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Jim Kelly's Family Law, Bankruptcy, Estate Planning and Criminal Defense Blog

Amendments to Illinois Marriage and Dissolution of Marriage Act, Section 504, concerning maintenance. Part I

The Maintenance statute of the Illinois Marriage and Dissolution of Marriage Act Section 504 was amended so as to take affect this January 1, 2015. Maintenance formerly known as alimony is the right of one spouse to receive income from the other spouse. This blog, which shall be published in several parts, seeks to create an understanding as to how the new maintenance statute will operate and what it means to an obligor. It shall also contain specific examples so as to further show just how the statute will work and how it will work together with Section 505 of the Illinois Marriage and Dissolution of Marriage Act which controls the determination of child support. As the factoring of maintenance will play a crucial role in understanding the total obligation of an obligor when children are involved.

Part I – Former Section 504.

Who is required to cooperate in child enforcement activities?

An Illinois resident who has custody of a child may find that a need to seek public assistance related to the medical care of the child may arise. In such cases, a public entity may have to conduct activities related to the support of the child in question, and the cooperation of the custodial adult may be required.

Those obligated to assist in child support enforcement activities are custodial parents, including minor parents or step-parents involved in a case along with a legal parent. Some custodial parents, however, may not be required to cooperate with such activities if they only receive support services for their child and not for personal needs. On the other hand, an individual who cares for a child but is not a custodial parent is not subject to cooperation requirements related to child support enforcement even if he or she also receives public assistance. In cases involving a custodial parent who does not obtain personal benefits and who is not required to cooperate, cooperation could later be required if that individual applies for benefits.

The effects of establishing paternity

According to Illinois law, if an unmarried couple has a child together, the father will not have any legal rights regarding custody or visitation unless he establishes paternity. The mother will also not be able to obtain child support payments unless the father's paternity has been established. A man who believes himself to be the father of a child may register with the Putative Father Registry either before or within 30 days of a child's birth.

A father or mother can request a DNA test to establish paternity. A judge may also order a man to take a paternity test. Following that, the parents could try to work out a custody agreement that takes into account the best needs of the child. If either parent receives full physical custody, they can arrange a visitation schedule. The mother is not obligated to allow the father visitation until paternity is established.

Petitioning for visitation in Illinois

Chicago parents who do not have custody of their children may petition the court for visitation. Alternatively, these parents may ask that provisions of this nature be included in their divorce decree.

Parents who do not have custody are entitled by Illinois laws to reasonable visitation so long as the court does not find that visitation would endanger the child. Visitation includes in-person time spent between the parent and the child and sometimes electronic communication. Third parties may also be entitled to request visitation, including grandparents, siblings and great-grandparents.

What types of custody are there in Illinois?

Most people in Illinois think custody only refers to where a child will live most of the time. Legally, however, custody also refers to the ability of one or both parents to make important decisions for the child in such areas as medical, educational, counseling and religious choices. This decision-making ability is referred to as legal custody.

Legal custody can either be awarded jointly or solely. If a child's parents are able to get along reasonably for the benefit of the child, joint custody will often be granted. In high-conflict situations when parents are unable to work together or communicate, courts will award one parent sole custody, giving that parent the ability to make all of the important decisions for the child without consulting with the other.

Factors in determining child custody

Every state has their own unique statutes that address child custody. However, Illinois parents might be interested to learn that most child custody statues are written with the same goal, which is to further the best interests of the child. Courts around the country use similar factors in determining what is in a child's best interest. The gender of a parent is rarely, if ever, a factor in child custody orders.

The wishes of the children are often considered along with the wishes of the parents. The bond between a child and his or her parents as well as sibling relationships are factors. How willing and able one parent is to nurture a relationship between the other parent and their child might influence a decision. The general health and ages of parents and children are taken into account. How well children adapt to their surroundings, including their home and their school, is important. Past experience as the primary care giver is considered.

Factors that determine child support in Illinois

When determining child support in Illinois, the best interest of the child is the court's top priority. Factors that are considered when creating a support order include the financial resources and needs of the child and the custodial parent. The physical and emotional needs of the child will also be considered when making a support order. Finally, the financial circumstances of the non-custodial parent will be also taken into consideration.

This does not mean that those are the only factors that may come into play. A court may use any reasonable basis to protect the best interest of a child when making a child support order. The net income of a parent is determined by accounting for any money that a parent made in the past year. Federal and state taxes are deducted from that amount while union dues or mandatory retirement contributions are also deducted. Insurance premiums and other support payments will also reduce the net income of a parent.

Protecting fathers’ rights in Illinois

In Illinois, a putative father is a man who believes that he has fathered a child but who was not married to the child's mother when it was born. To preserve his parental rights in this situation, a man who believes that he is the legal father of a child must first register with the Illinois Putative Father Registry. This must be done within 30 days of the child's birth and may be done prior to the child being born.

In addition to registering, a father must also begin legal proceedings to establish paternity within 30 days of the child's birth. This may be done by signing a Voluntary Acknowledgement of Paternity form or by asking a judge to make a ruling. Assistance in taking such action may be available for free under certain circumstances.

Illinois statute guides judges in setting support payments

The determination of the amount of child support depends, in Illinois, on the number of children involved and the income of the parent. Payment amounts are determined on a case-by-case basis, largely at the discretion of the judge. Typically, though, judges look to the statutory guidelines.

Depending on the terms of the court order, the non-custodial parent must pay child support until the child turns 18 or until the child is emancipated. Emancipation may occur if the child becomes a member of the military or otherwise gains employment and thus no longer requires financial support, or if the child is married or moves out on his or her own and desires independence. Until the occurrence of one of these events, the child has the legal right to support from both parents. The Illinois support guidelines call for an increasing percentage of the parent's net income as the number of children involved increases. For example, the guidelines call for a parent to pay 20 percent of net income in support of one child and 28 percent of the parent's net income for two. For six or more children, the suggested amount is 50 percent of the parent's net income.