The Illinois Family Law Attorneys of James & Associates Frequently Asked Questions

The following information includes frequently asked family law questions. These questions and answers are general in nature and should not be used as specific legal advice for your case. Each case is different and carries its own set of circumstances which must be taken into consideration by competent legal counsel. For specific questions about your case, contact the Illinois domestic relations lawyers of James & Associates today.

Should I make a prenuptial agreement with my future spouse?

The answer to that depends on your specific circumstances, and on the two of you as individuals. Financial planners and divorce attorneys argue that prenuptial agreements should be considered if any of the following particulars apply: there are children involved from a previous marriage, there is an individual ownership of a business or family company, there are significant individual assets or a substantially unequaled income between parties, or there is concern about a future spouse's personal debt. Since laws about what constitute marital property and what governs the division of assets after marriage varies from state to state, a prenuptial agreement can work as a legal protection mechanism for both parties.

Often, prenuptial agreements are misunderstood. It is argued that prenuptial agreements are an attack on trust, or evidence that financial matters outweigh the presence of love in a marriage. This is not necessarily true. Most prenuptial agreements are made by couples who want to bypass the mandates of court in the event of a divorce or death, or couples who have children or grandchildren from prior marriages and want to ensure that individual property such as businesses or estates pass down to the family rather than the spouse. Regardless of the circumstances, prenuptial agreements are a comprehensive decision and should be approached bereft of emotional misconceptions.

Can a prenuptial agreement be modified after marriage?

Yes. Any terms of a prenuptial agreement can legally be altered or modified in the future, if both parties so decide. Other terms of the prenuptial agreement not altered will remain intact, unless both parties revoke the entire agreement in writing. And some states will alter prenuptial agreements without party involvement. For example, prenuptial agreements can become void one and a half years after the parties to the contract become parents, unless the agreement is later renewed in writing by said parties.

As prenuptial agreements are becoming increasingly common, so are similar documents called post nuptials agreements. Post nuptials agreements are much like prenuptials, but are drafted and signed after a couple has been married. Post nuptials can be drawn up at any time during the course of a marriage and can be altered in the same way as a prenuptial agreement.

Can I object to the terms my spouse has requested in our divorce?

Yes, you (along with your attorney) can reject the terms of your spouse's offer. On receiving an objection to the establishment of a family law attorney's settlement, the Illinois divorce court may at its own discretion determine whether the case involves complex or substantial issues of fact or law related to property rights, visitation, custody or support. If the Illinois divorce court finds that the case involves one or more of these complex or substantial issues, the court may implement a case management plan. For more information about complicated divorce and separation issues in Illinois, contact James & Associates today for your free consultation.

Can a divorce action be stopped by one of the spouses?

A no-fault divorce can't be stopped by a spouse because objecting to the other spouse's petition for divorce is itself an irreconcilable difference that would justify the divorce. However, a spouse could potentially stop a fault divorce by either convincing the court that he/she was not at fault or by using any of the following defenses.

1. Condonation - implied approval of another's activities by treating the person as though the offense were never committed. Example: if one spouse committed adultery and the other never objected to it, the offending spouse could say that the other spouse condoned the behavior.

2. Connivance - setting up a situation so that the other person commits a wrongdoing. Example: inviting the offending spouse's lover over then leaving them alone together for an extended period of time would be considered conniving an adulterous behavior.

3. Provocation - inciting of another to do a certain act. Example: if one spouse sues for divorce on the grounds of cruelty, and it is later proven that he/she provoked the other into committing the act, the petition for divorce can be stopped.

4. Collusion - secret agreement or cooperation between the spouses designed to deceive the judge. Example: a couple doesn't want to wait through the separation period required to file a no-fault divorce, so one manufactures a "fault" with the other and files for a fault divorce.

Contact James & Associates for guidance and representation through the steps of your divorce from beginning to end.

How are Custody issues decided?

No area of family law brings to the courtroom the tension, anxiety, hostility, volatility and raw emotion as child custody and visitation litigation. Rare is the divorce, dissolution or custody determination in which the parties have been able to set aside personal differences to reach the goal of what is best for the children involved. Most parents pay lip service to this ideal, but often cannot reach it in actuality.

Most often a judge will take great pains to get parents themselves to come to a mutually acceptable custody agreement if that is possible. A decision made by a stranger is rarely completely acceptable to all if the attempt has not been made in earnest. The family court systems of the states usually have several layers of counseling, mediation and conciliation to attempt to bring warring parents together for the purpose of resolving the issue of what it is in the best interests of their children.

What about visitation?

Generally a court will grant reasonable visitation rights to a parent unless it is shown that the visitation will be detrimental to the best interests of the child. A non-parent can in the discretion of the court also be granted visitation rights if they have an interest in the welfare of the child—this is generally divided into the area of grandparents, step-parents and other non-parents. It should be noted, however, that this is discretionary. The court may also approve visitation plans and restrictions considering factors relevant to the best interests of the child.

When can a child support order be changed or modified?

An order for child support can be changed or modified any time there is a material change in circumstances from the time that the existing child support order was issued. A material change in circumstances can take many forms. The change can be the result of changes in the parent's financial situation - such as appreciable difference in the amount of income earned, loss of a job, a large inheritance, or a change in the amount of time spent with the child. The material change in circumstance can be the result of a new situation for the child—such as large medical expenses, need for special education, or other unexpected requirements. A child support payment could be modified by stipulation between the parents (as long as guideline support factors have been accounted for) or by a noticed court hearing.

Is a father who never married the mother still required to pay child support? What if the father is not allowed to see the child?

Regardless of marital status, an ‘assumed father' is any biological father of a child for whom paternity has been established by either the admission of the father or paternal testing. Assumed fathers are required to pay child support. Additionally, a man who never marries a child's mother, but welcomes the child into his home and supports the child as his own may gain a ‘presumed' father status, and typically, the presumption of paternity holds the same rights and responsibilities of an assumed father, in regard to parental liability and monetary support.

Every parent has a financial obligation to support their children and child support should never be confused with custodial or visitation rights. There is no state which permits a parent to withhold child support because of disputes over custody or visitation. If a non-custodial parent believes their rightful child visitations are being disrupted, it is recommended to contact an attorney to file a claim against the custodial parent in a court of law, rather than stop making child support payments as a form of retaliation. However, in the event of parental kidnapping, in which the custodial parent completely disappears with the child, any wage garnishments or income attachments as made for child support on behalf of the non-custodial parent would cease.

Take Action to Protect Your Rights:

If you or a loved one is facing a complicated divorce, custody or other family law matter in Ogle County, Lee, County, DeKalb County, Carroll County, Stephenson County, Winnebago County, Cook County or the surrounding cities and counties of Illinois and you need the help of an experienced family lawyer, contact James & Associates today at 866-728-4886, or complete the contact form provided on this site to begin your free consultation. Meetings or teleconferences are by appointment only.