Illinois Trial and Appellate
Counsel since 1997
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Christine Ann Takata
Attorney at Law
Peoria, Illinois
(309)-494-9999
Monday - Friday
9:00am - 5:00pm
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Illinois Trial and Appellate Services
| DIVORCE | PATERNITY | CUSTODY | VISITATION | SPOUSAL SUPPORT |
|CHILD SUPPORT |
ORDERS OF PROTECTION | RELATED ADOPTIONS | DUI |
FREE INITIAL PHONE CONSULTATIONS
RATES: All cases are billed at a standard hourly rate with the exception of certain support enforcement cases
which may be taken on a contingency fee basis.
OFFICE OVERVIEW:This law office was originally located in the Chicago area
for five years and relocated to Peoria in 2002.
Christine Ann Takata has litigated successfully in 23 Illinois Circuit Courts, and 3 of our
5 Appellate Courts. Two of her appellate wins have been widely cited as legal authority in Illinois. Her most recent
2008 appellate win was a landmark child support enforcement case which established the first successful use of Citation Procedings against
deadbeat parents who hide assets or income
in the name of a third party in an effort to evade child support enforcement. As with any landmark case (such as Roe v Wade), it
sparked immediate controversy between deadbeat supporters and pro children activists. This office also represents child support obligors.
Approximately 50% of this offices clients are male and 50% are female.
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FAQ Regarding Illinois Divorce:
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Residency |
Grounds |
Mediation |
Parenting |
Health Insurance |
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Child Support |
Maintenance |
Filing Fees |
Property |
Debts |
Retirement |
| Illinois Residency Requirements for Divorce
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Illinois courts will enter a judgment of dissolution of marriage
if at the time the Petition for Dissolution was filed or at the time the judgment is entered
one of the spouses was a
resident of this State for 90 days or was stationed in this State for at least 90 days while a
member of the armed services. The Petition must be filed in the county where at least one of the
spouses resides, and if children are involved it should be filed in the County where the children reside.
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Parenting
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Custody
Illinois courts determine custody in accordance with the best interest of the
child. The courts must consider all relevant factors including:
-The wishes of the child's parent or parents as to his custody.
-The wishes of the child as to his custodian.
-The interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest.
-The child's adjustment to his home, school and community.
-The mental and physical health of all individuals involved.
-The physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person.
-The occurrence of ongoing or repeated abuse, whether directed against the child or directed against another person.
-The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
-Whether one of the parents is a sex offender.
Joint Custody:
The court may enter an order of joint custody if it determines that joint
custody would be in the best interests of the child, taking into account the
following:
-The ability of the parents to cooperate effectively and consistently in
matters that directly affect the joint parenting of the child. "Ability of
the parents to cooperate" means the parents' capacity to substantially comply
with a Joint Parenting Order. The court shall not consider the inability of
the parents to cooperate effectively and consistently in matters that do not
directly affect the joint parenting of the child.
-The residential circumstances of each parent.
-All other factors which may be relevant to the best interest of the child. Nothing within this section shall imply or presume that joint custody shall necessarily mean equal parenting time. The physical residence of the child in joint custodial situations shall be determined by: (1) express agreement of the parties; or (2) order of the court under the standards of this Section.
NOTE: Joint parenting has nothing to do with visitation. One parent must still be named "primary residential parent" and
the other has "visitation rights". The only difference between sole custody and
joint custody is that in sole custody situations the sole custodial parent has
all of the decision making power in terms of the child's medical, educational and religious upbringing and care.
With Joint parenting, these decisions cannot be made unilaterally and both parents make
these decisions together.
MODIFYING CUSTODY
Once an initial FINAL CUSTODY ORDER has been entered it cannot be modified for a period of two years unless:
(a) it is shown that the current custod arrangement poses a serious mental, emotional or physical
danger to the child(ren); or
(b) the parties agree to the modification AND the court finds the modification is in the best interest of the child(ren).
After two years custody can be modified based upon a substantial change in circumstances, but if both parties
do not agree to the modification the must first attend mediation before they can argue their case in court. At the
modification hearing the court must find (a)tht a substantial change in circumstances has occurred since
the initial custody order was entered; and (2) that it is in the best interest of the child(ren) that
custod be modified.
Visitation
Visitation varies widely depending upon the age of the child, the work schedules of the
parents, and the relationship the child has with each parent. There is no such thing as
"standard visitation", since each situation varies. Below are some general guidelines.
