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Under the state’s same-sex marriage law, a same-sex divorce is treated largely the same as an opposite sex divorce, including issues relating to child custody, spousal support and property distribution (more on that later).

In addition to allowing same-sex couples the freedom to marry and divorce in the state, Illinois’ same-sex marriage law also means that federal benefits are extended to the state’s same-sex married couples.

Last summer, the U.S. Supreme Court repealed the Defense of Marriage Act (DOMA), which limited marriage to one man and one woman under federal law.

After DOMA was deemed unconditional, federal marriage benefits such as Social Secuirty benefits, veterans benefits, federal employee benefits, immigration benefits and tax benefits were extended to same-sex couples who were married in states that recognize it.

At the same time the Supreme Court repealed DOMA, it also issued an important decision in the United States v. Windsor case. In that decision, the Supreme Court held that married same-sex spouses must be able to transfer property on a tax-free basis upon death or divorce like opposite-sex spouses can.

Ultimately, the DOMA repeal and Windsor decision now allow same-sex spouses to transfer property to one another without paying federal income or gift taxes. This is extremely important during the property division portion of a divorce and saves a same-sex couple from potentially enduring tough tax penalties.

Even with all of the new benefits that have been afforded to same-sex couples, there are still a few unique issues that must be considered during same-sex divorce.

One example is that a gay couple may have been together for decades before tying the knot, but when considering property division and spousal maintenance, only the married years are taken into account.

Because this is a complex and ever-changing area of law, it’s extremely important to work with a family law attorney with experience handling same-sex family law issues.

Source: Main St, “Same-Sex Marriage Finds More Inequality in Divorce: Pain in Progress,” Amy Xie, July 8, 2014

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As we discussed, when deciding custody matters, courts are beginning to recognize that both parents — mothers and fathers — play an integral role in the child’s life from day one.

In the past, mothers were automatically granted primary custody of children, but Illinois fathers now have more rights and methods of legal recourse when it comes to paternity, custody, visitation and adoption.

However, it is still very important for fathers to make sure their interests are properly represented in these cases by an experienced family law attorney. An attorney who is passionate about fathers’ rights can make sure that a father’s voice is heard instead of ignored.

Even though the times have changed and fathers are now considered to have equal access to their children, the wishes of fathers are often still disregarded, especially in cases involving unmarried parents.

For that reason, unmarried fathers in Illinois should make sure to register with the state’s putative father registry in order to establish legal rights that can be helpful in custody cases or fighting an unwanted adoption.

Equally important in a child custody case involving unmarried parents is a paternity test proving that the man is the biological father of the child. Once paternity has been established, the father can move forward in seeking custody or visitation.

• For more information about establishing custody rights or visitation with your child, or challenging the adoption of your child, please visit our Lake County Fathers Rights Lawyer page.

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Although those shows all had singular story lines, of course, a common element seemed to closely connect virtually all of them, namely this: parental roles clearly differentiated along gender lines.

Put another way: Dad worked outside the home, while mom managed household affairs. Dad disciplined the kids, while mom essentially raised and nurtured them by herself. Dad seldom stepped inside the kitchen except to eat, and mom seemingly stepped outside the home only on rare occasions.

Although such shows seem laughable now and marked largely by their stereotypical excesses, some men — especially ex-husbands and fathers — have voiced concerns that gender-based stereotypes continue to influence judicial rulings in many family law matters.

It has been argued, for instance, that men are often seen simply as non-custodial providers of support, while women continue to be cast in the role of nurturers. That portrayal, say many fathers’ rights advocates, can lead to a perception that women should more often be granted plenary custody rights, with men having lesser prerogatives focused upon limited visitation.

Things have of course changed greatly since the days of Ward and June Cleaver. More women work outside the home, and more men seek — indeed, demand — a meaningful role in the lives of their children.

We support that change, believing that children’s best interests are most often promoted by the close and continued involvement of both parents.

Our firm helps loving fathers who want to remain dads in every sense of the word by representing them in matters concerning custody, support and paternity.

