Will You Lose Maintenance if You Date?

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750 ILCS 5/510(c) provides that maintenance payments in Illinois (alimony in other states) can terminate if a divorced spouse receiving maintenance cohabits with another person on a resident, continuing conjugal basis. Cohabitation is loosely defined as a relationship having all of the characteristics of marriage except for the license.

There is no bright line test used by Illinois courts to determine if cohabitation has occurred. Instead, courts will focus on the totality of the circumstances as well as consider such things as the length of the relationship, amount of time spent together, the nature of activities engaged in, interrelation of personal affairs, vacations taken together and holidays spent together.

Illinois courts also consider the financial circumstances of the relationship and factors such as whether financial accounts are held together, if there is intertwining or comingling of financial resources, and if named as beneficiaries in life insurance and retirement plans.

It bears mention Illinois courts are clear that having a sexual relationship is not required. The parties are also permitted to agree that cohabitation will not be grounds for termination of maintenance.

A divorced spouse receiving maintenance in Illinois can certainly date. However, the more factors that point to the dating relationship being “marriage-like,” the greater the chance the Court can find cohabitation has occurred resulting in termination of maintenance.

Take advantage of the experience we have in family law matters and call Nicholas J. Galasso now at 630-949-2061 or access our website at www.GalassoPC.com and schedule a free consultation.

You Better Get Consent Before You Record

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Many people, especially those going through a divorce, for a variety of reasons believe it’s necessary to record conversations. However, what people don’t know is that they could be committing a crime by recording a conversation. Civil remedies are also available to a victim of eavesdropping.

The Illinois Eavesdropping Act (the “Act”) was originally enacted to protect communications that individuals intended to be private, like a conversation between divorcing spouses about a dispute they were having. Confusion occurred in enforcing the Act with how to interpret what a party’s intent was and whether the communication was “private.”

Due to that confusion, the Act was amended so that all parties would need consent to record their conversations, regardless of whether there was any intent to keep the conversation private. The United State’s Supreme Court found that amendment to be unconstitutional, so the Act was amended again.

The Act now provides that a person violates the Act by knowingly and intentionally using an eavesdropping device (anything that can be used to hear or record oral conversations) to overhear, transmit or record any private conversation-regardless of whether he or she is a party to the conversation-unless done with the consent of all parties.

If you don’t get consent, in addition to potential criminal sanctions, the conversation you record will also be inadmissible as evidence in your case. The lesson is simple-get consent, and if you don’t have it, don’t record the conversation.

Take advantage of the experience we have in family law matters and call Nicholas J. Galasso now at 630-949-2061 or access our website at www.GalassoPC.com and schedule a free consultation.

Pet Lovers Rejoice – Pets No Longer Treated Like Toasters in Illinois

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Pet Lovers Rejoice – Pets No Longer Treated Like Toasters in Illinois

Many pet lovers aren’t aware that parties to a divorce may enter into a written agreement allocating ownership of and responsibility for any companion animals owned by the parties. ‘Companion animals” exclude a service animal as defined by the Humane Care for Animals Act. It is important to know this pet custody law applies to divorce cases only and not to what we call parentage or paternity cases (where parties are in a relationship but aren’t married).

Pets are no longer treated as chattel; Illinois recognizes that companion animals are living, breathing beings that deserve the utmost attention, care and affection. Prior to this law, a pet was treated as personal property, like toasters, and awarded to a party typically without any provisions for visitation by the other party, who would pay for the pet’s expenses, whether the pet could be shared by the parties and whether the pet could travel with the children between their parent’s houses. Also, with this law, Judges have the power to allocate the sole or joint ownership of and responsibility for a companion animal considering the well-being of the companion animal when the parties cannot agree.

The great news for pet owners is they can memorialize in writing their agreement in the form of a pet custody agreement addressing ownership of and responsibility for pets, which then makes that agreement enforceable in court. Consequences that can arise where there is no pet custody agreement in place include one spouse demanding the pet out of spite, the family pet could be taken away from the children, pets may need to be put up for adoption after the divorce and pets who grew up together may be separated.

Pet custody agreements are legal documents very much like child custody agreements. The parties to a divorce with a pet have quite a bit of flexibility when carving out an agreement. Pet custody agreements can address who will own the pet after the divorce (sole vs. joint ownership), where the pet will primarily live (custody), how major decisions will be made for the pet (like medical care), who will pay for the pet’s expenses, a visitation schedule for the party not the primary custodial parent and limitations on transfer of ownership of the pet.

If you are a pet owner thinking about or going through a divorce, call Nicholas J. Galasso at 630-949-2061 or access our website at www.GalassoPC.com to schedule a free consultation. Let us help you protect your relationship with your pet and prepare a pet custody agreement that best serves you and your pet.

