What are a father's rights in a divorce?

What are a father's rights in a divorce?

Children need their fathers just as much as they need their mothers.

One of the most important issues divorcing parents struggle with is visitation and parenting time rights. Fathers, in particular, do not have a clear understanding of their legal rights after a divorce where children are involved. Often times, fathers will give up equal or shared custody of their children because they think there is a gender bias in court and that mothers always win custody.

If you are going through a bad divorce, you know the process is difficult. If kids are involved, it is even harder. If you are a father who wishes to have primary custody or equal time with your kids post-divorce, consider the below.

During a divorce, the court makes decisions regarding child custody, child support and visitation rights. The decisions are generally governed under a “best interests” standard. One of the key factors the court will take into account is whether a mother or father was involved in parenting their children on a daily basis and how much time and effort s/he was invested in their lives. Some examples can include: getting the children ready for school, preparing meals, helping with schoolwork, transporting the kids to school, attending activities, involvement in activities, attending the children’s parent-teacher conferences at school or taking the kids to the doctor regularly. The court seeks to do what is in the best interest of the children and, as much as possible, maintain a steady foundation similar to what the kids are already used to.   

It may seem unnatural, but visitation rights are not automatically a father’s rights. The terms of visitation are decided amongst you and your ex-spouse in a parenting plan or in family court if an agreement cannot be reached or a parent is denying the other visitation rights. Do not be afraid to fight for your rights to share custody of your children because you may not have a clear understanding of your legal rights or believe there is gender bias if your situation goes to court. The truth is, you will never know your legal rights if you do not try to understand them and you won’t know if there is a gender bias in court if you do not even attempt to get custody.

If maintaining a relationship with your children is important to you after your divorce, it is critical to be informed on your rights. Contacting a Chicago divorce lawyer like us will help you understand your legal rights. The court understands that both parents play an important role in their children’s lives. With proper representation and information, you may be able to receive more time with your children after the divorce.

DISCLAIMER-The information contained in this blog article shall not be construed as specific legal advice and does not create an attorney-client relationship or privilege. Further, this information is intended for general knowledge purposes only and is not intended to solicit legal fees.

Contemplating Divorce? What are the basic steps involved?

The steps to getting a divorce depend on each specific situation. For example, a couple who has been married for a short period of time, without kids and little property and debt should have a more simple divorce process than a couple who has been married for a longer time period, with kids (especially minors), and significant property and debt to divide. However, the simplicity of the divorce process also depends on if both parties want and agree to the divorce.

The divorce process varies depending on where you live. If you’re in Chicago, either you or your spouse must have lived in the state for the last 90 days before you can be granted a Judgment for Dissolution of Marriage according to Illinois law. In reference to child custody, the kids must have been Illinois residents for the past six months.

The divorce process in Illinois can be broken down into six steps:

Petition

The first step to getting a divorce in any situation is to file a petition. Even if both spouses agree to divorce, one party must file a petition with the court asking for the divorce, stating the grounds for the divorce and any other issues that need to be resolved.

Service of Process

Once a petition is filed, service of process occurs. This is a document that shows proof that a copy of the divorce petition was given to the other party. The party who files for divorce must also file proof of service of process. This step can me avoided if both spouses agree to the divorce. In that case, the non-filing spouse must file an “Appearance” form after the Petition is filed and pay the filing fee to willingly submit to the jurisdiction of the court.

Response

The party who receives service of process has to file a response to the petition. The responding party may choose to dispute the grounds for the divorce stated in the petition or defend the grounds for the divorce. Any disagreements on property and debt divisions, child custody, support or other issues should be stated in the response.

Discovery/Negotiation

Any issues both parties disagree on from the response need to be negotiated and resolved. If either party wishes to conduct discovery, the other party may be compelled to answer questions and/or produce documents related to the parties’ property, assets, debts and liabilities. There are also discovery requests that may pertain to custody if custody is in dispute. The most common forms of written discovery in divorce cases are Matrimonial Interrogatories, Notice to Produce Documents and Requests to Admit Facts. Oral discovery can also occur in the form of depositions if any parties or witnesses need to be examined under oath before trial. The court may schedule settlement conferences in an attempt to have both parties reconcile their issues. 

