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  • Moving Forward after a Divorce, Spousal Support in Illinois

    Considering a divorce but unsure how you will be able to support yourself? Curious about your
    obligation to support your ex-spouse who has been out of the workforce during the entirety of
    your marriage?

    When one spouse passes on opportunities to develop his/her career in order to stay home and
    provide care-taking functions for the family and/or to help foster the other spouse’s professional
    development, of course, that spouse’s income-earning capabilities will be stifled. After a lengthy
    marriage, and a long period of time out of the workforce, the thought of having to now support
    oneself can be debilitating.

    The Illinois Marriage and Dissolution of Marriage Act gives courts the authority to award
    maintenance, otherwise known as spousal support and commonly referred to as alimony, in
    divorce proceedings.

    There are generally four types of maintenance a court can award, or parties can agree to, in a
    divorce case: (1) permanent maintenance (which does not necessarily mean permanent, as
    addressed below), (2) temporary or rehabilitative maintenance for a set duration, (3) temporary
    or rehabilitative maintenance with a review date (also known as reviewable maintenance);
    and/or (4) maintenance in gross, which is a lump sum payment.

    Whether or not one spouse is entitled to an award of maintenance is largely based on the
    circumstances and specific facts of each individual case. The statute lists a number of factors
    that are to be considered when making this determination, including such things as how much
    income each party is earning, how the assets and debts will be divided, the needs of each party,
    the standard of living the parties enjoyed during their marriage, the length of the marriage, and
    the contributions the parties have made towards the marriage and towards each other’s
    education, training or career.

    Once it has been determined that one spouse is entitled to receive support from the other, there
    are guidelines and a specific formula that are applied in most cases to determine what the
    support amount should be and for how long the support should be paid. The guidelines are laid
    out in Section 504(b-1) of the Illinois Marriage and Dissolution of Marriage Act. The amount is
    based on the parties’ gross income and is calculated by subtracting 20% of the income of
    spouse receiving maintenance from 30% of the income of the spouse paying maintenance.
    However, there is a cap; the spouse receiving maintenance cannot receive more than 40% of
    the parties’ combined gross income when the maintenance amount is added to his/her own
    gross income. The duration of the maintenance obligation will depend on the length of the
    marriage, and upon which of the above four types of maintenance is being awarded.

    Unless the parties agree otherwise, maintenance is always modifiable, including permanent
    maintenance, as to amount and duration, upon a showing of a substantial change in
    circumstances. This could include a substantial change in either party’s income or any other fact
    that may effect one’s ability to support oneself or one’s ability to support the other party.

    The specific facts of each case have to be assessed to determine whether and how the statute,
    the factors, and the guidelines should be applied.

  • Credit Cards and Divorce

    “Marital property” that is subject to be divided between two spouses in a divorce pursuant to the Illinois Marriage and Dissolution of Marriage Act has a broad definition, and in addition to all of the property and assets two parties own, that definition includes debts and other obligations. The parties’ marital debts and obligations will have to be equitably apportioned, which does not necessarily mean a 50/50 split, upon the dissolution of marriage, regardless of whether the debt is jointly titled or individually titled.

    If the debt or obligation was incurred prior to the marriage, it is likely that debt will be allocated to the party responsible for incurring the debt. Typically, student loans also stay with the spouse whose education was funded with the loans.

    When deciding how to apportion debts that were incurred during the marriage, courts typically assess the overall financial distribution of the marital estate; whichever party has the greater ability to pay; whether the debt is associated to a piece of property (usually, debts incurred to purchase property are assigned to the spouse who is awarded the specific piece of property, i.e. the loan on a vehicle); whether both parties had knowledge and approved of the undertaking of the debt; and any other relevant factors.

    The debt incurred while a divorce is pending is presumed to be marital as well. However, one spouse cannot just go rack up thousands of dollars of debt and expect a court to order the other spouse to contribute to the debt if the debt is outside the scope of general living expenses that are expected to be incurred. In any event, parties should regularly check their credit reports to monitor whether lines of credit are being opened in their names. The three credit bureaus, Experian, TransUnion, and Equifax provide one free report each year; the reports can be requested and generated online at https://www.annualcreditreport.com/requestReport/landingPage.action. Additional information regarding monitoring one’s credit can be found on the USA.gov website, https://www.usa.gov/credit-reports.

