Child Support And Orders Of Protection In Illinois

Orders of protection are scary in multiple ways. The people asking for protection from their romantic partner usually also rely on that romantic partner for financial support. One of the purposes of the Illinois Domestic Violence Act is to “address any related issues of child custody and economic support, so that victims are not trapped in abusive situations by fear of retaliation, loss of a child, financial dependence, or loss of accessible housing or services” 750 ILCS 60/102(4) The Illinois Domestic Violence Act specifically provides for child support within an order of protection. “Order for payment of support. Order respondent to pay temporary support for the petitioner or any child in the petitioner’s care or over whom the petitioner has been allocated parental responsibility, when the respondent has a legal obligation to support that person, in accordance with the Illinois Marriage and Dissolution of Marriage Act, which shall govern, among other matters, the amount of support, payment through the clerk and withholding of income to secure payment. An order for child support may be granted to a petitioner with lawful physical care of a child, or an order or agreement for physical care of a child, prior to entry of an order allocating significant decision-making responsibility. Such a support order shall expire upon entry of a valid order allocating parental responsibility differently and vacating the petitioner’s significant decision-making authority, unless otherwise provided in the order.” 750 ILCS 60/214(b)(12) “This provision [750 ILCS 60/214(b)(12)] is straightforward and unambiguous. It expressly authorizes courts entering orders of protection to order the respondent to pay temporary child support when the respondent has a ‘legal obligation to support that person.’” Martinez v. Leon, 2024 IL App (1st) 231058 In addition to child support, the Illinois Domestic Violence Act allows for a variety of other forms of support. An order of protection can also “[o]rder respondent to pay petitioner for losses suffered as a direct result of the abuse, neglect, or exploitation. Such losses shall include, but not be limited to, medical expenses, lost earnings or other support, repair or replacement of property damaged or taken, reasonable attorney’s fees, court costs and moving or other travel expenses, including additional reasonable expenses for temporary shelter and restaurant meals… If a party is entitled to seek maintenance, child support or property distribution from the other party under the Illinois Marriage and Dissolution of Marriage Act, as now or […]

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What Do I Need To Prove To Get An Order Of Protection In Illinois?

Illinois courts are happy to grant orders of protection. Orders of protection prevent possible tragedies with little harm to the parties who are subject to the order of protection. Orders of protection simply prevent a party from doing something that may lead to some kind of future abuse of another party. “An order of protection is an injunctive order because it directs a person to refrain from doing something, such as to refrain from entering or residing where he or she lived before the order was entered.” In re Marriage of Padilla, 2017 IL App (1st) 170215, ¶ 17 Still, the courts must be presented with sufficient evidence in order to issue an order of protection. “Although the Illinois Domestic Violence Act of 1986 is to be construed liberally to protect victims of domestic violence, help them avoid further abuse, and to expand the remedies for victims of domestic violence including, when necessary, physical separation of the parties there must be some evidence in the record to support the relief requested.” In re Marriage of Healy, 635 NE 2d 666 – Ill: Appellate Court, 1st Dist., 2nd Div. 1994 (citations and quotations omitted)(emphasis mine) What must be proven in order for an Illinois court to grant an order of protection? When determining whether an order of protection should be issued an Illinois court’s “central inquiry is whether the petitioner [or the minor child] has been abused.” Best v. Best, 223 Ill. 2d 342, 348 (2006) “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 There needs to be a finding by the court that the petitioner was “abused by a family or household member” for an order of protection to issue. Abuse has 4 different possible forms in an Illinois Petition For Order Of Protection. “’Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1) Harassment, intimidation, interference with personal liberty, each have their own definition. “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 […]

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Prenuptial and Postnuptial Agreements And Inheritances In Illinois

