17 of the Most Asked Questions About Child Custody in Illinois

child custody in Illinois Joliet O'Dekirk, Allred & Associates IllinoisDivorce and child custody are tough legal issues to go through for you and your family. Our attorneys at O’Dekirk, Allred and Associates in Joliet can discuss the important questions and answers about child custody in Illinois and help you through the legal process.

Here are some commonly asked questions about child custody.

What happens if the parents live in different states or a parent has recently moved in/out of state?

To prevent conflicting child custody opinions from courts in different states, jurisdiction and the child’s home state for custody matters will be decided by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

The Illinois divorce court has jurisdiction to hear a child custody case under these circumstances:

  • The child has lived in the state of Illinois for the last six months or more.
  • If the child is younger than six months old but the child has lived in Illinois since birth. 
  • The child lives in another state but lived in Illinois within the past six months and one of their parents still lives in the state. 
  • If no other state is the child’s home state or the child’s home state has declined to take jurisdiction in deference to Illinois, and either the child and at least one of their parents has significant connections with Illinois, and there’s substantial evidence in Illinois concerning the child’s care, protection, training, and personal relationships.
What factors are considered when awarding child custody in Illinois?

The court does not focus on who is the best parent, but instead makes a decision in the child’s best interest, considering all relevant factors, including these and other considerations:

  • The wishes of the child’s parent parents about custody of the child
  • The wishes of the child about which parent will get custody
  • The interaction and relationship of the child with their parent(s), sibling(s), and others who affect the child’s best interest
  • The child’s adjustment to their school, home, and community
  • The mental and physical health of the people involved
  • Whether there has been physical violence or a threat of physical violence by the one of the child’s custodian, either against the child or another person
  • Whether there has been domestic violence, either directed against the child or another person
  • The willingness and ability of the parent to encourage a close relationship between the other parent and the child
  • Whether either of the parents is a sex offender, and
  • If the parents have a military family care plan that must be completed before deployment or if the parent is a member of the U.S. Armed Forces who is being deployed.

These factors and others go into the court’s decision for custody. One thing the court cannot consider is a parent’s conduct unless it affects that parent’s relationship with the child. 

What types of custody arrangements are there?

Like other states, there is a difference between legal and physical child custody in Illinois. Physical custody is where the child lives. 

Legal custody gives the parent the right to make important decisions about raising the child, like the child’s school, health care, and religious training. The noncustodial parent can ask the court to specifically limit the custodian’s authority if it’s in the best interest of the child. 

Do parents have equal rights in a child custody decision?

Yes. Parents have equal rights to child custody in Illinois. A parent’s fitness is only one element to be considered in determining what is in a child’s best interest. 

How important is stability and continuity in a court’s custody decision?

If the children are well-adjusted and the custody situation is working, a court will not want to disrupt it. The court takes into consideration the importance of maintaining stability and continuity in a young child’s environment. On the other hand, courts will remove a child from an unstable environment if it believes the child is not thriving.

Do parent’s psychological problems affect the decision regarding child custody in Illinois?

Just because a parent has a mental illness, psychological problem, or substance abuse issue does not make them unfit for custody, but it may be a factor to be considered by the court in deciding the best interest of the child if it affects their ability to parent. Despite positive steps toward treatment, the court must consider what impact the parent’s problems will have on the child. 

Are joint custody arrangements preferred? 

A court can give joint custody to both parents or sole custody to either. Unless there has been domestic violence, Illinois courts presume that the maximum involvement and cooperation of both parents in their child’s physical and emotional well-being will be in a child’s best interest. 

How does a parent’s new spouse, live-in companion, or other person sharing the home impact a custody decision?

Another person living in the home may be a factor in the decision if there is concern that they negatively affect the stability of the child’s environment, or there are concerns with the mental condition and character of that person. If that person is a sex offender, the other parent must be notified.

Will siblings be kept together?

It is usually considered to be in the best interest to keep siblings together. Sometimes there are exceptions.

Can children voice an opinion in custody decisions?

Yes, but it is just one factor to consider. The court may put more weight on the choice of older children when it is based on sound reasoning, and relates to their best interests, like wanting to remain with friends, attend their school, and remain in the same place. 

What if the child decides he or she wants to live with the other parent?

Even if the child’s preference of who they want to live with changes, it still needs to be shown that the welfare of the child is adversely affected by the present custodial arrangements.

Does spousal abuse affect the child custody decision?

In Illinois, if there has been ongoing abuse, the court does not need to presume that the involvement and cooperation of both parents in raising the child is in the child’s best interest. On the other hand, the court doesn’t have to deny a parent’s custody based on spousal abuse.

What happens if the custodial parent dies or is incarceration?

If the custodial parent dies, usually the other parent gains legal custody of the child. If the custodial parent is incarcerated, the noncustodial parent has a right to petition for a change of custody.

Can you get a custody modification based on a custodial parent’s misconduct?

Yes, if the parent’s behavior affects the child and seriously endangers the mental or emotional health of the child.

Can a custodial parent move the child within the state?

A custodial parent may remove the children to another part of the state without a court order unless there is written agreement not to. This may, however, be grounds to petition for custody modification.

