Russell D. Knight | Family Lawyer Chicago https://rdklegal.com Divorce Lawyer in Chicago Sat, 24 Oct 2020 16:45:40 +0000 en-US hourly 1 https://wordpress.org/?v=5.5.1 https://rdklegal.com/wp-content/uploads/cropped-Favicon-32x32.png Russell D. Knight | Family Lawyer Chicago https://rdklegal.com 32 32 Tracing and Commingling Assets In An Illinois Divorce https://rdklegal.com/tracing-and-commingling-assets-in-an-illinois-divorce/ https://rdklegal.com/tracing-and-commingling-assets-in-an-illinois-divorce/#respond Sat, 24 Oct 2020 16:45:39 +0000 https://rdklegal.com/?p=10895 Almost all states allow property brought into the marriage to remain non-marital. Thus, divorce law allows the person who brought the property into the marriage to take that property out at the end of the divorce. Illinois is no exception.  The rules for determining what assets have remained non-marital throughout the course of a marriage…

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Almost all states allow property brought into the marriage to remain non-marital. Thus, divorce law allows the person who brought the property into the marriage to take that property out at the end of the divorce. Illinois is no exception. 

The rules for determining what assets have remained non-marital throughout the course of a marriage are far more strict in Illinois than in other states, however.

The concept of “tracing non-marital assets” or “tracing non-marital contributions” may be common in other states like Florida. In Illinois, hardly any tracing is allowed as commingling pre-empts tracing claims. But, if you use the Illinois law effectively, you can still carve out your premarital assets despite any commingling of funds.

What Is Tracing In An Illinois Divorce?

Tracing is the concept whereby a divorce litigant can show the court that certain assets value stemmed originally from a non-marital source. Therefore, that asset should be declared non-marital and returned to the person who made the original non-marital contribution.

In Illinois, non-marital assets get returned automatically to the original owner.

“[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d)

But, most assets acquired during the marriage shall be deemed marital.

“‘[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a)

Marital assets are divisible in an Illinois divorce.

“For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property.” 750 ILCS 5/503(b)

This is all very simple. If an asset was acquired before the marriage, that asset is non-marital. If an asset was acquired after marriage, that asset is marital.

But what happens when a non-marital asset is used to buy an asset during a marriage?

If it is a pure transaction where a non-marital asset is used to buy 100% of an asset during the marriage, that newly acquired asset will remain non-marital per the exception outlined in the statute.

Property remains non-marital if it is a “property acquired in exchange for property acquired before the marriage;” 750 ILCS 5/503(a)(3)

The hard part is proving this tracing to an Illinois divorce court.

“The court shall make specific factual findings as to its classification of assets as marital or non-marital property, values, and other factual findings supporting its property award.” 750 ILCS 5/503(a)

To prove the non-marital nature of an asset acquired after the date of marriage, you must prove the non-marital nature of the asset which was used to purchase. Then you must prove that the original property was used to purchase the new property. This is largely done with bank statements tracing the transactions.

Commingling Assets In An Illinois Divorce

Transactions post-marriage are rarely so clean as to do a simple tracing analysis.

Money is fungible. Money is used to buy and sell things in any proportion. This means items are often purchased using a mixture of non-marital money from before the marriage and marital money that was earned or acquired after the marriage.  This mix of non-marital and marital money is called “commingling.”

“Commingled marital and non-marital property shall be treated in the following manner, unless otherwise agreed by the spouses:

(1)

(A) If marital and non-marital property are commingled by one estate being contributed into the other, the following shall apply:

(i) If the contributed property loses its identity, the contributed property transmutes to the estate receiving the property, subject to the provisions of paragraph (2) of this subsection (c).

(ii) If the contributed property retains its identity, it does not transmute and remains property of the contributing estate.” 750 ILCS 5/503(c)

This part of the statute identifies one type of commingling, a gift to the non-marital portion of the parties estate.

For example, if one party owned a garden and the other party installed a sprinkler system under the garden, that sprinkler system would just blend into the garden as a whole.  Therefore, after divorce, the party that owned the garden would keep the garden including the sprinkler system.

If, however, the non-garden owning spouse donated a statue for the garden, that statue could be deemed to have retained its own identity.  Thus, after divorce, that spouse could take back the statue.

But, if the statue was enormous and cemented into the ground to the point where the garden became “That garden with the big statue” then it could be argued that the statue had transmuted its identity into the garden’s.

This stuff can get weird, huh?  

These incidences of commingling via gift to the non-marital property are rare though. In this case, the marital property is transmuted into non-marital property.

It is far more common is that money gets mixed together via buying a new asset with both marital and non-marital funds. When this type of clear commingling occurs, any non-marital portion of the property is deemed to be transmuted into marital property.

Transmutation is “a doctrine in property law which allows the conversion of a separate property interest into marital or community property by agreement between spouses or by contribution of marital or community assets to the separate property” Merriam-Webster’s Dictionary of Law ©1996 (for other legal nerds, “transmute” and “transmutation” are, oddly, not included in Black’s Law Dictionary, therefore I had to resort to Merriam-Webster)

If marital and non-marital property are commingled into newly acquired property resulting in a loss of identity of the contributing estates, the commingled property shall be deemed transmuted to marital property, subject to the provisions of paragraph (2) of this subsection (c).” 750 ILCS 5/503(c)(1)(b)

“The principle of transmutation is based on the presumption that the owner of the nonmarital property intended to make a gift of the property to the marital estate.” In re Marriage of Olson, 451 NE 2d 825 – Ill: Supreme Court 1983

So, when the money gets mixed, it is presumed that the non-marital portion was a gift to the marriage as a whole.

But, tracing can still be allowed for a carve-out of the non-marital contribution.

When one estate of property makes a contribution to another estate of property, the contributing estate shall be reimbursed from the estate receiving the contribution notwithstanding any transmutation.” 750 ILCS 5/503(c)(2)(A)

This means you can ask for reimbursement of the non-marital contribution… but it does not mean you’re going to get every last penny back.

“No such reimbursement shall be made with respect to a contribution that is not traceable by clear and convincing evidence or that was a gift.” 750 ILCS 5/503(c)(2)(A)

How do you prove that the contribution was not a gift to the marriage when the presumption is that every instance of commingling is a gift to the marriage?

It’s an issue of proportion. “The commingling of marital and nonmarital assets, and the contribution of marital assets to nonmarital property must be sufficiently significant to raise a presumption of a gift of the property to the marital estate.” In re Marriage of Olson, 451 NE 2d 825 – Ill: Supreme Court 1983

When a spouse contributes personal effort to non-marital property, it shall be deemed a contribution from the marital estate, which shall receive reimbursement for the efforts if the efforts are significant and result in substantial appreciation to the non-marital property” 750 ILCS 5/503(c)(2)(B)

So, saying “I fixed the toilet in her non-marital house once. Therefore, my contribution to the house renders it marital” will not be sufficient. Building a deck, will probably not be sufficient. Paying for a complete rehab of the house probably would be sufficient.

After the presumption of a gift is established by the facts, the parties can testify as to how the contribution was or was not intended to be a gift.

Some actions, such as putting a non-marital property into both names via deed or mortgage create a rebuttable presumption of a gift to the marriage.

“[A] spouse owning separate nonmarital property performs the affirmative act of either transferring title into a form of joint ownership or augmenting the nonmarital property by commingling it with marital property, such act creates the “rebuttable presumption” of that party’s intention to change the character of the property to marital.” In re Marriage of Wojcicki, 440 NE 2d 1028 – Ill: Appellate Court, 1st Dist. 1982

“This presumption of transmutation may be rebutted by clear and convincing evidence that no gift to the marital estate was intended” Zito v. Zito, 554 NE 2d 541 – Ill: Appellate Court, 1st Dist. 1990

If you can overcome the presumption of the gift to the marriage, you need to prove with clear and convincing trancing, the court MAY award a reimbursement of your non-marital contribution.

The court may provide for reimbursement out of the marital property to be divided or by imposing a lien against the non-marital property that received the contribution.” 750 ILCS 5/503(c)(2)(A)

This is not easy! It often requires forensic accounting.

Mortgages And Marital Contribution To Non-Marital Property

You can see by now that most commingling arguments are about real estate. For most married couples, real estate is simply too massive to be exclusively paid for and maintained by one of the parties.

Most real estate has a mortgage against the property. The mortgage will typically be paid on an ongoing basis with funds earned during the marriage. Do those marital mortgage payments transmute a non-marital property into a marital property? No!

“[A] marital estate is not entitled to reimbursement for mortgage payments toward nonmarital property when the marital estate has already been compensated for its contributions by use of the property during marriage.” In re Marriage of Crook, 813 NE 2d 198 – Ill: Supreme Court 2004

The party that does not own the property but who is making some kind of contribution to the property via mortgage payments is already getting something in return for those mortgage payments…they get to live in the house!

“[T[he parties benefited from living in the house for a substantial period of time, [so] the court could reasonably have found that the marital estate had already been compensated for its contributions.” In re Marriage of Snow, 660 NE 2d 1347 – Ill: Appellate Court, 4th Dist. 1996

The One Thing That Never Gets Commingled: Tax-deferred Accounts.

Any retirement account that was started before the marriage will have a non-marital contribution. The contributions subsequent to marriage are marital.

“For purposes of distribution of property pursuant to this Section, all pension benefits (including pension benefits under the Illinois Pension Code, defined benefit plans, defined contribution plans and accounts, individual retirement accounts, and non-qualified plans) acquired by or participated in by either spouse after the marriage and before a judgment of dissolution of marriage or legal separation or declaration of invalidity of the marriage are presumed to be marital property.” 750 ILCS 5/503(b)(2)

Despite everything else in this article, this commingling does not transmute the non-marital portion of a retirement account into marital property.

An exception to the qualification of marital property in Illinois is “property acquired before the marriage, except as it relates to retirement plans that may have both marital and non-marital characteristics” 750 ILCS 5/503(b)(6)

Financial software is so accurate now that the non-marital portion of a retirement plan can be determined to the penny. 

This division is done via a Qualified Domestic Relations Order (QDRO).

“The term “qualified domestic relations order” means a domestic relations order—

which creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan”  26 U.S. Code § 414(p)(1)(a), ERISA § 206(d)(3)(B)(i)

A QDRO can then allocate the non-marital portion to the account holder and divide the marital portion. Usually the QDRO just includes language such as “50% of the marital portion.”

A QDRO shall allocate “the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined,” 26 U.S. Code § 414(p)(2), ERISA § 206(d)(3)(C)

How To Get Back Your Non-Marital Contribution Even If You Can Not Trace Or Prove It Wasn’t A Gift

Even if you’ve hopelessly commingled your non-marital assets with your spouse’s assets or your joint marital assets, you can still plead with the court for some kind of carve out or higher proportion of those now commingled marital assets.

Marital property does not get divided 50/50 in an Illinois divorce.

“The [Illinois Marriage and Dissolution of] Act does not require an equal division of marital property, but an equitable division” In re Marriage of Jones, 543 NE 2d 119 – Ill: Appellate Court, 1st Dist. 1989

Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:

(1) each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property” 750 ILCS 5/503(d)

The mere testimony that one party overwhelmingly contributed to the acquisition of property can result in an equitable division of that property in their favor.  Usually this looks like a 60-40 or a 70-30 split of that marital property in lieu of a 100% award. 

