Monthly Archives: December 2010

In Cases of Domestic Violence: How Do I Get My Spouse Out of the House?

In today’s economy, many couples approaching divorce cannot afford to physically separate.  Unemployment, the decline in the value of real estate, or stock market losses have directly or indirectly impacted everyone’s net worth.  But for some parties, staying in the same home poses serious risks that cannot be ignored merely because separation would be financially draining.  If you are subject to physical or mental abuse inside your home you do have options.  Under the right set of circumstances, obtaining exclusive possession of your residence is possible through either the Illinois Domestic Violence Act or the Illinois Marriage and Dissolution of Marriage Act (IMDMA).

At first glance, the provisions of the two acts may seem similar, but there are significant differences.  The first difference is obvious: To proceed under the IMDMA, a divorce case must already be pending, while under the domestic violence act, no divorce action will be in place, under both statutes, you must be able to prove abuse as defined by the respective act. Obtaining exclusive possession under the domestic violence act can be quicker at times, but it is improper to use the domestic violence act to remove your spouse from your home in order to obtain an advantage in a dissolution proceeding.

Another difference involves the characterization of the residence from which one party is trying to remove the spouse.  Pursuant to the wording of the IMDMA, the residence must be a marital residence.  In Illinois, even if the abuser claims the marital residence, the character of property is usually not determined until the actual divorce is entered, so the mere claim that a house is non-marital is not always sufficient to block removal during the pendancy of the case.  An advantage under the domestic violence act is that the characterization of the house has no bearing on the Court’s decision.  The classification of the residence is irrelevant, so long as the abused spouse has a right to occupy the home.  The non-owning party is deemed to have a right to occupy the residence under several circumstances, including if the house is solely owned by your spouse.

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Unique Jurisdictional Issues in Multi-State Child Support Modification Cases

In a case of first impression, the Illinois Appellate Court has now decided where a child support modification case must proceed when the parents live in different states.

The increasing mobility of our society often creates jurisdictional contests when one or both parents relocate after a divorce and one of them initiates litigation over child support.  Where should a child support recipient file a petition for modification of support when the parents live in different states?  Consider the following example:  A couple marries in State A and later moves to State B.  While residing in State B, they have a child.  Some time later, the couple decides to dissolve their marriage in State B.  Thereafter, the child support recipient under State B’s judgment for dissolution of marriage moves back to State A with the child and wishes to seek an increase in child support.  The child support payor remains in State B.  Where is the proper forum for the parent to seek a modification, State A or State B? In a case of first impression, the Illinois Appellate in In re the Marriage of Vailas, 2010 WL 4643634 (Ill. App. 1 Dist, Nov. 16, 2010), clarified the analysis that must take place under the Uniform Interstate Family Support Act (UIFSA) to answer that very question.

At issue in the Vailas case was whether the trial court in Illinois (State A, in the example above) had jurisdiction to modify a child support order originally entered by Texas (State B, in the example above) when the payor father remained a resident of Texas.  The trial court ruled that Illinois obtained both subject matter and personal jurisdiction because the mother personally served the father with her Petition for an Increase in Support while he visited with his son in Illinois.  However, the Appellate Court reversed the trial court’s ruling and held that personal service alone does not vest the court with jurisdiction to modify the Texas order.

For the first time in Illinois, the Court interpreted Sections 201 and 611 of the Uniform Interstate Family Support Act (UIFSA) and their application in a child support modification proceeding.  Drafted by the National Conference on Uniform State Laws, UIFSA was the solution of the jurisdictional and competing order contests that arise in multi-state family support enforcement and modification litigation.  In 1996, Congress mandated adoption of the statute by all states that wanted to receive federal funding for child support programs, and by 1998, every state had enacted it.  The purpose of the statute was to give the state courts uniform rules to follow so as to prevent multiple, often competing child support orders entered by different states.

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Five Successful Tips for Co-Parenting After Divorce: Making Joint Custody Work

Joint Custody arrangements, especially following a contentious divorce, can be stressful and exhausting.  It is asking a lot of parents to put aside their differences and put their children first in an effort to make life better for their children.  However, with the right tools, you have the power, as co-parents, to meet your needs and, more important, the needs of your children and to provide them with the stability and consistency they deserve.

The following are five tips to think about as you practice your co-parenting skills:

1.  CommunicationCommunication.  Communication.  It is not going to be easy.  You are doing this for your child.  Repeat out loud if necessary.  Communicate with maturity and lead by example.  Not only will your former spouse appreciate it and hopefully follow suit, but your children will undoubtedly pick up on the mutual respect and your respective abilities to set aside differences.

It is also difficult for many parents to accept the fact they will not be there for every moment, good or bad, of their child’s life.  Put yourself in the shoes of the other parent.  If you would want to know a piece of information about your child, then most likely, your former spouse would too. With the omnipresence of email and text messaging, it is simple to send a quick note to your former spouse that your child, for the first time, went down the big girl slide or accurately identified the capital of Illinois.  Communicating the good things is just as important as communicating a fever or a “boo boo” and helps to build trust between you and the other parent.  Your children will pick up on this and benefit even more than you and your former spouse.

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Divorce Among Professional Women

A recent post titled “Women Breadwinners More Likely To Divorce” cited a new 25-year study that was published in October’s issue of the Journal of Family Issues.  According to the study, among 2,500 women married between 1979 and 2002, those who brought home 60% or more of their household income were 40% more likely to divorce than women who earned less.

The post highlighted the following reasons women breadwinners are more likely to divorce:

1.       Financially secure women are able to support themselves, which makes divorce a more feasible option.

2.       Some men struggle with the fact that their wife is the primary breadwinner.

3.       Career women may spend less time at home than their stay-at-home counterparts.

One of the most important things a professional woman can do to protect herself from a litigated divorce is to ask for a pre and/or post nuptial agreement.  While this is always a sensitive discussion, knowing that each party’s legal rights are established may encourage both to stay in a marriage as opposed to ending it prematurely to avoid additional claims of maintenance and property.

Women professionals and other income possessed women can find more information on how to protect themselves in an article I wrote “Divorce Among Professional Women,” recently published in The Legal Balance.

Recent Appellate Court Ruling Clarifies Residency Requirements for International Custody Disputes

It is not uncommon for one or both parents to move from the state or country where their divorce judgment was originally entered. But what happens when parents maintain homes in both the United States and a foreign country?  What country has jurisdiction to hear future custody disputes? Most people assume that the state that entered the original judgment maintains continuing, exclusive jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and that is often the case. However, in the case of In re the Marriage of Akula, 2010 WL  3359660  (Ill.App. 1 Dist.), the Illinois Appellate Court recently clarified the issue.

In Akula, the parents of the minor child were divorced in 2002 in Illinois and the mother received sole custody.  Seven years later, the parents agreed that the child would travel to India with the Mother.  Later, the parents agreed that Mother and the child would remain in India, and she enrolled the child in an Indian school.  Mother also entered into a four-year lease in India and obtained a residential permit from the Indian government extending through 2013.  Mother still maintained an Illinois residence, and Father also had both an Illinois and an Indian residence. Thereafter, the parents disagreed about several issues regarding the raising of the child. Father filed a number of petitions in the Indian court seeking sole custody of the child, and Mother responded by filing a number of similar petitions in Illinois. Mother claimed that she considered Illinois to be her and the child’s permanent residence and asked the Illinois court to retain jurisdiction over the case.

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