The Illinois Family Law Attorneys of James & Associates Practice Areas and Legal Definitions

Prenuptial Agreements:

A prenuptial agreement, or a premarital agreement, (often referred to as a “pre-marital agreement or a “pre-nup”) is a written contract created by two individuals who plan to be married. This agreement lists all individually owned property, such as homes and businesses, family assets, stocks and bonds, savings accounts as well as debts (i.e. full disclosure of financial position and income). The document specifies what will and will not remain individually owned property after the legalization of marriage. Prenuptial agreements also specify whether spousal support will be paid in the event of a divorce, and the intentions regarding distribution of individually owned property upon death.

Factors that cannot be stipulated in prenuptial agreements are binding legal matters such as child support; i.e., a couple cannot lawfully agree in a prenuptial agreement that either party will in no way be responsible for child support. And, a few states do not allow prenuptial agreements to modify or eliminate the right of a spouse to receive court-ordered alimony at divorce, although a prenuptial agreement can facilitate in the degree of compensation.  However, states that have adopted the Uniform Premarital Agreement Act, such as Illinois, allow for the modification or elimination of spousal support.

Property and Debt Division:

Marital property attained during marriage, regardless of whose name it is under, can be divided. Marital property can include real estate (including a home bought in contemplation of a marriage), a pension plan, vehicles, bank accounts, income tax refund and/or household furnishings. However, property that is inherited by one spouse is not considered marital property; i.e., a family business or estate. Similarly, property acquired individually prior to marriage is not marital property.  If you are contractually bound with your ex-spouse on a debt, the creditor can require the entire payment of that debt from you, post-decree, even though the divorce decree assigns the debt to your ex-spouse (such situations require properly drafted hold harmless agreements or third party actions at the time of dissolution in order to create indemnity or protection from the creditor) . Depending on the terms of your divorce decree, the court or your estranged spouse seek to have certain support obligations under it determined to be non-dischargeable by a bankruptcy court. The Illinois divorce attorneys of James & Associates  will stand up for your legal rights and help you secure the settlement or award that you are entitled. Call today for your appointment.

Divorce:

A court of law is the only way in which one can obtain a divorce decree, dissolution, legal separation, or nullity terminating a marriage. Other than the termination of the marital estate, the court also has jurisdiction to resolve other issues that are intertwined in the existing marriage which include, but are not limited to: custody and visitation rights, division of property of the marital estate, spousal support, child support, restraining orders, etc.

Paternity:

Establishing legal fatherhood and the rights and duties that accompany it is known as paternity. There can be a difference between a biological father and a legal father. When a child is born, the mother's name automatically appears on the birth certificate. If she is married, her husband is assumed to be the baby's father. If the parents are not married, it is important for the mother, for the father, and above all for the child, to establish paternity. The advent of DNA testing is a highly useful tool in preventing a wrongful adjudication of paternity. James & Associates  will make sure that you follow all the steps that are necessary in a paternity issue to protect your (and your child's) legal rights.

Custody:

Custody is the charge and control of a child, including the right to make all major decisions such as education, religious upbringing, training, health and welfare. Custody usually refers to a combination of physical custody and legal custody. Many factors influence an award of custody and the way a case is presented in court can have a large impact on the result for you and your children. When a father is being excluded from his child’s life, court procedures can be used to enlist a psychological evaluation as a basis to increase visitation time and/or shift custody to the father.  If you are awarded the children as a primary custodial parent, it has far reaching consequences both to you and to your children’s well-being and development.

Child Support:

Child support is a periodic payment made to a custodial parent from a non-custodial parent to help compensate a child's living expenses; i.e., food, clothes, etc., and any other related debts. When one parent is awarded sole custody, as in the event of a divorce, the non-custodial parent is required to fulfill his or her child support obligation by making set payments, whereas the custodial parent meets his or her support obligation through the custody itself. When parents are awarded joint custody in a divorce, however, the support obligation can be negotiated or argued as shared and then urged to be based on a ratio of each parent's income and the amount of time the child spends with each parent.

The obligation to support minor children cannot be waived by either parent and both parents are obligated to support their children. The State of Illinois has guidelines that determine the amount of child support.  Whether the guidelines apply as a matter of law or as mere guidelines involves many factors that revolve around the differences between joint custody, sole custody and the intricacies of the statutory definition of “income” for purposes of calculating child support.

Spousal Support (Alimony):

Alimony is temporary or permanent financial support paid from one separated spouse to the other, either in one lump sum or in installments. Alimony is designed to provide the lower-income spouse with money for living expenses over and above the money provided by child support. Alimony differs from child support because it is at the discretion of the judge. Child support is usually determined by state-sanctioned guidelines.

Jurisdictional Issues:

When faced with a relocating custodial parent, the court will generally require that parent to give the other parent a minimum amount of notice prior to the anticipated move. This notice gives the non-custodial parent an opportunity to go to court and seek orders restraining the relocation of the child. These so-called move-away cases have gone back and forth on allowing and disallowing a move by the custodial parent with the minor children for over 20 years. While the best interests of the child have always been central to the decision, the analysis of such issues is multi-faceted.  Another issue or problem in this area is the parent who moves away without notice or leave of Court either prior to, during or after entry of divorce.  Assistance of counsel is highly recommended if there exists disagreement between the parents and is necessary in all cases where a parent has moved the children without notice. Custody issues involving two or more different states are governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Federal Parental Kidnapping Prevention Act (PKPA).

There are several other issues of jurisdiction which arise when the estranged spouses are now proceeding to dissolve the marriage but are in different states or countries.  The issues impacted are referred to as: personal, quasi in rem, in rem and subject matter jurisdiction.  When different countries are involved the issues become international in nature with impact under treaties, such as the Geneva Convention, and comity.

Take Action to Protect Your Rights:

If you or a loved one is facing a complicated divorce, custody or other family law matter in Jo Daviess County, Ogle County, Lee County, DeKalb County, Carroll County, Stephenson County, Whiteside County, Winnebago County, Boone County, McHenry County, Lake County, Du Page County, Cook County or the surrounding cities and counties of Northern Illinois and the Chicago Urban Ring Counties and you need the help of an experienced family lawyer, contact contact James & Associates today toll free 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.