Tracing And Dissipation Of Assets In An Illinois Divorce

Tracing is generally discouraged in the analysis of a divorcing couple’s marital assets. Unless the transactions were crystal clear and done through separate accounts, the presumption of a gift to the marital estate will almost always carry the day.

There is one area of Illinois family law where tracing is absolutely required: if a dissipation of assets is alleged.

“Dissipation is defined as the use of marital property for one spouse’s benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown” In Re Marriage of Tietz, 605 NE 2d 670 Ill Appellate Court, 4th Dist. 1992.

A notice of dissipation asks the court to make a finding that marital funds were spent on things like gambling, adultery, or drugs that otherwise would have been available for distribution. Therefore, the court should award the marital portion of the misused funds to the party that didn’t dissipate those funds.

Illinois law then requires that “a party charged with dissipation carries the burden of proving he did not, in fact, dissipate assets.” In re Marriage of Toole, 273 Ill. App. 3d 607 (2nd Dist. 2005)

This means all the expenses will have to be traced to be proven to be expenses not associated with a dissipation of marital assets. Accuracy will be necessary.

“If expenditures are not documented adequately by the person charged with dissipation, the courts will affirm a finding of dissipation.” In Re Marriage of Tietz, 605 NE 2d 670 Ill Appellate Court, 4th Dist. 1992.

If your spouse is forcing you to trace your expenses for the purposes of a dissipation claim, you might as well trace all the non-marital contributions.  What’s good for the goose is good for the gander.

If you are concerned about commingling assets, transmuting the character of non-marital assets or tracing your non-marital assets, then you’ve got a lot of work ahead of you. Contact my Chicago, Illinois family law firm to get a free, no-obligation consultation win an experienced Chicago divorce lawyer.

This was one of my more in-depth and technical articles. So, if you got this far, you deserve a little joke:

What did the rich, divorced guy who never learned his lesson say?

“I’m single and ready to commingle”

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Who Pays The Mortgage During An Illinois Divorce? https://rdklegal.com/who-pays-the-mortgage-during-an-illinois-divorce/ https://rdklegal.com/who-pays-the-mortgage-during-an-illinois-divorce/#respond Wed, 21 Oct 2020 01:18:35 +0000 https://rdklegal.com/?p=10885 Mortgages typically consume 25 to 33 percent of a household’s total income. A mortgage is usually a household’s biggest expense. Additionally, mortgages are usually tied to a household’s biggest asset, the marital home. Failure to pay a mortgage means a married couple’s biggest asset is at risk of foreclosure. For all these reasons, the mortgage…

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Mortgages typically consume 25 to 33 percent of a household’s total income. A mortgage is usually a household’s biggest expense. Additionally, mortgages are usually tied to a household’s biggest asset, the marital home. Failure to pay a mortgage means a married couple’s biggest asset is at risk of foreclosure. For all these reasons, the mortgage payment needs to be addressed during Illinois divorce proceedings. So, who pays the mortgage during an Illinois divorce?

Is The Mortgage A Marital Debt?

In regards to debt, in the Illinois divorce process, the first step determining whether a debt is “marital” or “non-marital.”

“The court shall make specific factual findings as to its classification of assets [and debts] as marital or non-marital property, values, and other factual findings supporting its property award.” 750 ILCS 5/503(a)

The distinction between marital vs. non-marital property and debts is determined by whether the property or debt was acquired before or after the marriage.

“‘[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a)

Even being engaged does not make a property or debt marital. So, buying the marital home while planning to get married does not make a property marital merely because of the parties’ intentions.

“Property acquired prior to a marriage that would otherwise be non-marital property shall not be deemed to be marital property solely because the property was acquired in contemplation of marriage.” 750 ILCS 5/503(a)

Non-marital debt will remain with the party whose debt is in their name.

“[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d)

So, the court will likely not order either party to pay the mortgage on a non-marital debt. If the person wishes to not pay the mortgage and have that property go into foreclosure, that will be their prerogative.

If the property and/or debt is marital, then both parties have an obligation to maintain the property and the mortgage attached to it.

Motion For Contribution To Marital Expenses

One of the most common initial motions in an Illinois divorce is the “Motion For Contribution to Marital Expenses.”

The Illinois statute actually does not empower such a motion, specifically. Motions for contribution to marital expenses are usually brought generally under the temporary relief statute, 750 ILCS 5/501 which allows for “appropriate temporary relief including, in the discretion of the court, ordering the purchase or sale of assets and requiring that a party or parties borrow funds in the appropriate circumstances.” 750 5/501(a)(3)

Illinois divorce courts are quick to maintain the status quo.  Whomever was paying the mortgage will be asked to continue paying the mortgage until further order of court.

Of course, during the pendency of a divorce, people aren’t always living in the same house.

The party living in the home can be expected to make a full or partial contribution to the marital home’s mortgage as it will be assumed the other party has additional rental expenses.

Equity In The Marital Home

If the home and the mortgage are marital, then each payment of a mortgage reduces the mortgage and thereby increases the equity in the home. This increase in equity will be an increase in the value of a marital asset. 

The marital asset will not be divided amongst the parties until the divorce is finalized and the Marital Settlement Agreement is entered.

So, one-sided payments against the mortgage by one party during the separation will contribute to an increase in the value of a marital asset that will be divided later.  This doesn’t seem very fair.

In Illinois, either party can request that a marital asset be divided “equitably.” That is to say, you can appeal to fairness in order for a court to make a division that is not 50/50.  Sole payments against a mortgage for a house you may not have even lived in would be good cause to award the mortgage payor a greater share of the proceeds from the equity of the house. 

In dividing a marital asset, an Illinois court shall consider, “each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property…whether the contribution is after the commencement of a proceeding for dissolution of marriage or declaration of invalidity of marriage” 750 ILCS 5/503(d)(1)

Dissipation Of Assets For Failure To Pay A Mortgage

Failure to pay the mortgage may result in a dissipation claim by the party not obligated to pay the mortgage.

“Dissipation of assets is the use of an asset for an illegal or inequitable purpose, such as a spouse’s use of community property for personal benefit when a divorce is imminent.” Black’s Law Dictionary (10th ed. 2014)

So, spending money on something in lieu of the mortgage during the divorce is going to be considered dissipation of assets.

The real issue is the waste caused by the failure to pay the mortgage.

“The concept of dissipation is premised upon waste” In re Marriage of Miller, 796 NE 2d 135 – Ill: Appellate Court, 5th Dist. 2003

“Dissipation of marital assets by one spouse in contemplation of dissolution of marriage is an unacceptable practice that will not be sanctioned… one of the relevant factors to be considered by the court in dividing marital property is the dissipation in value of the marital and nonmarital property.” IIn re Marriage of Smith, 448 NE 2d 545 – Ill: Appellate Court, 1st Dist. 1983

The failure to pay a mortgage can reduce equity as the mortgage against the marital property increases with interest in fees.  This dissipation of assets becomes even more stark should the house fall into foreclosure due to the failure of one party to pay the mortgage. A foreclosure usually extinguishes all equity in the house after sales fees, etc. Half of the value the other spouse should have gotten will be awarded to that spouse via other marital assets.

Who Should Pay The Mortgage During An Illinois Divorce?

Whoever is going to keep the house should start paying the mortgage immediately. If that person can’t pay the mortgage now, they won’t be able to when they are awarded the house. 

The simplest way to both pay the mortgage and determine if one spouse will be capable of maintaining the mortgage alone is to award that spouse temporary alimony in lieu of any contribution to marital debts.

If the party cannot pay the mortgage with their current income and temporary maintenance and/or child support, then the home must be put up for sale immediately to divest the parties of this unsustainable obligation. 

If you’re going through a divorce and struggling with paying your mortgage, contact my Chicago, Illinois family law firm for a free, no-obligation consultation with an experienced Chicago divorce attorney.

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Pregnancy And Divorce In Illinois https://rdklegal.com/pregnancy-and-divorce-in-illinois/ https://rdklegal.com/pregnancy-and-divorce-in-illinois/#respond Sat, 17 Oct 2020 12:24:02 +0000 https://rdklegal.com/?p=10878 Children are a blessing…but sometimes their timing is way off. When you’re going through a divorce and you get pregnant or your spouse gets pregnant, your divorce gets a lot more complicated.  Still, that baby is coming and can be dealt with in your Illinois divorce. In Illinois the law doesn’t say much about pregnancy…

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Children are a blessing…but sometimes their timing is way off. When you’re going through a divorce and you get pregnant or your spouse gets pregnant, your divorce gets a lot more complicated.  Still, that baby is coming and can be dealt with in your Illinois divorce.

In Illinois the law doesn’t say much about pregnancy during a divorce. “Virtually everything about a dissolution of a marriage is statutory” In Re: Marriage of Jeffrey D. SKELTON, 5-04-0262.

“[T]he State of Illinois has no [statutory] provision [that deals with pregnancy during a divorce]” In Re: Marriage of Jeffrey D. SKELTON, 5-04-0262.

In the absence of law regarding pregnancy while divorcing in Illinois, we are left with mere strategy.

In most cases, the smart thing to do is to wait until the child is born to proceed with finalizing the divorce.  Otherwise, parenting time and child support will just have to be revisited in future court proceedings.

Family law in Illinois has a second set of statutes outside of the divorce statutes, “Illinois Marriage and Dissolution of Marriage Act,” 750 ILCS 5. There are additional statutes regarding children that usually presume the parties aren’t married, “Illinois Parentage Act of 2015”, 750 ILCS 46

A married person can still use the Parentage Act in lieu of the Marriage and Dissolution of Marriage to get a court ruling regarding an unborn child.

The first step is determining exactly who is the child’s parent.

“A complaint to adjudicate parentage shall be verified, shall be designated a petition, and shall name the person or persons alleged to be the parent of the child.” 750 ILCS 46/602

“The people who can bring such an action are:

a man presumed or alleging himself to be the parent of the child” 750 ILCS 46/602(c)

or

“a woman presumed or alleging herself to be the parent of the child” 750 ILCS 46/602(d)

After requesting the court to determine parentage, there is not much more you can do.

“Proceeding before birth. A proceeding to establish parentage may be commenced before the birth of the child, but may not be concluded until after the birth of the child.” 750 ILCS 46/612

So, you can start the parentage case…but you can’t finish it until the child is born.

“The following actions may be taken before the birth of the child:

(a) service of process

(b) the taking of depositions to perpetuate testimony; and

(c) except as prohibited by Article 4 of this act, collection of specimens for genetic testing.” 750 ILCS 46/612

There is not a lot a divorcing party can do before giving birth. You can serve your spouse, you can take a deposition if you’re worried they deponent be available after the birth of the child, and you can test the unborn child’s DNA. 

What To Do If You Or Your Spouse is Pregnant With Another Person’s Child?

In reality, the only time you might want to act in advance of the birth of a child is if the child’s father is not the mother’s husband.

In Illinois, if the child is born while the parties are still married the child will be presumed to be the child of the husband.