Change to Maiden Name Made Easier for Divorced Women

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Under current law, a divorced woman is required to pay for a legal notice in a newspaper telling the world she wants to revert to using her maiden name if she did not include a name-change request in her divorce judgment. Many feel that publishing that type of notice is embarrassing, intrusive and time-consuming. They would be right on all counts.

Governor Pritzker is expected to sign a new law which eliminates this antiquated legal requirement of publishing notice in a newspaper by a divorced woman of her intention to revert to the use of her maiden name.

As a divorce law firm, we always inquire of a divorcing woman whether or not she wants the right (it’s not an obligation) to resume the use of her maiden name. We protect her right by either entering a separate Court Order giving her leave of court to resume the use of her maiden name or by including a provision in her Judgment for divorce giving her that right. By doing so, we have eliminated her need to publish and the required legal notice.

This new law is designed to protect divorcing women who don’t know to ask a lawyer to include her right to resume the use of her maiden name. It also will be of benefit to a divorcing woman who cannot afford a lawyer to assist with her divorce.

We can help you with legal separation or divorce. Call Nicholas J. Galasso at 630-949-2061 or access our website at www.GalassoPC.com to schedule a free consultation.

A recent Illinois Supreme Court Ruling Gives Hope to a Divorced Parent in Illinois Wishing to Move

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A recent Illinois Supreme Court ruling gives hope to a divorced parent in Illinois wishing to move

Relocation (formerly removal) by a parent who has the majority of parenting time with his or her children is governed by 750 ILCS 5/609.2. Relocation, after the 2016 amendments to this provision, includes not just moving out of state but also focuses on a move away from the children’s current primary residence, which move could be within or outside the State of Illinois with his or her children.

The Illinois Supreme Court recently ruled a father could permanently relocate with his children (2) from Galesburg, Illinois to Virginia Beach, Virginia in the case In re MARRIAGE OF FATKIN found at 2019 IL 123602 (2019). In IRMO Fatkin, the father had been awarded primary physical custody of his 2 children in July of 2015. In 2017, he wanted to move from Galesburg, Illinois (where the children and parents lived since 2008) to Virginia Beach, Virginia where he and the children would live with his parents. The mother, who lived 2 miles from the father in Galesburg, objected to the relocation, so the case went to hearing.

The trial court, appellate court and Supreme Court all considered various factors in evaluating the request by the father to relocate with the children. Among those factors were how much parenting time the mother exercised, the parent’s respective job situations, the children’s extracurricular activities, the children’s general quality of life, the standard of living the children enjoyed, educational and other opportunities available to the children, the wishes of a child and overall what was in the best interest of the children.

At the conclusion of the hearing, the trial court agreed with the father and granted his request for relocation. The trial court modified the mother’s parenting time schedule since she would not be seeing the children much during the school year due to the distance apart. The trial court’s ruling provided for the children to live with their father in Virginia during the school year and with the mother in Illinois over the summer and alternating holiday breaks.

The mother appealed, and the appellate court reversed the trial court’s decision (effectively agreeing with the mother and denying the father’s request for relocation) and remanded the case to the trial court for further proceedings. The father then appealed the matter to the Illinois Supreme Court. The Supreme Court reversed the appellate court ruling and affirmed the judgment of the trial court, which ultimately resulted in the father being allowed to move to Virginia Beach, Virginia with the children.

The court decisions in the area of relocation are varied, inconsistent and decided not using any bright-line test. If you are the parent with the majority of parenting time and considering a move within or outside Illinois, it is critical you get sound legal advice.

Take advantage of the experience we have with this issue and call Nicholas J. Galasso now at 630-949-2061 or access our website at www.GalassoPC.com and schedule a free consultation.

Will equal parenting time for both divorcing parents become the rule of law in Illinois?

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A state representative in Chicago has recently reintroduced House Bill 185 (HB 185) in the Illinois General Assembly. HB 185 proposes an amendment to the Illinois Marriage and Dissolution of Marriage Act to mandate a rebuttable presumption in favor of equal parenting time in every Illinois divorce and parentage case.

HB 185 also proposes that if the Court deviates from the rebuttable presumption, the Court must issue a written decision stating its specific findings of facts and conclusions of law in support of its ruling.

HB 185 further proposes the only exception to equal parenting time is if the parents present an agreed parenting plan providing for unequal parenting time, and the Judge approves the parenting plan.

HB 185 is currently being discussed in the Family Law Committee in the Illinois House of Representatives. We will continue to update you as more information is available. You can also follow HB 185 here.

