In Illinois, when a child is born to a married woman, the woman’s husband is automatically presumed to be the legal father of the child. However, when a child is born to an unmarried woman, the biological father does not have any automatic legal rights. This is true even if the child’s father is in a long-term relationship with the mother.

As such, it is extremely important for unmarried fathers to take steps to protect their rights when a child is born. Fathers should establish paternity as soon as possible. In addition, they should work with a family law attorney to create a parentage agreement that clarifies both parents’ rights and obligations with regard to custody, visitation, child support and other issues.

Establishing legal paternity

Illinois law recognizes three ways to establish legal paternity. The easiest way is for both parents to sign a Voluntary Acknowledgement of Paternity. In most cases, this will be provided to the parents when the child was born. If the parents do not sign the form at the hospital, they can get another copy online or from a Human Services, Child Support or County Clerk’s office.

During the course of a divorce, it sometimes becomes necessary for one party to file an Order of Protection (OOP) against the other. An OOP is a court order which will provide protection for victims of domestic abuse. In a divorce situation the victim is typically a spouse, and in some cases an OOP may also provide protection for the children. It is important to understand the basic requirements that must be met and to know where to find the resources in your area to obtain an OOP.

Regardless of the county in which you live, in order to file an OOP it is necessary to fit into certain criteria. These criteria may have minor variations depending on where you reside. For the purposes of this article, the focus will be on DuPage County in Illinois, one of the counties served by the Law Office of Ronald L. Hendrix.

Requirements to Obtain an Order of Protection

There are three basic requirements for an OOP case. First, the person who you are pursuing an OOP against (or the Respondent) must be related to you in one of the following ways: a spouse, former spouse, boyfriend/girlfriend, currently sharing a residence with you or have in the past, your legal caretaker, you have a child together or they are a family member (i.e. parent, child, sibling, step-parent, step child). An OOP only covers these types of domestic relationships, however, there are other Orders you may be able to obtain if you do not meet this criterion.

Recently, Illinois passed a new statute for the calculation and award of maintenance that is effective January 1, 2015. Until now, there has been no specific guideline for determining maintenance, as there is for child support in Illinois. Judges could use their own discretion in the final decision of the amount and duration of an award of maintenance.

Prior to this change, the court primarily considered twelve factors which are set forth in the statute before awarding maintenance. These factors include but are not limited to the length of the marriage, the ages of the husband and wife, the income of each party, and the standard of living established during the marriage.

Under the new statute, these twelve factors are still considered to determine if maintenance will be awarded. However, if maintenance is deemed appropriate, there are now guidelines for the judges to follow with regard to the amount and duration.

When a divorce settlement is final, the legal document known as the Martial Settlement Agreement will detail how a divorced couple’s marital assets will be divided. This includes all substantial property, including retirement plans. In order for the division of a retirement account to take place there may be the need for a legal mechanism, referred to as a Qualified Domestic Relations Order or QDRO (pronounced “quad row”).

What is a QDRO?

Simply put, a QDRO is a court order which recognizes an alternate payee’s ownership of a portion of an employee benefit or pension plan subject to ERISA (Employment Retirement Income Security Act), a federal law dating back to 1974 that provides structure for the types of retirement accounts available to employees.

Preparation of a QDRO is a multi-step process, and it is important that it be prepared properly. When seeking a divorce attorney, include questions about experience completing QDROs, what the office’s process is, and the approximate cost.

When parents are going through a divorce, they understandably place a lot of emphasis on their children and how they will be affected. Even when parents are amicable, decisions involving the children can be difficult and discussions emotionally charged. One of the most important decisions involving the children in a divorce is that of custody, and sometimes due to the sensitive nature of the case, it cannot be left solely to the discretion of the parents.

In a case where there is much contention over custody or parenting time, or other issues with regard to the children, and the custody decision falls on the court, a Guardian Ad Litem (or “GAL”) may be appointed to represent the interests of the children. The GAL is an attorney who will be neutral as far as the parties are concerned, not favoring one parent over the other.

When is a Guardian Ad Litem Necessary?