“A person is presumed to be the parent of a child if:

“the person and the mother of the child have entered into a marriage…and the child is born to the mother during the marriage” 750 ILCS 46/204(a)(1)

Even if you’re divorced but it’s conceivable (pardon the pun) that the child was conceived during the marriage, the child will be presumed to be the child of the man who was married to the woman.

“A person is presumed to be the parent of a child if:

before the birth of the child, the person and the mother of the child entered into a marriage…within 300 days after its termination by death, declaration of invalidity of marriage, judgment for dissolution of marriage” 750 ILCS 46/204(a)(3)

So, if you’re married or were recently married and someone’s pregnant, the husband is presumed to be the father. 

A married presumptive father can easily declare themselves to be “not a parent” in Illinois.

“A presumed parent may sign a denial of parentage” 750 ILCS 46/303

It’s really just a form that gets filled out and filed out.

“To facilitate compliance with this Article, the Department of Healthcare and Family Services shall prescribe forms for the… denial of parentage” 750 ILCS 46/312(a)

You don’t have to wait for the birth of the child to deny parentage

“[D]enial may be signed before the birth of the child” 750 ILCS 46/304(b)

But wait, who is the child’s father then if the husband denies parentage?

Hopefully, the real father will agree to sign a Voluntary Acknowledgement of Paternity. If so, this will clearly establish who is the father and who is not the father.

“[A] valid denial by a presumed parent filed with the Department of Healthcare and Family Services, as provided by law, in conjunction with a voluntary acknowledgment, is equivalent to an adjudication of the nonparentage of the presumed parent and discharges the presumed parent from all rights and duties of a parent” 750 ILCS 46/305(c)

This statute does leave the door open for what happens when a husband denies that he is the father but there is no real father willing to accept parentage. 

“A proceeding seeking to declare the non-existence of the parent-child relationship between a child and the child’s presumed father may be maintained at any time” 750 ILCS 46/608(b)

To convert a married “presumed parent” to a non-parent, there’s going to have to be a genetic test.

“As soon as practicable, a court or an administrative hearing officer in an Expedited Child Support System may, and upon the request of a party…shall order or direct the mother, child, and alleged father to submit to deoxyribonucleic acid (DNA) testing” 750 ILCS 46/401

DNA tests are available that work without the child being born, yet.

Illinois courts do not want children to not have fathers. The request of a married man to deny paternity without another father waiting to be declared may be denied by an Illinois court

“[T]he court may deny a motion by a parent, presumed parent, acknowledged parent, adjudicated parent, alleged parent, or the child seeking an order for genetic testing of the parents” 750 ILCS 46/610(a)

If you are thinking about divorce and you or your wife are pregnant…you’ve got a lot on your hands.  Contact my Chicago, Illinois family law firm to discuss your options with an experienced Chicago divorce attorney.

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Contempt In An Illinois Divorce Case https://rdklegal.com/contempt-in-an-illinois-divorce-case/ https://rdklegal.com/contempt-in-an-illinois-divorce-case/#respond Mon, 12 Oct 2020 11:57:11 +0000 https://rdklegal.com/?p=10865 If you do something wrong in a court case, you could be held in contempt of court.  What is contempt in an Illinois divorce case? The definition of contempt is broad. “The act of demeaning the court, preventing justice administration, or disobeying a sentence of the court.” Black’s Law Dictionary (10th ed. 2014) In Illinois courts…

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If you do something wrong in a court case, you could be held in contempt of court.  What is contempt in an Illinois divorce case?

The definition of contempt is broad.

“The act of demeaning the court, preventing justice administration, or disobeying a sentence of the court.” Black’s Law Dictionary (10th ed. 2014)

In Illinois courts can use contempt proceedings for basically any reason.

“A court is vested with inherent power to enforce its orders and preserve its dignity by the use of contempt proceedings.” People v. Warren, 173 Ill. 2d 348, 368, 671 N.E.2d 700, 710 (1996).

The reason for a contempt can be anything, but the actual contempt proceeding must follow the rules.

“The procedures that must be followed in contempt proceedings vary according to the type of contempt at issue.” In re Marriage of Weddigen, 2015 IL App (4th) 150044, ¶ 19, 42 N.E.3d 488.

There are four kinds of contempt proceedings in an Illinois divorce case. “Contempt may be either direct or indirect and either civil or criminal.” In re A.M., 2020 IL App (4th) 190645

What Is Criminal Contempt Of Court In An Illinois Divorce Case?

Criminal contempt is where a punishment has been handed out by the court for something that has been done.  It’s like a sentence for a crime but the instead of a crime, the contemnor did something to diminish the “dignity and authority of the court” Peo. ex Rel. Chi. Bar Assoc. v. Barasch, 21 Ill. 2d 407, 173 N.E.2d 417 (Ill. 1961)

The punishment in a criminal contempt action is almost always imprisonment.

“Imprisonment for criminal contempt is inflicted as a punishment for that which has been done” Peo. ex Rel. Chi. Bar Assoc. v. Barasch, 21 Ill. 2d 407, 409-10 (Ill. 1961)

“The respondent in a…criminal contempt proceeding is entitled to information on the nature of the charge, an opportunity to answer, the privilege against self-incrimination, the presumption of innocence, and the requirement of proof of guilt beyond a reasonable doubt.” In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404 (Ill. App. Ct. 1990)

Additionally, a criminal contempt proceeding means that the contemnor has the right to an court-appointed attorney to defend themselves. This is the only time when a litigant in an Illinois divorce case can get a public defender.  But, usually, a private attorney just gets appointed to mandatorily defend the contemnor.

What Is Civil Contempt Of Court In An Illinois Divorce?

Civil contempt sounds a lot less serious than criminal contempt but it usually involves the same thing: imprisonment for bad behavior. The difference between criminal and civil contempt is  why the contempt is being pursued.

“Civil contempt is a sanction or penalty designed to compel future compliance with a court order.” Felzak v. Hruby, 226 Ill. 2d 382, 391, 876 N.E.2d 650, 657 (2007)

While Criminal contempt is usually when a litigant has insulted the court. Civil contempt almost always involves the party violating the rights of the other party.

“[C]ivil contempts are those prosecuted to enforce the rights of private parties and to compel obedience to orders or decrees for the benefit of opposing parties” Peo. ex Rel. Chi. Bar Assoc. v. Barasch, 21 Ill. 2d 407, 409-10 (Ill. 1961)

Civil contempt is not punitive. Instead, “civil contempt is usually coercive” Peo. ex Rel. Chi. Bar Assoc. v. Barasch, 21 Ill. 2d 407, 410 (Ill. 1961)

“Civil contempt proceedings have two fundamental attributes: (1) The contemnor must be capable of taking the action sought to be coerced and (2) no further contempt sanctions are imposed upon the contemnor’s compliance with the pertinent court order.” Betts, 200 Ill. App. 3d at 44. “In other words, the contemnor must have an opportunity to purge himself of contempt by complying with the pertinent court order.” Id

The contemnor’s punishment stops immediately when the contemnor complies with the order.“They are imprisoned only until they comply with the orders of the court, and this they they may do at any time. They carry the keys of their prison in their own pockets.” In re Nevitt, 117 F. 448, 460 (8th Cir. 1902)

Once it is determined tha the contempt is civil in nature, the court does not need to observe any burdensome criminal procedures.

“In a civil contempt proceeding, the contemnor is only entitled to minimal due process, consisting of notice and an opportunity to be heard.” In re Marriage of Cummings, 222 Ill. App. 3d 943, 948 (Ill. App. Ct. 1991)

So, no lawyer or reading of charges are required as in a criminal contempt hearing.  The judge merely says, “we’re doing a hearing on your contempt.”  An extremely brief evidence of the violation of the order is presented

“The burden initially falls on the petitioner to establish, by a preponderance of the evidence, that the alleged contemnor has violated a court order.” In re Marriage of Knoll, 2016 IL App (1st) 152494, ¶ 50, 65 N.E.3d 878.

This burden of proving the violation is extremely light and can consist of simple testimony such as, “He didn’t follow the order”

Then the contemnor must prove they did NOT violate the order or had good reason to do so. 

“Once that burden is satisfied, the burden shifts to the contemnor, who has the burden of showing that the violation was not willful and contumacious and that he or she had a valid excuse for failing to follow the order.” In re Marriage of Knoll, 2016 IL App (1st) 152494, ¶ 50, 65 N.E.3d 878.

So, civil contempt is actually harder to defend than criminal contempt in Illinois.

But, civil contempt is automatically undone the moment the contemnor “purges” themselves by complying with the court order.

What Is Direct Contempt In An Illinois Divorce Case?

Direct contempt is simple. Direct contempt “takes place in the very presence of the judge, making all of the elements of the offense matters within the personal knowledge of the judge and tending directly to obstruct and prevent the administration of justice” (People v. Howarth (1953), 415 Ill. 499, 508, 114 N.E.2d 785, 790.)

So, the judge saw the contempt themselves.  There’s no need for a hearing.  The judge saw and heard the contemptuous behavior. 

“Extrinsic evidence is not necessary to prove direct contempt; therefore, it may be determined and punished summarily without the formalities of pleadings and trial.” Weglarz v. Bruck, 470 N.E.2d 21 (Ill. App. Ct. 1984)

This is what we see in the movies when someone screams at a judge and the judge holds them in contempt. The judge can order direct contempt on the spot.

What Is Indirect Contempt Of Court?

Indirect contempt is the punishment for something the judge didn’t see with their own eyes.

“Indirect contempt occurs outside the presence of the court and must therefore be proved by extrinsic evidence. Where an element of the offense is not observed by the judge and must be proved by testimony from third parties, then the accused contemnor must be given notice, a fair hearing and an opportunity to be heard”Weglarz v. Bruck, 470 N.E.2d 21 (Ill. App. Ct. 1984)

Almost all Illinois divorce contempt actions stem from the failure to pay child support, alimony or provide a child for scheduled parenting time. So, indirect contempt is 99% of the contempt actions in an Illinois divorce.

Indirect contempt requires evidence. “The existence of an order of the court and proof of willful disobedience of that order are essential to any finding of indirect contempt.” In re Marriage of Spent, 342 Ill. App. 3d 643, 653, 796 N.E.2d 191, 200 (2003)

How To Combine the Many Different Kinds Of Contempt In An Illinois Divorce?

By now, you should see how there can be direct criminal contempt, indirect civil contempt, indirect criminal contempt and direct civil contempt. Any combination is possible.

99% of contempt actions in an Illinois divorce will be indirect civil contempt actions. 

So, if you’re facing a petition for indirect contempt of court, you might go to jail…but not before you’ve received notice and had a hearing on a Petition For A Rule To Show Cause.

Petition For Rule To Show Cause In An Illinois Divorce Case

The goal of requesting Indirect civil contempt is to gain compliance with the order or to jail the contemnor until he or she complies.  Because civil contempt is a civil matter, it can not be called an “arrest.” Instead, it is called a “body attachment.”

“No order of body attachment or other civil order for the incarceration or detention of a natural person respondent to answer for a charge of indirect civil contempt shall issue unless the respondent has first had an opportunity, after personal service or abode service of notice as provided in Supreme Court Rule 105, to appear in court to show cause why the respondent should not be held in contempt.” 735 ILCS 5/12-107.5(a)

The phrase “show cause” is not a natural English expression.  “Rule to show cause” is an even more bizarre phrase. So, it needs to be unpacked.

