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Understanding Parentage for LGBTQ+ Spouses
While same-sex marriage has been recognized in Illinois for some time now, parentage issues for same-sex spouses are an evolving area of law. Illinois is among the first states to offer same-sex spouses the same presumption of parentage that opposite-sex spouses have long enjoyed. In opposite-sex marriage, a child born to the wife is palso presumed to be the husband's child. This presumption exists even if the spouses used a sperm donor or there is another reason to believe that the husband is not biologically the father. In Illinois, the presumption that a child born into a marriage is a child of both spouses has been extended to cover spouses who are of the same sex.
Having both spouses identified as legal parents to the child protects both spouses in the event of a divorce and also protects the child. If you have concerns regarding the legal parentage of a child, our attorneys can help.
Remedies Available in an Illinois Order of Protection
The period during which a victim of domestic violence attempts to escape the relationship, often by way of a divorce, can be a dangerous period. Many abusers react strongly to the prospect of losing a person they intend to retain complete control over. There may be an elevated risk of further violence, harassment, or intimidation during the time in which you are making a plan to exit. Seeking an Illinois Order of Protection may be one way to mitigate these risks. Orders of Protection can forbid the abuser from engaging in certain forms of conduct that may have a frightening or harmful effect on you. Your children may also be eligible to receive protection using one of these orders.
Before you file for a protection order, it is best to speak with an attorney. While many do seek these orders unrepresented, it is important to know that if the abuser will not consent to the order, you may be required to attend a formal hearing where the party you are seeking an order of protection against or their attorney may have the opportunity to question you and vice-versa. These hearings are best handled by a qualified lawyer.
Who is a Presumed Parent in Illinois?
Depending on the circumstances and timing of a child’s birth, some Illinois parents will need to take additional steps to ensure that they are their child’s legal parent. Other individuals are presumed to be a parent based on a legal relationship with the child's mother. If you are a presumed parent, then you will generally not need to take additional steps to designate yourself as a legal parent to the child. In Illinois, biological parentage is not required to sustain a presumption of legal parentage. For example, if a woman is married to another woman who gives birth, both women will be presumed legal parents of the child. The law surrounding parentage is not nearly as simple as it was throughout most of history.
Everything from new technological developments in reproduction to the long-belated acceptance of same-sex parents has had a noticeable impact on Illinois’ parentage laws. There is a reason that Illinois now uses the gender-neutral term “parentage” rather than the old term, “paternity.” An attorney can help you ensure that you are the legal parent to your child.
If I am Not on Civil Terms With My Spouse, Could Uncontested Divorce Still be Possible?
Alternative dispute resolution methods are often seen as being primarily for spouses who are amicable, or at least on civil terms. It is true that it can be helpful to the process if the divorcing spouses are still on good terms. Spouses who remain friendly can generally have rational, productive discussions about the issues in their divorce case. However, alternative divorce resolution techniques may still be possible for spouses experiencing a high level of conflict. If you and your spouse have reached a point where you cannot stand to be in the same room, much less collaborate and compromise with each other in a productive fashion, your attorney may suggest attorney-facilitated negotiation or a type of mediation that does not bring the spouses together. Using these strategies, it may be possible to settle the divorce without litigation. An attorney can assess your situation and offer you advice on resolving your divorce with the lowest possible amount of stress and conflict.
Options for Protecting Children From a Harmful Parent
It is generally presumed that it is in the best interests of children to have a relationship with both of their parents when the parents are not in a romantic relationship or marriage. However, this is a rebuttable presumption, and in certain circumstances, is negated entirely. Where one parent is causing harm to the child, it is the duty of the other to take steps to protect the child. It is important to understand the legal boundaries of what a parent may and may not do in an effort to keep the child safe. Harm may come in the forms of physical violence, emotional attacks, sexual abuse, neglect, or exposure to an unsafe lifestyle, such as criminal behavior or drug use.
A parent’s behavior need not escalate to the level of legal child abuse offenses to cause significant harm to impressionable children. If you feel that your child’s other parent is a danger to the child’s physical or emotional well-being, there may be steps an attorney can help you take, such as seeking a new parenting time allocation.