Trial

If both parties still cannot resolve any remaining issues between themselves after negotiation then a trial will decide the results. However trials are costly and time-consuming.  

Judgment for Dissolution of Marriage

The Judgment for Dissolution of Marriage completes the divorce process and explains how property and debt are divided as well as custody, support and other issues. If both parties resolve their issues and willingly comply with the outcome, they draft a proposed Judgment for Dissolution of Marriage, submit it to the court and a judge approves it. If both parties do not agree on a resolution, the court will issue a Judgment for Dissolution of Marriage at the end of the trial.   

Although filing a petition is the first step in any divorce process, every divorce is different, complex and difficult. If you are going through a divorce in Illinois, contact an Illinois divorce attorney or family lawyer to understand your options and assist you on your situation.

If you have any questions concerning a divorce, or if you need an attorney to fight for your best interests, feel free to call our Des Plaines law office at (847) 813-6011.

Divorce and Custody Disputes Illinois - Who can claim the children on their tax returns?

Which Parent gets to claim the Children on their taxes?

Once again tax season is upon us and a common question that comes up with divorced parties is, “Who gets to claim the kids on their taxes?”  The general answer to that question is the child dependency exemption goes to the custodial parent. Under Section 152 of the Internal Revenue Code, the custodial parent is defined as the parent having custody of the child for the greater portion of the calendar year. Put another way, the custodial parent is the parent the child lived with the greater number of nights during the year. This is what is commonly known as the Custodial Parent Rule.

There are two exceptions to the Custodial Parent Rule where a noncustodial Parent would be entitled to claim the children: (1) if a multiple support agreement is in effect or (2) if the custodial parent relinquishes the dependency exemption. When relinquishing the exemption, be sure to use IRS Form 8332, which must be completed by the custodial parent and attached to the noncustodial parent’s tax return each year the exemption is claimed. Here is a link to the IRS website for the form needed: www.irs.gov/pub/irs-pdf/f8332.pdf.

When going through a divorce, addressing which party is entitled to claim the dependency exemption on their taxes is an important component to add in a Marital Settlement Agreement.  Something as simple as the following provision could establish who is entitled to claim the children on their tax return:

“Beginning year 20__ and each year thereafter Husband provides child support to Wife in accordance with the provisions in this Agreement, Wife shall not claim the dependency exemption for any of the minor children of the parties for federal and state income tax purposes. Husband and Wife have agreed that Husband shall be entitled to the child dependency exemptions on his tax returns and both parties agree to execute IRS Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent, and any other form that may be required by the Internal Revenue Service to carry out the foregoing provision.”

Without such a provision, noncustodial parents run the risk of the child dependency exemption going to the custodial parent because Section 152 of the Internal Revenue Code establishes an automatic presumption that the custodial parent is entitled to the child dependency exemption.

Can the Court enter an Order allowing one Parent or the Other to claim the exemptions?

There is no issue under Illinois law that the trial court has the power to order the custodial parent to sign a waiver that he or she will not claim the child as a dependency exemption. The trial court also has the power to allocate the dependency exemptions in post decree matters. See IRMO Van Ooteghem, 187 Ill.App.3d 696 (3d Dist. 1989). In McCloud, 197 Ill.App.3d 95 (3d Dist. 1989), the Third District held it was error to award the exemptions to the parent providing support absent circumstances warranting the transfer to him. The Fifth District in IRMO Rogliano, 198 Ill.App.3d 404 (5th Dist. 1990), held that the trial court should allocate the exemption based upon which parent will contribute the majority of the support for the child. See also IRMO Clabault, 249 Ill.App.3d 641 (2d Dist. 1993).

Later case law has begun to fine tune this issue in cases where it is a close call as to which parent is contributing the majority of the support for the children. IRMO Moore, 307 Ill.App.3d 1041 (5th Dist. 1999), involved post-divorce proceedings in which the ex-husband claimed the children's expenses were $1,520 per month and his child support amounted to 51.9% of those expenses. He argued the party paying the majority of the children's expenses is entitled to the dependency exemptions, citing three cases: Clabault, Fowler (197 Ill.App.3d 95 (3d Dist. 1990)) and Rogliano. The ex-wife agreed with the ex-husband's reading of the cases he cited, but argued that he did not provide a majority of the children's support because the children's expenses were more than $1,520 per month.