“To show cause against a rule nisi, an order, decree, execution, etc., is to appear as directed, and present to the court such reasons and considerations as one has to offer why it should not be confirmed, take effect, be executed, or as the case may be.” Black’s Law Dictionary (10th ed. 2014)

Cook County has specific and very clear rules for petitions for a rule to show cause that also provide a good explanation of the process.

“(i) Initiation – All requests for Rule to Show Cause, Adjudication of Indirect Criminal Contempt or Indirect Civil Contempt must be in writing, must specifically identify the order or provision alleged to have been violated, and must be properly served on the responding party.

(ii) Attachments – A copy of the Judgment or Order alleged to have been violated must either be attached to any petition or motion alleging a violation, or presented to the court.” Cook County Court Rule 13.8(a)

The alleged contemnor has to be served with the petition for rule to show cause and a copy of the order they allegedly violated. 

Then we actually get to the whole point of a rule to show cause: that after a credible allegation, the order-violator has the responsibility of proving that they didn’t violate the order or had a good reason to not follow the order. This shift in which party has the burden to show proof is called the “issuance of the rule.”

“(iii) Issuance of Rule – Upon the presentation, pursuant to notice, of a verified petition, or sworn testimony in open court, seeking a finding of indirect civil contempt, which makes a prima facie showing of noncompliance, a judge may issue a Rule to Show Cause. The court may issue a rule notwithstanding the responding party’s right to file a written response.” Cook County Court Rule 13.8(a)

Then the hearing happens where the judge determines if the party to the divorce is in contempt or not. 

If the contemnor is in contempt, the judge will set a “purge.” A purge is an action (usually an amount of money) which keeps the court from issuing the body attachment.

“Whether for direct or indirect civil contempt, the order must specify what the contemnor is required to do, so that by compliance contemnor can purge himself of contempt and be discharged from jail.” Pancotto v. Mayes, 304 Ill. App. 3d 108, 112, 709 N.E.2d 287, 290 (1999)

Typically, the judge will set a new court date so the contemnor has the opportunity to purge their contempt and not go to jail. 

If the contemnor does purge their contempt, the judge usually sets up a new order so the contemnor can progressively comply with the original order they violated.  For example: back payments for child support or alimony. 

As you can tell by now, getting held in contempt is a massive hassle and is not worth it.  If you can’t comply with an order, ask the court to modify that order. 

It gets worse. If you are found in contempt of court in an Illinois divorce court, you must pay the opposing party’s attorney’s fees for bringing you to court.

“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney’s fees of the prevailing party. If non-compliance is with respect to a discovery order, the non-compliance is presumptively without compelling cause or justification, and the presumption may only be rebutted by clear and convincing evidence. If at any time a court finds that a hearing under this Act was precipitated or conducted for any improper purpose, the court shall allocate fees and costs of all parties for the hearing to the party or counsel found to have acted improperly. Improper purposes include, but are not limited to, harassment, unnecessary delay, or other acts needlessly increasing the cost of litigation.” 750 ILCS 508(b).

What Can I Be Held In Contempt For In An Illinois Divorce?

If you violate a court order, you can be held in contempt in an Illinois divorce court.

“Terms of the agreement set forth in the judgment are enforceable by all remedies available for enforcement of a judgment, including contempt.” 750 ILCS 5/502(e)

In addition, there are very specific violations that the statute outlines.

An Illinois divorce court can issue “an order holding a party in contempt for violation of a parenting time order and finds that the party engaged in parenting time abuse” 750 ILCS 5/607.5(f)

“Failure of either parent to comply with an order to pay support shall be punishable as in other cases of contempt.” 750 ILCS 5/505(b)

“The court may further assess against the payor any fees and expenses incurred in the enforcement of any order or the reasonable value thereof and may impose any penalty otherwise available to it in a case of contempt.” 750 ILCS 5/710(e)

Don’t violate Illinois court orders!  If you must deviate from the strict language of an Illinois court order, then file a motion to modify that order.  Your basis to modify the court order will also be your proof that your failure to follow the order was neither willful nor contumacious.

Modification is the defense to contempt in an Illinois divorce case.

If you’ve read this far, you probably have some serious contempt issues to deal with.  Contact my Chicago, Illinois divorce firm to speak with an experienced Chicago divorce attorney.

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When Do You Need A Court Reporter In An Illinois Divorce? https://rdklegal.com/when-do-you-need-a-court-reporter-in-an-illinois-divorce/ https://rdklegal.com/when-do-you-need-a-court-reporter-in-an-illinois-divorce/#respond Sat, 10 Oct 2020 19:35:46 +0000 https://rdklegal.com/?p=10856 As if divorce court in Illinois wasn’t intimidating enough, someone is sitting in the corner writing everything down.  That person typing on the little typewriter is the court reporter.  But, sometimes the court reporter is in court and sometimes there’s no court reporter at all.  When do you need a court reporter in an Illinois…

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As if divorce court in Illinois wasn’t intimidating enough, someone is sitting in the corner writing everything down.  That person typing on the little typewriter is the court reporter.  But, sometimes the court reporter is in court and sometimes there’s no court reporter at all.  When do you need a court reporter in an Illinois divorce?

In Illinois a court reporter is not just someone who can type fast. A court reporter is an official position. 

“Court reporter” means any person appointed by the chief judge of any circuit to perform the duties prescribed in Section 5 of this Act.” 705 ILCS 70/1

A court reporter’s duties are defined by law.

“The court reporter shall make a full reporting by means of stenographic notes of the evidence and such other proceedings in trials and judicial proceedings to which he or she is assigned by the chief judge, and the court reporter may use an electronic instrument as a supplementary device.” 705 ILCS 70/5

The court reporter not only makes a transcript of everything that was said and done in court, the court reporter also verifies that the transcript is correct.

“The court reporter who recorded and transcribed the testimony shall certify the correctness of the transcript.” Cook County Court Rule 13.7(c)

When Is A Court Reporter Mandatory In a Divorce?

During a default divorce in Illinois, there is only one hearing: the final hearing.  This final hearing must have a court reporter to memorialize what happened.

“In all default cases, all testimony shall be recorded, transcribed, and filed with the Clerk of the Court.” Cook County Court Rule 13.7(a)

Presumably this is in case the defaulted party reappears and says, “I just lived down the block, why did you lie about not being able to locate me?”

If both parties have filed their appearances or are represented by counsel, the parties have the option of waiving the court reporter.

“In cases where each party is either represented by counsel or has filed a pro se appearance, the necessity of having a court reporter present and/or the requirement that a transcript be prepared and filed with the court may be waived by counsel or the parties with approval of the Court.” Cook County Court Rule 13.7(b)

You must have approval of the court to waive the court reporter (and their fees).  If there is a court reporter available, the court will not waive the court reporter.  This hearing generally costs $ 30 to $ 50 in court reporter fees.  It is well worth the investment to finalize your divorce while having the final testimony memorialized by the court reporter.

The court reporter’s transcript of the final hearing will then be filed with the Circuit Clerk by the Petitioner in the divorce case.

“In the event no waiver has been filed, a transcript of the proceedings must be filed with the circuit clerk within twenty-eight (28) days.” Cook County Court Rule 13.7(b)

“The attorney for the moving party shall provide the transcript, unless otherwise agreed or ordered by the court.” Cook County Court Rule 13.7(d)

While not formally part of a divorce, orders of protection can occur within a divorce case. A petition for an order of protection is a quasi-criminal because the enforcement of the order of protection is a criminal matter.

“A violation of any protective order, whether issued in a civil, quasi-criminal proceeding, shall be enforced by a criminal court” 725 ILCS 5/112A-23

Because of a petition for an order of protection’s criminal nature, a court reporter must provide a transcript of the proceedings.

“Transcript. In cases in which the defendant is charged with a crime punishable by imprisonment in the penitentiary, the proceedings required by this rule to be in open court shall be taken verbatim, and upon order of the trial court transcribed, filed, and made a part of the common law record.” Illinois Supreme Court Rule 402(e)

The court will arrange for and provide a court reporter at any order of protection hearing.  Ordering a physical transcript will have a cost to be paid directly to the court reporter.

When Is A Court Reporter Optional During An Illinois Divorce?

Except for default cases, order of protection hearings or when a court reporter is available for a prove-up, court reporters are completely optional.

Court reporters are typically hired during Illinois divorces for two occasions: 1) depositions and 2) hearings/trials.

Court Reporters At Illinois Hearings and Divorce Trials

In a hearing, trial or anything that happens in court, everyone has the right to have a court reporter present to transcribe the testimony and events which occur in court.

“The record of court proceedings may be taken by stenographic means or by an electronic recording system, including video conferencing services, approved by the Supreme Court. All transcripts prepared as the official record of court proceedings shall be prepared pursuant to applicable supreme court rules.” Illinois Supreme Court Rule 46(a)

The entire point of having a court reporter at a hearing is to preserve the record for possible appeal.  If someone disagrees with the judge’s ruling at the hearing or trial, an appeal may be filed.

Upon filing the appeal, “the appellant shall make a written request to the court reporting personnel as defined in Rule 46 to prepare a transcript of the proceedings that appellant wishes included in the report of proceedings.” Illinois Supreme Court Rule 323(a)

The court reporter then must file the transcript of the matter with the Circuit Clerk.

“Court reporting personnel who transcribes a report of proceedings shall certify to its accuracy and shall notify all parties that the report of proceedings has been completed and filed with the clerk of the circuit court. The report of proceedings shall be taken as true and correct unless shown to be otherwise and corrected in the manner permitted by Rule 329 for the record on appeal.

      The court reporting personnel shall electronically file the reports of proceedings in searchable PDF format to the circuit court clerk within 49 days after the filing of the notice of appeal. There shall be a separate, transcribed, dated, and numbered PDF file for each report of proceedings. Reports of proceedings shall be clearly labeled on the first page with the date of the hearing or court proceeding, the type of proceeding, trial court case number, case caption, and the name of the presiding judge.” Illinois Supreme Court Rule 323(b)

If there was no court reporter, your court may have microphones recording everything.  To the best of my knowledge, Cook County has no microphones recording in court while Dupage County does have recordings. If recordings exist, you can order the recording in lieu of a transcript.

“If no verbatim transcript of the evidence of proceedings is obtainable the appellant may prepare a proposed report of proceedings from the best available sources, including recollection. In any trial court, a party may request from the court official any recording of the proceedings.” Illinois Supreme Court Rule 323(c)

You are going to have to transcribe the recording anyways so if you suspect an appealable issue will come up, do not rely on the recording and just hire a court reporter.

“Such recording may be transcribed for use in preparation of a bystander’s report.” Illinois Supreme Court Rule 323(c)

In the absence of a transcript, the court must then certify the bystander’s report. “[O]nly the report of proceedings so certified shall be included in the record on appeal” Illinois Supreme Court Rule 323(c)

Do not expect a court you are asking to be reversed to certify your bystander’s report.  So, again, hire a court reporter if you believe something appealable might happen. 

Court Reporters At Illinois Divorce Depositions

Illinois depositions must have an “officer” present to administer an oath as to the truthfulness of the testimony to be taken.

