How To Issue A Subpoena Outside of Illinois For An Illinois Divorce Case

A subpoena is “[a] writ or order commanding a person to appear before a court or other tribunal, subject to a penalty for failing to comply.” Black’s Law Dictionary (11th ed. 2019) Before email subpoenas really would make people come into court (or the lawyer’s office) with all the documents requested and then the lawyer who issued the subpoena would question the producer under oath. Today, most subpoena’s just request documents to be emailed with a certification by the custodian of records. People respond to subpoenas because if they do not reply to the subpoena as requested, the subpoena issuer can ask that the deponent (person who got the subpoena) be held in contempt of court. “The service of the rule to show cause or order of contempt upon the nonparty, except when the rule or order is initiated by the court, shall include a copy of the petition for rule and the discovery order or subpoena which is the basis for the petition for rule. The service of the rule to show cause or order of contempt upon the nonparty shall be made in the same manner as service of summons provided for under sections 2-202, 2-203(a)(1) and 2-203.1 of the Code of Civil Procedure.” Ill. Sup. Ct. R. 204(d)(2,3) If the deponent does not live in Illinois and doesn’t plan on visiting Illinois any time soon, then they might not care about getting held in contempt of court by an Illinois court. You will recall on the Dukes of Hazzard that the Duke boys would simply cross the state lines to avoid the Sheriff as the Sheriff had no jurisdiction to enforce the law in the other state. Illinois contempt orders are similarly toothless in other states. Therefore, in order to ensure cooperation from an out-of-state deponent, an Illinois subpoena issuer must hire local counsel in the deponent’s state to register the Illinois subpoena in the county where the deponent lives under the Uniform Interstate Depositions and Discovery Act. The Uniform Interstate Depositions and Discovery Act is a statute that 47 states have enacted. I’ll be citing the Act under the Act’s Uniform Illinois citation for clarity. Obviously, you’ll need to refer to the citation of whatever state you’re registering your subpoena in. “To request issuance of a subpoena under this Section, a party must submit a foreign subpoena to a clerk of court in the county in which […]

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Closing Arguments In An Illinois Divorce

A closing argument is “[i]n a trial, a lawyer’s final statement to the judge or jury before deliberation begins in which the lawyer request the judge or jury to consider the evidence and apply the law in her or her client’s favor” Black’s Law Dictionary (11th ed. 2019) In an Illinois divorce hearing or trial there is no jury. “There shall be no trial by jury” 50 ILCS 5/103. In an Illinois divorce, the closing argument is solely for an audience of one: the judge. The closing argument should apply the evidence presented to the law and present the judge with an obvious and fair conclusion based on the evidence and the law. The judge is not dumb. The judge already heard the evidence. The judge knows the law. The judge has already come to an approximate conclusion. The judge may have even told you what conclusion they are considering. In light of the fact that the judge probably has already made up their mind, you want to be sure that your closing argument is as obvious as possible based on the evidence you presented. Ironically, when preparing for a divorce hearing or trial, the first thing you should do is prepare the last thing that happens in the case: the closing argument. Using Your Closing Argument To Organize Your Entire Trial For the person who is going to give a closing argument, the closing argument’s first draft should be written like a wish list. Don’t worry about the “argument” part. Just focus on the evidence you hope your argument might apply to. Under Illinois family law this is very easy because the statute is so clear. Use the below bullet points as a checklist to determine what is the evidence that you need to present to make a closing argument. I’ve divided the checklist into sections because some subject matters may not be relevant to your trial. Note: After every item of evidence you hope to present, you should also present some corroborating evidence verifying that evidence. That’s why I remind you “How do we know that?” after every statutory factor (more on this later). Division of Assets What property is non-marital? 750 ILCS 5/504(a) How do we know that? What property is marital? 750 ILCS 5/504(b),(c) How do we know that? What contributions did each party make to the marital property? 750 ILCS 5/504(d)(1) How do we know that? What […]

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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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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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At What Age Can A Child Choose Not To Visit The Non-Custodial Parent In Illinois?