Can a parent take a child out of Illinois temporarily?

Yes, but the parent responsible must tell the other parent, or the other parent’s attorney, and give the telephone number and address where they can be reached while they are out of state, and the date when the child will return to Illinois.

Can a custodial parent move out of state with the child?

A child can’t be removed permanently from the state without a court order. The custodial parent must prove that the move is in the best interest of the child.

If you are considering a divorce and are worried about child custody issues, please contact our attorneys at O’Dekirk, Allred and Associates in Joliet. We can discuss the important questions and answers about child custody in Illinois during a free initial consultation.

How to Create an Illinois Parenting Plan

Illinois Parenting PlanIf you are getting a divorce and you have children, you need to understand how to create an Illinois parenting plan.

This will define who will make certain decisions about your children.

Our attorneys at O’Dekirk, Allred and Associates in Joliet can help you through this process, protecting your rights and helping you fight for what’s best for your children.

What is an Illinois Parenting Plan?

In a divorce where children are involved or parentage case, parents have 120 days (720 ILCS 5/602.10) to file with the court, jointly or separately, what is called a parenting plan. This is a temporary plan that will become the permanent plan for at least the next two years.  

What if the Parents Cannot Agree?

On the status date, lawyers for the parents will tell the judge whether the parents have reached a joint agreement on the parenting plan on all issues of parental responsibilities, including decision-making powers and all parenting time issues. If the parents don’t agree on ALL issues, the court will send them to mediation.

Can You Request an Extension?

Yes, but it’s not guaranteed. According to the Illinois parenting plan rules, if the parents cannot agree on all points of a parenting plan by the status date, they’re allowed to request added time and so they can continue working together outside of mediation, or for good cause if the judge agrees. (750 ILCS 5/602.10(e)(1), (2), and (3))

We’ve Agreed, Now What? 

When the parents agree on all points of the parenting plan, it is written up, signed by the parents, and is binding on the court. (750 ILCS 5/602.10(d)).

We Can’t Agree, Now What?

If the parents can’t agree on the parenting plan, then they must each submit their own plan to the judge. The judge will first approve the items the parents agreed on. As for the ones that are still in dispute, the judge will make the final decision. At this point, the outcome is considered an allocation judgment instead of a parenting plan.

What Should an Illinois Parenting Plan Include?

The parents must discuss and include the following items in the plan:

  • Decision-making responsibilities
  • Living arrangements for the child
  • Mediation for any changes
  • Right of access to medical, dental, child care records, and school and extracurricular records, reports, and schedules
  • Designation of the parent with the majority of parenting time
  • The child’s residential address for school enrollment
  • Each parent’s residence address and phone number, employment and employment address and phone number
  • Notice if a parent changes their residence
  • Notice of emergencies, healthcare, travel plans, or other significant child-related issues
  • Transportation arrangements between the parents
  • Provisions for communications
  • Provisions for resolving issues arising from a parent’s future relocation
  • Provisions for future modifications of the parenting plan
  • Provisions for exercising the right of first refusal that is consistent with the best interests of the minor child
  • Any other provision that addresses the child’s best interests or that will otherwise facilitate cooperation between the parents

The Illinois parenting plan rules and steps can be confusing. So, it’s important to have proper guidance when protecting your parental interests and doing what’s best for your child.

Our experienced lawyers at O’Dekirk, Allred and Associates in Joliet can effectively put you in the best possible position to achieve the outcome you desire. Please call or contact us today for a free consultation.

Parental Responsibilities in Illinois (What You Need to Know)

Parental Responsibilities in IllinoisDivorce can be hard on spouses, but it can quickly become overwhelming when there’s a child involved.

Finalizing your divorce often involves a judge, who knows very little about your life, making final and broad-reaching decisions about what each parent can and cannot do.

If you are thinking about a divorce, it is important for you to get honest legal advice from experienced professionals. Our lawyers at O’Dekirk, Allred and Associates in Joliet understand the most current laws that affect the basics of parental responsibilities in Illinois.

Let’s look at everything you need to know.

Parental Responsibilities in Illinois

In Illinois, as it pertains to divorce, the word custody has been replaced with the word decision-making. The word visitation is now parenting time. Parents are required to make a parenting plan and if they can’t agree, the judge will decide what their parental responsibilities are. This means the judge will tell the parents who will be making decisions for the child and who gets parenting time.

Time Given to Create a Parenting Plan

You have 120 days to submit a joint parenting plan. If you can’t agree then each parent submits a separate plan and it becomes an allocation judgment (see below). You may also request an extension or may be required to use a mediator to work out differences and complete the parenting plan.

What’s an Allocation Judgment?

Parents are charged with making a parenting plan that sets out the basics of parental responsibility in Illinois family law, such as decision-making boundaries and parenting schedule. But what if they can’t agree? Now, the judge has to decide for the parents and give an allocation judgment based on the best interests of the child. (750 ILCS 5.602.5(a))

The judge’s allocation judgment for significant decision-making will cover the areas of education, health and religion. The judge then assigns decision-making tasks to one parent or the other (or both), and they can be divided any way the judge sees fit. In fact, even if you don’t get divorced, you can ask the court to assign parental decision-making power for you.

