Areas of Specialization

Experts in Illinois Divorce and Family Law


At Weiman Silberman, our attorneys have deep experience counseling and litigating on all aspects of divorce and family law in Illinois. A series of laws that went into effect on January 1, 2016, have made significant changes to governing divorce, child custody, and parental rights in Illinois. We have worked extensively to help our clients achieve the optimal outcomes under these new laws.

Below we define many of the most important terms related to divorce and family law, and explain how they are currently applied to Illinois families and couples.

 

Divorce

Asset Identification and Valuation: In every dissolution of marriage proceeding, it is necessary to inventory marital and non-marital property (“assets”) in order to equitably divide the marital estate. If the parties disagree as to the value of a particular asset or claim it is marital, or non-marital, it may be necessary to have the asset appraised. If the parties cannot stipulate as to the value, then the appraiser will testify in court as to the value placed on that particular asset. 

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Business Valuation: It may be necessary to value a business – whether it is a spouse’s share of a family business that must be quantified, the value of a non-marital business, or of a marital business. The valuation process may take several months. Oftentimes, spouses retain their own experts to value a business. If settlement is impracticable based on the differences of opinion and value, then the case may proceed to trial and the judge will place a value on the business, based on your expert’s value, your spouse’s expert’s value, or the court’s value.

Child support and Related Expenses: In paternity and dissolution of marriage proceedings, the amount of child support a non-residential parent (“payor”) pays for child support is based on their income and number of children. The amount of support paid for one child is 20% of the payor’s “net” income; two children is 28%; three children is 32%; four children is 40%; and five or more children is 50%.

Irreconcilable Differences: A married couple can consider dissolving their marriage for a variety of reasons and at different stages in their lives – before children, when children are young, waiting until the children turn a certain age; or for mental, emotional, and financial abuse. The list of reasons is endless. In the state of Illinois, however, the only ground for filing a dissolution of marriage is irreconcilable differences. After a Petition for Dissolution of Marriage is filed and your spouse is served by a process server or law enforcement officer, the court obtains jurisdiction over the subject matter of your case (i.e., all financial issues, maintenance/child support, property division, debt assignment, allocation of parental responsibilities, and parenting time).

Post-Decree Modification/Enforcement: After the entry of a Judgment for Dissolution of Marriage and Judgment for Allocation of Parental Responsibilities by a court of competent jurisdiction, the case will be assigned to a post-decree judge when either party files a post-decree pleading to modify or enforce the terms, conditions, or provisions of the Judgments.  For example, a Petition for Rule to Show Cause for Indirect Civil Contempt of Court is filed when a party does not comply with a provision of a Judgment (e.g., failure to pay). A Petition to Modify is filed when a change in circumstances has occurred that did not exist at the time the Judgment was entered (e.g., decrease/increase child support or spousal support; modify parenting responsibilities/time; relocation out of state).

Maintenance and Lifestyle Analysis: In 2015, the Illinois General Assembly repealed, in part, the spousal support (“maintenance”) statute and replaced it with a formulaic approach to quantifying maintenance awards if your spouse earns $250,000 per year or less. If your spouse earns more than $250,000 per year, then the formula does not apply and the court will consider several factors including lifestyle of the parties.

Marital Settlement Agreement: A Marital Settlement Agreement (“MSA”) memorializes the parties’ agreement in lieu of proceeding to trial. This document provides for financial and property issues, including maintenance, child support, healthcare, real property, retirement, college, and debt. This legal document settles all justiciable issues between the parties and is incorporated into a Judgment for Dissolution of Marriage dissolving the parties’ bonds of matrimony.

Property Division: The acquisition of property is inevitable during one’s life – real estate, furniture, furnishings, jewelry, clothing, automobiles, valuables, and/or collectibles. A global settlement will include a provision in your Marital Settlement Agreement regarding the division of all property. It is important to appreciate that judges do not want to be the final arbiter of your personal property. Therefore, it is incumbent upon the parties to split up their possessions acquired during their marriage equitably (or in kind), not necessarily equally. For example, a spouse receives the kitchen table and chairs valued at $500 and the other receives an item(s) of similar value.

