Determining A Business Owner’s Income In An Illinois Divorce

Child support and maintenance (formerly known as alimony) in Illinois are determined by both parties’ incomes. A business owner does not receive just a check every two weeks and a W2. A business owner has ongoing revenue and expenses that have to be calculated to determine the business owner’s income. Beyond that, business owners have future income and expenses in the form of accounts receivable and accounts payable. Some of these sources of income and some of these expenses are under the control of the lawyer…and some are not. How does one accurately determine a business owner’s income in an Illinois divorce. To further complicate the matter, for business owners, it is always feast or famine: business is either booming or business is collapsing. When a business owner is getting a divorce, the business suffers. More importantly, a business owner who may be liable for support will be greatly incentivized to portray his income as struggling. How does a business owner prove his income is legitimate? Conversely, how does a business owner’s spouse or co-parent prove a business owner’s income is being manipulated by the business owner? How Is Support Calculated In An Illinois Divorce Or Parentage Action Maintenance and child support are both determined based on the net income of both parties. “Maintenance…shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income…[not to exceed] 40% of the combined net income of the parties.” 750 ILCS 5/503(b-1)(1)(A) “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 5/505(A)(1.5) In an Illinois divorce or parentage action, for the purposes of support, net income is not just the money left over after taxes. “[I]n determining appropriate child support, we are not bound by the technicalities of federal income tax law.” In re Marriage of Ackerley, 333 Ill. App. 3d 382, 392 (Ill. App. Ct. 2002) Rather, “net income” for the purpose of support is calculated by determining the gross income of the parties. The Illinois […]

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How To Pay Zero Child Support In Illinois

Child support is irksome to some people. Some parents just don’t want to pay child support…and usually have an articulable reason for objecting to the payment of child support. Setting child support at zero in an Illinois divorce can be done…but you have to be very careful to prepare the child support order so that there is truly no child support obligation now or in the future. “[T]he court may order either or both parents owing a duty of support to a child of the marriage or civil union to pay an amount reasonable and necessary for support.” 750 ILCS 5/505(a) While an Illinois divorce court may order child support, an Illinois divorce court shall make a determination of what child support should be according to the child support guidelines. “The court shall determine child support in each case by applying the child support guidelines unless the court makes a finding that application of the guidelines would be inappropriate” 750 ILCS 5/505(a)(2)(emphasis mine) The child support guidelines are an abstract formula which compares the income of both parties to the nights the children spend with each parent. Someone will always owe the other party something under the Illinois child support guidelines. An Illinois divorce court is only going to set the child support to zero if the guidelines amount would be “inequitable, unjust, or inappropriate.” 750 ILCS 5/505(a)(3.4) The reasons for asking the court to deviate from the guidelines and set the child support to zero are infinite: the parents share equal time with the child, one parent pays for day care or private school, one parent has a disability, etc. The reason for zero child support is easy. The hard part is doing the proper math in a zero child support order to show what child support should have been under the guidelines. “Any deviation from the guidelines shall be accompanied by written findings by the court specifying the reasons for the deviation and the presumed amount under the child support guidelines without a deviation.” 750 ILCS 5/505(a)(3.5)(emphasis mine) The math still must be done as to what child support should be under the guidelines. “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 […]

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Body Attachments In An Illinois Divorce Court

Divorce law is funny in Illinois. We say “dissolution of marriage” instead of “divorce,” we say “maintenance” instead of “alimony,” and we say “body attachment” instead of “an order for arrest.” A body attachment is a big deal! A body attachment is an Illinois court saying, “if you don’t follow our rules, we will lock you up until you do.” “A body attachment order has long been held an appropriate vehicle to effectuate an order of commitment after a person has been adjudged in civil contempt.” In re Marriage of Harnack, 2022 IL App (1st) 210143 The court does not have an absolute power to lock people up, however. There are strict rules that an Illinois divorce court must follow if it wishes to put someone in jail.  What Leads Up To A Body Attachment In An Illinois Divorce? Before a body attachment can be issued by an Illinois court, there must be a finding of contempt. There are four kinds of contempt in Illinois: direct criminal contempt, indirect criminal contempt, direct civil contempt, and indirect civil contempt. Direct criminal contempt is a person doing something outrageous in front of a judge so that the judge “directly” sees the contemnor and immediately imprisons him for his bad behavior. No need to issue a body attachment as the contemnor is right there in front of the court. The officer (a bailiff in other states) is there at the court’s disposal for the exact purpose of restoring order by placing the unruly into immediate custody. Indirect criminal contempt is where the court hears about a contemnor doing something outrageous outside of the courtroom. It is criminal contempt 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).  But, if the judge did not see the bad behavior, it happened “indirectly.” Then the judge has to conduct a hearing to make sure the contemptuous behavior actually happened. “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) In order to conduct this hearing, the court can issue a body attachment […]

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How Far Away Can A Parent Move And Still Have 50/50 Joint Custody in Illinois