There’s a lot of selfish reasons to enter into a prenuptial agreement or a postnuptial agreement: you want to keep your stuff or you don’t want pay your spouse support in the future. There is one, relatively, noble reason to enter into a prenuptial agreement or a postnuptial agreement, to preserve your heir’s inheritance in case you get divorced. If a married person with children dies without a will the current spouse automatically gets 50% of their estate, “If there is a surviving spouse and also a descendant of the decedent: 1/2 of the entire estate to the surviving spouse and 1/2 to the decedent’s descendants per stirpes.” 755 ILCS 5/2-1(a) A Surviving Spouse’s Right To Renounce Their Deceased Spouse’s Will If a married person has a will, they can leave their assets to whomever they want…unless their spouse ‘renounces’ the will. “If a will is renounced by the testator’s surviving spouse, whether or not the will contains any provision for the benefit of the surviving spouse, the surviving spouse is entitled to the following share of the testator’s estate after payment of all just claims: 1/3 of the entire estate if the testator leaves a descendant or 1/2 of the entire estate if the testator leaves no descendant.” 755 ILCS 5/2-8(a) “[I]f competent, the survivor has an absolute right to renounce the will of the deceased spouse by filing a renunciation.” First Nat’l Bank of Danville v. McMillan, 12 Ill. 2d 61, 66-67 (1957) The current surviving spouse always gets the opportunity to renounce the will…unless they have previously agree not to. “[A]bsent a valid prenuptial or postnuptial agreement the wishes of a surviving spouse can trump a testator’s intentions.” In re Estate of Feinberg, 235 Ill. 2d 256, 266 (Ill. 2009)(citations omitted) Prenuptial and Postnuptial Agreements Effect On The Surviving Spouse’s Right To Renounce A Will Prenuptial agreements are called ‘premarital agreements’ in the Illinois Marriage and Dissolution of Marriage Act. “”Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” 750 ILCS 10/2(1) “The Illinois Premarital Agreement Act allows parties to waive or modify their marital rights by entering into a valid premarital agreement, with limited grounds provided to find the agreement to be unenforceable…By entering into a valid premarital agreement, parties agree that their enumerated rights at dissolution are no longer governed by applicable statutes where those rights are […]

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Unspecific Pleadings In An Illinois Divorce

Divorce is a touchy subject. Each party to a divorce knows a great deal of the other party’s secrets. The divorcing parties, armed with those secrets, are now trying to resolve their differences in a public forum: family court. The reality is that divorcing couples really don’t know everything about each other. That’s part of why they are getting divorced. Therefore, public, written accusations about the other party may often be speculative with only a presumption that the accuser knows the facts with certainty. For example, a spouse may accuse their spouse of “hiding unknown quantities of cash” or “grooming a child.” These are serious accusations…without much detail. More common in a divorce pleading is the factual basis “upon information and belief.” This common refrain in divorce pleadings does NOT tell you anything. The point of a pleading is to adequately inform the court and the opposing side of the controversy that needs to be resolved. “No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet.” 735 ILCS 5/2-612(b) The intimate and emotional nature of divorce cases often allows for pleadings with presumptions and conclusions like “I have suffered abuse for years” or “Respondent is a narcissist.” While these types of accusations may be true, the courts require more information to properly understand the issues before it. “Conclusions of fact will not suffice to state a cause of action regardless of whether they generally inform the defendant of the nature of the claim against him.” Grund v. Donegan, 298 Ill. App. 3d 1034, 1039 (Ill. App. Ct. 1998) Insufficiently detailed accusations are not allowed in Illinois pleadings. “Illinois is a fact-pleading jurisdiction.” Marshall v. Burger King Corp., 856 NE 2d 1048 – Ill: Supreme Court 2006 Fact pleading is “a procedural system requiring that the pleader allege merely the facts of the case giving rise to the claim or defense, not the legal conclusions necessary to sustain the claim or establish the defense.” Black’s Law Dictionary (11th ed. 2019) An Illinois pleading-filer “is required to set forth a legally recognized claim and plead facts in support of each element that bring the claim within the cause of action alleged.” Rodriguez v. Illinois Prisoner Review Board, 376 Ill. App. 3d 429, 434 (2007) This does not mean that you have […]

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Fraudulent Inducement In An Illinois Divorce

Most divorces in Illinois are resolved by agreement. The steps leading to that agreement should be fair if both parties are adequately represented by competent counsel. However, if one party explicitly lies in order to get the agreement they want, that agreement may be reformed or vacated. Lying to convince someone to enter into a contract is fraudulent inducement. Final Agreements In An Illinois Divorce Before we analyze fraudulent inducement as an attack on a final agreed divorce judgement, we must understand that final agreements in an Illinois divorce usually stay final. The purpose of the Illinois Marriage and Dissolution of Marriage Act is “[t]o promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into an agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, support, parental responsibility allocation of their children, and support of their children as provided in Sections 513 and 513.5 after the children attain majority.” 750 ILCS 5/502(a) “The terms of the agreement, except those providing for the support, custody, and visitation of the children, are binding on the court unless it finds after considering the circumstances of the parties and any other relevant evidence provided by the parties, on their own motion or on the request of the court that the agreement is unconscionable.” 750 ILCS 5/502(b) “A settlement agreement can be set aside if it is shown that the agreement was procured through coercion, duress or fraud, or if the agreement is unconscionable.” In re Marriage of Gorman, 284 Ill. App. 3d 171, 180 (Ill. App. Ct. 1996) The “burden [of vacating an agreement due to fraud] is even more onerous when a party seeks to vacate or modify a property settlement incorporated in a divorce decree,  all presumptions being in favor of the validity of the settlement.” Lagen v. Lagen, 302 NE 2d 201 – Ill: Appellate Court, 1st Dist. 1973 Fraud In An Illinois Divorce Fraud is one of the only ways an agreed final divorce judgement and its terms can be reviewed. There are many kinds of fraud. For example, switching out a different Marital Settlement Agreement at the last minute is “fraud in the factum.” More common for former couples who have lost all trust in each other is fraud in the inducement. Fraudulent inducement or fraud in the inducement is “Fraud […]