    Not only will monitoring credit reports protect one’s financial stability and alert a party of any fraudulent activity, but it will also keep parties aware of whether or not his/her spouse is running up debt prior to and during the divorce process. Adequate knowledge of the marital debts and obligations is necessary in order for parties to knowingly enter into settlement agreements. Although there are terms and provisions that can be included in agreements to combat the hidden or concealed debt that pops up five years after a divorce, the negative effects it can have on a person’s credit during the process of trying to ensure that the appropriate person is held responsible are sometimes irreparable.

    Another issue that might not be the first thing a person thinks about when getting a divorce is the rewards and perks associated with the marital credit cards, including frequent flier miles. Parties should be aware that these benefits are considered assets that are also subject to distribution upon divorce. However, since these rewards are not likely to be transferrable by the credit card companies, values should be assigned to the rewards and the remaining property distribution offset by other assets or property. Although this may seem like a minor issue to be disregarded, significant rewards can be accumulated over the course of a marriage, and the value should be considered in the overall allocation of marital assets and debts.

    The impact of credit card debt and the perks associated with credit cards could be substantial depending on the facts. Parties need to have an understanding of their complete financial situation prior to and throughout the divorce process.

    by Brandy Wisher

  • Considerations when Dividing Retirement Assets

    Considerations when Dividing Retirement Assets in a DivorceMany different vehicles exist for those considering saving for retirement — individually or
    offered through employment, including, but not limited to, individual retirement accounts, profit
    sharing plans, 401(k) plans, 403(b) plans, employee stock ownership plans, defined benefit
    pension plans, etc. Typically, when a person begins saving for retirement, the thought of the
    possibility of a divorce at some point in the distant future is not at the forefront of most peoples’
    minds. Likewise, one’s retirement plan is not the most pressing concern when he or she is
    planning a wedding and getting married.

    As retirement plans are often the largest assets people own other than their home, parties must
    proceed with caution when negotiating their interests with respect to their retirement plans and
    benefits.

    A basic tenet in Illinois divorce law is that all property acquired during a marriage is presumed to
    be marital; therefore, it is well-accepted that increases in vested pension benefits and
    contributions to a retirement plan during a marriage, are typically considered marital property. If
    a party’s interest in the retirement plan or pension benefits did not accrue until after the marriage,
    the analysis is simple — the vested balance and/or benefits will all be presumed marital and
    subject to division upon divorce or legal separation.

    Alternatively, if the retirement plan was started prior to the marriage, or if the party’s interest in
    the pension benefit began accruing prior to the marriage, the analysis becomes a bit more
    complicated. It will be necessary for the parties to know the percentage of the value/benefits
    which is marital and the percentage which is non-marital so that parties can knowingly negotiate
    a property settlement, whether it be a division of the retirement plan or by reaching an agreement
    to off-set the a portion of the retirement plan with other property.

    Briefly, retirement plans are separated into qualified and non-qualified plans for income tax
    purposes. Qualified plans are funded with pre-tax money, and participants receive a tax
    deduction upfront; however, taxes will have to be paid on all distributions. Qualified plans
    include defined contribution plans, such as 401(k) plans, 403(b) plans, thrift savings plans, profit
    sharing plans, and simplified employee pensions; and defined pension benefit plans, such as
    pensions received through a union or through government employment. Non-qualified plans are
    funded with after-tax dollars, and include but are not limited to individual retirement accounts,
    such as mutual funds, money market accounts, and annuities.

    For defined contribution plans and non-qualified retirement plans, it is important for parties to
    retain statements of account balances as of the date of the marriage, as this will be the starting
    point of the analysis. Thereafter, new contributions will be considered marital. However, the
    increase or decrease in value to the plan by way of investment transactions or other activity
    within the plan should be allocated appropriately to the marital and non-marital portions of the
    plan.

