Paternity fraud occurs when a man is incorrectly identified as the biological father of a child by the mother. In this blog, we discuss the cause of action for paternity fraud in Illinois. Read more
Divorce is the last thing you think about when you and your spouse are exchanging vows. However, for different reasons, divorce happens. When it comes to divorce and child custody cases involving same-sex couples, there are many factors that can complicate the court’s ruling.
Along with the right to marry in Illinois (and every state in America), marriage equality laws also gave couples the right to divorce, regardless of where they live. But, in some cases, the divorce process can become complex.
Because same-sex marriage hasn’t been legal for too long, courts have broad discretion when making decisions about relationships that were in place long before the Supreme Court’s landmark decision. One of the biggest issues same-sex couples run into when they get divorced is determining how to award spousal and child support if the couple was living together as domestic partners much longer than their legal marriage. Same-sex couples often see one spouse adopt children and then they live as a family, without the benefit of a joint- or cross- or co-adoption. That could spell disaster for the non-adopting parent.
Parental responsibilities are different for someone married to a child’s birth mother. The law spells out how the birth mother’s spouse can be the legal parent of the child. For two married men, adoption is often the route to parentage, for married women, the female who did not give birth also usually adopts the child/children.
Since 2016, instead of dividing up “custody” and “visitation,” divorcing parents make an “allocation of parental responsibilities.” Under the revised Marriage and Dissolution of Marriage Act, only non-parents get visitation.
You must be a parent to have any parental responsibilities. Who’s a parent is determined by the Illinois Parentage Act. The Parentage Act spells out 4 ways the spouse of the birth mother can be legally presumed to be the child’s parent. The law below applies to both marriages and civil unions. It also applies to a male or female spouse of the birth mother. The four paths to parenthood are:
- The child is born while the spouses are married to each other.
- The child is born after the marriage is over. It must be within 300 days after that termination.
- The first 2 situations, but where the couple tried to enter into a marriage or civil union “in apparent compliance with the law.” However, that marriage or union is later terminated or declared invalid for some reason.
- A person marries the birth mother after the child is born. Plus, that person consents to being added to the child’s birth certificate.
Parenthood for two married men results from one being the child’s biological father, and the other adopting the child,. Or, it results from both spouses adopting a child together.
Same-Sex Divorce Procedure
Generally – asides from the issue of Child Custody (Parenting Time) – the divorce process for same-sex couples is not different compared to a divorce involving a heterosexual couple.
- File the Petition for ‘Dissolution of Marriage’. To properly file in Illinois, one or both parties must establish residency within the state for at least 90 days before commencement of the case. The petition must state whether the divorce action is sought on fault or no-fault grounds. (Contested or Uncontested).
- Serve the complaint on the other spouse.
- The other spouse files an answer to the petition or risks a default judgment from the court.
- The investigation and negotiation stage occurs, where the couple’s attorneys gather relevant evidence and prepare for a court appearance. The couple may also work toward a mutually-agreeable settlement through divorce mediation.
- A trial commences if no settlement is reached. At this stage, the divorce is granted, and the court determines issues like custody, child support, spousal maintenance and the division of the couple’s property.
Hiring the Right Experienced Same-Sex Divorce Attorney
If you are going through a same-sex divorce, you probably have many questions about the process.
By hiring a knowledgeable and experienced divorce attorney – who understands the unique challenges same-sex couples face – will ensure that your interests are protected during the dissolution of your marriage. How? Since it is possible to encounter judges or other court personnel who may have had limited interactions with same-sex divorces or same-sex individuals in general, it is important to have an attorney who is not only sensitive to the dynamic, but one who is well known by the Court and knowledgeable of the various laws.
Masters Law Group understands that divorce is a stressful situation and that our clients want to move on with their lives. As such, we move through settlement negotiations, mediation or litigation with our clients assurance and well being in mind.
Whether you are facing a same-sex contested divorce, uncontested divorce, or civil union divorce, our firm’s attorneys are ready to skillfully advocate for your position and provide your voice when you need it most.
Divorce cases involving substantial assets or complex estates require specialized knowledge. Masters Law Group is skilled at identifying and valuing assets and wealth, including real estate, securities, business interests, retirement funds, pension plans, tax shelters (domestic and foreign), overseas accounts, stock options, trusts and other actual or potential sources of wealth.
Don’t go it alone. Contact us here today to schedule a consultation.
It’s not unusual for ex-spouses to want to change a prior decree respecting issues of custody and support. When a divorce settlement is no longer relevant for a couple or does not fit the needs of their children, it is possible to alter the terms of it through a post-decree modification.
Generally speaking, a divorce can take weeks, or even months to finalize. Once the legal proceedings are complete, a final divorce decree will be issued, which officially documents the terms of the divorce. But, life goes on and things change eventually no matter what the Divorce Agreement or Allocation of Parental Responsibilities and Parenting Time say.
