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  • Now what do we do with our house?

    HouseWhen parties are married and are going to be divorced, the real estate property which has been their marital residence must be treated in any kind of settlement or Judgment for their divorce. Illinois is not a community property, 50/50 division of property state. It is a state in which the division of real estate property is treated equitably, or fair, under the circumstances. What does this mean to divorcing parties? The proceeds may be divided in a number of ways, such as on a 50/50 basis, or 60/40 basis; again, the division must be fair under the circumstances under the division of the marital estate as a whole. This could mean that each of the different assets owned by the parties may be divided in different percentages.

    There are a number of ways in which that property came to be their residence:

    1. One of the parties could have owned the property prior to their marriage, in which case that could be that person’s non-marital property and not subject to any claims by the other party. Sometimes, though, the party that didn’t own the property prior to the marriage may have a claim to the property for contribution, such as, if money earned during the marriage or someone’s separate money was used to remodel the residence. Often, one of the parties owned the real estate prior to the marriage, but the parties refinanced the mortgage, and as a condition of the mortgage, both parties become owners of the property in a legally recorded deed. The general proposition is that the property is now marital property, subject to a claim by both parties.

    2. During the marriage, the parties may have purchased a property together. When they do so, they may each have a claim to that real estate. In such a case, one party could “buy” the other party’s interest out so that he or she can retain the property individually. The buy-out can occur from cash or other assets which may be traded between the parties to effectuate the buy-out. Should such a buy-out take place, a court will usually review the amount of the equity in the house based upon the value of the house, minus the amount of the current mortgage. Note that if there is a buy-out by one party or the other, one of the conditions may be that the party retaining the house must refinance the property to take the other parties name off of the mortgage. A change on title and deed can put one party’s name on a deed on the property, but only a refinance can remove the other parties’ name from the mortgage. After all, the lender is not a party to the divorce. The parties’ agreement or judgment will state the facts, and may include language to protect the person being bought out, so that the party retaining the house will be responsible to pay for the current mortgage.

    3. The Marital Settlement Agreement and Judgment may include a provision in which both parties agree to have the house sold and closed within a period of time. When that occurs, and unless otherwise agreed, the parties will each be required to cooperate to make sure the property sells and closes. There will be costs incident to that sale in which both parties may be responsible. Closing costs usually include real estate tax prorations, due to the cycle in which real estate property taxes are paid in Illinois, title insurance to guaranty the buyer gets clear title, survey (unless it’s a condominium), local municipal taxes (often called transfer stamps), and attorney fees.

    It is important to state that when parties get divorced they do not necessarily have to buy or sell the real estate right away. It is possible to maintain a residence with one party staying in the house, being responsible for paying the mortgage and taking care of the upkeep and buy or sell the real estate in the future. It is more clean to conclude all rights and obligations to the house at the time of the divorce, but sometimes there are reasons in which this does not happen. For instance, parents often have concerns about children and where they will reside, or the ability to refinance is not readily available.

    Divorce is often an emotionally draining time. Seeking the services of an attorney who is familiar with divorce law and real estate helps people understand the issues, ramifications and obtain reasonable results.

    by Miriam Cooper

  • Divorce or Legal Separation? Which is Best for Me?

    two-peopleA common question when parties begin considering moving forward with legal proceedings regarding their marriage is what the difference is between a divorce and a legal separation.

    The Illinois Marriage and Dissolution of Marriage Act provides that a married couple in Illinois may dissolve their marriage or enter into a legal separation.

    In order to get a divorce, the parties must establish that either, or both, have been residents of the state for at least 90 days and that there have been irreconcilable differences leading to a breakdown of the marriage. In a divorce, the marital bonds are dissolved and the marital estate, including any assets and liabilities, are divided equitably (not necessarily equally) between the spouses. This division can be decided and agreed to by the parties or, in the absence of such agreement, by the judge. In order for the judge to make such a division, the court must have jurisdiction over both parties. That means, both parties must either reside in Illinois or consent to the jurisdiction. However, if one spouse resides outside of the state and refuses to consent, the Illinois resident may still seek a dissolution of their marriage; however, the marital estate typically cannot be divided in such a situation.

    In a legal separation, a judge cannot order a division of the marital estate; however, the parties must agree to a division of property. The only role the court has in this situation is in approving, or disapproving of an agreement if it finds the agreement to be unconscionable, or in ordering temporary support. A spouse is entitled to seek reasonable support and maintenance from the other party in either a dissolution of marriage proceeding or a legal separation.