    Determining the marital portion of defined pension benefits is most commonly done by dividing
    the time of plan service while married by the time of all plan service to date. For example, if the parties are married for 10 years and the pension has been accruing for 15 years, the formula
    would be 10 divided by 15 or more commonly, 120 months divided by 180 months. This
    fraction would then be multiplied by the present value of the pension.

    In addition to determining the marital portion of a retirement plan, the parties will need to
    understand how the division will actually be implemented. For defined benefit pension plans
    and defined contribution plans, the division will most likely be pursuant to a Qualified Domestic
    Relations Order, which will most often be approved by a plan administrator prior to the divorce
    and will ensure that the parties avoid the penalties and taxes associated with early withdrawal.

    However, if the division of property is not enough to adequately sustain a party prior to
    retirement, and that party is considering taking a withdrawal prior to him or her reaching the
    minimum retirement age, the penalties and taxes should be considered at the time of the divorce.

    On the other hand, non-qualified plans are, most commonly, divided either through rollovers or
    by way of a distribution, which comes with penalties and tax implications that should be
    considered when negotiating a settlement. The parties will need to address whether both parties
    will be responsible for the penalties and taxes prior to the divorce being finalized.

    Many minute details go into negotiating a marital settlement agreement and dividing property in
    a divorce. And although a complex, and often daunting, aspect of the agreement, parties should
    be fully aware of their interests, both marital and non-marital, and the benefits and liabilities
    associated with those interests, in any retirement plan before agreeing to a settlement.

     

    by Brandy Wisher

  • Child Support Changes July 1, 2017 – “Income Shares Model”

    Child Support Calculations Change as of July 1, 2017 — What to Expect with the “Income Shares Model”?

    As many people know, child support in Illinois has been based on a percentage of the obligor parent’s (the person paying the support) properly calculated net income, either 20%, 28%, 32%, 40%, 45%, or 50%, depending on how many children are covered by the support.

    But, the Illinois legislature has jumped on the bandwagon and decided to adopt an “income shares” approach to determining a parent’s child support obligation, an approach that is widespread across the United States.

    What this means for a parent in Illinois is that his or her child support obligation may no longer solely be based on his or her income but rather a combination of both parties’ incomes. Additionally, each parent will now be responsible for a portion of child support. This does not mean both parties will be exchanging money.

    The Department of Health and Family Services (“DHFS”) has released a chart that anticipates the dollar amount for the cost of raising a child, or children, in Illinois based on the combined income of the parents. When calculating child support under the law, one would add each party’s monthly net income and find the appropriate section on the chart. Then the monthly dollar amount the DHFS has determined it takes to support a child(ren) in Illinois, which is based on the incomes of the parties, can be identified, and each party’s respective obligation will be based on his or hers respective income.

    For example, let’s say that Mother earns $2,500.00 monthly and Father earns $1,500.00 monthly for a combined monthly income of $4,000.00, and the parties have two children. For illustration purposes only and ease of explanation, let’s say that the chart lists support for two children for a couple earning $4,000.00 a month as $800.00. Since Mother earns 62.5% of the income, she is responsible for $500.00 of the support obligation, and Father, who earns 37.5% of the income, is responsible for $300.00 of the support obligation. Now, this does not mean Mother gives Father $500.00 and Father gives Mother $300.00. The determination of who will be paying the other depends on who the primary residential parent is. If it is Father, Mother will pay Father $500.00 a month in child support, and Father will be responsible for coming up with the other $300.00 it costs to raise the children.

    Mathematically, the new law seems just like a new formula. However, there is an additional twist, an additional step in the formula if the parents have relatively equal parenting time, which the statute defines as the non-primary residential parent having the children 40% or more of the time. This translates to 146 overnights. If this is the case, the monthly support obligation as determined by the DHFS chart will be multiplied by 1.5. This is because it is expected that both parents will be providing duplicate items and support in their respective households.

    Additionally, each parties’ individual obligation will be reduced by the amount of time the child(ren) are with each respectively.