 

Parental Rights

Parentage: If you are not married but have a child together then the court issues are limited to financial support for each child and allocation of parental responsibilities regarding significant decisions in the minor child’s life and parenting time. A parent-child relationship is established by signing a Voluntary Acknowledgement of Paternity, submission to court-ordered DNA testing or by voluntary consent. The non-residential parent can be ordered to pay child support, contribute to daycare, childcare, extracurricular and recreational costs, obtain and maintain health and life insurance, as well as other costs of life for the child. In the state of Illinois, a parent supports their child through their post-high school education (college, trade school, and the like). 

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Parenting Responsibilities and Parenting Time: Effective January 1, 2016, the Illinois General Assembly passed new legislation relative to allocating parental responsibilities for minor children. The long-established term “custody” no longer exists in the state of Illinois. Today, litigation is focused on the allocation of significant decisions (healthcare, religion, education, and extracurricular activities) for the minor child.  The term “visitation” is now “parenting time.”  While the terminology has changed the underlying issues remain the same.

Parenting Plan and Judgment: This written accord sets forth your respective rights and responsibilities as to the minor child. It is titled a Judgment for Allocation of Parental Responsibilities which establishes if one, or both, parents will make the significant decisions for the minor child regarding medical, educational, religious, and extracurricular activities. The Allocation Judgment will also establish parenting time – including a schedule for holidays, school breaks, and summer – transportation and fundamental parenting provisions related to the minor child’s upbringing.

Relocation:  On January 1, 2016, the Illinois General Assembly passed legislation repealing the “removal” statute and replacing it with a relocation statute. Today, a residential parent is permitted to move a distance of 25 miles or less from her current residence without a judge’s permission or obtaining the consent of the other parent. If the residential parent desires to move a distance of more than 25 miles (or greater than 50 miles in certain geographic areas) then a petition to relocate must be filed and a judge will conduct an evidentiary hearing.

 

Litigation and Appeals

Litigation: Litigation results after settlement negotiations fail. As a result, your attorney needs to be prepared to litigate the contested issues in court. The judge assigned to the case will listen to the testimony and consider the evidence prior to making a decision/ruling. 

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Appeals: Appeals are filed if a party disagrees with a court’s decision after trial based on legal error, misapplication of the law, or abuse of discretion. The most critical question to discuss with your trial attorney is how strong are your chances in reversing the trial court’s decision. The appellate court process takes time but can be well worth the fight in furtherance of justice.   

 

Prenuptial and Postnuptial Agreements

Prenuptial Agreements: A prenuptial agreement is a contract entered into between two people prior to marriage. This written agreement establishes a party’s right to receive certain property and/or establishes the amount and duration of maintenance upon the filing of a Petition for Dissolution of Marriage. Whether the agreement is valid will be litigated taking into consideration issues such as the timing (the date of signing the agreement and wedding date), full disclosure of income and assets, duress, if the terms of the agreement are unconscionable, and other case-specific factors. 

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Postnuptial Agreement: A postnuptial agreement is a contract entered into between two people after a marriage. As with a prenuptial agreement, a postnuptial agreement establishes a party’s right to receive certain property and/or establishes the amount and duration of maintenance upon the filing of a Petition for Dissolution of Marriage. Relative to prenuptial agreements, postnuptial agreements generally face greater judicial scrutiny in determining whether the agreement is valid and enforceable. While less common than prenuptial agreements, postnuptial agreements are growing in popularity.

 

Domestic Violence and Orders of Protection

During the course of a relationship, emotions can run so high that one loses sight of legally appropriate behavior. The law, however, provides specific relief when a person commits an act of severe emotional, mental, verbal, or physical abuse. Orders of protection, no-stalking orders, and restraining orders can be granted on an emergency basis after a person testifies in court as to the specific incident of abuse. Based on the severity of the allegations and abuse involved, protective orders can be entered for up to two years.

 

Civil Unions

The state of Illinois recognizes civil unions. The Civil Union Act creates a separate status that is equal to married couples (i.e., the same rights, interests, benefits/burdens, and protections) that are available under Illinois law but exist under a separate Act because the Illinois Marriage and Dissolution of Marriage Act only applies to persons of the opposite sex. Notwithstanding the foregoing, the Act expressly incorporates specific provisions of the Illinois Marriage and Dissolution of Marriage Act into the Civil Union Act including the procedural requirements for a dissolution proceeding.