Withholding or Denying Parenting Time In Illinois

When your child’s parent is not allowing parenting time, you can always call the police and show the police officers the court order. If the police are willing to read a 12 page Allocation of Parenting Time and Parental Responsibilities and then interpret that language based on the facts in front of them…then the police will force the other parent to turn over the child. Often, Illinois parenting plans are not crystal clear and the police will simply tell you to “go to court.” More likely, you will not want to begin every visitation with your child by calling the police. In lieu of the police, you can go before an Illinois court to enforce your parenting time. In Illinois, when a temporary order awarding parenting time is entered or an allocation of parenting time or parental responsibilities is entered, those orders have the full authority of law. Illinois parents must follow those parenting time orders (within reason). When a parent does not follow the parenting time orders, there can be severe consequences…but only if the other parent demands consequences. Is Denial Of Parenting Time A Crime In Illinois? Illinois has an unlawful visitation interference statute with noble goals. “Visitation is a right or permission granted to a noncustodial parent to visit with his or her child. The welfare of a child usually requires that a parent who does not have custody of their child be given liberal visitation rights in order to assure that the child will not be estranged from that parent. The purpose of the unlawful visitation interference statute is to provide a remedy for and to deter violations of interference by any person, including the child’s custodial parent, with a noncustodial parent’s right to visitation.” People v. Warren, 671 NE 2d 700 – Ill: Supreme Court 1996 Withholding a child from another parent in violation of a court order is a crime in Illinois. “Every person who, in violation of the visitation, parenting time, or custody time provisions of a court order relating to child custody, detains or conceals a child with the intent to deprive another person of his or her rights to visitation, parenting time, or custody time commits the offense of unlawful visitation or parenting time interference.” 720 ILCS 5/10-5.5(b) Withholding parenting time is a petty offense in Illinois. “A person committing unlawful visitation or parenting time interference is guilty of a petty […]

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Illinois Child Custody Orders When Parents Live In Different States

When people get divorced they move on. Some parents really move on…to other states. When a parent chooses to move to another state during or after the divorce, they’ll need to make a parenting time schedule and parental decision-making order (formerly known as custody) to accommodate that move and their children’s best interests.  Illinois Divorce Judgments and Out-Of-State Parents In Illinois A divorce will begin in the most appropriate venue (state and county of the divorce court). The most appropriate venue is always the venue where the children live and will continue to live. Wherever the children have been living over the past six months will determine which state will determine their custody pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) “[A] court of this State has jurisdiction to make an initial child-custody determination only if:(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State” 750 ILCS 36/201 Additionally, the parent who lives with the children can say file a Motion For Forum Non Conveniens claiming that the children live in their venue so the divorce (and all the non-child related matters in a divorce) should proceed in that venue.   In a Motion For Forum Non Conveniens for an Illinois divorce, a court will consider “[T]he convenience of the parties; the relative ease of access to sources of testimonial, documentary, and real evidence; the availability of compulsory process to secure the attendance of unwilling witnesses; the cost of obtaining the attendance of willing witnesses; the possibility of viewing the premises, if appropriate; and all other practical considerations that make a trial easy, expeditious, and inexpensive.” Kuhn v. Nicol, 2020 IL App (5th) 190225 – Ill: Appellate Court, 5th Dist. 2020 An Illinois court, once it has jurisdiction, can begin making decisions about the children’s parenting time and the parent’s decision-making responsibilities. It must be noted that Illinois domestic relations courts strongly prefer that parents come to an agreement on parenting time and parental decision-making. Especially in cases where a parent moves out of state. The courts will even preserve Illinois jurisdiction in order to further such an […]

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Exclusive Possession Of The Marital Home In An Illinois Divorce

