Home
Firm Overview
Attorney Profiles
Practice Areas
Contact Us




Child Custody:

In Illinois, determination of child custody is based on the best interest of the child standard. As a preliminary matter in determining the best interest of the child, a court will often look at which parent has been the primary caregiver of the child. Specifically, the court may ask the following questions in determining who has been the primary caregiver of the child: Who has the child lived with? Who prepared the child’s meals? Who prepares the child for school including in the morning as well as with respect to the child’s homework? Who schedules and takes the child to doctor’s, dentist’s and any other appointments, as necessary? Who stays home when the child is sick and unable to go to school?

Additionally, as the child matures, the court may seek the child’s input regarding who the child’s residential custodian will be. However, one should be extremely cautious about trying to influence a child’s decision in a custody dispute. The psychological effects of the child being asked to choose between parents may be devastating if not dealt with in an appropriate manner being sensitive to the child’s desire to maintain a healthy relationship with both parents. Additionally, an attorney may be appointed to represent the child’s interest. Any attempt by a parent to influence the child will be readily apparent to the attorney who is appointed to represent the child and such attempted influence may weigh against the parent.

In making a determination regarding custody, the Court may consider the following statutory factors:

(1) the wishes of the child’s parent or parents as to his/her custody;

(2) the wishes of the child as to his/her custody;

(3) the interaction and interrelationship of the child with his/her parent or parents, his/her siblings and any other person who may significantly affect the child’s best interest;

(4) the child’s adjustment to his/her home, school and community;

(5) the mental and physical health of all individuals involved;

(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person;

(7) the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person;

(8) the willingness and ability of each parent to facilitate and encourage a close and continuing relations between the other parent child.

It is important to understand that the application of the factors as applied by the Court in each individual case may vary depending upon the facts of a particular case.

If you have questions regarding child custody or wish to discuss your particular case, please feel free to call the Law Office of Catherine M. Byrne at (312)332-5100.


Visitation:

Generally, a parent who is not granted residential custody of a child has the right and is encouraged to exercise visitation with the child on a regular and consistent basis in order to foster and maintain a healthy relationship between the non-custodial parent and the child. A typical visitation scheduled will include visitation on weekends, holidays, birthdays and extended visitation during school breaks. Depending on the age, needs and specific facts of the case, visitation with the non-custodial parent may include overnight visitation.

Visitation is not generally required to be supervised. However, as necessary, the court may require visitation to be in supervised setting on a temporary or permanent basis. Supervised visitation may be appropriate in cases in which the non-custodial parent has engaged in a pattern of abusive behavior or where a non-custodial parent has not been actively present in the child’s life and has only recently expressed an interest to become involved in the child’s life. The purpose of supervised visitation is to protect the security of the child while allowing the child to develop a relationship with the non-custodial parent in an environment that is safe and non-threatening for the child.

It is important to note that a non-custodial parent’s visitation rights are independent of issues related to the payment of child support. A non-custodial parent cannot be denied visitation rights exclusively on the basis of non-payment of child support. Each issue is addressed separately by the court, and therefore a parent who does not make regular child support payments may nonetheless be permitted to exercise visitation with the child.

Under limited circumstances, grandparents, great-grandparents and/or siblings of a child may petition the court for visitation with a child. The court’s permission is often sought when a parent attempts to limit the relationship a child has with his grandparents or other sibling(s).

If you have questions regarding visitation or wish to discuss your particular case, please feel free to call the Law Office of Catherine M. Byrne at (312)332-5100.


Child Support:

Illinois law provides that both parents have a duty to contribute to the support of their child. Even in cases where one parent has the ability to support the child without contribution from the other parent, the court is reluctant to release one parent from contributing to the support of the child. The amount of the non-custodial parent’s child support obligation depends on a variety of factors. However, the court is guided by statutory guidelines in which a non-custodial parent is required to pay a certain percentage of his/her net income depending on the number of children involved. The guidelines as set forth in the statute are minimum guidelines.