“[D]epositions shall be taken (1) before an officer authorized to administer oaths by the laws of this State” Illinois Supreme Court Rule 205

The court reporter can administer the oath required in a deposition.

“All…persons certified under the Illinois Certified Shorthand Reporters Act of 1984 have the power to administer oaths and affirmations to witnesses and others” 5 ILCS 255/1

While the court reporter is there administering oaths, you might as well have them transcribe the deposition.

“The testimony shall be transcribed at the request of any party” Illinois Supreme Court Rule 206(f)

The person who is deposed, the deponent, has the option to verify the court reporter’s transcript before it is finalized or “certified.”

“Unless signature is waived by the deponent, the officer shall instruct the deponent that if the testimony is transcribed the deponent will be afforded an opportunity to examine the deposition at the office of the officer or reporter, or elsewhere, by reasonable arrangement at the deponent’s expense, and that corrections based on errors in reporting or transcription which the deponent desires to make will be entered upon the deposition with a statement by the deponent that the reporter erred in reporting or transcribing the answer or answers involved. The deponent may not otherwise change either the form or substance of his or her answers.” Illinois Supreme Court Rule 207(a)

“If the testimony is transcribed, the officer shall certify within the deposition transcript that the deponent was duly sworn by the officer him and that the deposition is a true record of the testimony given by the deponent. A deposition so certified requires no further proof of authenticity.” Illinois Supreme Court Rule 207.

Transcripts don’t need proof of authenticity so they do not need the court reporter in court to say “Yes. This is the transcript I prepared” in court. A certified transcript will be accepted at face value in an Illinois divorce court.

Depositions are transcribed so that you can hold the deponent to their words should their court testimony vary from the deposition testimony.

If someone does testify in court in contradiction to their testimony during deposition, they can be cross-examined with questions such as:

“You reviewed the deposition before your signed it, didn’t you?”,

“You knew you had the right to make any changes in it, didn’t you?”,

“You didn’t make any changes, did you?”,

“You reviewed it recently before testifying, didn’t you?”

Then you can ask them to read the portion of the deposition transcript they contradicted.  The deposition transcript can then be submitted as an exhibit into evidence.

This is called “impeaching the witness.”

Who Pays For The Court Reporter In An Illinois Divorce?

The court reporter, while publicly appointed is like any other service.  The person who orders the service must pay for it.  The service’s rates are set by Illinois regulations. 

“A court reporting services employee may charge a page rate for the preparation of transcripts of court proceedings not to exceed the rate set by the employer representative in the Uniform Schedule of Charges for Transcripts” 705 ILCS 70/5

The Uniform Schedule of Charges for Transcripts can be found in the Administrative Regulations For Court Reporting Services In The Illinois Courts:

“In accordance with Section 5 of the Court Reporters Act (705 ILCS 70/5), the employer representatives adopt the following Uniform Schedule of Charges for Transcripts of evidence and proceedings.:

  1. Transcript charges shall be computed on a “per page” basis.

6. Regular copy delivery (the period allowed by law or rule or any extensions thereof) charges shall be:

(a) Private Paid Original $ 3.15 per page

(b) All Other Originals $ 3.00 per page.

(c) Private Paid Copies $ 1.00 per page.

(d) All Other Copies $ .50 per page.

7. Expedited copy delivery (when the party requests delivery of a transcript more than 24 hours but less than seven (7) days from the request or proceeding) charges shall be:

(a) Private Paid Original $ 3.70 per page

(b) All Other Originals $ 3.15 per page.

(c) Private Paid Copies $ 1.00 per page.

(d) All Other Copies $ .50 per page.

8. Daily copy delivery (when the party requests delivery within 24 hours from the request or proceeding) charges shall be:

(a) Private Paid Original $ 4.20 per page

(b) All Other Originals $ 3.30 per page.

(c) Private Paid Copies $ 1.00 per page.

(d) All Other Copies $ .75 per page.”

These rates are all as of 2009. I don’t have a more recent copy of the Uniform Schedule of Charges for Transcripts. 

You will have to order an original transcript before the court reporter will sell you a cheaper copy. 

If you think you might need a court reporter for your Illinois divorce you definitely need an experienced Illinois divorce attorney.  Contact my Chicago, Illinois office to schedule a free no-obligation consultation.

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Medical Records And Divorce In Illinois https://rdklegal.com/medical-records-and-divorce-in-illinois/ https://rdklegal.com/medical-records-and-divorce-in-illinois/#respond Wed, 07 Oct 2020 12:06:46 +0000 https://rdklegal.com/?p=10850 Divorce is a tragedy.  It often affects a divorcing person’s mental and physical health.  Then those health issues can become an issue in the divorce. Divorcing parties start making accusations about their spouse’s mental and physical health and subsequently demand records to corroborate the accusations.  So, what happens to medical records in an Illinois divorce?…

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Divorce is a tragedy.  It often affects a divorcing person’s mental and physical health.  Then those health issues can become an issue in the divorce. Divorcing parties start making accusations about their spouse’s mental and physical health and subsequently demand records to corroborate the accusations.  So, what happens to medical records in an Illinois divorce?

Patient-Physician Privilege In Illinois

The Illinois statutes do not allow a doctor to disclose any information about a patient.

“No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient.” 735 ILCS 5/8‑802

There are numerous exceptions but the most common is that a doctor can share information “with the expressed consent of the patient” 735 ILCS 5/8‑802

There’s an important reason that doctors cannot share their patient’s private and even not-very-private information.

“The statutory privilege is a legislative balancing between relationships which society thinks should be fostered through the shield of confidentiality and the interests served by disclosure of the information in court.” In re Marriage of Lombaer, 558 NE 2d 388 – Ill: Appellate Court, 1st Dist. 1990

A doctor may not disclose information but what about the doctor’s records? A doctor’s records are also privileged and not permissible in an Illinois divorce court.  Every doctor’s record, document or piece of paper must be authenticated via testimony of the person who made the document or be certified as records of regularly conducted activity. So, a doctor’s record, while private in itself, cannot be introduced without the doctor testifying which is also privileged.

In short, if you wouldn’t have known unless your doctor told you (like a prescription), you don’t need to disclose it in an Illinois divorce court.

Patient-Psychiatrist Confidentiality In Illinois

Psychiatrists are also doctors and anything a psychiatrist has said or written is also privileged in an Illinois divorce court.

“The psychiatrist-patient privilege, like the privileges attaching to other relationships such as husband-wife, attorney-client, and physician-patient, is based on the premise that communications made within the ambit of the relationship are intended to be, and should remain, confidential.” Gottemoller v. Gottemoller, 346 NE 2d 393 – Ill: Appellate Court, 3rd Dist. 1976

Society has a vested interest in having people be completely candid with their psychiatrists.

“The beneficent purposes of psychiatry can only be fully realized when the patient knows that what is revealed in the evaluation conferences or communications are free from judicial scrutiny unless the patient affirmatively places her mental condition into issue.” In re Marriage of Lombaer, 558 NE 2d 388 – Ill: Appellate Court, 1st Dist. 1990

Patient-Therapist Confidentiality In Illinois

A person does not need to have a the letters “PhD” behind their name in order to keep a secret from the courts. Therapy is widely available from people of more limited training but the service of therapy is still regarded as sacrosanct enough to be privileged by the Illinois courts.

“[A] recipient, and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient’s record or communications.” 740 ILCS 110/10

But What If They Ask ME About My Medical History In An Illinois Divorce?

What is allowed in an Illinois divorce court as evidence is determined by the Illinois Rules of Evidence. Almost everything a party to a divorce knows about their health is subject to physician-patient privilege.

Below is a word-for-word exchange that occurred in a case where a party to a divorce was asked about her medication. The exchange illustrates perfectly what happens to divorce parties with mental health issues in trial.

“[COUNSEL FOR RESPONDENT]: What medication are you on?

A. None.

Q. None?

A. None.

Q. Was any medication prescribed to you while you were in the hospital?

A. Yes, sir.

Q. What medication was prescribed to you while you were in the hospital?

A. This is sort of private.

[COUNSEL FOR PETITIONER]: Just a moment. That is going to open the door on the question of waiving the privilege. I would have to object to that.

[COUNSEL FOR RESPONDENT]: There is no privilege on that kind of a question. This is not a confidential statement.

[COUNSEL FOR PETITIONER]: The doctor had to prescribe something and that opens the door to the basis for his prescription.

THE COURT: I don’t believe so. The objection is overruled. If she knows what medication she got, she should answer the question.””In re Marriage of Lombaer, 558 NE 2d 388 – Ill: Appellate Court, 1st Dist. 1990

In this case, a counsel asked an opposing party what they knew regarding their own health. That’s not exactly asking their doctor for the patient’s health information.  Still yet, in Illinois, you can’t ask that in divorce court. The person testifying can assert your physician-patient privilege. The person testifying can’t disclose any health information otherwise they would be waiving the privilege for future questions. So, the above judge’s decision to allow testimony was subsequently overruled by the appellate court.

In an Illinois divorce “[M]ental condition shall not be deemed to be introduced merely by making such claim” 740 ILCS 110/10(a)(1)

The person with the condition must bring their mental health issue up first for an Illinois divorce court to consider the mental condition of a client.

In an Illinois divorce, “mental condition shall not be deemed to be introduced merely by making such claim and shall be deemed to be introduced only if the recipient or a witness on his behalf first testifies concerning the record or communication.” 740 ILCS 110/10(a)

The exception to this secrecy is if the person has already shared something confidential with a third party (had a third person in their therapy session, for example)

“[W]here the communication was made confidentially, if the party entitled to assert the privilege consents to revelation of the material to a third party, the privilege is deemed waived.” In re Marriage of Lombaer, 558 NE 2d 388 – Ill: Appellate Court, 1st Dist. 1990

How Can Medical Records Be Introduced In An Illinois Divorce?

The rule should be clear now: medical records cannot be submitted to the court as evidence willy-nilly in an Illinois divorce.  Medical, psychiatric and therapeutic information is private…even in an Illinois divorce case.

In an Illinois divorce without children, it’s hard to imagine a situation where the health of one of the parties would be relevant.

In an Illinois divorce with children, courts are going to want to know if one of the parents have a health issue for the sake of the best interests of the children.

The courts are required to consider “the mental and physical health of all individuals involved” 750 ILCS 5/602.7(a)(7) and 750 ILCS 5/602.5(c)(3) when considering both parenting time and parental responsibilities during an Illinois divorce.

The previous rules regarding the privilege of medical doctors, psychiatrists and therapists all supersede this requirement for an Illinois court to investigate a party’s mental and physical health…but there are ways around those rules.

In fact, in order to discovery a person’s health status, all an Illinois attorney has to do is request that the court appoint a doctor to investigate a party’s mental and/or physical state.

“In any action in which the physical or mental condition of a party or of a person in the party’s custody or legal control is in controversy, the court, upon notice and on motion made within a reasonable time before the trial, may order such party to submit to a physical or mental examination by a licensed professional in a discipline related to the physical or mental condition which is involved.” Illinois Supreme Court Rule 215

So why doesn’t everyone request that their “ill” spouse be examined during an Illinois divorce case?

