spouse and make determinations about how everything will be managed if there is a divorce. The agreement becomes effective upon marriage.

Who Might Want a Prenuptial Agreement?

A prenuptial agreement may not seem all that romantic, but they can often be very useful and actually improve marital happiness by addressing your financial issues ahead of time. Though prenuptial agreements used to be somewhat unusual, over time they have become very common. There are a number of reasons to consider a prenuptial agreement, such as:

What Can a Prenuptial Agreement in Illinois Cover?

In Illinois, prenuptial agreements can cover some or all of the following:

Can a Couple Make Amendments to a Prenuptial?

Yes, if both spouses want to alter or revoke their prenuptial agreement they can as long as they are still married. Alterations to the prenuptial agreement must be signed by both spouses and the changes they wish to make must be in writing.

Illinois Law and Prenuptial Agreements, Child Custody

Prenuptial agreements cannot determine or change a child’s right to receive child support. The right to child support belongs to the child, not the parent or legal guardian, and as a result, parents cannot determine, change, or cancel child support via a prenuptial agreement.

Additionally, prenuptial agreements cannot decide child custody. Depending on the situation, parents or the court will decide custody for the child or children at the time of the divorce, based on the child’s best interest at the time of the divorce.

Illinois Law and Prenuptial Agreements, Enforcement

Like a number of other states, Illinois uses the Uniform Premarital Agreement Act (UPAA). UPAA guidelines outline for the courts whether a prenuptial agreement is enforceable in the state.

Prenuptial agreements do not require a witness beyond the couple involved, and the document must be in writing and signed by both spouses. Additionally, prenuptial agreements are not required to be recorded by a court clerk. While a listing of both spouses debts, assets, and property is not legally required, a court is more likely to enforce the agreement when it is clear that both parties had a clear understanding of each other’s financial situation.

Avoid Nullifying Enforcement of Your Prenuptial Agreement

There are circumstances, which will prompt a judge to not enforce the terms of your prenuptial agreement. These include:

It is up to the judge hearing the divorce case to decide whether the prenuptial agreement is unenforceable due to the circumstances. Attorneys are not required for the judge to make a determination whether the agreement is enforceable.

Other Situations that Invalidate the Agreement

There are additional circumstances that would invalidate a prenuptial agreement. If one spouse was too young to marry, the agreement will be invalidated. Also, if a spouse was still married to another person, the agreement will be considered invalid. Spouses who are mentally deficient, legally incompetent, or insane cannot be expected to have fully understood the prenuptial agreement and such a situation would render the agreement invalidated.

Now that you understand more about Illinois law and prenuptial agreements, come to O’Dekirk, Allred, and Associates Joliet for help in putting your prenuptial agreement together so that you and you spouse are better protected both during your marriage and in the unfortunate event of divorce. Simply contact us today for a free initial consultation.

May 15, 2017

Domestic Violence and Orders of Protection

domestic violence and orders of protectionO’Dekirk Allred and Associates in Joliet knows how important it is that you understand domestic violence and orders of protection in Illinois. If you are involved in a case involving these issues, we can help whether you’re facing a threatening situation or have an order of protection filed against you. During an initial consultation with us, we’ll help you understand the laws, as well as provide information regarding moving forward with our firm as your legal representation.

Legal Definition of Domestic Violence in Illinois

The State of Illinois defines the five types of domestic violence as: physical abuse, harassment, intimidation of a dependent, interference with personal liberty, and willful deprivation. Knowing the definitions of each type will help you understand if your situation may fit one or more of these categories. If you are uncertain, seeking legal assistance is a wise choice both for guidance and help.

  1. Physical abuse: This includes sexual abuse, physical abuse, confinement, and restraint. Physical abuse also encompasses actions that create a risk of physical and immediate harm as well as unnecessary, repeated, and purposeful sleep deprivation.
  2. Harassment: Necessary behavior that results in emotional distress such as creating a disturbance, repeated phone calls, following you, and keeping you under surveillance. Harassment can occur at your home, work, or school. Other types of harassment include threatening, confinement, or restraining you. Hiding your child or threatening to take your child away can also be a form of harassment. If someone is accused of doing this, but was fleeing from a domestically violent situation, there is an exception for such a circumstance.
  3. Intimidating a dependent: If an abuser forces a dependent to participate in or watch physical force, confinement, or restraint of another person, this is considered to be intimidation of a dependent.
  4. Interfering with personal freedom: Forcing you, by threatening intimidation, violence, suicide, deprivation, or restraint, to do something you don’t want or not allowing you to do something you have a right to do.
  5. Purposeful deprivation: Putting a person at risk of emotional, physical, or mental harm by willfully denying medical care, shelter, food, medication, or other necessary help.
 
Orders of Protection

If you or a loved one is experiencing domestic violence, there are several types of protection orders available. Orders of protection provide a legal safeguard from a household or family member who has committed domestic violence against you or a minor or dependent. Seek legal advice if you are uncertain which type you should pursue or if you need assistance.