    So if you can obtain support and are able to distribute your property in either situation, why agree to a legal separation rather than get a divorce?

    Some parties choose to stay married for medical insurance purposes. Once you are divorced, the parties cannot remain on the other party’s insurance policy. This could be an important factor in deciding how to proceed for many people, including those with severe health issues and limited access to desirable insurance coverage.

    Some parties who are separated may still be trying to work on their marriage but want to receive the tax benefits that come along with paying the other party maintenance as those payments are deductible from gross income. Also, those who may be attempting to mend their relationship may wish to stop the accrual of marital property. Under the Illinois Marriage and Dissolution of Marriage Act, all property obtained during the marriage is presumed to be marital subject to an equitable division. In a legal separation, both of these objectives may be achieved.

    Another important consideration in deciding between divorce and legal separation for some people may be their religious faith and beliefs. A legal separation allows two people to distribute their property, allocate their debts, and live separate lives yet not get divorced.

    Those considering a legal separation should be aware that even after a legal separation agreement is entered, either party can still seek a divorce in the future.

    Parties must consider their situations and how they want to continue to live their lives.

    by Brandy Wisher

  • “Mi Casa Es Su Casa”

    my house is your houseA very common phrase in the Spanish language is “mi casa es su casa,” or “my house is your
    house.” I would guess that most individuals have likely heard this phrase and likely understood
    the meaning of the phrase; however, what if someone told you that the phrase, “mi casa as su
    casa” could play a role in determining property disposition in Illinois divorce proceedings?
    Sounds crazy, right? One of the biggest questions for divorcing couples is how to divide income
    and assets after separating.

    Two very common questions throughout divorce proceedings, are as follows:

    (1) My spouse and I have separate bank accounts, do I automatically get to keep the money in
    my separate bank account?
    (2) My spouse and I have joint bank accounts, I get to keep the money I contributed to the joint
    bank account?

    The answer to both questions comes down to knowing the difference between “marital” and
    “non-marital” property. If these two terms have you shaking your head, don’t fret!

    Section 503, of The Illinois Marriage and Dissolution of Marriage Act, which governs Illinois
    divorce proceedings, defines these terms as follows:

    “Marital” property: all property acquired by either spouse during the marriage.

    “Non-Marital” property: (1) property acquired by gift, legacy or descent; (2) property acquired in
    exchange for property acquired before the marriage or in exchange for property acquired by gift,
    legacy or descent; (3) property acquired by a spouse after a judgment of legal separation; (4)
    property excluded by valid agreement of the parties; (5) any judgment or property obtained by
    judgment awarded to a spouse from the other spouse; (6) property acquired before the marriage;
    (7) the increase in value of property acquired by a method listed above; and, (8) income from the
    property acquired by a method listed above, if the income is not attributable to the personal effort
    of a spouse.

    Now, back to the questions—generally, the answer to both questions is NO, each spouse does not
    automatically retain the right to keep the income in the separate and/or joint bank account.

    Pursuant to the above definitions of “marital” and “non-marital” property, generally property
    acquired during the marriage is marital, or property of the marriage—not property of each
    individual. As such, in Illinois, all marital property is subject to division between the parties.

    Now, let’s not get ahead of ourselves! This does not mean that each individual will
    automatically NOT get to keep the money in the bank accounts, it just means that “money of the
    individual” shall be treated as “money of the marriage.”

    Therefore, under the laws governing Illinois divorces, the phrase “mi casa es su casa,” should
    truly be read as “mi casa es nuestra casa,” or “my house is our house.”

    Knowing the difference between “marital” and “non-marital” property is imperative throughout
    divorce proceedings, likely more so than understanding the meaning of historical Spanish
    phrases; however, finding an attorney who can keep you smiling throughout legal proceedings is
    priceless!

    by Kristin Flanagan

  • Allocating Parental Responsibilities in Illinois

    Are You Asking the Right Questions?

    ????No longer a “custody battle,” but an “allocation of significant decision-making responsibilities and parenting time battle” ……. a what?! Whoever said “supercalifragilisticexpialidocious” was the longest, most difficult word has probably not recently found themselves in the midst of a heated divorce in which minor children are involved.

    The question under Illinois law is no longer “who gets custody of the children” but rather “how are all of the parental responsibilities going to be allocated? In fact, Illinois lawmakers added two provisions to the Illinois Marriage and Dissolution of Marriage Act titled “Allocation of parental responsibilities: decision-making” and “Allocation of parental responsibilities: parenting time” in 2016 in attempt to remove the term “custody” and the negative connotation associated with it.