Once you have 50/50 joint physical custody of your kids after an Illinois divorce and paternity action, you’re not likely to ever change your schedule.  Still, life will come at you with changes like new work schedules, new spouses, and new moves.  So, how far away can a parent move and still have 50/50 custody with their children?  Follow your Parenting Plan The simplest answer to “how far away can you move and still maintain a 50/50 custody and time-sharing arrangement” is that it depends on your Allocation of Parenting Time and Parenting Responsibilities.  This is also referred to as a “parenting plan” At the end of every divorce or parentage action, an allocation of parenting time and parenting responsibilities will be entered within the court.  This agreement is an individual contract between you and the other parent that the court has agreed is in the best interests of the children.  You and your ex have to live under the power of this order until the order is changed. Illinois parenting plans must have a provision that addresses relocation. “[A] parenting plan must set forth the following” … provisions for resolving issues arising from a parent’s future relocation” 750 ILCS 5/602.10(f)(12) So, the order might already allow you to move a certain distance from the other parent.  If so, this would maintain the 50/50 custody/time-sharing agreement that you originally entered into.  Usually, what isn’t written in the parenting plan is as important as what is written in the parenting plan.  If it doesn’t say you can’t move…then you can move so long as you are able to abide by the other clauses of the parenting plan. In the Parenting Plans that my family law office prepares, we always include exactly what will happen in a relocation or move of one of the parents. For example, this language is always included: “Intention of the Parties. While the parties anticipate that each will continue to reside within reasonable proximity of each other in the State of Illinois, in the event either party seeks to permanently relocate the minor children from the State of Illinois, the parties acknowledge the statutory definition of “Relocation” set forth in Section 600(g) of the Act (750 ILCS 5/600(g)) and the applicability of Section 5/609.2 of Act (750 ILCS 5/609.2).“ We typically say, “we intend to follow the statute” as our back up.  But you can write […]

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How Long Can You Leave a Child Unattended In Illinois?

In today’s society, children are not left alone.  Kids just aren’t trusted to be on their own. The concern is rarely the children themselves but outside threats, perceived or real. Still, it is impractical to think that a parent will never ever leave their child alone.  Sometimes a parent has to go to the store, jog around the block, or talk to a neighbor outside.  The wisdom of each absence of a parent from a child is always debatable…until something happens to the child. A child getting hurt, lost, or sick because they weren’t supervised is a problem. But, if the child’s other parent is no longer partners with the parent who wasn’t watching the now hurt child finds out….it’s going to be a massive problem. Every parent should know exactly what the law or the standard is regarding leaving a child home alone in Illinois. Is Leaving A Child Unattended A Crime In Illinois? In Illinois, leaving a child alone is a crime under some circumstances. It’s called “Child Abandonment” “A person commits child abandonment when he or she, as a parent, guardian, or other person having physical custody or control of a child, without regard for the mental or physical health, safety, or welfare of that child, knowingly leaves that child who is under the age of 13 without supervision by a responsible person over the age of 14 for a period of 24 hours or more.” 720 ILCS 5/12C-10(a) So, the short answer is “don’t leave a child ages 0 to 12 home alone.” And if you have a babysitter, In Illinois, the babysitter cannot be 13 years old.  The babysitter must be 14 per the statute.  “Child abandonment is a Class 4 felony. A second or subsequent offense after a prior conviction is a Class 3 felony.” 720 ILCS 5/12C-10(c) For Class 4 Felonies, “The sentence of imprisonment shall be a determinate sentence of not less than one year and not more than 3 years.” 730 ILCS 5/5-4.5-45 For Class 3 Felonies, “The sentence of imprisonment shall be a determinate sentence of not less than 2 years and not more than 5 years.” 730 ILCS 5/5-4.5-40 Illinois criminal courts are not throwing parents in prison for years for abandoning their children for a few moments (or even days).  Parents automatically get probation.  “A person commits endangering the life or health of a child when he or […]

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Travel Time And Attorney’s Fees In An Illinois Divorce

During and after divorce proceedings an attorney can request attorney’s fees from the opposing party, his own client or both parties. An attorney’s time and expertise as an attorney will be compensated via court order. But what about the attorney driving to the courthouse? Can expenses for travel time be ordered by an Illinois divorce court? Reasonable Attorney’s Fees And Divorce In Illinois An Illinois divorce court has great powers to award fees for almost any reason. However, the ordered attorney’s fees must be “reasonable.” “The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay a reasonable amount for his own or the other party’s costs and attorney’s fees. Interim attorney’s fees and costs may be awarded from the opposing party, in a pre-judgment dissolution proceeding in accordance with subsection (c-1) of Section 501” 750 ILCS 5/508(a)(emphasis mine) An Illinois divorce court need not even hear the details of every moment of billable attorney time. A court can here just here an argument and review invoices. “Except for good cause shown, a proceeding for (or relating to) interim attorney’s fees and costs in a pre-judgment dissolution proceeding shall be nonevidentiary and summary in nature… When a party files a petition for interim attorney’s fees and costs supported by one or more affidavits that delineate relevant factors, the court (or a hearing officer) shall assess an interim award after affording the opposing party a reasonable opportunity to file a responsive pleading.” 750 ILCS 5/501(c-1)(1) Any temporary award of attorney’s fees must only pay for “reasonable fees” An order “in favor of the petitioning party’s current counsel, [must be] for reasonable fees and costs either already incurred or to be incurred” 750 ILCS 5/501(c-1)(emphasis mine) If there was some kind of bad behavior on the part of one party, the court must award attorney’s fees to the other party. Even these mandatory awards only cover “reasonable attorney’s fees” “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 at any time a court finds that a hearing under this Act […]

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