Does The Birth Certificate Determine Who The Father Is In Illinois?

There is a lot of folk wisdom out there that people assume is true with little to no evidence beyond “it sounds true.” One presumption is that if a man is listed on a birth certificate as the child’s father, he will be deemed the father of that child. In Illinois, while the listing of a father on a birth certificate validates that the man is the father of the child, a father’s name on a birth certificate does not necessarily establish the rights and responsibilities of fatherhood in Illinois. In Illinois, birth certificates are filled out by hospital officials. “When a birth occurs in an institution [like a hospital], the person in charge of the institution or his designated representative shall obtain and record all the personal and statistical particulars relative to the parents of the child that are required to properly complete the live birth certificate” 410 ILCS 535/12(2) A hospital official with a form does not determine who the father of a child is. Illinois law determines who is the parent of the child and that determines what goes on an Illinois birth certificate. For women, the law as to parentage is fairly simple: “The parent-child relationship is established between a woman and a child by:(1) the woman having given birth to the child, except as otherwise provided in the Gestational Surrogacy Act ;(2) an adjudication of the woman’s parentage;(3) adoption of the child by the woman;(4) a valid gestational surrogacy arrangement that complies with the Gestational Surrogacy Act or other law; or(5) an unrebutted presumption of the woman’s parentage of the child under Section 204 of this Act.” 750 ILCS 46/201(a) For a man, the parentage is also simple…if the man is married to the woman who just gave birth, that man is the father of that child. “A person is presumed to be the parent of a child if:(1) the person and the mother of the child have entered into a marriage, civil union, or substantially similar legal relationship, and the child is born to the mother during the marriage, civil union, or substantially similar legal relationship” 750 ILCS 46/204(a) If mom and dad are not married, the dad can be found to a parent if he signs a Voluntary Acknowledgment of Paternity. “The parent-child relationship is established between a man and a child by: … (2) An effective voluntary acknowledgment of paternity by the man under Article 3 of this […]

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Trusts And Marital Assets In An Illinois Divorce

I recently saw an advertisement on Facebook that said, “Protect your assets in a divorce with a trust.” Hmm. I am a divorce lawyer who is obsessed with divorce law and strategy. Why had I not heard that a pending divorce could be resolved by simply transferring all of one’s property into a trust? What sounds too good to be true…usually is. Upon further research, I discovered that you can remove marital assets from the marital estate, rendering the assets untouched by a later divorce, by putting those marital assets in a trust…but only if you have NO ill will in your heart (explained later). What Is A Trust In Illinois “”Trust” means…a trust created by will, deed, agreement, declaration, or other written instrument” 760 ILCS 3/103(37) “A trust may be created by:   Property transferred to a trust is now the property of the trust not the property of the person who transferred the property to the trust (until the trust is revoked). Therefore, that property cannot be divided in an Illinois divorce because the person no longer owns the property. The trust owns the formerly marital property after the transfer.   Division Of Assets In An Illinois Divorce Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d) “‘[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a) “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) Before there is any question as to whether property is marital and thus, divisible in an Illinois divorce, the question is whether the property is even subject to the divorce. Property Held By A Trust Is Not Marital Property “The issue is…whether the assets in [a]…trusts is before the court in the first instance and therefore subject to distribution.” LaRocque v. LaRocque (In re Marriage of LaRocque), 107 N.E.3d 349, 366 (Ill. App. Ct. 2018) Non-marital property “property acquired by gift, legacy or descent or property acquired in exchange for such property” 750 ILCS 5/503(a)(1) “Section 503(a)(1) may apply where a spouse receives property as his or her share of a trust.” In re Marriage of Asta and Pappas, 56 NE 3d 1088 – Ill: Appellate […]

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How To Avoid Paying Maintenance In Illinois

The prospect of divorce is frightening. Splitting assets and seeing your children half the time (or less) are harrowing possibilities but the continuing obligation of maintenance (formerly known as alimony) seems the most daunting. Before the divorce, you were supporting one household with two incomes. After the divorce, you may be expected to support two households (your household and your ex-spouse’s) on one income. How do you avoid the additional, ongoing obligation of maintenance during and after your Illinois divorce? Who Has To Pay Maintenance In Illinois? Either party may request maintenance in an Illinois divorce. “[T]he court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct” 750 ILCS 5/504 The first step a court does is determine whether maintenance is even appropriate for the divorcing couple. “The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including:(1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage;(2) the needs of each party;(3) the realistic present and future earning capacity of each party;(4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;(5) any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought;(6) the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment;(6.1) the effect of any parental responsibility arrangements and its effect on a party’s ability to seek or maintain employment;(7) the standard of living established during the marriage;(8) the duration of the marriage;(9) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties;(10) all sources of public and private income including, without limitation, disability and retirement income;(11) the tax consequences to each party ;(12) contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;(13) any valid agreement of the parties; and(14) any other factor that the court […]

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Do I Have To Share The Subpoena Responses I Received In My Illinois Divorce?