Because it’s expensive! The examining doctor must be an impartial doctor who is completely new to the case. An Illinois divorce judge is likely to assign the initial cost of the examination to the person requesting the examination and subsequent report.

More frequently, in a divorce with children, a Guardian Ad Litem gets appointed who investigates the physical and mental health of the parties.

A Guardian Ad Litem is an attorney who represents the best interests of the children.

“The guardian ad litem shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506(a)(2)

The Guardian Ad Litem will ask all the parties for waivers in order to discuss their health with their respective doctors, psychiatrists and therapists.  The Guardian Ad Litem should then keep that information private except for as it relates to the best interests of the children. 

The Guardian Ad Litem then uses that information to prepare a final recommendation for the divorce judge to consider when issuing final custody orders.

“The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child” 750 ILCS 5/506(a)(2)

If for some reason, private medical information is revealed in an Illinois divorce court, that disclosure would be a valid basis for a motion to seal the court file.

If you are certain your spouse is ill and you need to bring that information to the attention of an Illinois divorce court or you are trying to keep your own medical history private in an Illinois divorce court, contact my Chicago, Illinois family law firm to privately discuss your matter with an experienced Chicago divorce attorney.

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What Is A Deposition In An Illinois Divorce? https://rdklegal.com/what-is-a-deposition-in-an-illinois-divorce/ https://rdklegal.com/what-is-a-deposition-in-an-illinois-divorce/#respond Mon, 05 Oct 2020 12:13:26 +0000 https://rdklegal.com/?p=10842 Most divorces don’t have any question of fact.  Both parties agree to the basics; how much they earn, what’s in their 401ks, where the kids are registered for school. The final outputs of the divorce, the Judgment, the MSA and the Allocation, may be negotiated but it is relatively rare that the inputs, the facts,…

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Most divorces don’t have any question of fact.  Both parties agree to the basics; how much they earn, what’s in their 401ks, where the kids are registered for school. The final outputs of the divorce, the Judgment, the MSA and the Allocation, may be negotiated but it is relatively rare that the inputs, the facts, are contested. 

When there is a dispute over facts in an Illinois divorce (ex: how much money does someone make, were they married before, where the missing jewelry went), then the divorce judge must make a determination as to the facts.  This determination of facts will be based on the testimony of the parties to the divorce and/or other third parties.

While documents that confirm or deny allegations are powerful evidence, all alleged facts start as testimony which authenticates later produced documents.

Because testimony is so crucial to the determination of a fact in an Illinois divorce case, no divorce lawyer wants to take that testimony for the first time at trial.  Instead, Illinois divorce lawyers have the power to take initial testimony under oath through a deposition.

A deposition allows a divorce lawyer to both gather the information necessary to prove their case and confirm, in advance, what the person would say should the divorce case go to trial.

What Is A Deposition?

A deposition is “[t]he testimony of a witness taken upon interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law on the subject, and reduced to writing and duly authenticated, and intended to be used upon the trial of an action in court.” Black’s Law Dictionary (10th ed. 2014)

The definition of a deposition is so expansive because depositions are extremely versatile. We’ll work through the many kinds of depositions and how to employ them in this article.

Depositions are a discovery tool.  Discovery is the process by which each party to a divorce gathers information in order to settle and or try their divorce case.

The Illinois Supreme Court Rules largely determine the discovery process for an Illinois divorce.

“Information is obtainable as provided in these rules through any of the following discovery methods: depositions upon oral examination or written questions” Illinois Supreme Court Rule 132.

Instructions for depositions: how to schedule a deposition, how to conduct a deposition, how (insert other stuff) are all included in the subsequent rules. 

“Any party may take the testimony of any party or person by deposition upon oral examination or written questions for the purpose of discovery or for use as evidence in the action.” Illinois Supreme Court Rule 202

Discovery deposition questions can be about anything. Furthermore, the questions are not limited by all of the Illinois rules of evidence.  So, the questions can be leading (ex: “isn’t it true you were at McDonald’s that Friday?”) as is permitted on a cross examination as opposed to an open-ended direct examination question (ex: “What if anything did you that Friday?”)

“The deponent in a discovery deposition may be examined regarding any matter subject to discovery under these rules. The deponent may be questioned by any party as if under cross-examination.” Illinois Supreme Court Rule 206(c)(1).

This loose question format only applies to discovery depositions.  There is another type of deposition called evidence depositions which are rarer and meant to preserve the testimony to be read at trial. The regular rules of evidence apply for evidence depositions.  I further discuss the differences between the two types of depositions below.

How Is A Deposition Scheduled In An Illinois Divorce?

Depositions are out-of-court testimony.  So, a deposition has to happen somewhere and isn’t tied to the court’s calendar. The Illinois Supreme Court Rules then tell us how we must inform the deponent and/or opposing party of the deposition.

“A party desiring to take the deposition of any person upon oral examination shall serve notice in writing a reasonable time in advance on the other parties. The notice shall state the time and place for taking the deposition; the name and address of each person to be examined, if known, or, if unknown, information sufficient to identify the deponent; and whether the deposition is for purposes of discovery or for use in evidence.” Illinois Supreme Court Rule 206

The first rule of Illinois depositions is that the party requesting the deposition must state if the deposition is for discovery or evidence.

“The notice, order, or stipulation to take a deposition shall specify whether the deposition is to be a discovery deposition or an evidence deposition.” Illinois Supreme Court Rule 202

The point is that at the end of a deposition, a court reporter will provide a transcript to the parties (after you pay them).  This transcript will be attested to and agreed by the parties to be an accurate word-for-word depiction of the testimony and events which occurred at the deposition. 

Discovery depositions and their transcripts can be used to contradict and/or supplement testimony at trial. 

“Discovery depositions taken under the provisions of this rule may be used only:

      (1) for the purpose of impeaching the testimony of the deponent as a witness in the same manner and to the same extent as any inconsistent statement made by a witness;

      (2) As a former statement, pursuant to Illinois Rule of Evidence 801(d)(2);

      (3) if otherwise admissible as an exception to the hearsay rule;

      (4) for any purpose for which an affidavit may be used; or

      (5) upon reasonable notice to all parties, as evidence at trial or hearing against a party who appeared at the deposition or was given proper notice thereof, if the court finds that the deponent is not a controlled expert witness , the deponent’s evidence deposition has not been taken, and the deponent is unable to attend or testify because of death or infirmity, and if the court, based on its sound discretion, further finds such evidence at trial or hearing will do substantial justice between or among the parties.” Illinois Supreme Court Rule 212(a)

Evidence depositions have a completely different purpose. Evidence depositions will be read (or more likely played as a recording) at trial in lieu of the person’s live testimony.

The evidence deposition of a physician or surgeon may be introduced in evidence at trial on the motion of either party regardless of the availability of the deponent, without prejudice to the right of either party to subpoena or otherwise call the physician or surgeon for attendance at trial. All or any part of other evidence depositions may be used for any purpose for which a discovery deposition may be used, and may be used by any party for any purpose if the court finds that at the time of the trial:

      (1) the deponent is dead or unable to attend or testify because of age, sickness, infirmity or imprisonment;

      (2) the deponent is out of the county, unless it appears that the absence was procured by the party offering the deposition, provided, that a party who is not a resident of this State may introduce his or her own deposition if he or she is absent from the county; or

      (3) the party offering the deposition has exercised reasonable diligence but has been unable to procure the attendance of the deponent by subpoena; or finds, upon notice and motion in advance of trial, that exceptional circumstances exist which make it desirable, in the interest of justice and with due regard for the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.” Illinois Supreme Court Rule 212(b)

Discovery depositions have a free-for-all quality where information is asked for in various fashions in order to pin the deponent down to a specific answer. The specific answer will be used to contradict any answer the deponent gives in the future which varies from that answer.  So, discovery depositions aren’t informative to a third-party observer.

Evidence depositions have more of a mutual theatricality.  The question asker and the question answerer are preserving the record for the consumption of a judge at a later date. Furthermore, the questions for an evidence deposition must in an open-ended style as they would be in court.

Because of this difference, depositions cannot be for both discovery and evidence purposes…unless the parties agree. 

“If both discovery and evidence depositions are desired of the same witness they shall be taken separately, unless the parties stipulate otherwise or the court orders otherwise upon notice and motion.” Illinois Supreme Court Rule 202

Documents In Lieu Of Deposition

Notices of deposition often include a rider of documents the deponent is requested to bring with them.  In most depositions, it is the documents that the examining attorney is after not the actual (and usually evasive) testimony of the deponent.

But, people who hold documents are sometimes hesitant to present those documents unless there’s some kind of consequence like sanctions or a deposition.

To address this quirk of human nature, the Illinois Supreme Court Rules specifically provide for a deposition to be stricken if documents are provided in lieu.  After all, why sit down and describe documents when you could simply just turn them over.

“The notice, order or stipulation to take a deposition may specify that the appearance of the deponent is excused, and that no deposition will be taken, if copies of specified documents or tangible things are served on the party or attorney requesting the same by a date certain. That party or attorney shall serve all requesting parties of record at least three days prior to the scheduled deposition, with true and complete copies of all documents, and shall make available for inspection tangible things, or other materials furnished, and shall file a certificate of compliance with the court.” Illinois Supreme Court Rule 204(a)(4)

A good divorce lawyer will have already asked for these documents via subpoena and/or a notice to produce.  So, the rules allow the examiner to remind the deponent that these items were already asked for and need to be produced.

“A copy of any subpoena issued in connection with such a deposition shall be attached to the notice and immediately filed with the court, not less than 14 days prior to the scheduled deposition.” Illinois Supreme Court Rule 204(a)(4)

Still, if the examiner wants to depose the deponent, the examiner will depose the deponent no matter how many documents they produce.

“The use of this procedure shall not bar the taking of any person’s deposition or limit the scope of same.” Illinois Supreme Court Rule 204(a)(4)

How To Object In An Illinois Deposition?

Depositions allow for broader questioning than would be allowed at trial.  The point of a a discovery deposition is two-fold: to discovery new information and to secure an official answer from the deponent in order to ensure that answer will not change at trial.

Both of these purposes require a series of almost identical questions in order to extract the answer the examining attorney (lawyer who is conducting the deposition) is looking for.  So, a discovery deposition does not have the natural flow of a conversation.

So, the deponent’s attorney or their representative may choose to object to certain questions.  Objecting in a deposition does not have clear rules, whereas the rules for objecting in trial are very clear.

It is absolutely certain that any question regarding privilege (attorney-client, doctor-patient, etc) can be objected to during a deposition.

“All matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure.” Illinois Supreme Court Rule 201(b)(2)

Despite the fact that brief, leading, cross-examination like questions are permitted at discovery depositions, questions can still be objected to for any reason per the Illinois Rules Of Evidence or those objections will be deemed waived at trial.

“Objections to the form of a question or answer, errors and irregularities occurring at the oral examination in the manner or taking of the deposition, in the oath or affirmation, or in the conduct of any person, and errors and irregularities of any kind which might be corrected if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.” Illinois Supreme Court Rule 211(c)(2)

Any objection that is made must be as concise as possible, otherwise the objection could be interpreted as coaching the witness on how they should answer.