If the parents can’t decide on a parenting schedule in their parenting plan then a judge can also decide that according to the child’s best interests. (750 ILCS 5/602.7(a))

Temporary Allocation Awards

When there is significant discord regarding decisions for the child during a divorce, the judge can make a temporary allocation of decision-making power between the parents which can’t be appealed.

The Need for Mediation

All parents in family court must try to mediate problems involving the basics of parental responsibility in Illinois family law. You may be assigned a court-appointed mediator, and some counties, the mediator will make recommendations to the judge. Confidentiality of the information you give to the mediator depends on the county you live in.

Which parent makes the decisions about your child and who gets parenting time will affect the whole family and may be the most important results of a divorce. Don’t try to figure out the basics of parental responsibilities in Illinois family law on your own. Our lawyers at O’Dekirk, Allred and Associates in Joliet understand the new laws and can protect your interests and your child’s future. Please give us a call and let us help you fight for your rights to make decisions for your child.

5 Things You Should Do When Facing a First Offense DUI

first offense DUIImagine this scene: you’re having happy hour cocktails with friends from work, and the night is winding down. You’re a little buzzed, but don’t feel drunk. You know you should probably not drive, but home isn’t far, so you decide to go for it.

You only get a few miles down the road when you see the police lights in your rearview mirror. The next thing you know, you’re being booked at the local police station for a first offense DUI.

It only takes a few critical decisions to join the ranks of 1.5 million people who are arrested for drunk driving every year.

When getting a DUI, it’s important to know what steps to take to ensure your rights are protected. Here are 5 steps you should take right away.

1. Stay Level Headed

If you get pulled over, it is crucial to keep your calm. While you probably won’t be able to talk your way out of a first offense DUI, being rude to the officer certainly won’t help your case.

Make sure to cooperate with the officer’s requests and directions. Legally, you have the right to refuse a breathalyzer test and the field sobriety test. Keep in mind, however, that the officer may still decide to arrest you for a DUI charge.

Refusal of these tests may eliminate certain evidence against you.

2. Contact an Attorney

After you have been charged with a first offense DUI, you will probably have to make court appearances. This is where you will face sentencing, and could be charged with fines, probation, or even prison time.

You will have the option to represent yourself in court, but this is not necessarily a good idea. An attorney will better understand your unique circumstances and can navigate the legal process.

Also, you should make sure to contact an attorney who has experience with DUI cases. Just because your buddy went to law school does not mean that they know how to help you with a DUI. With the consequences that are at stake, it is crucial to be represented by someone who knows how to get the best outcome for you.

Depending on the incident that led to the DUI, the case could go on for a long time. For instance, if there was a collision that involved another vehicle or property, you could be sued for personal injury or property damage. If this happens, the case could drag on for several years.

3. Get Your Story Straight

If you are facing a case that could take several years to resolve, you should make sure to get your story straight as soon as possible. You will likely be asked to give statements and multiple depositions. If details change from one deposition to another, it can make your testimony look weak.

Write Things Down

Do you remember what you were doing three weeks ago tonight? Probably not off the top of your head. You would likely need to consult your calendar or people who were with you.

For this reason, you should never rely on your memory to help you keep your facts straight when it comes to legal issues. You may forget minor details that seem minor to you, but that opposing counsel can latch onto.

Write things down like where you were, who you were with, what you did, etc. This will help you ensure that you are telling the truth with consistency.

Talk to Witnesses

If there were witnesses the evening you were out or in the vehicle at the time of the DUI, make sure to speak with them as well. Their testimonies will also be important.

In the best case scenario, what they remember can help you. But even in the worst-case scenario, it’s better to hear a testimony that will hurt your case before the fact.

Don’t Overshare

Whenever you are dealing with legal issues, it is important to be circumspect about who you share details with. For example, your coworkers do not need to know everything about your case. You should also avoid discussing details in public places.

Additionally, be mindful of what you share on social media. Even something that seems harmless, like sharing photos of nights out with your friends, could hurt your case. For instance, if your pictures frequently have alcohol in it, opposing counsel could use that as evidence against you, perhaps imply that you’re an alcoholic.

4. Understand the Consequences

As you get started with your case, it is important to know what kinds of consequences are at stake. Depending on the severity of the charge, you may face hefty fines or prison time.

In most cases, your license will be suspended for some length of time. You may also need to take an alcohol education or driver education course.

If you are mandated to do these things, you should always follow through. The more compliant you are, the more smoothly the process will go.

5. Talk to Your Insurance Company

Often, after a DUI, you will see your insurance rates go up. This is because insurance rates are based on how the insurance company evaluates the risk of having you as a client. If you are charged with a DUI, that will make you seem at higher risk of causing an accident.

Reach out to your insurance company to see what kind of rate increase you can expect. Also, find out if there is anything you can do to bring your rates back down. Sometimes a driver education course may help to lower your rates again.

Know What You Should Do After First Offense DUI

Even a first offense DUI can have serious consequences. But, if you know how to navigate the next steps, you can make sure that you get your life back on track.