    In the example, let’s say Mother has the children 45% of the time and Father has the children 55% of the time. The $800.00 monthly obligation would now be $1,200.00, with Mother being responsible for $750.00 and Father being responsible for $450.00. But, these obligations would then be reduced by the percentage of parenting time each has. Therefore, Mother’s obligation should be reduced by 45% and she would be obligated to pay the Father $337.50 a month.

    That all being said, this brief explanation is how the law is anticipated to play out. However, it has not been tested and played through, and there may be other kinks and snags that rear their ugly heads in each individual case. Therefore, if you are currently paying child support, receiving child support, or are considering seeking court ordered support, it is recommended that you contact an attorney who can discuss your case with you and explain the new law and how it should apply to the facts of your situation.

    by Brandy Wisher

  • It’s That Time of Year Again, Seniors Heading off to College. But Wait, Who’s Paying?

    books

    Most parents wish for their children to do better than themselves, to go to college, to receive a
    better education and land that dream job. However, not all parents know how their children’s
    college educations will be funded and how much they can and how much they may be obligated
    to contribute themselves. Married couples and co-parents will generally have many discussions
    regarding this enormous expense and may make decisions about how to save for, and
    ultimately fund, their children’s college educations.

    But when two parents are in the midst of a divorce, a wrench is thrown into this plan.

    What many parents do not know is that Section 513 of the Illinois Marriage and Dissolution of
    Marriage Act grants the courts authority to order the parents to be responsible for a portion of
    their children’s college expenses. And this obligation may not just be limited to tuition and
    school fees, but can include housing expenses (either on campus or off campus), medical
    expenses (including insurance premiums), living expenses (food, utilities, transportation), and
    the costs of books and school supplies.

    Commonly, parents who are made aware of the statute during their divorce may include
    provisions in their Marital Settlement Agreement with vague statements that they each will be
    responsible for college expenses but do not specify which specific expenses or what percentage
    of those expenses each will be responsible for. When their children are still young, this seems
    like an easy way to settle this issue when dealing with the myriad of other issues that pop up in
    a divorce. However, when junior or senior year of their child’s high school education comes
    around, the discussion comes back up and both parents are generally left sitting with the
    uncertainty of what exactly his and her obligation may be, and the questions start swirling
    around: Who has to maintain the health insurance? Are out-of-pocket expenses still to be split
    50/50? How much of that $30,000 a year tuition will I be responsible for? Do I need to co-sign
    on a student loan? Should my child be required to contribute too? And the many other expenses
    that arise when a child enters college.

    Parents should not wait until the eve of their child leaving for school to deal with this, especially
    if it was not addressed at all in their Marital Settlement Agreement or Judgment for Dissolution
    of Marriage because the statute specifically states that a party can only seek reimbursement for
    expenses paid if an obligation existed at the time the expense was incurred.
    Parents should also be aware that college expenses are treated as a form of child support and
    are subject to all of the rules and remedies that apply to child support. The obligation to
    contribute to their children’s college expenses can be enforced through the courts and can
    always be modified.

    If you are in this situation, it is best to consult a family law attorney who can identify your options
    and obligations and provide the necessary legal advice so that you and your children are not
    completely shouldered with the hefty expense of a college education without the help of the
    other parent.

    by Brandy Wisher

  • A Jurisdictional Nightmare: Foreign Marriages

    As technology continues to advance and social networking continues to become the preferred means of communication, especially for the younger generations, the world seems to be only a click of the mouse away. Social networks such as Facebook, Twitter, and Instagram allow individuals from all over the world to communicate and connect in ways never previously possible. Other social network sites, such as “EHarmony.com” and “Match.com” have become so popular that not a day does go by without seeing a web advertisement for “EHarmony.com” or seeing a commercial on the television for “Match.com.” Individuals are able to explore the reality of dating an individual who may reside halfway across the world. To many, this new reality seems like a dream come true! However, with great advancements, ultimately, complications always arise. Due to the increasing rate of marriages between individuals from all over the world, Courts oftentimes find themselves in jurisdictional nightmares.