When to Prepare for Divorce Litigation
A significant percentage of spouses who divorce in modern times are not required to engage in a courtroom battle in order to terminate their marriage. Many elect for cooperative divorce techniques including but not limited to mediation and attorney-facilitated negotiation. Cooperative divorce is often employed regardless of the level of amicability, as the issues incident to divorce can be resolved by mutual agreement even without bringing the spouses face to face. Yet, certain circumstances can render collaborative divorce impossible or impracticable.
If your spouse is unwilling or unable to cooperate with these alternative dispute resolution mechanisms, it may be prudent to prepare yourself for litigation. If you begin to suspect that litigation is inevitable, it would be prudent to address these concerns with a divorce attorney. It is inadvisable to enter litigation or negotiations that could lead to litigation without the assistance of a qualified lawyer.
What If My Spouse Took Advantage of Me Using a Prenuptial Agreement?
Trust and honesty are extremely important in a relationship. You and your spouse should be comfortable telling each other just about anything - especially when it comes to their financial status. Yet, it happens all the time that people sign a prenuptial agreement thinking they have all the right information, only to find out that some very important things were left out. If you were not represented by a lawyer when you signed your prenuptial agreement, you probably did not do a huge amount of fact-checking. After all, this was the person you were about to marry. You were likely very happy together at the time, even if that happiness stemmed from a falsehood on your spouse’s part.
Now, if things have changed and you are thinking about divorce, your prenuptial agreement could be very important. The good news is that if you were tricked or coerced, your prenuptial agreement may not be enforced against you.
What an Order of Protection Can and Cannot Do in a Divorce
Orders of Protection can be great tools for helping you keep yourself and your children safe during a divorce. However, what these orders can and cannot do is not always well-understood. Some people—women particularly—refrain from getting a protection order even though they are eligible for one, often due to misconceptions about how they work. While protection orders are civil, rather than criminal, your spouse can be arrested if they violate one. This is often enough of a deterrent to keep domestic violence offenders away from their victims.
However, civil protection orders should not be used as tools of manipulation during an ongoing divorce. If you are in need of protection from a violent spouse, you should urgently speak with your divorce lawyer so they can get the ball rolling.
What a Civil Order of Protection Can Do
A few of the most important things that a civil protection order can accomplish include:
How Do Financial Affidavits Influence Divorce in Illinois?
As you might imagine, money is a huge factor in any divorce case. This is especially true in contested divorces. When a spouse gets divorced, he or she is expected to provide financial information in a financial affidavit. In Illinois, this document helps to determine things like child support and property division during divorce.
Unfortunately, some spouses lie on their financial affidavits. They may intentionally undervalue their assets or fail to list all sources of income to make their financial situation appear bleaker than it actually is. Spouses may also inflate debts and expenses to reduce financial obligations like child support or spousal support. If you are getting divorced, make sure you understand how this important means of financial disclosure will influence your case.
Financial Disclosure is Crucial During Divorce
It may feel uncomfortable to list personal financial information on your divorce paperwork. However, the court needs this information to make informed decisions during the divorce process. Even if your case settles before trial, you and your spouse can only reach an agreement on divorce terms if you are both honest about your financial circumstances.
What Not to do During a Child Custody Dispute
No one wants to be involved in a child custody dispute, but if you have a difficult relationship with your child’s other parent, it can be tempting to resort to unsavory tactics to gain more parenting time. While many divorced or never-married parents dream of getting sole custody, it is rare in Illinois. Your desire to spend as much time as possible with your children is very understandable, but it is important to play by the rules. Here are some common tactics that you should avoid when you are involved in a child custody dispute.
How Not to Fight a Child Custody Battle
You would do anything for your children, but some tactics are likely to backfire on you. Even if your child’s other parent is attempting these strategies, it is generally best to let your attorney handle it. It is easy for a guardian ad litem, judge, or child custody evaluator to tell when a parent is trying a tactic like:
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