5 Common Illinois Family Law Questions Answered By Family Law Attorney
What type of family law issue is considered an emergency by the court?
Something that you can bring an emergency petition to the court for, needs to have immediate and irreparable harm. The issue needs to be such a detriment to the party that without court intervention there’s no chance to recover from that injury. It does not matter whether the issue is financial or actual physical injury.
Our office has clients call all the time and say ’this needs to be on an emergency basis, this needs to be expedited, it needs to be done by tomorrow”. It is then our job as attorneys to determine and explain if something is or is not an emergency.
It is important for people to understand that just because you’re not receiving a child support check on time doesn’t mean the court will allow us to go in front of the judge the very next day. The court is going to want us to wait 30 days, 45 days, or however long the court’s processing time is.
What is the proper amount of time someone needs to give a family law attorney if they need representation?
There are two options here. First, if you are retaining an attorney for the first time. Second, if you are changing to a new attorney.
From the time that you get served with the initial pleadings and paperwork, you have 30 days before you have 30 days to respond to those documents. At that point, if you haven’t retained an attorney, you can ask for more time, and the court will generally give you another 30 days if you are respectful to the court. So realistically, you can have two months to look for your first attorney if you need it.
If you’ve already had an attorney, and now you’re switching, usually the language that the court is going to use in an order discharging your old attorney will state that you have 21 days to file your own appearance or hire a new attorney. If you hire a new attorney within that 21 days, it is likely that your attorney is going to appear on the next court date and request more time to become familiar with your file and case.
It’s always best to give your attorney as much time as possible. Some offices refuse to take cases when you call on a Friday and need to appear for your next court date the following Monday. No Attorney wants to have their back up against the wall and not have enough time to prepare.
Often an Attorney in that situation will ask that you individually go to court and ask the court for more time to retain. In that case, tell the court that you have spoken with a couple of attorneys who would like a little bit more time to investigate before filing an appearance or have you sign a retainer agreement.
In short, just because the court says you have 30 days or 21 days to retain new counsel, doesn’t make your case an emergency matter. Most of the time, the courts are going to be lenient about getting a new attorney provided you have not done that over and over again to delay the process.
The other thing to consider is that the opposing counsel will control the speed of this process. If the opposing party or counsel wants the matter resolved quickly, they are going to do everything in their power to try and move it faster and give you shorter time limits to hire an attorney.
If your opposing counsel is willing to work with you and wants you to have enough time to have things reviewed, or will even let you come into their office and ask questions, that will either slow down or speed up what your time limit is that you will have to be able to find an attorney.
What are some issues couples need to be thinking about when they’re planning a divorce and they own a business together?
With businesses, you want to consider a few things. First, the time that that business was started. Second, any growth that the business has during the marriage. Third, if there is a spouse who does not own the business then consider if they contributed to the growth of the business.
One example our office sees a lot is real estate businesses owned by one spouse, where the supporting spouse helps with the drafting of different contracts or helps with real estate closings, and isn’t actually an employee of the business.
You want to make sure you can get documents from times that you have been able to help develop or grow that business. In situations where one spouse owns the business with a third party, you want to figure out what percentage your spouse owns of the business.
In that case, you are not going to be able to receive a portion of that business. Those professional corporations, PCs, can only be owned by a specific type of licensed professional.
Other things to consider are: How will that business make payments to owners? Are they retaining or holding on to any of their profits? Where is that business licensed to operate?
We see businesses all the time that are used to fund the personal expenses of the parties. You want to make sure that the net income from the business is imputed as income against your spouse if they are not including it in their w2 or 1099 as an owner of the business. You need to know what the net profits are of that business.
You want to make sure that if money is being saved in a business account that you don’t have access to, your attorney still requests to see how much money is waiting in that business account. If someone files for divorce against the spouse, and they own a business, it is possible that they are holding back on taking distributions from their business because they want it to look like their bank account isn’t as full. In that scenario, someone could be hiding a large amount of month that you should be entitled to.
Figuring out what other parties are involved in the business, how much involvement the non-owning spouse has put forward into the growth and development of the business, and again, the professional requirements of being able to be an owner are all important when you’re thinking about ownerships.
What are some tips when it comes to protecting your business?
When you’re protecting your business in the event of a divorce, you’re going to want to think about either of these two options. Whether or not having complete ownership and keeping your spouse out of that business in the future is your goal, or if you’re interested in maintaining control of the management of the business, and you’re fine bringing your spouse in as a partial owner.
If you’re in business with a spouse, ask yourself if you want to buy them out of their interest. It is also possible to allow a spouse to stay on as an owner and take a salary until they’ve set up their own business as well. In some cases, you need to come up with a strategy for the potential dissolution of the business interest while you’re dealing with the dissolution of your marriage.
Many times people will start an LLC just to manage their investments or real estate properties that they rent. Figuring out who is going to be the manager of the LLC, handle the taxes, or handle the expenses from whatever that LLC is can be important.
One of the ways to make sure you get all of the documents necessary when you’re trying to figure out how the ownership of the business is set up is to figure out who the business’ accounting firm is. The tax professionals are going to have all of the filings necessary. They’re going to be a really good resource to be able to make sure you can access the documents that you would need to prove ownership, or prove profits.
How do spouses divide the business when you come to the very end of the divorce?
The main thing that people end up doing is they want the business to be assigned solely to one individual. Just like if you’re dividing real estate, the court wants to know that one person is going to have it moving forward, and there will be no more assets in common between the parties.
If you’re going to have any sort of joint interest after the time that you’re getting divorced, you need to make sure that you have an LLC operating agreement, or a franchise agreement that very clearly states who’s entitled to what money, who makes what decisions, and what everybody’s role is. Your operating agreement needs to be as clear as your marital settlement agreement would be in creating your future business endeavors.
Experienced Schaumburg Family Law Attorneys
At the Law Office of Fedor Kozlov, P.C., we know that each case is unique. That is why we use a different approach to meet the needs of every client. We truly care about our clients, and we automatically tailor our services to achieve effective positive results. With our experienced attorneys, you can expect to get highly personalized, responsive, and accessible representation.
If you have questions about a potential family law issue in Illinois don’t hesitate to contact us or give us a call for a free consultation at 847-380-5193