While some judges may appoint a GAL, the majority do not unless the parents fail to reach an agreement on their own. Often parents in an already tense situation and wanting to protect their role in the lives of their children will over-scrutinize small details. For example, they may too closely compare parenting time each will have with the children, or insist on having excessive input on day-to-day, minor aspects of the child’s life during the other party’s parenting time. This rigidity with regard to the parenting agreement is not in the best interest of the children, complicating recreational activities and school schedules, encouraging lack of structure, and creating an unintentional “ping-ponging” of the children between households. Attempting to over-define the terms of the agreement will delay the process, and a GAL may be assigned.

Most adults are familiar with the old adage “if it seems too good to be true, it probably is”, and they have likely gained enough life experience to conclude it is reliable in most circumstances. Through trial and error, we learn how to recognize a non-reputable claim, and to make informed decisions.

Too Good to be True

The guarantee of a ‘weekend divorce’ – a flat-fee, quick-divorce completed in a weekend – should immediately bring this saying to mind. Nothing more than an irresponsible gimmick preying upon vulnerable couples seeking a fast, cheap way to end their marriage, and a ‘weekend divorce’ is definitely too good to be true.

One has to assume that these claims are made by attorneys whose offices are not attracting new clients based on their own integrity, reputable advertising or past client referrals. Instead, desperate attorneys have put aside the best interest of the client, and made unrealistic promises in an effort to increase business.

When considering divorce and beginning the research process, you will come across many terms describing methods of negotiating a divorce settlement. It is important for you to acquaint yourself with these terms, and discuss them with an attorney, to ultimately choose the divorce approach that is best suited to your situation. Mediation is a term that you will likely come across when researching divorce, and while not appropriate for every divorce, it is a viable option for some couples.

The Basics of Mediation

By definition, mediation is “intervention between conflicting parties to promote reconciliation, settlement, or compromise”. In mediation, a neutral third-party, called a mediator, is hired to meet with a couple to hear, discuss and resolve the issues of a divorce. Mediators do not make decisions for a couple, but rather facilitate conversation and assist couples in reaching agreements that are best for both parties. Using mediation is voluntary, and all parties must consent to participate in good faith and work together toward resolving issues. However, parties are not bound to resolve their dispute.

A successful mediation requires two parties who are willing to meet, negotiate and compromise. This option should not be avoided simply because there are disagreements between the parties that seem too large to overcome. When everyone is committed to the process, mediation can be very effective.

One thing few couples consider when beginning a divorce is the impact that technology will have on their proceedings.This is especially true in heavily contested cases. Your attorney is not allowed to tell you to go out and purge your various social network platforms, nor should you. It would be prudent, however, to be careful with social media and other technologies, and to use common sense. Often parties will post a picture or a status update in order to elicit a response from a spouse. However, is the status update airing your spouse’s dirty laundry or that photograph of you and the new significant other on vacation together something you want your spouse’s attorney holding up in front of the judge in your case? Besides social media postings, the following are things to consider when going through a contested divorce.

Be Careful With Your Passwords

If your password for your personal accounts are something your spouse knows, you may want to change them. These could be for anything from email to banking/retirement accounts. Account balances and information are shared during the discovery phase in a divorce, but there have been instances when one party guesses an account password, quickly liquidates the account and either makes a purchase, pays off a personal debt, or money simply vanishes. While there are legal processes to try and recover and offset these actions, they can be very costly and time consuming once the damage has been done. As for email passwords, you may think that you have nothing to hide. However, it is easy for a spouse to gain personal and confidential information by simply monitoring your correspondences, especially if you communicate with your attorney via email. While this type of monitoring behavior does take place, it is both improper and unethical. Any attorney who becomes aware of this behavior should advise their client to immediately cease monitoring their spouse’s communications.

Additionally, even if you think your passwords are secure, be sure they are not set to ‘auto login’ on any sites or computers your spouse may have access to.

The holiday season is stressful for many, often requiring so much time and energy we find ourselves enduring this time instead of enjoying the beauty of the season. Add a recent divorce or going through the divorce process to this time of year, and it can become difficult to feel like celebrating at all. Especially when dealing with a divorce, it is important to hold on to some traditions and remember that the holidays are about peace, sharing, gratitude and love. All things that are most needed in times of distress. The way that you spend the holidays may change after divorce, but over time new traditions and memories will be created.

Keep it Simple

Simplifying your holiday season in stressful times is an important goal. Start by accepting a friend or family member’s offer to prepare the holiday meal, narrowing down your gift-giving list, bringing out only your favorite holiday decorations, and using downtime for yourself instead of over scheduling. After a divorce is a perfect time to consider what YOU want to prioritize during the holidays, and focus on only those things.