A party seeking to modify their decree must show a substantial and continuing change of circumstances.
Modifying an Order
Broadly speaking, there are two ways that former spouses can seek to modify the terms of their divorce in Illinois. These are:
- By agreement, and
- By court order.
The first option for modifying the terms of your divorce is by agreeing to a modification with your former spouse. In other words, you and your spouse already agree to the modifications proposed, in which case you can file a joint petition – which could present the opportunity to not have to go to court.
The second option is if you and your ex-spouse don’t agree on the modification. If this is the case, you’ll need to file a complaint for modification and have your ex served. The process then goes through the court system until you reach an agreement or have a trial.
Change of Circumstances and Modification
General dissatisfaction with the outcome of the divorce is not a sufficient cause to modify the terms of the divorce decree. Therefore, if later down the line you feel you got a bad deal or the judge ruled unfairly, you might not have cause to petition a change. However, if you can demonstrate a substantial change of circumstances, a judge may consider your motion to modify.
There are numerous reasons parties may seek modification of a divorce decree. Some of the most common reasons for requesting the court modify the terms of a divorce include:
- Change in financial situation for the support-paying party, including job loss, reduced pay, or disability;
- Change in child custody or parenting time due to relocation of child or parent, alleged abuse or unfitness of custodial parent, or refusal of one parent to comply with terms of parenting plan; or
- Change in the financial status of the non-paying party, such as a significant salary increase, remarriage, or large inheritance.
[Property division orders, however, are almost never modifiable in Illinois.]
A judge is looking for evidence showing that the change is not temporary, minimal, or self-inflicted. For example, if you quit your job because you simply did not like your boss, a judge is not likely to grant a modification of child support. Deciding what constitutes a “substantial” change of circumstances can be difficult. Seeking the advice of an experienced divorce lawyer before filing a motion to modify a divorce decree can save you time and money.
Divorce Modification with Masters Law Group
Regardless of why you are seeking a post-judgment modification, and regardless of whether your former spouse are in agreement, you need to comply with your existing divorce judgment unless and until your requested modification receives court approval. Deviating from the terms of your existing judgment can get you into trouble with the court, and it can potentially make it more difficult to obtain a post-judgment modification as well.
If you’re trying to modify an Illinois family law order or your ex-spouse is attempting to allege a substantial change in circumstances, contact the divorce attorneys at Masters Law Group. We have extensive experience in handling the complete range of post-decree modification cases, including parenting time, allocation of parental responsibilities and child support modifications.
Contact us here today to set up a complimentary consultation.
Is your ex-spouse trying to move away with your children? One of the most difficult parts of a divorce is seeing your children less, and if your spouse moves away, it could make that even more difficult. Luckily, with the help of a Chicago family and divorce law firm, we can help prevent this from happening.
Here are some factors that could affect the outcome if your ex-spouse wants to move your children away.
The custody arrangement
Now called Parenting Time, the child custody arrangement will affect whether or not your ex can move with your children. If you have partial custody, it’s unlikely that they can legally move far away. If you don’t have partial custody, and only have regular visits, there’s still a good chance the courts will not allow them to.
What is the distance of the move?
In several states, there is a specified range in which an ex-spouse can move with your children without at least giving notice. Typically, it must be within 50-100 miles.
Did they give formal notice?
Oftentimes, your ex-spouse must give a formal notice prior to moving. It should be in the form of a legal document and should include the destination, why they’re moving and a visitation plan. It should also be given at least 60 days before the move date.
You have 30 days to object to the move when your ex-spouse proposes it, which will then result in a relocation trial. In most states, the courts treat staying in the same location as the norm, so your ex’s lawyers will have to be the ones arguing for the move. They will have to prove that the relocation is in your childrens’ best interests. There aren’t specific rules for these situations, so judges generally make different decisions case by case. The primary factors looked at by the courts include:
- Custody arrangements
- The distance of the move
- The motivation of both parties
- What is in the childrens’ best interest
Getting Professional Advice from Masters Law Group
At Masters Law Group, we specialize in all family law related matters and focus on helping clients assert their rights to further the best interest of their children.
We offer a wide range of services tailored to our clients’ unique legal needs and have a depth of knowledge, experience and talent in the Family Law and Divorce field.
If your ex-spouse is proposing to move away with your kids, we can help. Contact us to schedule your consultation here today.
PARENTING TIME SERVICES WITH MASTERS LAW-GROUP
Whether to hire a lawyer or navigate child custody solo is one of the first considerations for parents who are petitioning the court for child custody.
Parenting Time of your child is a very emotional law topic. Parenting Time rights may be determined by the agreement of the parties or by a court order.
Masters Law Group represents individuals in both their initial quest to set a parenting time schedule, as well as parents looking to modify a previously determined schedule. Learn more and set up a consultation with us here today.
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A Chicago family and divorce law firm focused on solving problems and achieving the best possible result for our clients.