Where appropriate, the court may deviate from the guidelines and order the paying party to pay more or less than guideline support depending on relevant circumstances. For example, if the paying party is a high-income earner and payment of minimum guideline support would result in a windfall to the custodial parent, the court may allow a downward deviation from the minimum guidelines. Likewise, if a paying party is able to show substantial financial hardship due in part to payment of child support, the court may be willing to reduce the paying party’s support obligation below the statutory guidelines.

Illinois law has been interpreted to provide that under certain circumstances a custodial parent may seek contribution from the non-custodial parent for other expenses including the child’s daycare expenses, education expenses and medical expenses not covered by insurance.

The obligation to pay child support continues until the child is emancipated. In general, a child is considered emancipated when he/she reaches the age of 18. However, if a child attains the age of 18 while he/she is still attending high school, provisions for the payment of child support are not terminated until the date that the child graduates from high school or the date that the child attains the age of 19, whichever is earlier. If a child has special needs, including mental or physical disability, the court may order that support payments continue beyond the typical termination events.

A parent’s obligation to pay child support does not terminate with the death of the obligated parent. Therefore, when entering an order for child support, the court will generally require the obligated parent to obtain a life insurance policy for a specific amount, with the child listed as the sole beneficiary of the policy.

Under certain circumstances, child support may be modified. Specifically, a child support order may be modified where there has been a change in custody, where there is an increase in the child’s need for support and where there is a decrease or increase in the payor’s ability to pay. In cases where the obligated parent seeks a modification of the child support order due to a decreased ability to pay, he/she must show that the reduction in ability to pay support was made in good faith. The court will not allow a reduction in child support where the obligated parent voluntarily reduces his/her income.

In limited cases, the court may enter an order abating child support for a certain period of time. When the court enters an order abating child support, the obligated parent is not required to make payments for the specified period of time. Abatement is different than termination of child support payments in that the amounts due for child support accrue during the period of non-payment and are expected to be paid at a later time. Abatement may be sought when a paying party loses his/her job and is unable to pay support during the period of unemployment. It is the expectation of the court that the obligated parent is being diligent and making a good faith effort to obtain gainful employment and that payment of accrued support payments will occur upon obtaining new employment.

It is important to note that a parent’s obligation to pay child support is independent of issues related to visitation. An obligated parent may not withhold child support because he/she has been denied visitation rights. Each issue is addressed separately be the court, and therefore it is the obligation of a parent to pay child support pursuant to the terms of the order for support whether or not he/she is permitted to have visitation with the child.

If you have questions regarding child support or wish to discuss your particular case, please feel free to call the Law Office of Catherine M. Byrne at (312)332-5100.


College Expenses for Children of the Marriage:

While a parent is generally not obligated to support a child past the age of majority (or other emancipating event), the court may provide for payment of a child’s post-secondary education expenses. In general, where payment of post-secondary expenses is ordered by the court, the court will likely divide a child’s post-secondary education expenses (including tuition, room and board, books, fees, travel, etc.) between the parties after considering the resources available to the child including scholarships, grants and other forms of financial aid.

In many cases, the court will require each parent to pay a percentage of the child’s college or trade school expenses in proportion to each parent’s income. The child may also be required to contribute to his/her own education expenses. In determining the appropriate division of payment, the court will consider what each party can afford to pay. For example, a child may desire to go to a private school or expensive school out of state. Parents are not required to pay for a school that they can not afford when there are available less expensive alternatives that are within the financial ability of the parents and child to pay.

If you have questions regarding visitation or wish to discuss your particular case, please feel free to call the Law Office of Catherine M. Byrne at (312)332-5100.


Spousal Support:

Maintenance, formerly known as alimony, is experiencing a resurgence in Illinois. The court will consider several factors in determining whether an award of maintenance is appropriate. These factors include, among others, the present and future earning capacity of each party, duration of marriage, standard of living established during the marriage, contributions and services by the party seeking maintenance to the education and/or career advancements of the other party and the needs of each party.