Living with someone is hard. It’s even harder to live with someone while you’re in the process of divorcing them. Sooner or later, someone has to move out of the house. How do you get exclusive possession of the marital home in an Illinois divorce?  Temporary Exclusive Possession Of A Marital Home During An Illinois Divorce During the pendency of an Illinois divorce either party can ask an Illinois divorce court to evict the other party from the home. There must be an allegation that the “physical or mental well-being of either spouse or his or her children is jeopardized” in order for an Illinois divorce court to evict a spouse in such a summary fashion. “Where there is on file a verified complaint or verified petition seeking temporary eviction from the marital residence, the court may, during the pendency of the proceeding, only in cases where the physical or mental well-being of either spouse or his or her children is jeopardized by occupancy of the marital residence by both spouses, and only upon due notice and full hearing, unless waived by the court on good cause shown, enter orders granting the exclusive possession of the marital residence to either spouse.” 750 ILCS 5/501(c-2) The “physical or mental well-being of either spouse or his or her children” need not be “jeopardized” by violence alone.  “[A] situation need not rise to the level of physical violence before [the remedy of exclusive possession] may be granted…A lack of physical violence or abuse between the parties does not warrant reversal of the trial court’s decision [to grant exclusive possession] where the evidence otherwise shows a spouse or child’s mental wellbeing was being adversely affected.” In re Marriage of Engst, 2014 IL App (4th) 131078, ¶ 28.   It does not matter whose mental or physical well-being is threatened by continued cohabitation. What matters is who can manage to live outside the home. When evicting someone on a temporary basis, “the court shall balance hardships to the parties.” 750 ILCS 5/501(c-2) That means whoever would have the hardest time moving out…will likely not be the one to move out. Whomever is caring for the children the majority of the time is almost assured to get exclusive possession of the marital home. “It is true an award of the marital home in favor of the custodial parent is normally preferred.” In re Marriage of […]

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Back Child Support In Illinois

Child support in Illinois is always owed from one parent to another when they are no longer parenting together or haven’t come to some kind of agreement that waives child support. When does the obligation of child support begin and how does the obligor parent pay the back child support owed? Back child support (also known as retroactive child support) can be a thing whether an existing Illinois child support order exists or not. If a child support order already exists, it is easy to calculate the back child support owed:  Compare what was supposed to be paid to what actually got paid. The difference is the back child support owed. Note that while it is presumed that the father did at least something for the child (ex: bought diapers, paid rent) before the motion for child support was filed. These contributions are nice but they don’t count towards back child support. “The general rule is no credit is given for voluntary overpayments of child support, even if made under the mistaken belief that they are legally required. ” In re Marriage of Tollison, 208 Ill. App. 3d 17, 19-20 (Ill. App. Ct. 1991)  To calculate back child support in a fresh divorce or parentage case is a more complicated endeavor that a court is empowered to order…to an extent. “The decision to award retroactive child support rests within the sound discretion of the trial court.” In re Marriage of Sawicki, 806 NE 2d 701 – Ill: Appellate Court, 3rd Dist. 2004 “Retroactive allowance of support in a dissolution proceeding is within the discretionary power of the trial court if such allowance is deemed fit, reasonable and just.” In re Marriage of Rogliano, 198 Ill. App. 3d 404, 410 (Ill. App. Ct. 1990) Back Child Support When The Parents Are Not Married. No one has ever filed for child support before the child was born.  Yet, the child needed to be fed, clothed, and housed before a child support order was ever entered.  Whose responsibility was it to provide for the child before the matter got to court? It was both parents’ responsibility. The Illinois statute recognizes this mutual responsibility in both the present and the past for unmarried parents. The Illinois Parentage Act of 2015 handles issues between parents who are unmarried.  While the Illinois Parentage Act points unmarried parents to the exact same laws for calculating child […]

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Overpayment Of Child Support In Illinois

When a child support order is entered in Illinois, that order is either written on a self-composed order by the child support receiver (or their attorney), or that child support order is the county’s Uniform Order For Support.  Either order is supposed to include an end date for child support. “An order for support shall include a date on which the current support obligation terminates. The termination date shall be no earlier than the date on which the child covered by the order will attain the age of 18. However, if the child will not graduate from high school until after attaining the age of 18, then the termination date shall be no earlier than the earlier of the date on which the child’s high school graduation will occur or the date on which the child will attain the age of 19.” 750 ILCS 5/505(g) If the self-composed order has an end date for child support or if the Uniform Order For Support has the termination box checked with a date of final child support, no child support is owed after that date. Few divorced parents apply proper attention to that date as the termination of child support date is far in the future. In the meantime, the child support receiving parent will garnish or withhold child support from the child support paying parent’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” 750 ILCS 28/20(a) “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) Child support in Illinois stops once the child has reached the age of 18 and graduated from high school or has reached the age of 19. “[T]he term “child” shall include any child under age 18 and any child age 19 or younger who is still attending high school.” 750 ILCS 5/505(a) Income Withholding Orders do NOT include a termination date reflecting the child’s 18th birthday or graduation date.   If the child support is being withdrawn by the State Disbursement Unit (it almost always is), the child support will be terminated by the State Disbursement Unit according to the termination date in the underlying order. Otherwise, a parent must go to court to […]