The Moore court held the allocation of dependency tax exemptions is an element of a support award. As such it is a topic over which a trial court has “considerable discretion.” Moore commented that although Rogliano held that in allocating exemptions the court should consider which parent will provide the majority of the child's support, and although Clabault affirmed an award of all exemptions to the parent providing more than 51% of the children's support, these holdings did not require an award of all tax exemptions to the parent paying the majority of the children's support. The Moore court stated that because the children's expenses were found to be more than $5,120 per month, the ex-husband was not paying more than 51% of the children's support, rendering the Rogliano and Clabault holdings inapplicable. The appellate court found no abuse of discretion in dividing the tax exemptions between the two parents who each paid approximately half of the expenses for the children.

Any judgment of dissolution of marriage should specify that the parties shall execute such I.R.S. forms as are required to effect the allocation of the dependency exemptions. While Illinois case law seems to hold that the trial court should allocate the dependency exemption based upon which parent will contribute the majority of child support, this would make no sense in cases where the child support payor is in the highest income tax brackets because of the phase-out of the exemption at the high income end. The court should take a practical approach in these cases and allocate the exemptions to each party based upon who would take the greater economic benefit from them.

A case which was similar to the Moore holding is Stockton v. Oldenburg, 305 Ill.App.3d 897 (4th Dist. 1999). The trial court apparently found the parties equally contributed to the rearing of the child, and awarded each party the tax exemption in alternate years. The appellate court stated that this was neither an abuse of discretion nor against the manifest weight of the evidence.

In Conclusion, the parents can easily reach agreements regarding who claims the children each year and that can be incorporated into a Custody Judgment/Parenting Agreement. In addition, if the parents do not agree, either party can petition the court to enter an order resolving the issue.

If you have any questions concerning whether you are entitled to the child dependency exemption for tax purposes, or if you need an attorney to fight for your right to claim exemptions/credits, feel free to call our Des Plaines law office at (847) 813-6011.

New "Right of First Refusal" law to effect in Illinois January 1, 2014

“Right of First Refusal” to take effect January 1, 2014.

Be mindful that changes are around the corner in Illinois with regard to parenting time in court orders. On May 22, 2013, the Illinois legislature unanimously passed the “Right of First Refusal” which amends the Illinois Marriage and Dissolution of Marriage Act.

Taking effect January 1, 2014, the “Right of First Refusal” provides that if the court finds it is in the best interest of the child and awards joint custody or visitation rights, the court shall find that both parties have the right of first refusal to care for the minor children if the absence of either party is necessary during the party's normal parenting time. This gives both parents the opportunity for increased parenting time with the children.

The biggest impact the “Right of First Refusal” will have is on parents that do not have the children primarily residing at their residence or parents that have weekend visitation.  Since the use of baby-sitters, family members, or subsequent spouses is secondary to the right of first refusal, parents with weekend only visitation will now have increased opportunities to spend parenting time with their children. The amendment provides that whenever a parent intends to leave the children for a period of 4 hours or longer, that parent shall first offer the other parent an opportunity for additional time with the children before making other arrangements for the temporary care of the children. The court will take into consideration various factors such as transportation, distance, and time constraints which could make offering the additional parenting time impracticable in certain situations.

Also important to note, parties may agree to add a right of first refusal provision to their Joint Parenting Agreement, but if they do not and the court determines that a right of first refusal is in the best interest of the children, the court will consider and make provisions in its order for specified considerations relating to the right of first refusal. The changes to the Illinois Marriage and Dissolution of Marriage Act regarding the “Right of First Refusal” are only applicable to divorces where both parties are awarded joint custody. The “Right of First Refusal” does not apply to parties that have had their visitation rights terminated.

For questions on how the “Right of First Refusal” can impact you, feel free to contact our Des Plaines law office at (847) 813-6011.