Fathers seeking relevant information about our firm and practice can visit us online at our Lake County, Illinois, Fathers’ Rights page. We welcome your inquiries.

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While many Americans retire with their own retirement savings, Social Security retirement benefits are still a much-needed source of income for many retirees. As we all know, these benefits not only provide for the worker but also the worker’s spouse.

The good news is that you are still entitled to retirement benefits after your divorce based on your ex’s work history so long as you meet certain requirements. For one, your marriage had to have lasted at least 10 years. Additionally, you must be 62 or older. Finally, you must be unmarried.

However, as the Motley Fool recently pointed out, if your marriage didn’t last 10 years or you get remarried, your Social Security retirement benefits can be thrown in disarray. The provisions can be very confusing and depend on your unique circumstances.

For example, if you marry someone during your retirement years, you can qualify for spousal benefits on your spouse’s work history after just a year of marriage. But if this marriage ends in divorce after less than 10 years, you are no longer eligible for spousal benefits based on that person’s earning history.

Additionally, getting remarried after a divorce means that you no longer qualify for spousal benefits based on your ex’s earning record. Instead, you become eligible to collect spousal benefits based on your new spouse’s earning record.

If you are nearing retirement age and divorce or remarriage is on your radar, make sure you carefully determine how the life change will affect your retirement benefits before taking the plunge.

Source: Motley Fool, “Social Security: Older Couples Face a Terrifying Divorce Trap,” Dan Caplinger, Sept. 15, 2014

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We discussed the case a few weeks ago in a post and said that it wasn’t likely that any details from the case would be exposed to the public because high-profile divorce cases like this one are often settled behind closed doors. However, that hypothesis is proving itself wrong.

Ken filed for divorce at the end of July and earlier this week Anne fired back with her response, including some personal details. Anne is arguing that the prenup the couple signed before tying the knot in 2003 should be thrown out because she was under duress at the time.

Anne claims that Ken sprung a draft of the agreement on her “shortly” before the wedding and did not disclose his financial details until a mere three days before the wedding. Anne said the couple then fought fiercely and Ken suggested that they attend therapy to resolve the issue.

Anne said she agreed to sign the prenuptial agreement at the recommendation of the psychologist they visited the next day. Anne said she later learned that Ken had been a client of the psychologist they visited and she speculated that it was all part of a plan to get her to give in to his demands.

In the filing, Anne also asked for full custody of the couple’s children as well as permission to move with the children to New York. She charged that Ken has not had a close relationship with the children since moving out of the family home in February 2012.

In a statement, Ken’s lawyer disparaged the claims and insisted that Anne was only trying to “make inflammatory statements purely for her own gain, and in an effort to attract publicity to what should be a private matter.” The lawyer said Ken will work to protect his relationship with his children.

Unfortunately, it appears that the conflict is escalating in the case, which could eventually end up going to trial on the prenuptial agreement issue and the child custody issue.

Source: The New York Times, “Anne Griffin Seeks to Void Prenuptial Agreement With Ken Griffin,” Michael J. De La Merced, Sept. 2, 2014

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The case was also notable because it refuted the longstanding argument that the bans should be upheld in order to protect children and families. Instead, Judge Richard Posner wrote on behalf of the panel of judges that it is the gay marriage bans that are harmful on children because children of same-sex couples are denied the financial and psychological benefits of having parents who are married.

Further, in agreeing with the lower courts that the bans are discriminatory, Judge Posner, called the gay community one of the most “misunderstood, and discriminated-against minorities in the history of the world” and said “[t]o exclude a couple from marriage is thus to deny it a coveted status.”

Not surprisingly, opponents of same-sex marriage have expressed disapproval over the decision. The president of a national Christian public policy group called Family Research Council said he was “very troubled” that the court did not acknowledge each child’s right to a mother and father. He also questioned the court’s “constitutional authority to unilaterally change the definition of our most fundamental social institution.”