Many organizations and Bar Associations oppose HB 185 because it undermines the best interests of children standard, which has governed decisions on parenting time for decades. HB 185 will virtually eliminate the Court’s ability to insure parenting time decisions are always made in the best interests of the children.

We welcome the opportunity to discuss your divorce or parentage case and offer a free consultation. Please call Nicholas J. Galasso at (630) 949-2061.

2019 Tax Law Changes Drastically Impact Divorces -Don’t Be Caught Uninformed

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Effective January 1, 2019, there are new tax laws that will significantly impact divorces. The first new tax law (and perhaps the most drastic) provides maintenance (formerly alimony) payments will not be deductible by the person paying it or treated as income for the person receiving it. As a result of the new tax law, divorcing spouses will likely more aggressively contest the amount of maintenance in cases where maintenance is appropriate.

However, those divorced on or before December 31, 2018 are grandfathered in, so the maintenance payments continue to be deductible by the person paying it and taxable to the person receiving it.

Important to note if those grandfathered in seek modification after January 1, 2019, the tax treatment of the modified maintenance will be governed by the parties’ agreement/judgment. If the parties want the modified maintenance to be taxed under the new tax law, they must specifically provide that in the modification order.

For those who have a pre- or post-nuptial agreement, the new tax law may nullify parts of those agreements, so it’s wise to see your lawyer and financial advisor.

Finally, couples who are divorcing on and after January 1, 2019 should be aware that children won’t offer the same tax benefits as before. The new law eliminated the $4,050 exemption for each dependent, but the child tax credit doubled from $1,000 to $2,000 per qualifying child.

These law changes make it critical you seek the advice and guidance of a divorce specialist. Call Nicholas J. Galasso now at 630-949-2061 or access our website at www.GalassoPC.com and schedule a free consultation.

 

Paid Family Leave Coming to Illinois?

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HB 9 Seeks to Create the Paid Family Leave Act in Illinois

The Family Medical Leave Act of 1993 (FMLA) provides eligible workers with a federal entitlement to unpaid leave for a limited set of family caregiving needs.[i]   In short, FMLA merely provides eligible employees with the right to take (unpaid) time off for specified reasons without the fear of losing their job.  There is no federal law in the United States that requires private-sector employers to provide paid leave of any kind.[ii]

As of September 2018, six states and the District of Columbia have created family leave insurance (FLI) programs, which provide cash benefits to eligible workers who take a leave from work to engage in certain caregiving activities.  California, New Jersey, New York, and Rhode Island have active programs; the District of Columbia, Washington State, and Massachusetts have passed laws creating FLI programs, but those programs await implementation.[iii]

Illinois Representative Mary E. Flowers (D) of the 31st District introduced legislation on November 30, 2018 to create the Paid Family Leave Act in Illinois.  The status and text of the bill, HB 9, may be found here: HB 9 – Bill Status.

As introduced, the Paid Family Leave Act created by HB 9 can be summarized as follows:

  • Applies to private employers with 50 or more employees.
  • Employers must provide six (6) weeks of paid family leave for an employee who takes leave for one of three reasons:

(1) because of the birth of a child of the employee and in order to care for the child;

(2) to care for a newly adopted child under 18 or a newly placed foster child under 18 or a newly adopted or newly placed foster child older than 18 if the child is incapable of self-care because of a mental or physical disability; or

(3) to care for a family member with a serious health condition.

  • These paid leave benefits apply to employees who have been employed by the employer for at least one year, and these benefits apply regardless of an employer’s leave policies.

The legislation as introduced is skeletal and will undoubtedly need refinement before becoming a viable piece of legislation suitable for enactment.

The big unknown at this juncture is how much support there is or will be for HB 9 and its goal of creating a paid family leave program in Illinois.

The United States is the only industrialized nation without paid family leave.[iv]   Paid family leave at the federal level is an issue to watch in the upcoming 2020 presidential election.  The majority of those individuals who have declared their candidacy for the Democratic Party’s nominee for president are proponents of paid family leave.

It is likely only a matter of time before a federal law is enacted that entitles eligible employees to paid family leave.  How soon and on what terms is anyone’s guess.  And time will tell if Illinois joins the minority of states in adopting its own paid family leave program.

We welcome the opportunity to discuss your legal needs and offer a free consultation. Please call Nicholas R. Galasso at (630) 949-2062.

 

 

[i] Congressional Research Service Report R44835, “Paid Family Leave in the United States,” updated September 12, 2018.

[ii] Id.

[iii] Id.

[iv] https://www.politifact.com/truth-o-meter/statements/2016/jul/25/kirsten-gillibrand/yes-us-only-industrialized-nation-without-paid-fam/ (accessed January 30, 2019).

 

 

 

 

Paid Family Leave Coming to Illinois?