    Let’s begin with a real life scenario: A woman from Naples, Italy marries a man from Dublin, Ireland, on the coast of Ireland. Shortly thereafter, the couple buy a home in Rome, Italy and live in that home for two blissful years. The Italian wife visits family in Chicago, Illinois on two separate occasions during the marriage; however, her Irish husband never accompanied her on these visits nor has he ever been to the United States. As years go by, the woman begins to have conversations with her Irish husband about wanting to move to the United States to be closer to her family. Her Irish husband refuses to move from the marital residence in Rome, Italy.
    The Italian woman, without her Irish husband, leaves to visit her family in Chicago, Illinois for approximately one month. After one month, the Italian woman travels to Hinsdale, Illinois, where she moves in with a family friend and immediately starts paying rent. Soon thereafter, the Italian woman decides that she wants to start a new life in Hinsdale and that if her Irish husband refuses to move to Illinois that she wants a divorce. The Italian woman spends approximately two months in Hinsdale, and then contacts her Irish husband about living in Illinois.  The Irish husband tells his Italian wife that he will never move to the United States and that he does not agree to a divorce because of his strong religious convictions. Soon after speaking with her Irish husband, the Italian wife hires a divorce attorney in DuPage County, Illinois.

    The Italian wife asks her attorney the following questions:

    (1) Can I obtain a divorce in Illinois?

    (2) Can I obtain a divorce if my husband does not agree to get a divorce?

    (3) If I am granted a divorce, who gets to keep our home in Rome, Italy?

    Each of these questions must be carefully analyzed under the law of the jurisdiction where the Italian woman files her divorce proceedings. In the scenario provided above, the aforementioned questions will be analyzed pursuant to Illinois laws, more specifically the Illinois Code of Civil Procedure and the Illinois Marriage and Dissolution of Marriage Act (hereinafter referred to as “IMDMA”).

    Question 1: Yes. Section 401(a) of the IMDMA provides in pertinent part, “the court shall enter a judgment of dissolution of marriage when at the time the action was commenced one of the spouses was a resident of this State or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained for 90 days next preceding the commencement of the action or the making of the finding.” 750 ILCS 5/401(a).  Here, the Italian woman has been a resident of Illinois for at least 90 days. She has maintained a residence in Illinois, by paying rent and intending to permanently reside in Illinois.

    Question 2: Yes. As provided in Section 401 of the IMDMA, only one of the spouses needs to be a resident of the State for 90 days prior to filing a Petition for Dissolution of Marriage.  Normally, lawsuits in Illinois require the court to have both personal jurisdiction (power over the person) and subject matter jurisdiction (power to hear cases of a particular type); however, divorce law is slightly different.

    Applicable Illinois caselaw, provides in pertinent part:

    • “A party who moves into Illinois without her spouse may be able to obtain a dissolution of marriage after 90 days of residence, even without personal jurisdiction over her spouse. In re the Marriage of Passiales, 144 Ill. App. 3d 629, 637 (1st Dist. 1986).

    • “It is plain that each state, by virtue of its command over its domiciliaries and its large interest in the institution of marriage, can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent.” Williams v. North Carolina, 317 U.S. 287, 299 (1942).

    Therefore, the Irish husband does not need to agree for the Italian wife to obtain a divorce in Illinois; however, the Italian wife must properly serve her Irish husband with notice of her Petition for Dissolution of Marriage and Summons as required under Section 2-208 of the Illinois Code of Civil Procedure regarding personal service on individuals outside the state. 735 ILCS 5/2-208.

    Question 3: This question can be tricky. The  short answer is that Illinois Courts may not adjudicate any issues regarding division of assets, debts, support, maintenance or any other financial issues.  Illinois caselaw provides that “before the Court can enter binding orders relating to property, such as an allocation of a marital estate or an award of maintenance, it must have personal jurisdiction over the parties.” In re the Marriage of Hoover, 314 Ill. App. 3d 707, 709 (4th Dist. 2000).  Therefore, the Italian woman may obtain a divorce in DuPage County, Illinois without her husband’s consent; however, the Illinois Court will likely reserve, or not adjudicate, disposition of the marital home in Rome, Italy until such time as it has personal jurisdiction over the Irish husband.

    It is best to consult an attorney before making any quick decisionsthat may permanently affect your future.

    by Kristin Flanagan

  • 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