Lawyers for both Indiana and Wisconsin have said that they will appeal the decision to the U.S. Supreme Court. Several additional cases involving same-sex marriage bans from other states have already asked the nation’s highest court for a final ruling. According to reports, the earliest the Supreme Court could rule on any of the cases would be next summer.

Last week’s ruling does not affect Illinois, as same-sex marriage has been legal here since June. That means same-sex couples can get married, file for divorce and legally adopt children in the state.

Source: Chicago Tribune, “Court: Same-sex marriage bans in Indiana, Wisconsin unconstitutional,” Jason Meisner and Annie Sweeney, Sept. 4, 2014

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When employers are served with a notice for withholding income on behalf of their employees, the notice requires them to withhold a specified amount of money for child or spousal support from an employee’s income and send it to Illinois State Disbursement Unit. The following is what employers must do in this situation.

An employer who has been served with an income withholding notice must deduct and pay the amount designated in the notice from the employee’s income to the State Disbursement Unit within 7 business days after the date the amount would have been paid to the employee. For each deduction, the employer must show the State Disbursement Unit at the time of transmittal the date the amount would have been paid to the employee. Employers who have fewer than 250 employees and who withhold income for 10 or more employees must use electronic funds transfer to pay all income to be withheld.

If the employer knowingly fails to pay any amount withheld to the State Disbursement Unit within those 7 business days, then the employer is required to pay a penalty of $100.00 for each day the support is not paid. If the employer on more than one occasion fails to pay support within 7 business days, then the parent collecting support or the public office may bring a lawsuit against the employer for this penalty.

If an income withholding notice requires a parent to provide health insurance coverage for a child, and if coverage is available through the employer, then the employer must immediately enroll the child as a beneficiary in the health insurance plan as long as the child is otherwise eligible for the coverage without regard to enrollment restrictions that may apply as to the time period within which the child may be added to the coverage. The employer must withhold any required premiums from the employee’s pay.

The employer must mail the notice of the date of coverage, dependent coverage plan information, and all forms necessary to acquire reimbursement for covered health expenses within 15 days of enrollment or upon request to the parent receiving the support.

The employer may not remove any child from the parent’s health care coverage unless the parent-employee is no longer covered under the employer’s group health plan or unless the employer receives written notice that either the order for support is no longer in effect or the child will be included in a comparable health care plan presently in effect or will take effect no later than the date the prior coverage is terminated. The employer must then notify the parent receiving support within 10 days of the termination or change date in addition to notice of conversion privileges.

When the employee is no longer receiving income from the employer, the employer must return a copy of the income withholding notice to the parent receiving support or public office.

As long as employers comply with income withholding notices, they will not be subjected to civil liability. Employers must not refuse to hire, penalize or discharge employees because of the duty to withhold income.

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Jurisdiction is power. In order for a court to do something, it needs to have the power to do so. The court needs power over the subject matter. A court cannot make rain even though some judges may feel they are omnipotent. Statute, rule or constitution confer subject matter jurisdiction. It cannot be conferred by agreement of the parties.

The statute that permits the court to adjudicate custody matters is the Uniform Child Custody Jurisdiction Act, 750 ILCS 35/1, et. Seq. This is the statute that 750 ILCS 5/601 refers to as the one giving courts power to decide custody matters. So the IMDMA does not determine custody jurisdiction, the UCCJA does. That statute creates a concept called the home state, which is where the child has lived for the last six months. Generally, that is the state with subject matter jurisdiction. 750 ILCS 35/4.

There are other ways that a court may acquire subject matter jurisdiction that are listed in that section, if the six-month residency in Illinois does not exist. When reading this section, be mindful of the words “or” and “and.” If this had been the home state within six months of the commencement of the action and the child is absent by a person claiming custody and a parent or person acting as parent is in Illinois, Illinois has jurisdiction. If one parent and the child are here and there are significant connections with Illinois, there is jurisdiction if there is substantial evidence about the child’s present or future care here.

Regardless of the six months, if the child is here and abandoned or it is an emergency to protect the child or no other state would have jurisdiction or another state has declined jurisdiction there to Illinois and it is in the child’s best interest for Illinois to assume jurisdiction, Illinois has jurisdiction.