Lawyers have the enormous and independent power of subpoena. Lawyers can issue subpoenas and those subpoenas have the authority of the court. The subpoena must be answered under the penalty of contempt of court. “[S]ubpoenas may be issued by an attorney admitted to practice in the State of Illinois who is currently counsel of record in the pending action. The subpoena may command the person to whom it is directed to produce documents or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted under these rules” Ill. Sup. Ct. R. 204(a)(1) When someone receives a subpoena, they can be called a deponent. The deponent must provide the documents requested unless someone (not necessarily the subpoena receiver) file a motion to quash that subpoena. If the subpoena is uncontested, the subpoena answerer (the deponent) can get in big trouble (i.e. at least be ordered to pay attorney’s fees). “If a party or other deponent refuses…to comply with a request for the production of documents or tangible things or inspection of real property…the party serving the request may on like notice move for an order compelling an answer or compliance with the request. If the court finds that the refusal or failure was without substantial justification, the court shall require the offending party or deponent, or the party whose attorney advised the conduct complained of, or either of them, to pay to the aggrieved party the amount of the reasonable expenses incurred in obtaining the order, including reasonable attorney’s fees.” Ill. Sup. Ct. R. 219 Deponents already received a subpoena. Deponents do NOT want any more problems. So, deponents usually and quickly provide the requested documents to the party that issued the subpoena. In theory, the deponent should file a certificate of compliance with the court…but I’ve never seen a third-party deponent do that in my 18 years of practice. “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.” Ill. Sup. Ct. R. 204(a)(4) The deponent does NOT have to give the requested documents to all parties, just the party that requested the documents. The party that requested the documents […]

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The Disadvantages Of Filing First In An Illinois Divorce

There is much discussion as to both the perception of and the strategic impact of filing first in an Illinois divorce. Filing first in an Illinois divorce case is NOT always the smart move, however. There are numerous disadvantages to filing first in an Illinois divorce case. If you are not filing for divorce first, you do NOT know when your spouse will file for divorce. The only thing you know is that the filing will happen in the future. A later filing date may be in your interest if you expect to receive maintenance (formerly known as alimony). The duration of maintenance payments is based on the length of the marriage UP TO the date of the filing of the petition for dissolution of marriage. Maintenance “shall be calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.” 750 ILCS 5/504(b-1)(1)(B) Likewise, if your spouse is accumulating assets, those assets are considered marital and, thus, divisible until the day you are divorced. “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) The later the […]

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Trespassing In An Illinois Divorce Or Former Relationship

People break up. But, often one person is not ready for the break up. It is one thing to call or text a former partner to get their attention. It is, frankly, extreme to appear in person at that person’s residence or workplace when uninvited. A polite “no thank you” will, hopefully, be observed and respected by the former partner who appeared at your home or workplace. If not, a call to the police will drive the point home. Afterwards, a petition for an order of protection can be filed to emphasize that you do NOT want to see the person again and provide a criminal penalty if your former partner appears at your home or workplace. Orders of Protection And Trespassing In Illinois An order of protection in Illinois uses backwards-looking logic. Were you abused? Then you need an order of protection. “If the court finds that petitioner has been abused by a family or household member…an order of protection prohibiting the abuse, neglect, or exploitation shall issue” 750 ILCS 60/214 Orders of protection are only for family, household members and former relationships. The Illinois Domestic Violence Act defines a “[f]amily or household member” to include “persons who have or have had a dating or engagement relationship.” 750 ILCS 60/103(6) “’Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1) Trespassing will almost certainly qualify as “abuse” for the purposes of obtaining an order of protection in Illinois because trespassing is defined as a form of harassment. “Harassment” means knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the petitioner. Unless the presumption is rebutted by a preponderance of the evidence, the following types of conduct shall be presumed to cause emotional distress:(i) creating a disturbance at petitioner’s place of employment or school;(ii) repeatedly telephoning petitioner’s place of employment, home or residence;(iii) repeatedly following petitioner about in a public place or places;(iv) repeatedly keeping petitioner under surveillance by remaining present outside his or her home, school, place of employment, vehicle or other place occupied by petitioner or by peering in petitioner’s windows;(v) improperly concealing a minor child from petitioner, repeatedly threatening to improperly remove a minor child of petitioner’s from the jurisdiction or from the physical care of petitioner, repeatedly threatening to conceal a minor […]

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Can A Spouse Sell Property Without The Permission Of The Other Spouse In Illinois?

