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Kane County divorce attorneysThe decision to end a marriage through divorce is not a decision anyone takes lightly. If you are pregnant and in a marriage which you believe is irretrievable, you may be considering divorce. Getting a divorce while expecting a child can be challenging. Depending on your unique situation, it may be best to stay married until after the birth of your child while in other circumstances, divorcing while pregnant might be the better option. Whether your spouse is the parent of your expectant child or the pregnancy is a result of infidelity, divorce during pregnancy can become very complicated from a legal perspective.

Illinois No Longer Requires Fault Grounds for Divorce

Expecting a child cannot disallow a woman from filing for divorce. In the state of Illinois, you also do not have to prove any reason for wanting to end your marriage. The so-called “fault grounds” for divorce in Illinois have been eliminated in favor of one option: "irreconcilable differences.” Presently in Illinois, to be granted a divorce, you must only prove that:

  • Irreconcilable differences have caused the irreparable breakdown of the marriage;
  • Previous efforts at resolution have failed, and
  • Future efforts at reconciliation would not be in the best interests of the family.

In Illinois, a Woman’s Husband is Assumed to Be the Father

Illinois law provides that a woman’s husband is presumed to be the legal father of any children she conceives while married. This presumption of parentage also applies in same-sex marriages. A child conceived by a woman in a legal marriage will have rights to financial and medical support from the assumed parent, as well as Social Security and inheritance benefits. Furthermore, a presumed parent takes on all the legal responsibilities associated with being a parent, such as sharing child custody and providing child support.

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Kane County family law attorneyFollowing a divorce or breakup between two people who have children together, it is common for one parent to be granted a majority of the parenting time. Equal parenting time, in many cases, is impossible or impractical due to scheduling or geographic complications. In other cases, it may be in the child’s best interest to spend significantly more time with one parent than the other.

If you are a divorced, separated, or unmarried parent who has been given less parenting time than your child’s other parent, it can be difficult to maintain the relationship you desire with your child. Fortunately, Illinois law provides a way for you to possibly get additional parenting time by including the right of first refusal in your parenting agreement.

What Is the Right of First Refusal?

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Kane County family law attorneyIn many cases, receiving court-ordered child support is the difference between being able to pay the bills and being in financial trouble. Sometimes, however, child support simply does not get paid. Whether the failure to pay is the result of malicious reasons or because unexpected expenses occurred for the supporting parent, you may have to go to court to obtain what you are owed.

Most Common Methods

The most common way that noncompliant parents are made to pay their support obligations is to the State Disbursement Unit (SDU), via automatic income withholding (AIW), under the federal Family Support Act. Illinois has adopted a version of this law that is functionally identical to the federal statute, though other states have made modifications. Income withholding applies to divorce decrees that have both child support and spousal support or that only discuss child support. In other words, you cannot request income withholding through the SDU, if your former spouse is behind on maintenance payments only, at least not in Illinois. AIW generally takes effect automatically unless the parties specifically agree to another form of recourse in the event that back child support has accumulated.

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Kane County family law attorneysIf you are a parent whose time with your child has been limited due to a divorce, it can be very difficult for you to maintain the relationship with your child that you wish to have. This may be especially true if the other parent has been granted a majority of the parenting time and you only see your child a few days each month. Illinois law, however, allows parents in such a situation to include provisions in their parenting plan that could create extra parenting time opportunities under certain circumstances.

Defining the Right of First Refusal

Under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), your parenting plan should address what is called “the right of first refusal” regarding your child. If you have the right of first refusal, it means that the other parent must contact you and offer you the opportunity to care for your child if the other parent would otherwise need to find a sitter or alternative child care. Depending on how your parenting is structured, you may be required to offer the same opportunity to the other parent if and when you need someone to care for your child. It is important to note that including the right of first refusal in your parenting plan does not obligate you to accept every such opportunity; the right of first refusal refers to optional additional parenting time.

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Wheaton, IL 60189
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We serve clients throughout Kane County, Illinois including St. Charles, Geneva, Batavia, North Aurora, Elgin, Algonquin, Aurora, Barrington Hills, Bartlett, Big Rock, Burlington, Campton Hills, Carpentersville, East Dundee, Elburn, Hampshire, Huntley, Kaneville, Maple Park, Sleepy Hollow, Wayne, West Dundee as well as throughout DuPage County.

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