Just because Illinois has jurisdiction under the statute, it need not exercise it. If there is a simultaneous proceeding in another state pending when the one here is filed, the court shall not exercise jurisdiction. This means that there is jurisdiction but we do not proceed here. That is different than failing to proceed because there is no jurisdiction. 750 ILCS 35/7. (Being raised in the Talmudic tradition and having a Jesuit education sure helps here!).

Lastly, a court here may chose not to proceed with the case even if it has jurisdiction if this court is an inconvenient forum as defined in 750 ILCS 35/8.

In order for the court to be able to make the determination as to subject matter jurisdiction, the statute requires that in the initial pleading of each party or in an affidavit attached to it, the pleader shall give under oath the present address of the child, the addresses for the last five years, the names and addresses of the persons with whom the child has lived for the last five years. Also, in the first pleading, declare whether he has been a litigant concerning custody of this child in Illinois, or elsewhere, if the pleader knows of a custody proceeding about this child in any other state or court, if a non-party to this action has physical custody of the child or claims to have custody or visitation rights. 750 ILCS 35/10. (All that do this please raise your hands.)

In addition to subject matter jurisdiction, Courts often need jurisdiction over the person to do certain things. Personal jurisdiction is achieved in the ways specified in the Illinois Code of Civil Procedure, 735 ILCS 5/2-203, 208 and 209. If a court is to impose an affirmative obligation on a party, such as to pay money, it must have personal jurisdiction first. International Shoe Co. v. Washington, (1945) 326 U.S. 30, 66 S.Ct. 154;Kuklo v. Superior Court (1978) 436 U.S. 84, 98 S.Ct. 1690.

However, the UCCJA does not require personal jurisdiction, since a custody determination does not include child support or other money matters. The custody status of a child may be decided quasi in rem. IRMO Schuham, 120 Ill.App.3d 339, 458 N.E.2d 559 (1st Dist. 1983). According to Black’s Law Dictionary, /th Ed.,quasi in rem is Latin, meaning “as if against a thing.” The definition of the phrase is involving or determining the rights of a person having an interest in property located within the court’s jurisdiction. Thus in Schuham, without personal service or a general appearance, the court could make decisions about custody and visitation, but not about child support.

Schuham and two other cases deal with enrolling and attempting to modify out of state custody judgments in Illinois in this situation: divorce in another state, custody to mom, visitation to dad, mom and kids move to Illinois, mom wants to modify visitation. All three say the same thing: custody and visitation are a status that the court can modify if it has subject matter jurisdiction under the UCCJA, 750 ILCS 35/4, regardless of personal jurisdiction over the out of state dad.

In one case, IRMO Bueche, 193 Ill.App.3d 594, 550 N.E.2d 48 (2nd Dist. 1990) the trial court dismissed mom’s petition since dad still lived in Michigan, where the parties were divorced, and the judgment said that Michigan retained jurisdiction. The Second District held that the retention clause was not binding and did not mandate the Michigan venue when Illinois was the home state. Illinois has a retention clause in its statute that is not in any other state’s version of the UCCJA. Since the Michigan statute does not have such a clause, the retention clause in the judgment is not binding on the court in Michigan if the Michigan court lost subject matter jurisdiction under the UCCJA.

The third case is IRMO Bueche, 262 Ill.App.3d 910, 653 N.E.2d 980 (1st Dist. (1994). In this case, dad filed a general appearance and court thus also had power to modify child support and hold him in contempt for failing to pay medical expenses as ordered.

There is a horrible convoluted and confusing fact situation in another Second District Opinion in which the court agreed with Schuham and Bueche. IRMO Mc Guane, 268 Ill.App.3d 751 645 N.E.2d 575 (1995).

“Before making a judgment under this Act, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated, and any person who has physical custody of the child. If any of these persons is outside this State, notice and opportunity to be heard shall be given pursuant to 750 ILCS 35/6.” 750 ILCS 35/5.