Need help with your DUI offense? Contact us today to speak with one of our expert attorneys about your case for a free consultation.

 

The Latest on Pot Laws in Illinois

new laws for Illinois in 2016Here at O’Dekirk, Allred & Associates in Joliet, we wanted to share a bit about the latest on pot laws in Illinois. With laws changing frequently state by state, it’s easy to be confused about what’s going on here in Illinois. So, to provide clarity, medical marijuana is legal and recreational marijuana is not – that includes growing and possession.

Legal and Not Legal

Cannabis, generally known as marijuana, is illegal to grow and possess. This includes the leaves and flowers. It also includes the following forms:

  • Hash oil
  • Keif
  • Hashish
  • Seeds that can grow into a cannabis plant
  • Infusions, including tea, brownies, and lotions
  • Any resin extraction

Hemp, which is the mature stalks of the cannabis plant, is legal. Hemp oil and hemp fiber are also legal.

Cannabis Possession

According to pot laws in Illinois, it is illegal to carry cannabis on your person, in your car, or in your home. Luckily, the state took steps to decriminalize cannabis in 2016. Now if you’re caught with 10 grams or less of marijuana, you will face a civil citation and fine of up to $200. Prior to the change in laws, it would’ve been a Class B misdemeanor that came with jail time of up to 6 months and fine maximums of $1,500.  However, more than 10 grams will subject to a criminal charge and large amounts of cannabis can result in felony charges.

It is also illegal to sell or deliver cannabis to another person. It is additionally illegal to carry cannabis with the intent to sell, deliver, or manufacture. Actual sales or production do not have to take place in order for the activity to result in a charge.

If you or someone you know is facing a criminal cannabis charge, please contact us here at O’Dekirk Allred & Associates in Joliet for a confidential consultation.

Civil Offenses

If you are charged with a civil offense, you will generally be fined in accordance with how many times you have been caught with marijuana before. Some areas have additional laws with respect to marijuana possession. You can be fined at both a state and local level. Additionally, some local areas will fine you for possessing what is considered to be a personal amount (10 grams or less).

Paraphernalia

The various tools used to grow, produce, process, distribute, measure, or ingest marijuana are also illegal in Illinois. The pot laws in Illinois state that paraphernalia can include digital scales, grinders, zipper bags, smoking masks, bongs, pipes, products used to pass a drug test, and containers used for hiding or storing marijuana. Additional information is taken into account when determining whether an object is paraphernalia, including whether cannabis was present or near the object and whether the object can actually be used to ingest marijuana.

DUI

Driving under the influence of cannabis is illegal. If you are under the influence and have more than 5 nanograms of THC in your system, you can be charged with a DUI.

The latest on pot laws in Illinois may be more lenient but can still result in serious criminal charges. If you or someone you know is facing criminal charges related to cannabis, contact us here at O’Dekirk, Allred, and Associates in Joliet for help with drug offenses.

Is a DUI a Felony in Illinois?

Is a DUI a felony in Illinois? In our state, most DUIs are a misdemeanor. Today,  O’Dekirk, Allred & Associates in Joliet shares a bit about DUIs so you understand what happens if you are facing such charges. You’re also welcome to contact our attorneys to discuss your case and determine if our knowledgeable legal team can help protect your rights.

If you are pulled over and have a blood alcohol level of .08 or higher, you could be charged with a DUI. Though most DUIs are classified as Class A misdemeanors and come with a maximum of one year in jail and a maximum fine of $2500, there are instances where a DUI may be a felony.

When is a DUI a Felony in Illinois?

The first time you are convicted of a DUI, it is considered a misdemeanor. The second DUI conviction within 20 years is still considered a misdemeanor, but it carries tough penalties that include a 5-year loss of full driving privileges, 5 days in jail or 240 hours of community service, along with additional possible jail time and a maximum fine of $2,500. A third DUI becomes a Class 2 felony.

Class 2 Felony

There are a few additional instances in which a DUI becomes a Class 2 Felony:

  • If this is your second or subsequent DUI and you were transporting a child under the age of 16.
  • If you are driving a vehicle while transporting a child under 16 and they were injured as a result of a crash while you were driving under the influence, even if it is your first DUI.

If you are facing a DUI charge and need a defense attorney, contact us at O’Dekirk, Allred & Associates in Joliet. We have lawyers who can help you face this difficult legal challenge.

Class 4 Felony

There are instances when an Aggravated DUI is considered a Class 4 felony. Class 4 felonies can carry a sentence of up to 7 years in prison and a fine of up to $25,000. Here are some of the instances in which state law allows for charging someone with a Class 4 felony:

  • If a person commits a DUI with any passengers under the age of 14 or while driving a school bus.
  • If a person was driving a vehicle for hire with any passengers when committing a DUI offense.
  • If a DUI results in permanent disability, disfigurement, or bodily harm. Additionally, your license could be revoked for 2 years.
  • If a person is driving under the influence without a valid driver’s license, including suspended or revoked licenses, or without vehicle liability insurance.

There are additional instances where a driver can be charged with a Class 4 felony as well as times where higher-class felony charges are permitted. Higher-class felony charges include longer sentences and severe long-term penalties.