    Let’s break this down. The real questions are:

    ● Who will be the primary residential parent?

    ● How is the weekly parenting time going to being allocated?

    ● Every other weekend?

    ● Week on week off?

    ● Two days, three days, two days?

    ● Which parent will make the significant decisions for the children? Will it be the mother, the father, or both? Will mom make some of the decisions or will dad make all of them?

    ● Who decides what faith the children will follow?

    ● Who decides whether Sarah needs braces?

    ● Who decides which school the children will attend?

    ● Who decides whether John plays basketball or Claire plays the violin?

    ● Then lets get into the really ugly (and completely separate) debate. Who is going to pay child support? How will that child support be calculated? Who gets to claim the tax deduction? Who has to carry health insurance? Who is paying for those braces and violin lessons? How will the children’s college education be funded?

    Two people who once shared everything, including the responsibility of raising their children are now trying to create separate lives, independent of each other.

    But you can’t just split your kids in two and go your separate ways. And at a time, when emotions are flaring from all sides, the really intricate questions and minute details (like who will pick John up from basketball practice) seem the easiest things to bicker about. But this isn’t good for anyone involved in the process.

    Don’t let yourself get caught up in the bickering; find an attorney that knows the law, stays abreast of the changes, will explain the process and help you reach a better solution, a completed Allocation Judgment which will encompass all of the necessary information so that both you and your co-parent can continue raising your children.

    by Brandy Wisher

  • 4 impacts divorce may have on your child

    Sad young boy covering ears while parents quarrelingFor Illinois parents facing divorce, there are many unknowns that can be frightening, especially regarding children. A divorce lawyer in Illinois understands that the issues that concern a divorcing couple’s children can often create the greatest conflict. Most parents want what is best for their children, but wonder if divorcing could have major consequences on their children’s mental, physical and emotional well-being.

    While the way that parents handle discussing divorce with their children may be able to lessen the negative impacts of a divorce, research has found that there are some effects that are common in a large percentage of children from split families.

    1. Stress

    Divorce brings with it many life changes that can be difficult for children to understand. Due to the potential for a custodial parent to face a drop in income, children are much more likely to live in poverty. These economic hardships, along with new visitation arrangements and parental conflict, can create added stressors that some children may not be able to deal with.

    2. Risk

    When compared to children of non-divorced parents, children whose parents have divorced face an increased level of risk in many different areas, including the following:

    • Academics
    • Behavioral problems
    • Drug use
    • Illness
    • Sexual activity
    • Domestic violence

     

    A divorce lawyer knows that not all children from divorced homes end up with these issues, but the risk may be higher.

     

    3. Worry

    When it comes to children and divorce, it is common for there to be an increased amount of worry regarding relationships and marriage for kids from divorced parents. There are often painful memories attached to the breakup of a parents’ relationship, and despite the effort parents put into guiding their children successfully through the divorce transition, those scars can last for years. According to a study by psychologist Judith Wallerstein, children can deal with fear and worry even 25 years after their parents’ divorce.

    4. Resilience

    While there are many negative impacts of divorce on children, there are some that could be viewed as positive. Some children from divorced homes become more resilient. They may be better equipped to handle the stressful situations that life throws their way, thanks to the lessons learned during their childhood years.

    Divorce is often hard on everyone involved, but can be especially distressing for children. Parents who want to help their children go through the transition process more successfully may choose to obtain legal aid. A divorce lawyer in Illinois may be able to provide advice on how to navigate a divorce in the best way possible.

  • What will happen to my business if I get a divorce?

    pOfficeWorkerSillhouette_21894595_sMany Illinois couples run small businesses together. While most people do not go into business as a couple expecting to divorce, statistically speaking about half of all marriages do not last. An Illinois divorce attorney knows that family businesses can easily fold following a divorce, however some are able to continue on.

    Entrepreneurs often put in long hours and many years of hard work in order to get their business off the ground. When a marriage is on the rocks, some business owners wonder what could happen to the business. In Illinois, all marital assets are subject to property division. This may mean that business owners could face the potential loss of a good portion of their business to an ex-spouse. Some protective measures can be completed before, during and after a divorce to ensure that a divorce does not undo all of the effort put in to creating a successful business.

    Get the right documents in place

    Anyone who plans to start up a business may want to consider signing a prenuptial agreement. An Illinois divorce attorney understands that a prenup must be in place prior to a marriage for it to be valid. For those business owners who are already married, a postnuptial agreement may be a similar option.