“Objections at depositions shall be concise, stating the exact legal nature of the objection.” Illinois Supreme Court Rule 201(c)(3)

Evidence depositions are identical to testimony in trial. So, all objections are permitted per the Illinois Rules of Evidence. 

If you need to depose someone in your Illinois divorce case.  Or, if you’ve received a notice of deposition for your Illinois divorce case, please contact my Chicago, Illinois family law firm to schedule a no-obligation consultation with an experienced Chicago divorce attorney.

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Garnishing Your Ex’s Check For Child Support or Maintenance In Illinois https://rdklegal.com/garnishing-your-exs-check-for-child-support-or-maintenance-in-illinois/ https://rdklegal.com/garnishing-your-exs-check-for-child-support-or-maintenance-in-illinois/#respond Sat, 03 Oct 2020 12:50:44 +0000 https://rdklegal.com/?p=10838 During or at the end of your divorce or parentage action, you may have a judgment and/or order which will instruct one party to pay the other party a sum of money for child support and/or maintenance (formerly known as alimony). This order has the force of law.  Both parties are bound to follow the…

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During or at the end of your divorce or parentage action, you may have a judgment and/or order which will instruct one party to pay the other party a sum of money for child support and/or maintenance (formerly known as alimony).

This order has the force of law.  Both parties are bound to follow the order of support.  But, how does that order get enforced?

If the obligor party does not pay, the other party can file a Petition For Rule To Show Cause and Indirect Contempt Of Court but that just means that the obligee has to go back to court for every missing or late payment. Going to court to enforce the payment probably costs more than the payment itself.

Chasing an obligor’s child support and maintenance payments every month is clearly ridiculous. So, Illnois law allows for the garnishment of the obligor’s pay to pay the court ordered support.

“[E]very order for support entered on or after July 1, 1997, shall…[r]equire an income withholding notice to be prepared and served immediately upon any payor of the obligor by the oblige”

What Is An Income Withholding Notice In An Illinois Divorce or Parentage Case?

An Income Withholding Notice is an alert to the employer of a child support or maintenance obligor that they must withhold a portion of their employee’s income pursuant to a separate child support or maintenance order. The withheld money must then be forwarded to the Illinois State Disbursement Unit which accounts for the payment and sends it to the receiving parent via direct deposit.

“The income withholding notice shall:

direct any payor to withhold the dollar amount required for current support under the order for support;” 750 ILCS 28/20(c)(2)

That’s it! At least the important part (how much to withdraw and from whom).  There are a lot of different details but all you, the reader, need to know is that there is a line for each requirement on your county’s Notice Of Withholding form.  I practice primarily in Cook County, Illinois so I would direct you the Cook County Notice of Withholding For Support Form as an example.

After the Notice of Withholding is filed with the clerk of your circuit court, a copy must be sent to employer (or payor if they somehow get money without working) via any process imaginable.

“The obligee or public office may serve the income withholding notice on the payor or its superintendent, manager, or other agent by ordinary mail or certified mail return receipt requested, by facsimile transmission or other electronic means, by personal delivery, or by any method provided by law for service of a summons” 750 ILCS 28/20(g)

Trust me, this is not the employer’s first Income Withholding Notice.  The employer will know what to do.  More importantly, the company that processes the employer’s payroll will know what to do with little, if any, argument.

A copy of the notice of withholding that was sent to the employer must also be sent to the obligor.

“[T]he obligee…shall serve a copy of the income withholding notice on the obligor by ordinary mail addressed to his or her last known address.” 750 ILCS 28/20(g)

How Do You Contest Income Withholding?

If the obligor does not want the money to come out of their check, they don’t really have a choice. The obligor can only contest withholding under very narrow circumstances.

“The obligor may contest withholding commenced under this Section by filing a petition to contest withholding with the Clerk of the Circuit Court within 20 days after service of a copy of the income withholding notice on the obligor. However, the grounds for the petition shall be limited to a dispute concerning:

(1) whether the parties’ written agreement providing an alternative arrangement to immediate withholding under subsection (a) of Section 20 continues to ensure payment of support; or

(2) the identity of the obligor” 750 ILCS 28/30(c)

Because most withholding occurs after the obligor has fallen into arrears and can no longer be trusted to pay on time “it shall not be grounds for filing a petition that the obligor has made all payments due by the date of the petition.” 750 ILCS 28/30(c)

A child emancipating or maintenance terminating shall not be reason to end the garnishment if arrearages are still owed.

“[T]he obligee or public office may prepare and serve upon the obligor’s payor an income withholding notice that:

contains the total amount of the unpaid arrearage or delinquency as of the date of the notice; and

directs the payor to withhold, as a periodic payment toward satisfaction of the unpaid arrearage or delinquency, the total of:

  • the periodic amount required to be paid as current support immediately prior to the date the current support obligation terminated under the order, or by the child becoming emancipated by age or otherwise, and
  • any periodic amount previously required for satisfaction of the arrearage or delinquency.” 750 ILCS 28/32(a)

So, support does not go down until the entire arrearage is paid.  Even the additional arrearage penalty surcharge must still be paid. 

What Is The Maximum Withholding For Child Support In Illinois?

The maximum withholding is whatever the child support order says it is. In Illinois, child support is based on the income of the support payor and the income of the support receiver.  The support will be a portion of the income of the payor.

While garnishments for debts have a maximum percentage, garnishment for child support in Illinois is not limited by some separate law apart from the child support order.

Is Garnishment For Child Support Or Maintenance Mandatory in Illinois? 

Income withholding is not mandatory in Illinois.  If the parties agree, no money will be taken directly from the child support and/or maintenance obligor’s check.

“[E]very order for support entered on or after July 1, 1997, shall…[r]equire an income withholding notice to be prepared and served immediately upon any payor of the obligor by the oblige…unless a written agreement is reached between and signed by both parties providing for an alternative arrangement, approved and entered into the record by the court, which ensures payment of support.” 750 ILCS 28/20(a)(1)

That agreement must contain a clause saying that if a payment is missed, a notice of withholding will be prepared and entered with the court. That income withholding notice must be served on the obligor.

“In [the case of an agreement to not withhold support from a paycheck], the order for support shall provide that an income withholding notice is to be prepared and served only if the obligor becomes delinquent in paying the order for support.” 750 ILCS 28/20(a)(1)

But, the agreement can also waive service on the obligor and thus remove an impediment to enforcement of support.

“If the order for support, under the exception to immediate withholding contained in subsection (a) of this Section, provides that an income withholding notice is to be prepared and served only if the obligor becomes delinquent in paying the order for support, the obligor may execute a written waiver of that condition and request immediate service on the payor.” 750 ILCS 28/20(f)

In reality, service isn’t really that important.  An employer who receives a notice of withholding isn’t going to say “well, my employee wasn’t served so I’m not going to withhold his or her support.”  Furthermore, the obligor isn’t going to rush into court to say “I was never served,” because they will just be served in that same court.  Plus, the obligation remains whether they have been served or not.

What If The Employer Doesn’t Withhold Income For Child Support and/or Maintenance?

Once the employer receives the Income Withholding Notice, they are bound by law to follow it.

“It shall be the duty of any payor who has been served with an income withholding notice to deduct and pay over income” 750 ILCS 28/35(a)

If the employer does not deduct and transfer that payment over to the Illinois State Disbursement Unit, the employer is going to be in big financial trouble.

“If the payor knowingly fails to withhold the amount designated in the income withholding notice or to pay any amount withheld to the State Disbursement Unit within 7 business days after the date the amount would have been paid or credited to the obligor, then the payor shall pay a penalty of $100 for each day that the amount designated in the income withholding notice (whether or not withheld by the payor) is not paid to the State Disbursement Unit after the period of 7 business days has expired.” 750 ILCS 28/35(a)

More typically, the employer does not forward the support because the employee no longer works there. In that case, “[w]henever the obligor is no longer receiving income from the payor, the payor shall return a copy of the income withholding notice to the obligee or public office and shall provide information for the purpose of enforcing this Act.” 750 ILCS 28/35(a)

When an obligor gets a new job, the Income Withholding Order must be sent to the new employer.  Typically, the obligor provides it to the new employer so they don’t fall behind on their support. But the person who receives the support should send a copy to the new employer just be sure.

If the obligor has multiple income withholding orders (as in, numerous mothers of various children), the employer has to do their best to pay everyone with what’s available.

“If the payor has been served with more than one income withholding notice pertaining to the same obligor, the payor shall allocate income available for withholding on a proportionate share basis, giving priority to current support payments” 750 ILCS 28/35(c)

Maintenance and Withholding In Illinois

Income withholding orders specifically “direct any payor to pay over amounts withheld for payment of support to the State Disbursement Unit.” 750 ILCS 28/20(c)(12)

The Illinois State Disbursement Unit is a public entity that helps collect, distribute and account for child support throughout Illinois. The Illinois State Disbursement Unit is not in place to help wealthy ex-spouses collect their maintenance (formerly known as alimony.

When the amount withheld is for child support and maintenance, the Illinois State Disbursement Unit will be happy to forward the joint child support/maintenance payment.  But, the Illinois State Disbursement Unit will NOT process maintenance payments without a child support element.

”[O]rder for support” shall not mean orders providing for spousal maintenance under which there is no child support obligation.” 750 ILCS 5/507.1(a)(1)

So, the alternative to income withholding for a receiver of maintenance is to ask the court to order that the obligor enroll in a regular direct deposit from the obligor’s checking account to the oblige that coincides with the maintenance payor’s regular receipt of their pay.

If the maintenance payor does not enter into a direct deposit and does not pay, the options for enforcement are harsh.

If you’re having issues with withholding income for the purposes of support, call my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney

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How To Get A Continuance In An Illinois Divorce Case https://rdklegal.com/how-to-get-a-continuance-in-an-illinois-divorce-case/ https://rdklegal.com/how-to-get-a-continuance-in-an-illinois-divorce-case/#respond Fri, 02 Oct 2020 12:00:24 +0000 https://rdklegal.com/?p=10832 An Illinois divorce case starts with a Petition For Dissolution Of Marriage.  Upon that filing, the opposing party is required to file an Appearance and a Response To the Petition Of Dissolution Of Marriage. After that, nothing is really required to happen in divorce court for a while But when something is required, either party…

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An Illinois divorce case starts with a Petition For Dissolution Of Marriage.  Upon that filing, the opposing party is required to file an Appearance and a Response To the Petition Of Dissolution Of Marriage. After that, nothing is really required to happen in divorce court for a while

But when something is required, either party may not be prepared for that court date. If a party is not prepared, they must get a continuance of that court date. So, how do you ask for and get a continuance in an Illinois divorce court?

A continuance is not a right in an Illinois divorce court.  A continuance is a privilege in an Illinois divorce court.  But, with the right steps, your motion for continuance will be granted in your Illinois divorce case.

“A litigant has no absolute right to a continuance; rather, the decision to grant or deny a continuance is within the sound discretion of the trial court.” In re Marriage of Ward, 282 Ill. App. 3d 423, 430 (1996)

Continuance During The Pendency Of An Illinois Divorce Action.

The parties are likely to file motions for temporary relief to resolve matters while the divorce is proceeding but not yet filing. The motions will get court dates for presentment, continued for status on responses and then finally set for hearing.

This is a lot of time.  It can take months just for a motion for temporary relief to be heard in an Illinois divorce case.