Is a DUI a felony in Illinois? It absolutely can be – and come with harsh penalties. If you or someone you know is facing a possible felony conviction for a DUI, contact us at O’Dekirk, Allred & Associates in Joliet for a consultation to determine your best course of action.

What Are Some of the New Illinois Laws for 2018

new laws for Illinois in 2016If you’ve been wondering about the new Illinois laws for 2018, our legal experts at O’Dekirk, Allred, & Associates in Joliet would like to share a few highlights. More than 200 new laws took effect on January 1, 2018. This may or may not affect a legal issue you’re involved with, so if anything we discuss applies to your situation, please get in touch to learn more.

Tough on Crime

In a move to support Chicago’s effort to reduce gun violence, one of the new laws will increase sentences for those who commit repeated gun crimes. Instead of being sentenced to three to 14 years in prison, the sentences will be seven to 14 years. Judges who depart from this guideline will be required to explain why.

Supporters of the new law feel that the tougher penalties will be a deterrent while critics indicate there is little evidence that longer sentences are effective. Those opposed to the law are also concerned that tougher sentences will lead to additional arrests of African-American and Latino men while having no effect on gun-traffickers.

Both sides of the aisle supported the new law because the law also included a number of provisions intended to assist with reducing the overall prison population. Lawmakers who supported the bill felt that repeat gun offenders present enough of a danger that the new sentence lengths make sense.

If you are in need of a lawyer for your criminal case, contact O’Dekirk, Allred, & Associates in Joliet. Our attorneys and staff are committed to working relentlessly on your behalf.

Hate Crimes and Sentencing

Another of the new Illinois laws for 2018 expands hate crimes to include those crimes that are committed at mosques, synagogues, churches, and other places of worship. This change was passed in response to an increase in racist graffiti and vandalism at religious spaces all over Illinois. Cyberstalking, stalking, and sending obscene messages can all also be considered hate crimes because technology has increasingly been used in these attacks.

Other changes to criminal laws included removing what has been referred to as the “gay panic” defense in murder trials and sentencing. Defendants can no longer excuse violence by indicating the crime was an act of passion upon discovering a victim was gay. Also, sexual orientation can no longer be a provocation in second-degree murder trials and sentencing.

Policing for Profit

Our state’s civil forfeiture laws are now different base on the new Illinois laws for 2018. Previously, police and prosecutors could take money, vehicles, land, and other property from suspects. The items were often auctioned off, which led to this practice being called “policing for profit” because the proceeds of the auctions funded both police and prosecutor’s offices.

Changes to the forfeiture laws now make it easier for property owners to have their case adjudicated. Additionally, the burden of proof has now shifted to officials and the threshold has been changed from probable cause to now being a preponderance of the evidence.

Organ Donors

The new Illinois laws for 2018 state that 16 and 17-year-olds are now allowed to sign up to be organ and tissue donors at the time they receive their driver’s license. However, parents and guardians can keep them off the official registry until a teen’s 18th birthday. Advocates are hoping that allowing teens to sign up earlier will prompt conversations to help parents agree to allow their teen to be a donor.

Birth Certificate Changes

Laws for transgendered people have been eased. It will now be easier for a transgendered person to change their sex designation on their birth certificates. In the past, the change could only be done if a doctor confirmed that the individual had transition surgery. Now, the law allows for a medical or mental health professional to indicate that someone has had “clinically appropriate” treatment which will allow a wider range of transition practices, such as hormone therapy, to be sufficient for a birth certificate change.

In an entirely different arena, birth certificates will now be provided free of charge to those individuals who leave state prison. This is part of an effort to make it easier for convicts to go on to lead more productive lives. This change is meant to allow them to get jobs, find housing, enroll in school, and receive medical and mental health assistance more easily.

Health Care

In response to potential federal health care changes, laws in Illinois now bar health insurance companies from denying coverage for pre-existing conditions. The laws also now make it illegal for employers to penalize employees who don’t want to participate in wellness programs or disclose genetic information.

Consumer Protections

There are a number of consumer protections that are effective this year. Here are a few that are now in force:

  • Hair salons, barbers, and tailors are now required to provide customers with a price list upon request. The intention is to allow added transparency and to help deter the practice of charging women more for the same service provided to men.
  • Businesses can no longer enforce disparagement clauses. These clauses threaten customers who post critical reviews with additional fees. Disparagement clauses are generally found in the fine print.
  • Life insurance policies must now inform families if they are due benefits from policies as far back as 2000. Companies will have to check Social Security records to make the determination.

 Schools

Preschool and early childhood education programs are now prohibited from expelling students unless there are safety concerns for other children. Schools must instead find services and programs to help them resolve those issues presenting a problem. Additionally, public schools must now provide a space for breastfeeding and offer feminine hygiene products in an effort to help increase school attendance rates.

What are some of the new Illinois laws for 2018? These are just a few of them and there are over 200. If you need a lawyer to help you navigate some of these new laws, contact us here at O’Dekirk, Allred, & Associates in Joliet. We have a number of lawyers that specialize in various areas and we will use our extensive experience to help you.