    Obtain a business valuation

    In Illinois, all marital property must be assigned a monetary value before being divided. It is often beneficial to hire an independent expert to perform a business valuation in order to prevent one spouse from overpaying the other. These experts look at many factors when determining how much a business is worth, including the following:

    • The current economy
    • Financial records
    • The nature of the business
    • The value of stock
    • The dollar value of intangibles, like customer relations

    Once valued, divorcing spouses must negotiate on how the business is to be controlled in the future.

    Consider buyout solutions

    There are a few options on how to handle a business. If neither spouse wants to continue running the business, it can be sold and the proceeds divided equitably. However, one spouse often desires to keep the business afloat, and a buyout may be the best option. Also, the cost of a spouse’s portion of the asset can be offset with other marital property, including cash, retirement funds or real estate. If one spouse does not have enough financial liquidity for a buyout, he or she can create a settlement with payments to be made over time.

    Figuring out what to do with a family business after a divorce can be a challenge. An Illinois divorce attorney may be able to provide legal assistance with the process.

  • 4 tips on how to explain divorce to young children

    sad children hugging his motherFor divorcing parents in Illinois, one of the most distressing and complicated issues that must be dealt with is how to tell the kids. Many divorce lawyers Chicago have seen the negative results that can come from parents who wait too long to tell their children about the divorce, leave out important information or simply ignore the process altogether. Most experts agree that divorce will have an impact on children, but the way that parents approach the subject and explain what is going on may improve the way that children react.

    1. Work together and plan ahead

    While many people who are splitting up may have a hard time collaborating, it is important to show a united front when explaining a divorce to children of all ages. Both parents do not need to speak, but both should be present and willing to participate. Planning the discussion together beforehand can help parents anticipate how they will answer some of the questions that may come up.

    2. Stick to the basics

    Talking about a divorce to children should not be like talking with divorce lawyers in Chicago. Most young children do not understand the language surrounding divorce cases, such as child custody, divorce settlements and other legal terms. Simple facts that give children the basics surrounding their parents’ divorce are enough information to aid in understanding.

    3. Avoid blame

    The reasons behind a divorce can be complex and difficult for adults to handle. Even if one parent is at fault, blame should be avoided when telling the children. Neutral language that explains the changes that are going on, rather than going into the details of why the parents are choosing to divorce, is often more helpful and less damaging for children. Many kids view themselves as an extension of their parents, so placing blame can seem like a put-down to a child.

    4. Focus on normalcy

    There are a lot of changes that children will face as their parents’ marriage comes to an end, and it can be hard to deal with so much adjustment. Rather than talking about visitation or other issues that may be scary, focus on the things that will stay the same. Expressing love and commitment to a child is much easier for them to understand and accept.

    Speaking with a child about a divorce is never easy, but doing so in a way that is well thought out can be effective in helping with the transitions that are inevitable. Many divorce lawyers in Chicago can provide guidance and advice for holding a successful discussion with children.

     

  • Biological father’s rights in Illinois

    Father reading to his sonsAccording to the Illinois Parentage Act of 1984, the state recognizes “the right of every child to the physical, mental, emotional and monetary support of his or her parents.” The law provides that “the parent and child relationship, including support obligations, extends equally to every child and to every parent, regardless of the marital status of the parents.”

    If a child is born out of wedlock, it can be a challenge for men to prove their parentage without the help of Illinois family law attorneys. While state law gives unwed parents the same rights as divorced parents, the court must first establish the paternity of a child before awarding those rights.

    The right to claim paternity

    In Illinois, there are several ways for fathers to establish their paternity, including the following:

    • A Voluntary Acknowledgement of Paternity (VAP) form signed by both parents
    • An Administrative Paternity Order from the Department of Healthcare and Family Services
    • An Order of Paternity issued by a judge
    • Marriage after the birth of the child

    The VAP form tends to be the simplest way to establish paternity. It is provided to unwed parents in the hospital immediately following the birth of a child, but Illinois family law attorneys can also provide forms for parents later on.

    The right to maintain a relationship with children

    For many, the most important biological fathers’ rights include spending time with children. Once paternity is established, state law allows fathers to be awarded visitation and regular contact, whether in person or over the phone, as outlined by an agreement and schedule created by both parents or by the court.

    The right to stop third-party adoption

    If an unwed mother wants to give her baby up for adoption, the biological father can prevent her from doing so. A punitive father registry is offered by the state to notify biological fathers of any pending adoption proceedings.