Generally, the non-custodial parent has visitation every other weekend (example: every other
weekend from Friday at a specified time until Sunday at a specified time), plus one or two
weekday evenings from a specified time until approximately 8:00pm. Generally the following Holidays are either alternated each year or split with
certain start and end times for each parent:
-Easter
-Memorial Day
-Independence Day
-Labor Day
-Thanksgiving Day
-Christmas Eve
-Christmas Day
Sometimes parents agree that one parent will always have Memorial Day weekend and the other
parent will always have Labor Day weekend.
If a child is school age, Christmas / winter break is often divided down the middle with
one parent having parenting time from the day the child gets out of school until
8:00pm Christmas Eve, and the other parent having the child for the duration of
winter school vacation. Often the parents alternate this schedule so that each parent
has the child for Christmas morning every other year.
The parties may also alternate parenting time every other spring break, and each
may also have 1 - 4 weeks of summer vacation time.
Mothers generally have parenting time on Mother's Day and Fathers generally have parenting time
on Father's Day.
Children's birthdays are generally not addressed since sometimes they will fall on Mother's
parenting time and other times they will fall on Father's parenting time, but there is no
prohibition against the parties addressing parenting time on the child's and each others' birthdays as well.
Holiday visitation ALWAYS supercedes regular parenting time.
Parents generally share transportation obligations regarding visitation.
Shared or Split Visitation
In rare situations it may be in the best interest of the child(ren) to spend an equal amount
of time with both parents. One parent is still named primary residential custodial parent, but parenting
time is equally divided. For example, if the parties presently reside very close to each other
and both parties have always spent an equal amount of time with the child, it may
be in the child's best interest to spend one week with Father, and the next week with Mother.
In such agreements there should be a clause requiring the parties to reside within
a specified distance from the other, with an alternative visitation schedule set forth
that would take effect in the event that one party moves outside that radius. In such
a case the non moving party would then become the primary custodial parent and an
alternating weekend and 1 - 2 weeknight visitation schedule (as set forth above)
would replace the shared or split custody schedule.
NOTE: If one or both parents have other children it may be desireable to arrange a visitation schedule that
keeps the children together as often as possible.
When one Parent Moves Out of State
If one parent is moving or has moved out of State visitation should be scheduled accordingly
so that the child continues to maintain a close relationship with the moving party.
Sometimes this requires that the parenting schedule allow for one weekend per month
(if possible, and preferably when the child has a three day weekend break from school)
plus EVERY spring break, plus 4 - 6 weeks every summer, and perhaps a larger portion of the
child's Christmas / winter break. The child's age and the parents
employment schedules and financial situations all play a role in developing this sort
of schedule and again, there is no standard parenting schedule.
NOTE: The single most important issue to consider when setting up a parenting schedule is
maintaining the most secure and consisent parenting schedule for the child. A parenting
agreement that is too complex and has too many contingencies and an irregular schedule
will not result in a secure child because the child will not be able to remember from
one day to the next where he / she is spending the weekend or evening.
RESTRICTING OR TERMINATING VISITATION
It is presumed that regular contact with both parents is in the best interest of a child. Visitation
can be restricted or terminated if it is shown that visitation has and will continue to seriously endanger
a child's mental, physical or emotional well being. Immoral or illegal conduct that occurs outside the presence of a child that has
no impact on the child will not be considered dangerous to the child. A parent found to be endangering
a child will be given an opportunty to remove the
danger, and if the offending parent fails to remove the danger, visitation rights can be indefinitely "reserved"
in civil court.
TERMINATING PARENTAL RIGHTS
Parental rights will not generally be terminated in Illinois unless it is in the child's best interest to
terminate the rights of the offending parent, and it is also in the best interest of the child that a step parent is able and
willing to adopt the child. This is called a Related Adoption.
Related Adoption is a two step process.
First the offending parent's rights must be terminated either by consent or in contested litigation, and then, within
thirty days, the child must be adopted by the step parent. This is a complicated process and should be handled by an attorney.
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Health Insurance for spouses after divorce
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Under a federal law known as COBRA, you are entitled to remain on your spouse’s employer’s
health insurance plan for three years after you are divorced. This may be an advantage
because you pay only the group rate as a monthly premium. You should consider requiring
your former spouse to pay these premiums as a way of providing maintenance to you.
Detailed information regarding COBRA. (These two links will take you away from this page. Use your browser 'back' button to return.)
Detailed information regarding
Illinois Health Insurance Continuation Rights.
Health Insurance for Children of Divorce
The court may order the person paying support to put the child on his health insurance plan.
Even if the payer does not have a health insurance plan available, the court may order the payer to buy health insurance for the child.
THe court may also order the custodial parent to insure the child.