Section 35/6 says notice to a person in initial custody proceedings is governed by the civil practice act. Section H says that notice to a person outside the state in all custody proceedings may be given by personal service or mail or another manner directed by the court. So, which is it, notice pursuant to the CPA or pursuant to Section b? There are no cases that say which. The CPA permits service by publication is one of the listed methods. Perhaps it is “as directed by the court if other means of notice are ineffective.” How effective is publication?

What notice is required in a modification case to a person in Illinois? The statute does not say.

The court may order a person in Illinois or over whom it has personal jurisdiction to appear in courts personally and bring the child to court. 735 ILCS 35/12. So how do you notify a person in this state to come to court? You have to give notice pursuant to the Civil Practice Act per Section 35/6. That act requires personal or abode service, 735 ILCS 5/2 – 203, or by publication if the person cannot be found, 5/205. So the person is in Illinois, cannot be found for personal service, is served by publication and the court orders him or her to appear. How effective is that?

Who write this stuff? The National Conference of Commissioners on Uniform State Laws, as expanded by the Legislature of the sovereign state of Illinois, is who.

The conclusion is that custody determinations do not require personal jurisdictions but do require the best notice possible.

The Federal Parental Kidnapping Prevention Act is 28 USCA 1738A. Its purpose is to “deter interstate abductions and other unilateral removals of children undertaken to obtain custody and visitation awards.” Sec. (c) 6 of Sec 7 of Pub. I. 96-611. A cursory or even a thorough reading will reveal that it is amazingly similar to the UCCJA Section 35/4 and the definitions sections. Prior to the enactment of this statute, almost every state failed to give full faith and credit to custody and visitation orders of sister states. The states took the position that they stood in loco parentis for children within their borders and had to make their own determinations about custody and visitation. This resulted in parents jumping from one state to another to attempt to get a favorable determination. This statute and the UCCJA were adopted to prevent that.

“The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsections (f) (g) and (h) of this section, any custody determination or visitation determination made consistently with the provisions of this section by a court of another State.” Clause (f) permits modifications if this state has jurisdiction and no other state does or another state declined it. Clause (g) says do nothing if another state is currently litigating the issues. Clause (h) says do not modify visitation unless no other state has jurisdiction to or another state has declined jurisdiction.

The discussion of this action would be almost identical to the discussion of the jurisdiction provisions of the UCCJA, so I will spare you that, supported by citations to Federal opinions. However, if the UCCJA and the FPKPA conflict, under the Federal supremacy doctrine, the FPKPA controls. U.S. Const. Art. 6., Clause 2.

Moving upward, the next law governing custody jurisdiction is the International Child Abduction Remedies Act (The Hague Convention) 42 USCA 11601-11610. This statute adopts the Convention. The statute and the Convention can be found in the Muller Davis book in which it takes up 18 whole pages so I am not attaching it here. Also in the Davis book is a small print copy of the State Department analysis of the Convention. That takes 13 pages. Happy reading.

The role of the Convention is to prevent parents from taking children to another country wrongfully, which may be a violation of a custody order or the law of the forum state. Signatories agree to give full faith and credit to custody determinations of courts of other signatories. The Convention also has a mechanism for the return of a child wrongfully taken from a county even though there is no custody order. It is beyond the scope of this presentation to give a detailed analysis of the Convention and the procedure to be followed.

In addition to the civil remedies, there are criminal ones. Proscriptions of 18 USCA 1204 make it a federal crime to remove a child from the U.S. “with intent to obstruct the lawful exercise of parental rights.” Likewise, 720 ILCS 5/10-5 makes child abduction a crime. One who “intentionally violates any terms of a valid court order granting sole or joint custody, care or possession to another, by concealing or detaining the child or removing the child from the jurisdiction of the court” commits this offense. Also, “intentionally conceals or removes a child from a parent after filing a petition or being served with process in an action affecting marriage or paternity but prior to the issuance of a temporary or final order determining custody.” There are many other sub paragraphs to this statute that define the crime. Please read it.

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