    The right to share custody and make collaborative decisions

    Most states, including Illinois, recognize that it is important for the well-being of children to have both parents involved in their lives. By establishing paternity, fathers can claim the right to joint legal custody, allowing them to work with the mother of their children to make decisions regarding education, medical care, religion and more.

    The importance of legal aid

    Establishing paternity can require extensive paperwork, and without assistance from Illinois family law attorneys, fathers may find that the process can be frustrating and tricky. Paternity laws can be complex, but an attorney may help many fathers fully establish their rights and responsibilities.

  • Claiming your spouse’s retirement in the divorce

    pElderlyCoupleSquabbling_12728527_sGoing through a divorce can be a highly emotional time for Illinois couples. Not only does ending a marriage affect the family, but it also can have a big impact on the finances of each party. In many cases, the process of dividing a couple’s marital property can cause the most conflict and contention. The change in financial standing often requires that spouses must change the lifestyle they have enjoyed for many years.

    A spouse who has chosen to leave the workforce, either to raise children or assist the other spouse as he or she furthers career ambitions, may worry about where to secure a regular income. What some do not realize is that retirement accounts are part of the marital estate, making them available for a non-working spouse to claim in order to have some financial security in later years.

    Retirement plans as marital property

    Illinois law considers all property obtained by a couple throughout their marriage to be marital property and subject to property division. Almost anything that a couple acquires while married, aside from gifts or inheritances, are divided equitably by the courts during a divorce. This includes contributions to pension plans and retirement accounts made prior to filing for divorce. If a spouse began saving for retirement before marriage and continues working after the marriage is ended, then those contributions are not available for division.

    Determining the value of a pension

    In order to determine the exact amount that a spouse can claim from their ex’s retirement plan, a valuation of the plan is necessary. It is not always easy to place a monetary value on a pension plan and often requires the help of a financial professional. Once the marital portion of the plan is valued, the courts can determine how it will be split, or the spouses can decide to offset the difference by giving up a valuable asset instead.

    Qualified domestic relations orders

    A qualified domestic relations order (or QDRO) is the description provided by the court to the retirement plan administrator of how the funds should be divided. The QDRO outlines how the administrator is to pay the non-employee spouse upon the age of retirement. Some couples choose to distribute the funds in monthly installments, while others prefer to do it in one lump sum.

    Claiming another spouse’s retirement plans can be one of the most complex aspects of the property division process, and many divorcing individuals choose to work with an attorney to ensure that division is done correctly.

     

  • Handle a difficult ex with these 4 tips

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    Divorces in Illinois often bring out the worst in people, but in some cases an ex-spouse may cause more conflict, trauma and undue stress than is necessary. Since many divorced couples are not able to completely sever ties, due to shared child custody arrangements or other legal situations, it is important to learn how to handle a toxic spouse in the most positive ways possible.

    1. Maintain thorough documentation

    There are many things that a difficult ex can do to make life complicated, but one of the most damaging can be the fabrication of lies or half-truths. It is not easy to prove oneself without evidence, but creating a document trail along the way can help. During divorce proceedings, and even after finalization, it is important to document everything possible in writing, including any time spent with children, missing money from a joint bank account and communications with the troublesome spouse.

    2. Seek legal assistance

    A divorce is a good time to hire an attorney to help keep things as civil as possible, and to provide a neutralized situation. A lawyer can help with conflict resolution and can help facilitate better methods of communication to keep negotiations on track. Most divorce attorneys have experience working with clients whose exes are not easy to get along with, making them a good resource for more than just legal assistance.

    3. Focus on the future

    In the majority of divorce cases, the past behavior of one or both spouses has led to the break-up of the marriage. Some spouses become stuck in the past, bringing up negative situations at times that are not appropriate during divorce proceedings. In order to keep the process moving forward, it is important to change the focus to the future when possible. A difficult ex may make it hard to move on, but doing so is best for all involved.

    4. Hire a therapist     

    When dealing with a controlling or manipulative spouse, a third-party professional can offer great advice and tools. Speaking with a therapist can be very beneficial to divorcing spouses who need help figuring out how to best respond to a frustrating ex. When conflict is high, emotions often bubble up to the surface, but having a healthy outlet where one can vent his or her concerns is a better way to deal with a bad situation.

    It is not possible to control the behavior of another person, but controlling one’s own behavior may be the best way to set up a peaceful future with an ex-spouse.