call us630-584-4800

Free Consultations

Subscribe to this list via RSS Blog posts tagged in Illinois law

What Are You Not Allowed to Do in a Prenuptial Agreement?A prenuptial agreement is a useful document to have on hand if you and your spouse ever divorce. Though preparing for a hypothetical divorce seems awkward, it can be easier to come to an agreement now on how to divide some assets than it would be during a divorce, when you may feel less inclined to cooperate. The prenuptial agreement creates a framework for a divorce agreement, which would save you some time during a divorce. However, there are limitations to what a prenuptial agreement is allowed to do in Illinois. If you create an agreement that breaks the state’s rules, then your agreement will be invalid once it comes time to use it. Here are three things you cannot do in a prenuptial agreement:

  1. Settle on Parental Responsibilities and Child Support: A prenuptial agreement cannot decide how you will allocate parental responsibilities or divide child support. The parenting plan in a divorce must serve the best interests of the children. You cannot know in advance what division of parenting time will be best for the children, especially if they are not even born yet. Illinois calculates child support using a formula based on both parents’ incomes. You cannot decide that one parent would pay less child support than what they are legally obligated to pay.
  2. Create Unjust Financial Terms: As an equitable division state, Illinois does not require divorcees to divide their marital properties exactly evenly. This gives you some flexibility in your prenuptial agreement if you want to protect assets from going to your spouse. However, the financial result of the agreement must be fair and equitable to both sides. A divorce court would not uphold a prenuptial agreement that unjustly divides marital properties to the point that one side seems to be taking advantage of the other. This extends to spousal maintenance. You can waive your claim to maintenance in the agreement, but a court will not enforce it if it would cause you unreasonable hardship.
  3. Incentivize Divorce: Many courts will reject a prenuptial agreement that seems to give a financial incentive for the parties to divorce. Basically, the courts do not want a prenuptial agreement to encourage people to divorce. Knowing that you would receive a financial windfall from your agreement could influence your decision on whether to divorce. It will be up to the court to judge whether your agreement violates this principle.

Contact a Kane County Family Law Attorney

You cannot predict the many ways that your financial circumstances could change during your marriage, which could affect how you view your prenuptial agreement. However, including conditions that violate Illinois law is certain to make the agreement invalid. A St. Charles, Illinois, family law lawyer at Goostree Law Group will make sure that your prenuptial agreement is fair and complies with the law. Schedule a free consultation by calling 630-584-4800.

Source:

Last modified on

How to File for Divorce in Illinois When You Were Married in Another CountryMore than a million people from around the world immigrate to the U.S. and become permanent residents each year. Many people are attracted to the opportunity for a better life, while others may be following a job offer or looking for a change. It is common for couples and families to make the move together with no intention of leaving the U.S. What happens when a couple who was married in another country decides to divorce while living in the U.S.? The divorce laws of the state in which they live will determine how the divorce will proceed.

Where Do You Divorce?

You file for divorce with the court system of your permanent residence and not the court system of the country where you were married. This applies when you immigrated to the U.S. from another country and when you emigrated from the U.S. to another country. For people who have moved to Illinois from another country, you should understand these rules about divorce:

  • You do not need to be a U.S. citizen to file for divorce in Illinois.
  • You do need to be a permanent resident of Illinois and have maintained a residence in the state for at least 90 days.
  • Illinois is a no-fault divorce state, which means you do not have to present a reason for divorce other than that you have irreconcilable differences.
  • Though you need to know the basic information about your marriage, you typically do not need to provide a copy of your marriage license from the country where you were married.
  • You can still divorce your spouse if they do not live in the U.S., but you must send them a notice of your petition to divorce.
  • If your spouse refuses to attend the divorce hearing, the court may issue a default judgment in your favor.
  • Whether the country where you were married recognizes your divorce judgment will depend on the laws of that country.

Serving notice to a spouse living in another country can be complicated, especially if that country does not have a treaty with the U.S. that recognizes each others’ court orders. You can serve notice to your spouse by mailing it to their address, using a foreign agent to deliver it, or posting a notice in a publication of record for where they live.