Spousal Maintenance Changes for 2018

Spousal Maintenance Changes for 2018 O'Dekirk, Allred & Associates IllinoisIf you weren’t aware, there are spousal maintenance changes for 2018 that our legal team at O’Dekirk, Allred & Associates in Joliet want to share with you. Changes to alimony (known as maintenance in Illinois law) became effective on January 1, 2018, so it may be important to know about these changes if you are in the middle of divorce proceedings, plan to file for divorce this year, or are looking to have an existing spousal maintenance decision adjusted.

Definition of Maintenance

In Illinois, maintenance is the court ordered financial support that is paid by one spouse to another as a part of their divorce settlement. Under the new guidelines the term “permanent maintenance” is now “indefinite maintenance” which is used to describe maintenance payments that do not have a specific expiration date. Unless the divorce specifies otherwise, indefinite maintenance continues until one spouse dies, the receiving spouse remarries, or the receiving spouse cohabitates on a continual conjugal basis.

If there is a substantial change in circumstances, spousal maintenance may be modified. However, there are divorce settlements that have explicitly non-modifiable maintenance and such maintenance cannot be adjusted no matter the circumstances.

Raised Application Amount

Under the original 2015 law, statutory maintenance guidelines were applied when the gross combined income per year was less than $250,000. This was a guideline and the Illinois courts took other circumstances into consideration, such as the total length of the marriage, ages of the spouses, and differences in assets and income. Other factors were also considered, including physical and emotional problems. These will all continue under the 2018 changes.

According to the spousal maintenance changes for 2018, the threshold for the maintenance guidelines will be raised to a combined gross income per year of $500,000 or less. This means that more couples will be subject to the statutory guidelines. For those couples whose combined income exceeds this amount, they are not necessarily subject to the guidelines, though they could still be used. Additionally, the courts can still deviate from the guidelines for those couples who should be subject, but the court will need to provide a solid rationale for doing so.

If you need the spousal maintenance changes for 2018 explained further, please contact us here at O’Dekirk, Allred, and Associates in Joliet. We can help you with your divorce and help you determine how these new rules will affect you.

Changes to Duration of Payments

The most substantial change in the Illinois law is with respect to the calculation of the duration of the maintenance payments. In 2015, the duration of payments was decided using a basic calculation. To determine the length of the payments, the following formulas were used:

  • If the marriage lasted 5 years or less, the length of the marriage was multiplied by .20. So, if you were married for 4 years, (4 times .2 equals .8 years) the length of the payments would equal 9.6 months.
  • 5-9 years would be multiplied by .40
  • 10-14 years would be multiplied by .60
  • 15-19 years would be multiplied by .80
  • Marriages that lasted 20 years or more will have a maintenance length that is equal to the marriage or the maintenance will be permanent.

Under the spousal maintenance changes for 2018, the length of time will usually be less than it was under the old law. People married less than 5 years are subject to the same percentage as are those who happen to divorce at the end of the cutoff of the previous benchmarks (years 9, 14, and 19). Those people who stayed married for 20 years or more are also subject to the same rule as before though the wording used is different. Everyone else will find that the duration of their payments will be less than it would have been under the old law. Under the new law, the duration is calculated using the following breakdown:

  • Marriages that lasted less than 5 years are multiplied by .20
  • Marriages that lasted 5 years are multiplied by .24
  • Marriages that lasted 6 years are multiplied by .28
  • Marriages that lasted 7 years are multiplied by .32
  • Marriages that lasted 8 years are multiplied by .36
  • Marriages that lasted 9 years are multiplied by .40
  • Marriages that lasted 10 years are multiplied by .44
  • Marriages that lasted 11 years are multiplied by .48
  • Marriages that lasted 12 years are multiplied by .52
  • Marriages that lasted 13 years are multiplied by .56
  • Marriages that lasted 14 years are multiplied by .60
  • Marriages that lasted 15 years are multiplied by .64
  • Marriages that lasted 16 years are multiplied by .68
  • Marriages that lasted 17 years are multiplied by .72
  • Marriages that lasted 18 years are multiplied by .76
  • Marriages that lasted 19 years are multiplied by .80
  • Marriages that lasted 20 years or more, the maintenance will be as long as the length of the duration of the marriage or it will be indefinite

Already Divorced?

The spousal maintenance changes for 2018 does not mean that couples that are already divorced can use the new rules to renegotiate the length of their existing maintenance. There must be a substantial change in circumstances for maintenance to be modified or terminated.

Unchanged Elements

Some elements of the Illinois law are unchanged. It is still the case that all spouses are not entitled to maintenance. One spouse must have a demonstrated need and the other must have an ability to pay. Additionally, Illinois is still gender-neutral when it comes to awarding maintenance. Husbands can be awarded maintenance much like wives can.

The determination of the spousal maintenance amount is still made using the same formula and takes into consideration the economic lifestyle of the couple. Additionally, if a spouse waives maintenance, the waiver is still forever binding.

If you may be affected by the spousal maintenance changes for 2018 and need a lawyer for your divorce case, contact us here at O’Dekirk, Allred, and Associates in Joliet for your free consultation. We can discuss everything with you and help determine how these new changes may change the maintenance outcomes of your divorce.