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Failure To Compromise In An Illinois Divorce

Divorcing people are more reasonable than you would think. 95% of divorces end up settling out-of-court. But, there are divorce litigants who are so inflamed about the divorce that they refuse any and all attempts to settle. For the spouse who is willing to settle their divorce case, the refusal to adopt or consider a reasonable settlement is worse than frustrating…it’s horribly expensive. Without a settlement, every little issue must be proven up to the judge using the formal rules of evidence. This is enormously time consuming and divorce lawyers charge a lot of money for their time. A spouse or former spouse’s refusal to settle can be the be basis for a petition for attorney’s fees. Illinois divorce courts can award attorney’s fees for any reason the court deems 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.” 750 ILCS 5/508(a) The settlement-minded litigant should remind the court that failure to compromise is a valid reason to award attorney’s fees. “The trial court [may] determine[] that the attorney fees resulted from the parties’ unwillingness to compromise. A party cannot enter into such a battle and expect to come out unscathed. While we recognize the purpose of the statute is to allow a spouse to contest the dissolution on an equal footing so that concerns about incurring large attorney fees will not coerce a litigant into conceding meritorious claims, it is an unreasonable expectation to anticipate that the trial court will automatically require the other party to pay such attorney fees regardless of one’s conduct during the litigation. There are times when the failure to compromise is frivolous. The parties should have been aware of the expenses they were incurring in order to split up the limited pot they were contesting.” In re Marriage of Mantei, 583 NE 2d 1192 – Ill: Appellate Court, 4th Dist. 1991 Excessive attorney fee expenses due to a failure to compromise can even result in a reduction in the total assets awarded to the party failing to compromise. “The use of marital assets to pay fees to one’s attorney for the costs of the divorce constitutes a dissipation of marital assets.” In re Marriage of Berberet, 2012 IL App (4th) 110749 An […]

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What A Real Estate Agent Needs To Know In An Illinois Divorce

Being a real estate agent, also known as a realtor, is like being the world’s friendliest gambler. You might sell a house for a client, you might buy a house for a client, or you might not. Either way, real estate agents have to keep smiling through it all. Smiling through challenges is a distinct advantage real estate agents have in an Illinois divorce. Real estate agents are agreeable people who have wildly varying incomes. This creates a particular challenge when a realtor gets divorced because they want to make a deal…but cannot predict their income in order to sell that deal. Illinois realtors and their soon-to-be ex-spouses need to understand how Illinois divorce law impacts them in a divorce. Realtors Income In An Illinois Divorce Real estate agents do not collect a paycheck. Real estate agents receive commission checks from the sale or purchase of the properties they worked with. Those commission checks come in heavy during season (spring and summer) and barely come at all out of season (Illinois’ frigid winters). Furthermore, not all years are created equally. A massive drop in interest rates in 2020 created a flurry of residential real estate transactions for the next year. Subsequent high rates have quashed demand while owners with 2020s low mortgage rates are loath to sell. In 2024, 71% of real estate agents did not close even one home. In Illinois, child support and maintenance (formerly known as alimony) are based on both parties’ income. If one party is a real estate agent, how does an Illinois court determine their income when that income is changing every year? Illinois divorce courts can guess at an average income for the purposes of support in a process called “imputation of income” “If present income is uncertain, a court may impute income to the payor.” In re Marriage of Gosney, 394 Ill. App. 3d 1073, 1077 (Ill. App. Ct. 2009) Imputing income to a real estate agent is almost always done by looking at past years’ income. “[W]hen a party’s current income is difficult to ascertain or uncertain, a court may consider [the party’s] past earnings…Moreover, when a party’s income fluctuates from year to year, income averaging is an approved method to apply in determining the party’s current income.” In re Marriage of Gabriel, 2020 IL App (1st) 182710 (citations omitted). If an Illinois divorce court does impute income to a real […]

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