Emergency Orders Emergency orders can be given by a judge based on just your testimony. In most situations, the abuser does not get any prior notice and is not required to be present in court for the order to be granted. These are granted if the harm you are trying to prevent would be likely to occur if the abuser were notified. To get an abuser out of your shared home, the judge must believe that the hardship to the abuser is outweighed by the immediate danger to you. The emergency order can allow you to obtain your personal property, if you have an immediate and pressing need, as part of this order or if the judge believes the abuser would likely get rid of the property once he or she discovered you were asking for it. Emergency orders can be filed on weekends, holidays, or even at night. The emergency order remains in effect until you can have a full hearing, often in 14-21 days, for a plenary order.

Interim Orders A full court hearing is not required for an interim order to be granted; however, the abuser must be notified of your court hearing date and the abuser or his or her lawyer must have made an appearance before the court. Interim orders can last for up to 30 days and are often used to fill the time between your emergency order and a plenary order.

Plenary Orders This type of order is good for up to two years and can be renewed as many times as is needed. A court hearing where both you and the abuser have an opportunity to present evidence is required. It is a good idea to have a lawyer present at plenary hearings, particularly if you suspect the abuser will bring a lawyer. Our lawyers here at O'Dekirk, Allred & Associates have represented both sides of plenary orders and are ready to take on your case.

Common Questions

Can an advocate come to court with me for support? In most cases, victims of abuse can use a domestic abuse advocate or lawyer to help you prepare your petition and you may have an advocate with you in court to confer with during your court hearing unless the judge does not allow it.

In which county am I allowed to file a protection order?

You may file for a protection order in the county you reside in, the county where the abuser resides, the county where the abuse took place or even where you are temporarily located. Filing in your temporary county is allowed if you left your home to avoid additional abuse and could not obtain safe temporary housing in the county of your residence.

If you are requesting the abuser be removed from your residence as part of your protection order, you can only file in the county of the residence or in a neighboring county or you must meet one of the following exceptions: you are filing for divorce and the order of protection; you have fled the county to avoid abuse and can only qualify for exclusive possession as part of an emergency order of protection.

Understanding the laws about domestic violence and orders of protection in Illinois can help you navigate your situation and ensure the best possible outcome. If you find yourself on either side of a domestic violence case and need legal assistance, advice, or support, contact O'Dekirk, Allred & Associates. We offer free consultations and if needed, thorough representation.

April 24, 2017

How to Get Your License Reinstated After a DUI in Illinois

How to Get Your License Reinstated After a DUI in IllinoisYou need to be able to drive, so if you want to know how to get your license reinstated after a DUI in Illinois, contact O’Dekirk, Allred and Associates in Joliet. Did you know in Illinois, if your driver’s license is revoked, there is no automatic reinstatement of your driving privileges? We understand the license reinstatement process and can help you get a restricted driver’s permit and then your driver’s license back.

If you are convicted of driving under the influence the Secretary of State is required to revoke your driver's license. Once your license is revoked, you can only get your license back through the Formal Administrative Hearing office at the Secretary of State.

The hearing process is not easy. You will be asked questions about your past and your DUI arrests as well as your current and past alcohol and drug usage. That’s why it helps to have one of our attorneys on your side.

At your hearing, you will be required to submit evaluations, treatment documents, even letters from witnesses who can attest to your character and/or behavior. The Secretary of State will look at your arrest reports, tickets, driving record, and court disposition sheets from your DUIs. You will be placed under oath and have to answer questions about what’s in these documents.

Formal and Informal Hearings

There are informal and formal hearings for license reinstatement. If you’ve only had one DUI, you can have an informal or a formal hearing, but if you’ve had two or more DUIs, or an offense involving a fatality, you must have a formal hearing. While each case is unique and laws may change, let’s take a look at some of the basics.

Basics of an Informal Hearing

Basics of a Formal Hearing

Risk Classification Levels

When it comes to how to get your license reinstated after a DUI in Illinois, these classification levels will have bearing on your hearing, including documentation required, and all steps you’ll need to take to be eligible to have your license reinstated in some format.

Level I Minimal Risk

Requirements

Level II Moderate Risk

Requirements

Level II Significant Risk

Requirements

Level III High Risk, Dependent

Requirements

Level III High-Risk, Non-Dependent

Requirements

Types of Restricted Driving Permits (RDP)

Instead of making your eligible to reinstate your license, the Secretary of State may issue you a restricted driving permit that allows you to drive certain places, including:

A driver's license revoked for a DUI makes daily living extremely difficult and can hamper both your family and work life. Let our attorneys at O’Dekirk, Allred and Associates in Joliet guide you through the process of how to get your license reinstated after a DUI in Illinois. We understand how important your driving rights are to you and will put you in the best position to succeed at your driver's license reinstatement hearing. Our goal is to get your life back on track.