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Temporary Maintenance In An Illinois Divorce

Ernest Hemingway was once asked, “How’d you go bankrupt?” Ernest replied, “Two ways, slowly and then all at once.”  That’s a lot like how a divorce works. Years of resentment and planning become tactics and strategies once the divorce is finally filed.  Often, one spouse is left without support yet the discovery deadlines necessary to determine both spouse’s incomes are months away.  In Illinois divorce cases, that spouse needs temporary maintenance (formerly known as alimony) in their Illinois divorce. “One of the principal purposes of granting temporary maintenance and/or child support is to attempt to balance the equities between the parties as fairly as possible while the dissolution case is pending.” In re Marriage of Hochstatter, 2020 IL App (3d) 190132  Temporary Motions In Illinois Divorces I tell my clients that the Illinois divorce system is fair but it takes a LONG time.  This is because seasoned divorce attorneys will not settle a case and Illinois divorce judges will not make final decisions until all of the relevant discovery is exchanged. Discovery is the financial documents that prove what a party to a divorce earns, owns and owes.  Even in the most simple cases, this process takes months until the discovery is deemed sufficiently adequate by both sides to finalize the divorce, distribute assets and award maintenance (formerly known as alimony) The way to deal with the long wait for justice in an Illinois divorce is to file the necessary temporary motions to maintain each spouse while the discovery process ensues.  The Illinois Marriage and Dissolution of Marriage Act provides for temporary motions that require very little initial discovery and evidence and can be heard very quickly by an Illinois divorce judge. “Either party may petition or move for … “temporary maintenance or temporary support of a child of the marriage entitled to support, accompanied by an affidavit as to the factual basis for the relief requested. “ 750 ILCS 5/501(a) The statute doesn’t make a distinction between child support and maintenance for temporary purposes.  They know you need the money now. Factor Description Summary Hearing The judge makes a quick decision based on financial affidavits, tax returns, pay stubs, banking statements, and other relevant documentation. Financial Affidavits Includes the respective incomes and expenses of the divorcing parties, which are critical in determining maintenance awards. Evidentiary Hearing A formal process where witnesses are put on the stand, and evidence […]

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Fraudulent Conveyance In An Illinois Divorce

Divorce is rarely a surprise. A person anticipating divorce will contemplate how their net worth will likely be reduced by half at the end of the divorce process. This potential loss of assets via divorce may induce a spouse to start transferring money and assets to third parties before the divorce is finalized. In theory, a divorce court cannot divide assets that neither party to the marriage no longer possess. People are allowed to transfer property they own in Illinois. “In Illinois…the owner of property has an absolute right to dispose of his property during his lifetime in any manner he sees fit, and he may do so even though the transfer is for the precise purpose of minimizing or defeating the statutory marital interests of the spouse in the property conveyed.” Johnson v. La Grange State Bank, 383 NE 2d 185 – Ill: Supreme Court 1978 While a party to an Illinois divorce CAN transfer their property to avoid division of assets, those transfers can be voided or set aside later by an Illinois divorce court. “[C]ircumstances to give rise to a [fraudulent conveyance, allow for] setting aside the assignment [of the asset] as fraudulent” Till v. Till, 231 NE 2d 641 – Ill: Appellate Court, 1st Dist., 1st Div. 1967 Transfers before or during a divorce with the intent to deprive the other spouse of their rights to a marital property are a fraud. “[F]raud against marital property is not to be condoned even though it occurs before dissolution.” Hofmann v. Hofmann (1983), 94 Ill.2d 205, 220, 446 N.E.2d 499. Fraudulent transfers should be investigated by the defrauded spouse and brought to the Illinois divorce court’s attention. Marital Property Is No Longer Divisible By An Illinois Divorce Court If The Marital Property Is Not Held By Either Spouse At the end of an Illinois divorce an Illinois divorce court “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) Property not held by a spouse…must be held by someone else. If so, an Illinois divorce court cannot […]

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