Blogs and articles by O’Dekirk, Allred and Associates, LLC are for educational purposes only and to give you a general understanding of the law, not to provide any legal advice or be used as a substitute for competent legal advice from a licensed, professional attorney in your state or jurisdiction. The information presented may not reflect the most current legal developments, verdicts or settlements. These materials may be changed, improved, or updated without notice. O’Dekirk, Allred and Associates, LLC is not responsible for any errors or omissions in the content of this site or for damages arising from the use or performance of this site under any circumstances.

Criminal Law Process for a Felony in Illinois

Criminal Law Process for a Felony in Illinois O'Dekirk, Allred & Associates JolietHere at O’Dekirk, Allred & Associates in Joliet, we are very familiar with the criminal law process for a felony in Illinois and have helped numerous clients through each step. If you find yourself facing any type of felony charges, including a DUI or drug offense, we can provide you with aggressive representation to ensure the most positive outcomes.

Before we get to the criminal law process for a felony in Illinois, let’s look at the three basic kinds of crime in the state.

  • Minor violations are generally considered petty offenses. These types of violations are frequently punished with a fine.
  • The next level is misdemeanors. In Illinois, these crimes can carry as few as 30 days in jail or as many as 364 days. Additionally, fines can range from $1,500 to $2,500.
  • The most serious category is a felony which can carry a sentence of up to 60 years. While the penalties vary, the process for all felony charges is essentially the same.

After an Arrest

The police officers that were involved in an arrest must communicate with the State’s Attorney Felony Review office. Police cannot independently charge someone with a felony. The decision to charge someone with a felony rests with the State’s Attorney who gathers information from the officer. The defendant’s criminal history is reviewed and the defendant may be interviewed in an effort to decide if felony charges are appropriate.

The State’s Attorney may reject the charges if there is insufficient evidence or if the circumstances are inappropriate for a felony charge. If the State’s Attorney accepts the charges, the police will process the defendant and the defendant will be held for a bond hearing. If the felony charges are rejected, police can still file misdemeanor charges which they do have full authority over.

Bond Hearing

Within 72 hours of an arrest, a bond hearing is generally held. The bond court judge is presented with basic facts and charges for the case, as well as the defendant’s criminal history. The defendant’s attorney will make a presentation on behalf of the defendant. After both sides have presented, the judge will make a determination about the terms of release.

Preliminary Hearing

The next step in the criminal law process for a felony in Illinois is a preliminary hearing. A judge will be presented with evidence to determine that a felony crime was committed and to determine if there is reason to believe the defendant was responsible for committing it.

The state will present witnesses and the defense can ask these witnesses questions as well. The standard for a preliminary hearing is much lower than at the trial. At this point, a judge is simply determining that there is a likelihood that the defendant committed the crime. If the judge determines that there is no probable cause, the defendant wins the hearing and the case is generally dismissed.

The Indictment

Many cases are presented to a grand jury instead of having a preliminary hearing. The state can charge a person with a felony by presenting evidence to a grand jury. A grand jury is composed of 18 people from the community. The proceedings are conducted in secret and the defense cannot cross-examine the witnesses. The majority of felony cases go through a grand jury process. The grand jury is responsible for determining the same issues as a judge at a preliminary hearing.

If the grand jury believes a crime was likely committed by the defendant, an indictment will be issued which is the official document accusing a person of a crime. With an indictment, a warrant will be issued if the defendant is not already in custody. The State’s attorney can bring cases to the grand jury even if the charges were originally dropped at the preliminary hearing.

Trial Court

Following the indictment or preliminary hearing, the case goes to the county’s Chief Judge. The Chief Judge is responsible for assigning the case to another judge in the county using a prescribed random process.

Arraignment

After assignment to a specific trial court, the defendant is formally arraigned. This is where the charges can be formally read. This is often waived to save time. The defendant’s lawyers already know what the felony charges are. More importantly, at an arraignment, a plea of guilty or not guilty is formally entered.

Discovery

During this part of the process, the state is responsible for sharing all evidence. The state is required to share specific types of evidence in its possession with the defense, particularly any evidence that has major implications of guilt or innocence for the defendant.

Motions

Motions are requests for something specific to be done. For example, the defense can submit a motion to quash arrest, motion to suppress a statement, or motion to suppress evidence to the judge during the pre-trial process. The decision of the judge on these motions can have a very large impact on the outcome of a trial.

Plea Agreement

If the State’s attorney, the defense attorney, and the defendant agree on a penalty, a plea agreement will avoid a trial and it is often the way that many cases conclude. In the criminal law process for a felony in Illinois, the judge also participates in the plea agreement if the defendant agrees in open court. The defendant must agree to it because the judge will often learn things that would not be known otherwise to the judge. If a plea is agreed to without the judge, the judge has the ability to impose a different penalty than the one agreed to by the defense and the state.

Trial

If the case is not settled, it will continue to either a jury trial or bench trial (which is a trial by a judge). The defendant will be found guilty or not guilty of their felony crime and based on the results, the judge will impose the penalty.

