When life takes a turn in the wrong direction and you are planning to end your marriage through divorce or need to resolve legal issues related to children - the attorneys at Worwag & Malysz Law can provide you with the guidance and advocacy you need.
Prenuptial agreements are agreements or contracts which are entered by engaged parties, for the purpose of ensuring that assets, acquired or brought into a marriage by one of the spouses do not become marital property as a result of the parties’ union. They ensure predictability for the spouse in the event of a divorce. They can be modified and revoked to accommodate the changing circumstances of the parties.
For a prenuptial agreement to be valid it must be:
- Entered into before the marriage;
- Validated by the act of the marriage;
- Entered into freely and voluntary without coercion and duress;
- Written full disclosure of assets or valid written waiver of disclosure;
- Not unconscionable.
For parties who enter into a prenuptial agreement and find themselves in divorce proceedings, the first step is often to seek a Declaratory Judgment, validating the prenups, and therefore eliminating most of the financial portion of the divorce process. If you are contemplating marriage or find yourself in a divorce in which you and your spouse signed a prenuptial agreement, call our office to discuss your options to best protect your assets or rights to assets.
Dissolution of Marriage
Under Illinois law, Divorce is obtained through the Court process of Dissolution of Marriage. This Court process seeks to define marital property and divide it equitably between the parties. The assets, debts and earning capacities of the spouses are all considered when a property division and support orders are entered
The Court is also seeking to allocate rights and responsibilities as they pertain to children of the marriage.
Although divorce can be a long, drawn out and expensive process, if you and your spouse have limited assets, do not have children or agree as to the decision making for the children, we offer reasonable flat fees for our services which can dissolve your marriage in a matter of a few weeks for a low fee.
Call our office to discuss your specific situation and I will be happy to discuss our fees and time frames to accomplish your divorce
Annulment of Marriage
Annulment of marriage is a court process under Illinois law which results in rescinding your marriage, as if it never existed. Courts are reluctant to grant an annulment and therefore restrict the circumstances in which annulment is granted. The factors in determining annulment are coercion or duress, mental incapacity or fraud. The party bringing the petition to the court must do so within 90 days of learning that such a condition exists. If you think you are eligible, please contact our office.
Legal separation is a court remedy similar to a divorce proceeding which results in the division of marital debt and property as well as the setting or waiver of child support and/or maintenance without dissolving the marriage. Until recently the parties seeking a legal separation needed to have separate homesteads for a period in excess of 6 months. In recent years this requirement has been waived. If parties decide to divorce in the future the terms of the legal separation will be incorporated into the divorce and will simply and streamline the divorce.
Child Support & Modification of Child Support
Under current Illinois law child support is a mathematical calculation which takes into consideration both parents’ income (Income share). Another factor of this formula is the amount of overnight parenting time each parent has which the child or children. If one of the spouses is unemployed by choice income will be imputed to the unemployed spouse based on their earning capacity. In order to modify a child support order there has to be a substantial change in the income of one of the parties or the needs of the child/children. Courts will usually not consider a modification of child support if the income change does not exceed 20%. Child support can be modified at any time. The award of child support is for the housing, food and clothing of the child. All additional child expenses, including but not limited to public schools expense, extracurricular activities, daycare is split proportional to the parents’ income.
Enforcement of Child Support & Maintenance Orders
All orders in Illinois can be enforced by filing a rule to show cause petition and asking the court to hold the nonpaying party in contempt. If it is determined that the owing part willfully did not pay the court will award attorney’s fees and costs to the party bringing the petition. Collection of past due child support and maintenance can be through a garnishment of wages, placement of liens and ultimately the setting of a bail and or imprisonment.
Child’s College Contribution
Although child support ends when the child reaches 18 and is a high school graduate either parent can bring a petition to obligate the other parent to contribute to college expenses of their children. In order for such a petition to be brought certain criteria such as grade point average, full time enrollment and timely enrollment must be satisfied. The courts will consider the household income and assets of both parents and based on those amounts will determine each parents’ financial contribution towards college. The standard for the award is based on the cost of tuition, room and board at University of Illinois Champagne-Urbana.
Allocation of Parental Right and Responsibilities
Illinois no longer acknowledges child custody. Instead Illinois judges allocate parents’ rights and responsibilities for their children. The four areas the court is concerned with are education, health, medical and religious upbringing of the children. The current trend is for both parents to co-parent and have equal decision making in all four areas. If one of the parents wants to challenge this trend, they bare the burden of proving to the court why it is not in the best interests of the children for the parties to co-parent. Joint decision making for the children Illinois law is also advocating for equal parenting time. The standard for establishing or modifying the allocation of parental rights or responsibilities is always the best interest of the child and generally such an order is not modifiable for 2 years from its entry.
Maintenance and Modification of Maintenance
Maintenance previously known as alimony is an award courts grant to the underearning spouse in order to equalize the party’s income. As in child support there is a mathematical formula which takes into consideration each parties income and the duration of the marriage. The greater the disparity in income and length of the marriage the greater the award and its duration. For short marriages (less than 5 years) where parties earn income that is less than $20,000 apart annually maintenance is usually not awarded. Maintenance is always modifiable when there is a significant change in circumstance.
For parties in new relationships who have children from previous relationships your new partner/ spouse can adopt your children and replace the role of the biological parent of that child. Adoptions can be by agreement of all parties, default or as a result of a contested proceeding. An adoption terminates all rights and responsibilities the biological parent has for that children and imposes all those rights and responsibilities on the adopting parent.
Parentage actions seek to establish paternity, rights and responsibilities and support obligations between parties who have children outside of wedlock. The process is very similar to the divorce process and results in an Allocation Judgment and Parenting Plan. The Illinois Marriage and Dissolution of Marriage Act governs both court processes.