Parenting children is not easy.  Parenting children is even harder when you’re not parenting in the same household as the other parent.  The shuttling back and forth of children to two different homes is hard on everyone involved. Children are by definition immature and cannot make decisions for themselves but that doesn’t mean children don’t have opinions.  How old does a child have to be before they can decide if they will visit a parent in Illinois? The Initial Parenting Plan And A Child’s Wishes Illinois visitation laws say that when determining the parenting schedule, the two parents are supposed to both submit proposed parenting plans to the courts within 120 days of the filing of the divorce or the parenting action. “All parents, within 120 days after service or filing of any petition for allocation of parental responsibilities, must file with the court, either jointly or separately, a proposed parenting plan.” 750 ILCS 5/602.10(a) Hopefully, upon perusing their respective proposed parenting plans, the parties can independently negotiate a final agreed allocation of parenting responsibilities and parenting time to be submitted to the court.  This final allocation of parenting responsibilities and parenting time will then govern where the children visit, spend the night, and with whom. The children are NOT consulted when preparing a final parenting plan in Illinois. If the parties remain disagreed after exchanging parenting plans, the parties are required to attend a mandatory mediation regarding the parenting schedule. “The court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan unless the court determines that impediments to mediation exist” 750 ILCS 5/602.10(c)  If after mediation, there is an agreement, the parties can submit the mediation report to their attorneys for final preparation of the agreed allocation of parenting responsibilities and parenting time. Children are NOT allowed in mediation.  Children have no voice in the mediation. The parents can enter into the final agreement without consulting the children. If the parties still can’t agree on a parenting schedule after mediation, the Illinois courts can step in and decide what the children’s parenting schedule should be. “The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 5/602.7(a) Illinois courts will consider the child’s wishes along with a multitude of other factors. “[T]he wishes of the child, taking into account the child’s maturity and ability to […]

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Unmarried Couples and Dividing Property In Illinois

People are getting married a lot less lately….or at least getting married a lot later. It’s not uncommon for unmarried couples to not only live together but to buy homes together.  What happens when an unmarried couple buys a property and then breaks up? Does either party have a claim to the property they bought together or property they  bought individually while they were not married to each other? What are the rights of unmarried couples in Illinois? Illinois law treats property acquired by people who are married as marital property.  That is, if two people get married and then earn and keep some asset, property or money, that asset, property or money will be divided equitably between them both. If you’re not married, the Illinois statute doesn’t say anything. So the presumption is that whoever has the property in their name or possession gets to keep that property in their name or possession.  The Illinois statute treats Illinois unmarried couples and their property the same way it would treat two strangers or two close friends and their property…as completely separate non-joint parties. You’re Not Married Until You’re Married. When the Illinois statute doesn’t say something or the Illinois statute is outdated or contextually wrong, the Illinois courts can step in and make a ruling that defies the statute. But, they rarely do. One particular Illinois supreme court case underscores how Illinois is so committed to keeping a strict distinction between the married and the unmarried. Two women, Ms. Brewer and Ms. Blumenthal, lived as a married couple for years.  They clearly would have been married had it been legal to enter into a same-sex relationship. They lived together. They had children together. When civil unions finally became legal in Illinois, the two women immediately entered into a civil union.  If any unmarried couple had the right to have their property declared as “marital” and thus be divisible between the two, it was Ms. Brewer and Ms. Blumenthal. The Illinois Supreme Court was not moved by their story. “Since marriage is a legal relationship that all individuals may or may not enter into, Illinois does not act irrationally or discriminatorily in refusing to grant benefits and protections under the Marriage and Dissolution Act to those who do not participate in the institution of marriage.” Blumenthal v. Brewer, 69 NE 3d 834 – Ill: Supreme Court 2016 So, now that you […]

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Child Custody After The Death Of A Parent In Illinois

A Judgment of Dissolution, a Marital Settlement Agreement, and an Allocation of Parenting Time and Parental Responsibilities all determine how two formerly married people (or unmarried parents) must conduct themselves in relation to each other post-divorce (or post-judgment of paternity). What happens if one of the parents dies after an Illinois divorce? What happens to all of those obligations the dead spouse entered into when the parties divorced? Who gets custody of a child after a parent dies in Illinois?  Custody Of A Child After The Death Of A Parent In Illinois If a parent dies in Illinois, the other surviving parent has the right to have complete control over the children. “There shall be a rebuttable presumption that a parent of a minor is willing and able to make and carry out day-to-day child care decisions concerning the minor, but the presumption may be rebutted by a preponderance of the evidence.” 755 ILCS 5/11-5(b)(ii) If both parents are dead, the last parent to die can determine who will be the children’s guardian. “A parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, may designate in any writing, including a will, a person qualified to act under Section 11-3 to be appointed as guardian of the person or estate, or both, of an unmarried minor.” 755 ILCS 5/11-5(a-1) The designation of a child’s guardian after the death of a parent must be done in a very specific manner. “A parent, adoptive parent or adjudicated parent, whose parental rights have not been terminated, or a guardian or a standby guardian of an unmarried minor or of a child likely to be born may designate in any writing, including a will, a person qualified to act under Section 11-3 to be appointed as successor guardian of the minor’s person or estate, or both. The designation must be witnessed by 2 or more credible witnesses at least 18 years of age, neither of whom is the person designated as the guardian. The designation may be proved by any competent evidence.” 755 ILCS 5/11-5(a-1) Section 11-3 of Illinois’ Probate Act says only certain people can be guardians. “A person is qualified to act as guardian of the person and as guardian of the estate if the court finds that the proposed guardian is capable of providing an active and suitable program of guardianship for the minor and that the […]