Many times, divorce means a tighter budget, which can lead to added anxiety during this time of year. However, your gifts of time and attention are the most valuable you can give. Make a budget for gifts you want to purchase, and don’t overspend. Remember what truly matters this holiday season.

A divorce brings significant changes, and it takes time for individuals to reorganize their affairs. Insurance coverage will commonly change when a divorce takes place, and potential issues and increased financial obligation should be recognized and prepared for in advance.

Medical Insurance

In most cases, insurance coverage for children will not be interrupted as they will be eligible to continue coverage under either parent’s employer’s health insurance policy. The parent providing insurance coverage for the children is not required to be the custodial parent. In any case, as part of the divorce settlement, insurance coverage for the children should be clearly defined.

On the other hand, new divorcees typically must seek new coverage once a divorce is finalized. Those who had insurance provided by their spouse’s employer, and who do not have access to their own employer’s insurance plan, must replace that coverage. Though generally a more expensive option, COBRA is available to an employee’s ex-spouse for up to 36 months following a divorce. For many individuals, private insurance is the preferred, more cost-effective option.

When a child is born to an unmarried father, it is extremely important that he take the necessary steps to protect his rights. It is presumed in Illinois that the husband is the legal father of the child born to a married woman. However, automatic legal rights are not given to the biological father when a child is born to an unmarried woman, even if the relationship between the mother and father has been long-term. Only by legally establishing paternity may a biological father seek custody or visitation rights.

Legal Paternity Must be Established

Establishing paternity should be done as soon as possible after the birth of the child. Under Illinois law, there are three ways in which an unmarried father can establish legal paternity.

If unmarried parties are in agreement on paternity of the child, both parents may sign a Voluntary Acknowledgement of Paternity. This is a legal document that may be provided to the parents for signature when the child is born. This form is also available online or from the Department of Human Services, Child Support Services, or from the County Clerk’s office. The Voluntary Acknowledgement of Paternity is the simplest method of establishing paternity that is recognized in Illinois. However, it requires both parties’ agreement.

When parents reach the difficult decision to divorce, they are faced with the emotional task of deciding on the best time and way of explaining the decision to their children. It is necessary to be open and honest with children, keeping in mind their ages and developmental levels. In all cases, children need to be reassured that they are not to blame for the divorce, will continue to maintain relationships with each of their parents, and, above all, they are loved.

Carefully Consider Timing

When a marriage breaks down, children may already have a sense that something is not right in their family. They have the right to know the situation as soon as practical, as it will result in changes in their lives that will require time for adjustment. However, the conversation should be carefully timed.

Delaying the conversation until some final decisions have been made regarding changes in living situations and parenting time will help parents deliver a clear message and answer questions. Also, it is in the children’s best interest for both parents to put their differences aside and choose a time to present the news together in a unified and supportive way.

A divorce is an emotional and trying life change, but finding the right attorney is an important first step in the process. A divorce attorney who has experience and expertise fitting your unique situation may expedite the divorce process, and make the transition from marriage to single life more manageable.

Asking the right questions during your first phone conversation or meeting with a prospective lawyer is key in determining whether you will be able to establish a successful attorney-client relationship.

Experience is Critical

Don’t assume that every attorney you contact has the experience that is necessary to handle your case. How long an attorney has been in practice, and more importantly, how many cases they have handled is perhaps the most obvious first question. Each new case presents a unique set of obstacles and situations, requires additional research and adds to an attorney’s knowledge of divorce law. You will want to find an attorney who has been in practice for some time, and who has handled an extensive number of cases.

At the Law Office of Ronald L. Hendrix, P.C., located in Naperville, Illinois, our goal is to listen carefully to our clients, recognize their interests and concerns, and assist them in achieving settlements that meet their best interests, especially those of their children.

If you are confronting divorce and divorce-related issues, you will be faced with many questions and concerns that you never confronted before. We feel it is very important to determine the right approach to take in a divorce. Many factors must be considered, and it is crucial for clients to have the information they need to make informed decisions throughout the process. We have created this blog to share information that we feel is valuable to readers in the various stages of divorce.

 Please subscribe to our blog, view our video, and visit our website.