Last modified on

Posted on in Annulments

What It Takes to Annul Your Marriage in IllinoisIn most situations, the only way to end a marriage is to divorce your spouse. However, you may be able to annul the marriage if you can prove that it was never valid. The advantage of an annulment is that you will not have to divide your properties or pay spousal maintenance because the marriage never legally existed. The disadvantage is that there is a deadline to request an annulment and you will have to put more work into arguing why your marriage should be annulled. With a divorce, you only need to prove irreconcilable differences between you and your spouse. With an annulment, you must prove one of the following conditions:

  1. Lack of Consent: A marriage is invalid if one of the parties was unable to legally consent to the marriage. This could be because you were intoxicated or mentally incapacitated when agreeing to the marriage or if you were married under duress or fraudulent circumstances. Once you realize that your marriage lacked your consent, you have 90 days to get your marriage annulled.
  2. Underage: A person cannot legally marry in Illinois if they are younger than 16. People age 16 and 17 must receive permission from their parents before they can marry. Either the underage person or their parent can request an annulment, as long as it is before the person’s 18th birthday.
  3. Incapable of Sex: A spouse can request an annulment if they learn after they were married that their spouse is incapable of having sexual intercourse. The keys to this type of annulment are filing within a year of learning and proving that you did not know before your marriage that your spouse could not have sex.
  4. Already Married: You cannot legally marry someone if they are already married and have not yet dissolved that marriage. There is no time limit to annulling an illegal marriage such as this. If you can prove that you did not know that your spouse was already married, the court may name you as a putative spouse, which would give you rights to property and maintenance.
  5. Incest: It is illegal to marry your ancestor, descendant, sibling, aunt, uncle, niece, or nephew. You can legally marry your first cousin, but only if you are both at least 50 years old or you can prove that one of you is sexually sterile.

Contact a St. Charles, Illinois, Divorce Attorney

An annulment is more difficult to receive than a dissolution of marriage, but the process after receiving an annulment is simpler than a divorce. Talk to a Kane County divorce lawyer at Goostree Law Group about whether you may be able to annul your marriage. To schedule a free consultation, call 630-584-4800.

Source:

Last modified on

Illinois Adjusts Spousal Maintenance Law Ahead of New YearSince the U.S. Congress eliminated the alimony tax deduction, divorce professionals have waited to see how state governments will respond. People paying spousal maintenance will not be allowed to deduct their payments from their federal income taxes if the divorce agreement is approved after Dec. 31, 2018. Recipients will also not claim their payments as taxable income. The new law shifts the financial burden towards the paying spouse, and divorce professionals expect courts to react by awarding less in spousal maintenance. Illinois recently approved a new law that changes its directions to courts on how they should evaluate whether to award spousal maintenance and what the maintenance amount should be.

Deciding on Maintenance

The maintenance section of the Illinois Marriage and Dissolution of Marriage Act contains a list of relevant factors that a court must consider when determining whether awarding spousal maintenance is appropriate. The list instructed the court to consider “the tax implications of the property division upon the respective economic circumstances of the parties.” Lawmakers amended the section to simply state that the court should consider “the tax consequences to each party.” The amendment broadens the definition of what courts may consider in relation to taxes, which includes how not having the alimony tax deduction will affect the paying party.

Last modified on

What the Equal Parenting Time Law Would Mean in IllinoisA proposed bill in the Illinois House of Representatives has brought the debate over 50/50 parenting time arrangements to the forefront of family law discussions. The bill would create a legal presumption that it is in the best interest of children that parents have an equal share of parenting time after separation. Illinois courts currently presume the opposite when left to determine the division of parenting time. If passed, the law would be considered a win for fathers, who are less likely to receive a majority of parenting time when the time is unevenly divided.

Default Position

There is a consensus amongst parents and family law courts that children are best served when both parents are an active part of their lives. The disagreement is over how much parenting time each side needs to be an effective parent:

Last modified on
Back to Top