Maintenance may be awarded on temporary or permanent basis. In some cases, maintenance will be awarded for a set period of time (e.g. five years) in order to give the recipient spouse an opportunity to establish a degree of self-sufficiency. This type of maintenance is called rehabilitative maintenance. In other cases, a specified amount of maintenance is awarded in a single lump sum payment. This is called maintenance in gross. When the court deems it appropriate, rehabilitative maintenance may be set for a specified period of time to be reviewed at a time as determined by the court. This is called reviewable maintenance. The type of maintenance awarded to a party depends on various factors including the purpose for which maintenance is awarded.

Permanent (or indefinite) maintenance is for the payee’s life, but is usually subject to termination upon the happening of certain events. The death of either the paying or recipient party, the remarriage of the recipient party or if the recipient party cohabits with another person on a resident, continuing conjugal basis.

An award of maintenance may be modified or terminated only upon a showing of substantial change in circumstances. In Illinois, the court will consider the following factors including change in the employment status of either party and whether the change has been made in good faith, the efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate and any impairment of the present and future earning capacity of either party.

In some cases, the issue of maintenance will be reserved for future review. For example, if one party is in need of maintenance but the other party is unable to pay maintenance at the time judgment of dissolution of marriage is entered. Maintenance may also be reserved for future review if the party is not in need of maintenance at the time of judgment, but may require maintenance in the future. If maintenance is not awarded or reserved at the time that judgment of dissolution of marriage is entered, it is deemed waive and a party is forever barred from coming back into court to request maintenance.

In terms of tax consequences, maintenance is considered income for the recipient party and therefore must be included in calculation of gross income. The paying party may deduct maintenance amounts paid on his/her taxes.

If you have questions regarding spousal support or wish to discuss your particular case, please feel free to call the Law Office of Catherine M. Byrne at (312)332-5100.


Distribution of Property:

Property distribution in a divorce case is an area which is often misunderstood, not only by divorcing parties, but also by attorneys who do not practice in the domestic relations division. As a general rule, property acquired by either spouse prior to the marriage is considered non-marital property and will therefore be assigned to the spouse to whom the property belongs. Property acquired by either spouse subsequent to the marriage is considered marital property and is subject to division. However, there are certain exceptions to this general rule. Pursuant to Illinois law, the following property (even if acquired by a party during the marriage) is considered non-marital property:

(1) property acquired by gift, legacy or descent;

(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent;

(3) property acquired by a spouse after judgment of legal separation;

(4) property excluded by valid agreement of the parties;

(5) any judgment or property obtained by judgment awarded to a spouse from the other spouse;

(6) property acquired before the marriage.

Pension funds, like other property, acquired subsequent to the marriage are considered marital property. However, unlike other types of property, certain portions of a pension fund may be non-marital and therefore not subject to division. The portion of the pension fund subject to division is the increase in the value of the funds from the date of marriage to the date of judgment for dissolution of marriage.

Property division does not have to be equal. As provided by Illinois law the court will consider several factors in its determination of appropriate equitable division of property. The relevant factors include the contribution of each party to the acquisition and preservation of property including the contribution of a spouse as a homemaker, the dissipation by either party of the property, the value of the property assigned to each party, the duration of the marriage and the relevant economic circumstances of each party.

If you have questions regarding distribution of property and/or allocation of debt or wish to discuss your particular case, please feel free to call the Law Office of Catherine M. Byrne at (312)332-5100.


Allocation of Debt:

Like property, debt is generally considered marital when it is acquired by either party subsequent to the marriage. However, the misuse of property and/or acquisition of debt by one party subsequent to the irreconcilable breakdown of the marriage may be characterized as dissipation and will be the exclusive responsibility of the party who incurred the debt. Debt allocation is determined by the court using the same factors as those used to determine the appropriate division of property.

If you have questions regarding distribution of property and/or allocation of debt or wish to discuss your particular case, please feel free to call the Law Office of Catherine M. Byrne at (312)332-5100.


Please contact our firm today!




©2004 The Law Offices of Catherine M. Byrne

Designed by Scorpion Design