The criminal law process for a felony in Illinois can be complicated. If you need a defense attorney with experience, contact us here at O’Dekirk, Allred & Associates in Joliet. Our attorneys can help you through each step and use their experience to achieve the best possible outcome for your case.

Common Questions About Child Custody in Illinois

Common Questions About Child Custody in Illinois O’Dekirk, Allred and Associates JolietHere at O’Dekirk, Allred and Associates here in Joliet, we wanted to cover common questions about child custody in Illinois. Child custody can be fraught with concern and frustration. Getting answers to common questions can help you understand custody and can help allay concerns and fears about custody issues.

Who gets custody?

When a court must determine who gets custody, they usually use “the best interest of the child” as their standard. There are a number of factors when the court weighs custody issues. When a court weighs factors, no one factor is a controlling factor and not all factors will have the same significance. Some of the factors that go into determining parental custody include:

  • Each of the parents’ wishes and preferences
  • The child’s wishes, often taking the age of the child, maturity, and education into account
  • Parents’ interactions with child
  • Adjustment of the child to school, community, and home
  • Physical and mental health of involved parties
  • Any violence exhibited by either parent
  • The willingness and ability of parents to have a close and on-going relationship, as well as encourage and facilitate a close relationship with the other parent.

Joint Custody and Sole Custody—How are They Different?

This is one of the more common questions about child custody in Illinois. When parents are able to cooperate, communicate, and work together for the sake of their child, joint custody may be awarded. In joint custody, parents share decision making for major decisions that include healthcare, education, and religion.

A Joint Parenting Agreement is drawn up when joint custody is awarded. The agreement outlines each parent’s rights and responsibilities for their child and determines the residence arrangements. The agreement also specifies what should be done when there is a disagreement about a parenting decision.

If one parent is not suitable or able to be appropriately responsible for parenting decisions or if the parents cannot cooperate effectively with each other, sole custody may be awarded to one parent. Sole custody designates one parent as having sole authority for the child’s major life decisions.

Sole custody does not mean one parent no longer gets visitation rights and joint custody does not mean that the parents split visitation rights equally. There is a visitation schedule that is either court ordered or agreed to by both parents. Visitation schedules may dictate that one parent has most of the time or that the time is shared to varying degrees. Regardless of sole or joint custody, both parents have a right to school, medical, dental, and child care records.

Joint Custody and Child Support—Does Custody Determine Support?

The parents’ financial resources and the needs of the children are the main factors in determining child support but other factors such as parenting time do play a role in determining each parent’s financial responsibilities. Parents may have joint custody and share time equally, but one parent may be expected to pay more.

Can You Prevent Visitation if Child Support has Not Been Paid?

You cannot refuse visitation based on whether or not child support has been paid. At the same time, you cannot refuse to pay support if you are prevented from seeing your child. Denying visitation or child support can result in being found in contempt of court.

Can My Child Decide Which Parent to Live With?

Another of the common questions about child custody in Illinois, children in the state do not get to outright choose to reside with one parent. The child’s wishes can be taken into consideration as one factor in determining where a child will reside.

What Happens when Parents Cannot Agree on Custody?

When parents cannot reach an agreement on custody, the court will sometimes mandate mediation. A mediator is trained and appointed by the court as a neutral third party. Mediators work to help parents reach an agreement on custody. Mediation discussions remain confidential regardless of the outcome and if the parties are unable to reach an agreement, the issue will proceed to trial.

Sometimes, when parents cannot come to an agreement, the court will appoint a guardian ad litem (custody evaluator) to assist the court in making a determination about custody, based on the best interest of the child. The custody evaluator’s determinations will be taken into consideration when the custody issue goes to trial and the judge makes a determination.

Can I Increase My Chances of a Larger Custody Agreement?

An experienced family attorney, such as O’Dekirk, Allred and Associates in Joliet, can advise you about ways to increase your chances at a better outcome and answer your questions about child custody in Illinois.

Here is an additional list to help you when proceeding with a divorce and wanting to achieve your goals in regards to the time you wish to be granted with your children.

  • Do not make the other parent’s visitations difficult or complicated. Also, do not interfere with their visitation rights.
  • Do not yell at the other parent or your child.
  • Avoid any physical confrontations.
  • Make all child support payments
  • Do not take your child out of daycare or school for a non-emergency without discussing it with the other parent.
  • Try to engage in positive interactions as much as possible with the other parent and your child.
  • Consult with your attorney before making any significant changes to your living arrangements.
  • Do not unfairly or excessively criticize the other parent to others or your child, even if you feel your criticisms are all warranted.
  • Do not deny the other parent phone contact when the child is with you.

What Should I do at a Custody Trial?

In a custody trial, it is important to present yourself in the best possible light. Be sure to dress professionally and exhibit good conduct at all times. Be calm during all testimony and try to maintain neutral facial expressions – no matter what. It is important to avoid letting the judge see expressions of anger or frustration. Let your attorney object when objections are needed. If you need to tell your attorney something in court, write a note. It is important to conduct yourself professionally at all times in court.

If you have additional common questions about child custody in Illinois, contact us here at O’Dekirk, Allred and Associates in Joliet. We can help you with your custody issues and work diligently on your behalf to achieve the best possible outcome.