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Children’s Hearsay Testimony In An Illinois Divorce Or Parentage Case

Note: this article was largely inspired by a lecture made by David Del Re at the Lake County Family Law Conference in February of 2025 which I attended. Mr. Del Re does excellent work and I endorse him and his firm for all family law matters. There’s an old adage in family law courts that “children should have a voice but not a choice”.  Children are also highly discouraged from testifying in divorce cases. Without testifying, anything a child alleged said is impermissible hearsay. So, how do children make their wishes known to the court in an Illinois divorce. Why Do Children Need To Have A Voice In An Illinois Divorce? Courts base all decisions related to children on “the child’s best interests” 750 ILCS 5/602.7(a), 750 ILCS 5/602.5(a) Kids do not get to pick which parent they will spend time with but the court can consider their wishes. “In determining the child’s best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:…(2) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time” 750 ILCS 5/602.7(b)(2) Likewise, the court must also consider the child’s wishes as to which parent makes what decisions for the child. “Determination of child’s best interests. In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including, without limitation, the following: (1) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to decision-making” 750 ILCS 5/602.5(d)(1) The child’s wishes have to be communicated to the court somehow. But, courts do not like putting kids in the witness box and subjecting them to cross-examination. “The court should…determine whether the best interests of the child would be served by permitting her to testify or be sheltered from testifying and being subjected to vigorous cross-examination.” Crownover v. Crownover, 337 NE 2d 56 – Ill: Appellate Court, 3rd Dist. 1975 Without testifying, the children’s wishes are hearsay testimony. Hearsay And Children’s Testimony In An Illinois Divorce or Parentage Action “”Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Ill. R. Evid. 801(a) Hearsay is not allowed […]

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Leaving Your Ex-Spouse As A Beneficiary After An Illinois Divorce

If you have ever opened up any kind of account with a financial institution, you will be asked to name a beneficiary. The beneficiary will be the person who will receive the account, if you pass away. If you are married, you will likely choose your spouse to be the beneficiary of that account. If you subsequently get divorced in Illinois, your ex-spouse’s beneficiary designation is not completely undone by an Illinois divorce. You may be awarded the entirety of an asset but your right to give away that asset remains…even to your ex-spouse. “Illinois case law pertaining to nontrust property assigned to one party after a divorce, where the ex-spouse is still named as the primary beneficiary, distinguishes two distinct types of interests. One interest is ownership interest, the ability to do with the property as one wishes. The second interest discussed is an expectancy or beneficial interest. Expectancy is defined as ‘the interest of a person who merely foresees that he might receive a future beneficence, such as the interest of an heir apparent… or of a beneficiary designated by a living insured who has a right to change the beneficiary.’ ” (Emphasis added.) Deida v. Murphy, 271 Ill. App. 3d 296, 299 (1995) (quoting In re Marriage of Weinstein, 128 Ill. App. 3d 234, 244 (1984)). If you really own something, you have the right to give it away to whomever you choose. Complete ownership of an asset means you can leave that asset to your ex-spouse through a beneficiary designation. “Because having the right to do whatever one wants with property includes the power to direct, “After I die, A shall become the owner,” there is no inconsistency between an ownership interest in one person and an expectancy interest in someone else. This power of after-death disposition is a stick in the brush pile of ownership. Being awarded property, such as an account, means gaining the ability to control who will be the new owner after one dies (and either changing one’s mind inter vivos or not changing one’s mind about the after-death beneficiary).” Mowen v. Kelly, 2025 IL App (4th) 240906 To illustrate, in one case, Robert E. Leahy owned some real estate on North Clark Street in Chicago. He put the property in a land trust, naming his wife, Margaret K. Leahy, as the contingent beneficiary in case he died. Robert and Margaret afterward […]

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