March 28, 2017

Questions and Answers About Child Custody Law in Illinois

Questions and Answers About Child Custody Law in IllinoisDivorce and child custody are tough legal issues to go through for you and your family. Our attorneys at O’Dekirk, Allred and Associates in Joliet can discuss the important questions and answers about child custody law in Illinois and help you through the legal process.

Here are some commonly asked questions about child custody.

What happens if the parents live in different states or a parent has recently moved into or out of the state?

So that there won’t be conflicting custody opinions from courts in different states, the court that has jurisdiction will be decided by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This law sets up the rules to determine what court will make the custody decision by deciding which state is the child's home state for custody matters and the court that will hear a custody case for that child. 

The Illinois divorce court has jurisdiction to hear a child custody case under these circumstances:

If you have questions about if your child custody case should be heard in Illinois or in another state, our attorneys can help you.

What things are considered in awarding child custody?

The court does not focus on who is the best parent, but instead makes a decision in the child's best interest, considering all relevant factors, including these and other considerations:

These factors and others go into the court’s decision for custody. One thing the court cannot consider is a parent’s conduct unless it affects that parent's relationship with the child. 

What types of custody arrangements are there?

In Illinois like other states, there is a difference between legal and physical custody. Physical custody is where the child lives. 

Legal custody gives the parent the right to make important decisions about raising the child, like the child’s school, health care, and religious training. The noncustodial parent can ask the court to specifically limit the custodian's authority if it’s in the best interest of the child. 

Are joint custody arrangements preferred? 

A court can give joint custody to both parents or sole custody to either. Unless these has been domestic violence, Illinois courts presume that the maximum involvement and cooperation of both parents in their child's physical and emotional well-being will be in a child’s best interest. 

Do parents have equal rights in a child custody decision?

Yes. Parents have equal rights to the custody of their children. A parent's fitness is only one element to be considered in determining what is in a child's best interest. 

How important is stability and continuity in a court's custody decision?

If the children are well-adjusted and the custody situation is working, a court will not want to disrupt it. The court takes into consideration the importance of maintaining stability and continuity in a young child's environment. On the other hand, courts will remove a child from an unstable environment if it believes the child is not thriving.

Do parent's psychological problems affect the custody decision?

Just because a parent has a mental illness, psychological problem, or substance abuse issue does not make them unfit for custody, but it may be a factor to be considered by the court in deciding the best interest of the child if it affects their ability to parent. Despite positive steps toward treatment, the court must consider what impact the parent's problems will have on the child. 

How does a parent's new spouse, live-in companion, or other person sharing the home impact a custody decision?

Another person living in the home may be a factor in the decision if there is a concern that they negatively affect the stability of the child's environment, or there are concerns with the mental condition and character of that person. If that person is a sex offender, the other parent must be notified.

Will siblings be kept together?

It is usually considered to be in the best interest to keep siblings together. Sometimes there are exceptions.

Can children voice an opinion in custody decisions?

Yes, but it is just one factor to consider. The court may put more weight on the choice of older children when it is based on sound reasoning, and relates to their best interests, like wanting to remain with friends, attend their school, and remain in the same place. 

Does spousal abuse affect the child custody decision?

In Illinois, if there has been ongoing abuse, the court does not need to presume that the involvement and cooperation of both parents in raising the child is in the child's best interest. On the other hand, the court doesn’t have to deny a parent’s custody based on spousal abuse.

Under what circumstances can you modify a custody decision?

There must be new or previously unknown facts justifying a change. A parent can ask a court to modify a custody order in these circumstances: when both parents agree to the change, when the child's present environment may seriously endanger the child's physical or mental health, or if at least two years have passed from date of the custody order, a change has happened in the circumstances of the child or parent(s), and a modification to the child custody order is required to serve the best interest of the child. 

What if the child decides he or she wants to live with the other parent?

Even if the child's preference of who they want to live with changes, it still needs to be shown that the welfare of the child is adversely affected by the present custodial arrangements.

What happens if the custodial parent dies or is incarceration?

If the custodial parent dies, usually the other parent gains legal custody of the child. If the custodial parent is incarcerated, the noncustodial parent has a right to petition for a change of custody.

Can you get a custody modification based on a custodial parent's misconduct?

Yes, if the parent's behavior affects the child and seriously endangers the mental or emotional health of the child.

Can a custodial parent move out of state with the child?

A child can’t be removed permanently from the state without a court order. The custodial parent must prove that the move is in the best interest of the child.

Can a parent take a child out of Illinois temporarily?

Yes, but the parent responsible must tell the other parent, or the other parent's attorney, and give the telephone number and address where they can be reached while they are out of state, and the date when the child will return to Illinois.

Can a custodial parent move the child within the state?

A custodial parent may remove the children to another part of the state without a court order unless there is written agreement not to. This may, however, be grounds to petition for custody modification.

If you are considering a divorce and are worried about child custody issues, please contact our attorneys at O’Dekirk, Allred and Associates in Joliet. We can discuss the important questions and answers about child custody law in Illinois during a free initial consultation.

 

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