When considering a divorce, people move money around or even hide assets. Real estate cannot be hidden or moved, however, because you know the address. Can real estate be sold by one spouse without the permission of the other spouse? Property in Illinois can only be transferred if the transfer is by written contract or deed. “No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.” 740 ILCS 80/2 A written document transferring real estate in Illinois must be a deed which complies with Illinois’ Conveyances Act.   “Every deed in substance in the above form, when otherwise duly executed, shall be deemed and held a conveyance in fee simple, to the grantee, his heirs or assigns, with covenants on the part of the grantor, (1) that at the time of the making and delivery of such deed he was the lawful owner of an indefeasible estate in fee simple, in and to the premises therein described, and had good right and full power to convey the same; (2) that the same were then free from all incumbrances; and (3) that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same. Such covenants shall be obligatory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at length in such deed.” 765 ILCS 5/10 If both spouses are on the deed, then both spouses have to sign the deed to transfer the property to a third party. A Spouse Cannot Sell A Homestead Without The Other Spouse’s Permission In Illinois If the property is the marital home, then the property is considered a “homestead.” A spouse cannot sell a home their spouse is living in (the homestead). “Neither the husband nor wife can remove the other or their children from their homestead without the consent of the other, unless the owner of the property shall, in good faith, provide another […]

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A New Spouse’s Income After An Illinois Divorce

At the moment an Illinois divorce is registered, the final court documents capture a moment in time. A moment where both parties are unmarried…but they won’t be for long. People who get divorced usually get married again. A remarriage means an entangling of a spouse’s finances with their new spouse. How does a new spouse’s income affect maintenance, child support and other matters after an Illinois divorce? Initially, a Marital Settlement Agreement and an Allocation of Parenting Time and Parental Responsibilities will govern the divorced couple. As time passes, either couple may petition for a modification of the terms of either of those two documents. Division of assets will have been finalized in the initial divorce documents so the only thing to modify is the remaining child support and maintenance (formerly known as alimony) provisions. “[T]he provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification.” 750 ILCS 5/510(a) A modification of support shall only be made“upon a showing of a substantial change in circumstances” 750 ILCS 5/510(a)(1) Is A New Spouse A Substantial Change In Circumstances For Purposes of Support Modification In Illinois? A remarriage of either parent will probably qualify as a substantial change in circumstances and thus allow the Illinois divorce court to consider a modification of support. “To determine whether there has been a substantial change in circumstances, the court should take a holistic view of the parent’s financial position and consider all financial resources, including assets and even the financial status of a new spouse.” Verhines, 2018 IL App (2d) 171034 ¶ 81 A New Spouse’s Income And Child Support In Illinois In Illinois child support is calculated using both parent’s incomes. “Computation of basic child support obligation. The court shall compute the basic child support obligation by taking the following steps: (A) determine each parent’s monthly net income; (B) add the parents’ monthly net incomes together to determine the combined monthly net income of the parents; (C) select the corresponding appropriate amount from the schedule of basic child support obligations based on the parties’ combined monthly net income and number of children of the parties;  and (D) calculate each parent’s percentage share of the basic child support obligation.” 750 ILCS 5050(a)(1.5) So, either parent having a new spouse would be additional income into that household and, […]

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Stay At Home Parents And Homemakers In An Illinois Divorce

A marriage with a homemaker is often a symbiotic relationship where everyone is happier for it…until they’re not. After a divorce, there can be no further cooperation. The homemaker either has to get a job, request alimony, child support and/or a greater share of marital assets. During an Illinois divorce, stay at home parents, homemakers and their spouses face special considerations as their lawyers and the divorce courts try to rebalance their now separate lives. “Marriage is a partnership, not only morally, but financially. Spouses are coequals, and homemaker services must be recognized as significant when the economic incidents of divorce are determined. Petitioner should not be penalized for having performed her assignment under the agreed-upon division of labor within the family. It is inequitable upon dissolution to saddle petitioner with the burden of her reduced earning potential and to allow respondent to continue in the advantageous position he reached through their joint efforts.” In re Marriage of Hart, 551 NE 2d 737 – Ill: Appellate Court, 4th Dist. 1990 (on dissent)  Homemakers and Maintenance (Formerly Known As Alimony) In An Illinois Divorce In almost every case involving a homemaker or stay at home parent, there will be a maintenance award from the working spouse to the non-working spouse. The first step in the analysis of awarding maintenance in an Illinois divorce is determining if maintenance SHOULD be awarded. In order for the court to allow maintenance, the court must consider a series of factors, many of which strongly imply that a homemaker should be awarded maintenance. Those factors include: • The income and property of each party• The realistic present and future earning capacity of each party• Any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having foregone or delayed education, training, employment or career opportunities due to the marriage• Any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought• The time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether the party is able to support himself or herself through appropriate employment or any parental responsibility arrangements and its effect on the party seeking employment• The standard of living established during the marriage• The duration of the marriage.• The age, health, station occupation, amount and sources of […]