The court will consider the following factors:
-The medical needs of the child;
-The availability of a plan to meet those needs;
-The cost of such a plan to the payer.
NOTE: If the payer is obligated to pay health insurance premiums he/she can deduct the cost of
the premiums for the children from his/her statutory net income when calculating his or her minimal child support obligation.
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Illinios Maintenance(Alimony) Awards
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The court may grant a temporary or permanent maintenance award for either spouse in
amounts and for periods of time as the court deems just, without regard to marital
misconduct, in gross or for fixed or indefinite periods of time, and the maintenance
may be paid from the income or property of the other spouse after consideration of all
relevant factors, including:
-The income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance.
-The needs of each party.
-The present and future earning capacity of each party.
-Any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage.
-The time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment.
-The standard of living established during the marriage.
-The duration of the marriage.
-The age and the physical and emotional condition of both parties.
-The tax consequences of the property division upon the respective economic circumstances of the parties.
-Contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse.
-Any valid agreement of the parties.
-Any other factor that the court expressly finds to be just and equitable.
In long term marriages (20 years or more) where one parent was a stay at home parent and homemaker, maintenance will
likely be permanent. This is also true in shorter term marriages where one party has
a disability and is unable to procure full time employment due to that disability.
Maintenance is designed to allow both parties to enjoy, as close as possible, the
lifestyle they would have enjoyed had the marriage not dissolved. Obviously, it will
never be possible to ensure that one income can support two households in the same
manner that income was previously supporting one household, so both parties should be
prepared to live more frugally after divorce, particularly where one spouse is unemployed and / or
unemployable.
NOTE: Maintenance can be paid in a lump sum with assets in lieu of periodic payments. This has
it's pros and cons. On the positive side, it severs most if not all financial ties
between the parties, since lump sum maintenance is not modifiable. On the other hand,
if the receiving spouse remarries or passes away, the lump sum maintenance cannot be modified.
Tax Ramifications
Maintenance is taxable to the recipient and deductible for the payor. If child support
and maintenance are lumped together into what is called "unallocated support", this may create
serious tax issues if it cannot be determined how much of the payments are child support and how
much of the payments are maintenance. It is best to have the payments distinguished up front.
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Illinios Debt Allocation
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In the same way that divorcing spouses must divide marital property,
they must also divide the debts they jointly incurred during the marriage.
Again, the law encourages spouses to settle this issue through negotiation and agreement.
If they cannot, a family court judge will use the same set of factors in dividing marital
debt that are used in dividing marital property.
In many cases during a marriage, one spouse will take on a debt without the other spouse’s knowledge or permission. During a divorce, spouses often wonder if they can be held liable for the debts incurred by the other. The answer to this question depends on the type of debt. If the debt is for a family expense or for the education of the spouses’ children, the answer may be yes. The definition of what is a family expense is not precise or clear. Each situation is judged based on its particular circumstances.
Examples:
If your spouse takes out a credit card without your knowledge and pays for clothing for
your dependant children, you may be liable to the credit card company even though you
never signed the credit card application or agreement, because it is a family expense.
If your spouse takes out a credit card without your knowledge and uses it to pay gambling
debts,
it is not likely that you will be held liable to the credit card company if your
spouse does not pay, because it is not a family expense.
It is important to note that the division of joint debts between you and your spouse does
not alter the rights of your creditors. In other words, even though the family court
judge may order your spouse to pay certain of your joint debts, your creditor can still
seek payment from you if your spouse does not pay the debt.
Example: Together, you and your spouse take out a mortgage and buy a home. In the divorce,
your spouse is ordered to pay the mortgage. If your spouse does not pay, the mortgage
company can still sue you for payment of the debt. You would then have to seek
reimbursement from your former spouse before the family court judge.
It is desirable, if not always possible, to refinance joint debts so the spouse not
responsible for paying the debt does not have to worry about being sued by a joint
creditor after the divorce is over.
Note: If you are contemplating filing for bankruptcy, consult with an attorney before
including a division of debts in your divorce judgment. Including a disposition of debts
in your divorce judgment may prevent such debts from being discharged in a bankruptcy
proceeding.
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Illinios Property Distribution
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Illinois is an equitable distribution state, meaning that marital property is
divided equitably, not necessarily 50-50.
For purposes of distribution of property,
all property acquired by either spouse after the marriage and before a judgment
of dissolution of marriage is presumed to be marital property, regardless of
whether title is held individually or by the spouses in some form of co-ownership
such as joint tenancy, tenancy in common, tenancy by the entirety, or community property.
