Insight from an Experienced Divorce Attorney in Lake County
The divorce is over…isn’t it? The Judgment is entered, property settlement is done, custody and visitation worked out, and lawyers paid. Now what? Unfortunately, it’s the beginning of a very difficult time in your divorce: post-judgment, collection of support, enforcement of visitation, change of custody, and removal from the State of Residence. I need to emphasize: I am a divorce attorney in Lake County, IL, and while I believe some principals are universal, I can only speak of Illinois law where I am quite experienced.
I. Change of Custody
Here is the rule in a nutshell: Generally, if it has been less than two years since the entry of the Judgment, you cannot change custody unless there is an imminent danger to the child’s physical, moral, or emotional health. This is an extremely specific standard, however, and is not the same as a “bad parent” or “unhappy child” – it entails serious endangerment. The following can be found in the Illinois Marriage & Dissolution of Marriage Act:
Sec. 610. Modification
(a) Unless by stipulation of the parties or except as provided in subsection (a‑5), no motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health.
The biggest exception
A parent who intends to marry or reside with a sex offender, and knows that the person with whom he or she intends to marry or reside with is a sex offender, shall provide reasonable notice to the other parent with whom he or she has a minor child prior to the marriage or the commencement of the residency.
After two years, the standard is less dramatic
There must be clear and convincing evidence - upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment - that a change has occurred in the circumstances of the child or his custodian. In the case of a joint custody arrangement, there must be evidence that a change has occurred in the circumstances of the child or either parties having custody, and that the modification is necessary to serve the best interest of the child.
In summary, if it has been less than two years, changing custody is particularly difficult unless something is posing danger to the child’s physical, mental, moral or emotional health. After two years, although the burden of proof is high (clear and convincing evidence), the issue is more focused on the best interest of the child.
There are several approaches to enforce an order of court or agreement which is part of the marital settlement incorporated into the Judgment.
The first method is contempt. In Illinois, contempt is either criminal or civil, and either direct or indirect. For the sake of this article, we will briefly talk about the indirect civil contempt that occurs where a party who is required to do something (like pay alimony, maintenance, or child support) decides that his/her own needs (a car, a vacation, etc.) is more important than the support obligation to his or her spouse or children.
The court has no sympathy. It issues an order that family attorneys in Lake County, IL, affectionately call a “show cause”, which says: “You are ordered to explain why I (the Judge) should not find you in contempt (and punish you with fines, jail or something else) for not following the order of court or agreement of the parties.” The alleged contemptor must provide a reason (financial hardship, lost his/her job, etc.) to avoid consequences. Such consequences may include jail time or fines.
Another method of enforcement is getting a Judgment and collecting the money owed by a wage garnishment (order to withhold) or attachment of an asset (such as a bank account or car) and liquidating it to pay the bill.
III. Failure to Sign a Document
In an even stronger case, a person ordered to sign over real estate (or a car) who has failed to follow a specific order might find out that the Judge has signed the title and transferred it.
Other violations can result in losing rights. For example, a party with a visitation right can lose or forfeit the visit if he or she is consistently late when picking up or returning the child to the other parent.
IV. Determining the Amount of Child Support Payments
Increasing and decreasing support payments are the yin and yang of the divorce attorney’s practice. For every parent collecting child support, it never seems to be enough, and the paying spouse is not paying what he or she should. For every parent paying support, it’s too much, and the ex-spouse is making a profit on the children. In Illinois, child support is generally calculated based on the parent’s gross income.
If you need child support enforcement services, our family law attorney in Highland Park can help. Contact us today at (847) 926-0300.