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Homestead Rights And Divorce In Illinois

In America, the ability to own a home is part of the American Dream. In furtherance of this, there are numerous laws which encourage home ownership such as the mortgage interest deduction and the concept of the homestead exemption. What Is A Homestead in Illinois? A homestead is a building or collection of buildings where people actually live. “Homestead is a freehold estate in land, the purpose of which is ‘to insure to the family the possession and enjoyment of a home ” Willard v. Northwest National Bank of Chicago, 137 Ill. App. 3d 255, 264 (1985) Labelling a house a homestead provides “a shelter beyond the reach of his improvidence or financial misfortune.” People v. One Residence Located at 1403 East Parham Street, 251 Ill. App. 3d 198, 201 (1993) Homestead In Illinois When You Are Married In Illinois, labelling a house a homestead, keeps one member of the couple from evicting the other party from the home. “Neither the husband nor wife can remove the other or their children from their homestead without the consent of the other, unless the owner of the property shall, in good faith, provide another homestead suitable to the condition in life of the family; and if he abandons her, she is entitled to the custody of their minor children, unless a court of competent jurisdiction, upon application for that purpose, shall otherwise direct.” 750 ILCS 65/16 In Illinois, “where a homestead exists neither can change the residence of the other from that homestead without such other’s consent or unless another suitable homestead is provided.” Brod v. Brod, 390 Ill. 312, 324 (Ill. 1945) The concept of the homestead means that the married person who owns a property cannot simply put their spouse out on the street. The married person who owns property must find their spouse suitable housing…at least until they’re no longer married and are, in fact, divorced. If you bought or sold a house in Illinois while married, you are probably already familiar with this concept as you had to get your spouse’s signature for a waiver of their homestead rights. “No deed or other instrument shall be construed as releasing or waiving the right of homestead, unless the same shall contain a clause expressly releasing or waiving such right. And no release or waiver of the right of homestead by the husband or wife shall bind the other spouse unless […]

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Conversion As A Defense To Commingling And Transmutation In an Illinois Divorce

The default rule in an Illinois divorce is whatever you came into a marriage with…you can leave the marriage with. The distinction between premarital and marital (thus, divisible) assets is crucial to determining who gets what in an Illinois divorce. The subrule is that premarital assets that become blended or commingled with marital assets, those premarital assets take on the marital character and become divisible…much to the chagrin of the person who used to own the formerly premarital asset. Transmutation In An Illinois Divorce This blending of assets is called transmutation. Transmutation is “A change in the nature of something; esp., in family law, the transformation of separate property into marital property, or of marital property into separate property.”  Black’s Law Dictionary (11th ed. 2019) “Transmutation is based on the presumption that the owner of the nonmarital property intended to make a gift of it to the marital estate.” In re Marriage of Vondra, 2016 IL App (1st) 150793 “The placing of nonmarital property in joint tenancy or some other form of co-ownership with the other spouse will raise a presumption that a gift was made to the marital estate, and the property will become marital property.” In re Marriage of Benz, 165 Ill. App. 3d 273, 280 (Ill. App. Ct. 1988) Once the transmutation occurs, is the property transmuted now completely divisible in an Illinois divorce? Perhaps. There may be a way to claw back the property into a non-marital, non-divisible status: by making a conversion claim. A Conversion Claim As A Way To Undo Transmutation A claim is “the assertion of an existing right” Black’s Law Dictionary (11th ed. 2019) An Illinois resident’s rights are found in both the constitutions, the statutes and the case law. The petition for dissolution of marriage is only one claim. There are many other claims available to a person getting divorced in Illinois. Conversion is a separate claim, a separate existing right that a divorcing Illinois resident can invoke. “To state a cause of action for conversion, a plaintiff must prove that: (1) she has a right to the property at issue; (2) she has an absolute and unconditional right to the immediate possession of that property; (3) the defendant wrongfully and without authorization assumed control, dominion, or ownership over the property; and (4) she made a demand for the return of the property.” Weisberger v. Weisberger, No. 1-10-1557, 12-13 (Ill. App. Ct. 2011) It is not difficult […]

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