Still, sometimes someone needs more time to prepare or answer. They need a continuance. 

Most of the time, the opposing side will agree to a continue the manner.

“Lawyers shall agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided that the clients’ legitimate rights will not be materially or adversely affected.” Cook County Court Rule 13.11(b)(iv)

The court will almost always allow an agreed continuance for temporary non-trial matters.

If the request for a continuance is not agreed, the court will grant a party’s motion for continuance for “good cause.

“On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.” 735 ILCS 5/2-1007

While temporary motions are being filed, answered and heard, the parties should also be conducting discovery: the exchange of and search for documents necessary to prove a party’s claims. 

These documents are often held by third parties and are not immediately available.  Because these documents may be necessary evidence for a temporary hearing, the absence of the document will be good cause for continuance of the matter.

In short, continuances are liberally granted for temporary matters in an Illinois divorce. That is because everything is temporary until the trial.  Even if you’re not granted a continuance for a temporary hearing, the matter can always be reheard in a motion to reconsider or a motion to modify.  Temporary orders are…temporary.  In fact, temporary orders are extinguished upon the entry of a final Judgment of Dissolution of Marriage.

Continuance Of A Trial In An Illinois Divorce

The continuance of an Illinois divorce trial is another story. The standards for continuance are much stricter for continuing a trial.

The standards for a continuance are stricter “once the case has reached the trial stage because of the potential inconvenience to the witnesses, the parties, and the court.” In re Marriage of Ward, 282 Ill. App. 3d 423, 430 (1996)

“The circumstances, terms and conditions under which continuances may be granted, the time and manner in which application therefor shall be made, and the effect thereof, shall be according to rules.” 735 ILCS 5/2-1007

The “rules” this statute is referring to are the Illinois Supreme Court Rules and the local circuit court rules.

“No motion for the continuance of a cause made after the cause has been reached for trial shall be heard, unless a sufficient excuse is shown for the delay.” Illinois Supreme Court Rule 231(f)

The rules then lay out what is a sufficient excuse for a continuing an Illinois divorce trial.

“If either party applies for a continuance of a cause on account of the absence of material evidence, the motion shall be supported by the affidavit of the party so applying or his authorized agent. The affidavit shall show (1) that due diligence has been used to obtain the evidence, or the want of time to obtain it; (2) of what particular fact or facts the evidence consists; (3) if the evidence consists of the testimony of a witness his place of residence, or if his place of residence is not known, that due diligence has been used to ascertain it; and (4) that if further time is given the evidence can be procured.” Illinois Supreme Court Rule 231(a)

So, if evidence is necessary but not available AND you didn’t have an earlier opportunity to get that evidence…then you can get a continuance. 

However, just because you think evidence is important or “material” does not mean the court will agree that the missing evidence warrants a continuance.

“If the court is satisfied that the evidence would not be material, or if the other party will admit the affidavit in evidence as proof only of what the absent witness would testify to if present, the continuance shall be denied unless the court, for the furtherance of justice, shall consider a continuance necessary.” Illinois Supreme Court Rule 231(b)

Truthfully, courts grant continuances based on whether the party was duly prepared despite the circumstances (illness, emergency, etc).  The “decisive factor is whether the party seeking the continuance has shown a lack of diligence in proceeding with the cause.” In re Marriage of Ward, 282 Ill. App. 3d 423, 430 (1996)

But, an Illinois divorce court can do whatever it wants.

“The court may on its own motion, or with the consent of the adverse party, continue a cause for trial to a later day.” Illinois Supreme Court Rule 231(e)

If a continuance is granted, the party requesting the continuance is going to pay the costs of the other party who showed up for trial ready that day.

“When a continuance is granted upon payment of costs, the costs may be taxed summarily by the court, and on being taxed shall be paid on demand of the party, his agent, or his attorney, and, if not so paid, on affidavit of the fact, the continuance may be vacated, or the court may enforce the payment, with the accruing costs, by contempt proceedings.” Illinois Supreme Court Rule 231(g)

How To Get A Continuance In An Illinois Divorce Case

If you need a continuance in your Illinois divorce case, it better be your first motion for continuance. 

Secondly, you’ll need to show the court that you were prepared but for this unforeseen circumstance.

If the cause was foreseeable, a big heartfelt apology for not foreseeing the issue that is the basis for the continuance will be necessary.  An earnest apology goes a long way in an Illinois divorce court.

Finally, the motion for continuance can be filed as an emergency motion so the judge will hear about the conditions that require a continuance as soon as possible.

Most Illinois divorce judges are very gracious and happy to offer continuances for good cause.  Few divorce judges will extend this courtesy on a repeated basis. Your reputation and your lawyer’s reputation matter greatly when asking the court for any kind of leniency. 

If you need a continuance and you are reading this article, it might be too late. But then again, it might not be.  Give my Chicago, Illinois law firm a call to schedule a quick no-obligation consultation regarding your Illinois divorce case.

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Can Maintenance Be Modified Upwards After An Illinois Divorce? https://rdklegal.com/can-maintenance-be-modified-upwards-after-an-illinois-divorce/ https://rdklegal.com/can-maintenance-be-modified-upwards-after-an-illinois-divorce/#respond Sat, 26 Sep 2020 13:04:53 +0000 https://rdklegal.com/?p=10823 In Illinois, a divorce court can award one party a monthly payment of maintenance from the other party based upon a showing of need and an ability to pay.  This amount of maintenance (formerly known as alimony) is then set for a period of time or is made permanent.  This may seem like a daunting…

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In Illinois, a divorce court can award one party a monthly payment of maintenance from the other party based upon a showing of need and an ability to pay.  This amount of maintenance (formerly known as alimony) is then set for a period of time or is made permanent. 

This may seem like a daunting ongoing obligation but, in reality, it is extremely easy to modify a maintenance award. In my experience, the bigger challenge is in enforcing a maintenance award over the years.

But, does a maintenance modification cut both ways? Can a maintenance award increase with the payor’s income and the payee’s needs? Or do maintenance awards after an Illinoois divorce only modify one way: downwards?

Modification Or Maintenance Requires A Substantial Change In Circumstance After An Illinois Divorce

Before an Illinois family law court will consider modifying a maintenance award, the party attempting to modify the award must prove that something has changed substantially.

“An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a-5)

“Courts in Illinois have held that “substantial change in circumstances” as required under section 510 of the Act means that either the needs of the spouse receiving maintenance or the ability of the other spouse to pay that maintenance has changed” In re Marriage of Anderson, 409 Ill. App. 3d 191(2011)

It is the person requesting the change that must prove that the change has, in fact, occurred.

“The party seeking modification of a maintenance order has the burden of showing that a substantial change in circumstances has occurred.” In re Marriage of Anderson, 409 Ill. App. 3d 191(2011)

A change in circumstances must not just be substantial.  A change in circumstances must also not have been contemplated by the parties or court at the time of the agreement and/or judgment.

“[W]e are reluctant to find a “substantial change in circumstances” where the trial court contemplated and expected the financial change at issue.” In re Marriage of Reynard, 378 Ill. App. 3d 997, 1005 (2008)

What If My Ex-Spouse’s Income Goes Up?

If your spouse is paying you income and your spouse’s income goes up, that probably won’t be a surprise to you, your spouse or the court. 

The type of person who would be ordered to pay maintenance by an Illinois divorce court would be earning at least 150% more than their former spouse.  Additionally, that person would be found to have the ability to pay maintenance to their former spouse beyond their own personal expenses.  In short, maintenance payors are almost always professionals and not laborers.

Unless someone is stricken with an incurable disease, it is commonly acknowledged that a person’s income will consistently go up over time commensurate with their experience. 

A maintenance payor will always have the presumption that they could make more in the future.  Therefore, it is almost always contemplated at the time of judgment that a maintenance payor would make more money. If the change was contemplated, then the change is not a “substantial change in circumstances” under Illinois divorce law.  

“We note that a party’s increased income does not constitute a substantial change in circumstances when the increase was based on events that were contemplated and expected by the trial court when the judgment of dissolution was entered.” In re Marriage of Salvatore, 2019 IL App (2d) 180425

So, an increase in the payor’s income will almost never warrant an increase in maintenance to the payee under Illinois divorce laws.

What If My Income Goes Down After An Illinois Divorce?

Economists like to say that “wages are sticky.”  That is, no one takes a pay cut.  People just get fired.

If you are receiving maintenance pursuant to an Illinois Marital Settlement Agreement, you can go to the court to request an increase in that maintenance to meet your new needs.

The court will consider the payee’s job loss as an opportunity to increase maintenance.

In order to modify a maintenance award based on a job loss or pay decrease, the court must consider “(1) any change in the employment status of either party and whether the change has been made in good faith;(2) the efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate” 750 ILCS 510(a-5)

The job loss must NOT be the payee’s fault.  The payee must be laid off in “good faith” and not fired for their own bad behavior.

There are practical impediments to increasing maintenance based on a job loss or decrease in pay.  Specifically, it will take months for a court to hear a motion to modify maintenance.  During that time, the movant is likely to acquire a new job at, presumably, a similar income to their old job. This renders the motion moot.

In reality, only a health problem will be cause for an increase in maintenance as a court must consider “any impairment of the present and future earning capacity of either party;” 750 ILCS 510(a-5)(3)

It is difficult to think of any impairment of future earning capacity that would not be health related

Even if this impairment is deemed permanent and warrants an increase in maintenance, the increase will likely only follow the maintenance guidelines formula.

The maintenance guidelines formula requires that the payor pay 33% of his net income to the payee less 25% of the payee’s income.  So, even in the extreme circumstance where the payee has no income, the maintenance will only increase by 25% of the payee’s former income.

In conclusion, maintenance in unlikely to ever increase after a modification.  Maintenance almost only goes down or is terminated.

When Can Maintenance Can Be Modified Upwards In Illinois?

There is one exception to my sobering diagnosis that maintenance can almost never be modified upwards. That is if an order of temporary maintenance is made.

Temporary orders are temporary. They can be modified upwards or downwards throughout the case until the final judgment is entered and all temporary orders are extinguished.

Temporary maintenance awards can even be made retroactively.

“[C]ourt[s] have the statutory authority to award [parties] maintenance…from the date of [their] request” In re Marriage of Hochstatter, 2020 IL App (3d) 190132

Can Maintenance Duration Be Extended In An Illinois Divorce?

Except for permanent maintenance, every guidelines maintenance award has a termination date.

An extension of maintenance is possible under the Illinois statute but I have, personally, never seen it done. 

“Upon review of any previously ordered maintenance award, the court may extend maintenance for further review, extend maintenance for a fixed non-modifiable term, extend maintenance for an indefinite term, or permanently terminate maintenance in accordance with subdivision (b-1)(1)(A) of this Section.” 750 ILCS 5/504(b-8)

Furthermore, the review of maintenance duration is not bound by the requirement of a substantial change in circumstance as this opportunity for review is included in the statute that sets maintenance not the statute that modifies maintenance and thus invokes that requirement. 

If you’re trying to modify your maintenance upwards, downwards or length-wise, feel free to contact my Chicago, Illinois family law firm to speak with a Chicago divorce attorney who thinks about this kind of thing…a lot.

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