Marital property shall be divided, without regard to marital misconduct, considering all
relevant factors, including:
-The contribution of each party to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including the contribution of a spouse as a homemaker or to the family unit.
-The dissipation by each party of the marital or non-marital property.
-The value of the property assigned to each spouse.
-The duration of the marriage.
-The relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children.
-Any obligations and rights arising from a prior marriage of either party.
-Any post-nuptial agreement of the parties.
-The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties.
-The custodial provisions for any children.
-Whether the apportionment is in lieu of or in addition to maintenance.
-The reasonable opportunity of each spouse for future acquisition of capital assets and income.
-The tax consequences of the property division upon the respective economic circumstances of the parties.
Non-marital property is considered:
Property acquired by gift, legacy or descent.
-Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent.
-Property acquired by a spouse after a judgment of legal separation.
-Property excluded by valid agreement of the parties.
-Any judgment or property obtained by judgment awarded to a spouse from the other spouse.
-Property acquired before the marriage.
Commingling Assets
Commingling assets is referred to as “Transmutation”.
The term "transmutation" refers to the situation where non-marital property is slowly
converted into marital property during a marriage.
The law works both ways; martial property can be transmuted into non-marital
property in a number of ways. In fact, at least one case has concluded that one spouse's
non-marital property could be transmuted into the other spouse's non-marital property.
The transmutation doesn't have to involve just money, either – manual labor is,
in some cases, capable of transmuting an asset from marital property to non-marital
(or vice-versa).
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| Illinios Grounds for Divorce
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"Grounds" for divorce is equivalent to the "reason" or "basis" for a court to allow two people
to dissolve the legal bonds of matrimony between them. In Illinois a divorce may be granted based upon
fault on the part of one party, or, alternatively, without fault of either party.
Grounds for obtaining a divorce based upon fault are:
(1)natural impotence at the time of the marriage and continuing thereafter
(2)bigamy (also a ground for annulment)
(3)adultery
(4)wilfully desertion or absence from the petitioner for a period of one year
(5)habitual drunkenness for the space of 2 years
(6)gross and confirmed habits caused by the excessive use of addictive drugs for a period of 2 years
(7)threatening the life of the other by poison or other means showing malice
(8)extreme and repeated physical or mental cruelty
(9)conviction of a felony or other infamous crime
(10)infecting the other spouse with a communicable venereal disease.
The petitioner must allege and testify that the respondent spouse has
committed a fault ground "without fault or provocation on the part of the petitioner", and
there is no waiting period for the divorce.
To obtain a divorce based upon "no fault" grounds requires that:
(1)the spouses have lived separate and apart for a continuous period in excess of 2 years
[In Illinois "separate and apart" does not mean separate housing;
if the parties reside in the same household, they must live as if they were "separate
and apart", as in abstaining from sexual relations.]
(2)irreconcilable differences have caused the irretrievable breakdown of the marriage
(3)attempts to reconcile have failed and further attempts at reconciliation would be impracticable and not in the best interests of the family.
If the spouses have lived "separate and apart" for a continuous period of
6 months prior to entry of the divorce judgment, the 2-year living apart requirement
may be waived if both parties stipulate in writing. Any period
during which the parties live together while attempting to reconcile
will count towards the required 6 month period if the reconciliation fails.
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Illinois Filing Fees
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Filing fees for various types of cases vary from County to County. There are two filing fees;
one for the person named as the Petitioner or Plaintiff and another fee for the person named as
the Respondent or Defendant.
In some Counties you may
be able to file your forms without paying the filing fee if you are granted leave to file "as a poor person". An
application to sue or defend as a poor person is not a guarantee that your fees will be waived.
Call the Circuit Clerk in the County in which you are filing to find out what
each party's filing fees are, and to obtain the application to "sue or defend as a poor person" if you cannot afford to pay your filing fees.
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| Illinois Retirement Accounts and Investments
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QDROs, QILDROs:
Any portion of a retirement account that accrued from the date of the marraige through the date of divorce is
marital property. In Illinois divorce cases, the money in these accounts is often divided equitably between the
spouses using a QDRO (Qualified Domestic Relations Order) or in some cases, a QILDRO (Qualified
Illinois Domestic Relations Order). By using a QDRO or QILDRO there is no tax ramification for
moving these assets, provided the assets are rolled over into another qualified
retirement account. In some cases, the
assets do not actually move, but instead are simply disbursed pursuant to terms of the qualified
order upon retirement of the
person owning the original account.
To avoid the need for a QDRO or QILDRO, parties can agree
to allow each party to keep their own retirement accounts, and
divide other assets to offset any inequality.
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© 2000 - 2012 Christine Ann Takata.
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