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Divorce

  • “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

  • 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.

  • 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.  

  • More men seeking spousal maintenance in Illinois

    Adult Male Ponders Future Looking Out Rain Covered WindowNot very long ago, it was extremely unusual for a man in Illinois to receive spousal maintenance from his ex-wife. Today, however, more men are seeking alimony from their partners following a divorce. According to a survey conducted by the American Academy of Matrimonial Lawyers, 47 percent of the 1,600 member attorneys have noticed an increase in the number of wives making support payments in the last year.

    In the past, husbands were more likely to be the breadwinners in a family, leaving the wife out of the workforce or at a lower-paying job. If a couple decided to divorce, the ex-husband usually paid maintenance to help support the couple’s children, as well as the ex-wife. Experts suggest that today’s increase of women in high-paying careers is leading many men to ask for maintenance in Illinois and across the country.

    Maintenance in Illinois

    The state legislature recently updated spousal maintenance laws to include a formula for determining the amount and duration of maintenance that is paid to spouses. This formula accounts for the difference in the payer’s and the payee’s gross income and provides judges with an across-the-board way to award maintenance in the state. The laws do not distinguish between genders, but instead require the spouse with the larger income make payments to the lower-earning spouse when appropriate.

    A change in social mores

    According to the U.S. Census Bureau, only three percent of the 400,000 people who received maintenance in 2010 were men. As the number of women in the workforce continues to grow, it is likely that the percentage of men receiving alimony payments will grow as well. Women climbing the corporate ladder is accepted by society, when in the past it may have been frowned upon. Many men today choose to stay at home with the children while the wife works, leaving those men outside of the workforce and unable to earn an income in the event of a divorce.

    Moving past pride

    Some ex-husbands chose not to seek spousal maintenance simply because their pride stands in the way. Speaking with an attorney often allows men to see that support can mean the difference between enjoying a comfortable lifestyle and struggling to make ends meet. Both men with children and those without may want to consider adding maintenance requirements to the divorce settlement in order to have enough income to get back on their feet following a divorce.

    Obtaining legal assistance

    Men who believe they qualify for spousal maintenance can get the help that they need from an attorney who deals with maintenance laws.

  • Debt and divorce: What are you responsible for?

    Unemployed and divorced woman with debts reviewing her monthly bills

    When marriages in Illinois end in divorce, there are often a lot of changes that the couple must make to their finances in order to separate completely. The law requires that all marital assets be subject to property division, but many people do not know that all debts are divided as well. Once debts are assigned to each spouse, it is his or her responsibility to pay for those debts, however, failing to do so does not always mean that the other spouse is off the hook.

    During the course of most marriages, many couples incur a significant amount of debt. As a result, it is not always easy to decide which spouse will pay for what debt without the assistance of the courts. Unless a couple can amicably come up with a plan for paying off debt, a judge may have to assign responsibility.

    How debt is divided

    In Illinois, all marital debts are divided by the courts during divorce proceedings. Any debts that have been signed jointly by both spouses are considered marital debts and typically include the following:

    • Automobile loans
    • Home mortgages
    • Credit cards

    Typically, a judge will assign the debt to the spouse whose name is on the account so that he or she is responsible for the debt he or she incurred during the marriage.

    Missing payments

    When it comes to debt and divorce, there are situations in which one spouse fails to pay the debts that have been assigned for the courts. Unfortunately, lenders are not required to abide by the terms of an Illinois divorce agreement and can begin collections against either spouse named on an account. Divorced individuals should be aware that if their ex-spouse stops making payments, the other spouse could become responsible for the delinquent payments.

    Avoiding issues regarding debt

    If possible, working with a spouse to pay off as much debt as possible prior to a divorce can be the best way to avoid conflict and collections. Cancelling jointly-held credit cards or deciding on how the debt will be divided together can help both spouses feel more in control of their financial situation. While there is not always a surefire way to ensure that one spouse will follow through on his or her debt responsibilities, being aware that lenders could potentially require the other spouse to pay can be a detriment against revenge spending.

    Obtaining legal assistance

    The division of debts can be a complicated process that can have a significant impact on the financial situation of both spouses. Many divorcing couples choose to look for legal counsel to get assistance with determining how to assign debt responsibility.

     

  • Handling in-laws after divorce

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    Some Illinois couples mistakenly assume that their divorce will only affect their immediate family. In reality, anyone who has built a relationship with either spouse will have to deal with the dissolution of the marriage. When a couple is married, two families are combined and in-law relationships are created. While some spouses are glad to have less contact with their ex-in-laws, situations are often much more complicated and require continued interaction, especially when children are involved.

    Whether the divorce was amicable or fraught with contact, there is bound to be tension and the possibility of conflict when dealing with in-laws. In order to keep things civil, it is important to navigate this new territory with a cool head and a focus on the well-being of the children.

    Maintaining contact

     When couples divorce, they often want as little contact between each other as possible. Depending on child custody arrangements, this is not always possible. Just as parents will have to see one another when dealing with their children, in-laws who want to stay involved in their grandchildren’s lives will need to be included. While there may be anger and animosity between ex-spouses and former in-laws, staying in contact can show children that all healthy family relationships are important and should be prioritized.

     Grandparent visitation

     Under Illinois state law, grandparents have a legal privilege to see their grandchildren. While this is not a legal right, grandparents can petition the courts for visitation. Many parents find that it is easier to arrange visits with grandparents than to deal with the legal recourse that can come with taking the issue to the courts. Rather than preventing former in-laws from seeing their grandchildren, parents should work to set up a schedule that works for everyone involved. 

    A child’s best interest

     It is not always easy for divorced parents to work out the differences they may have with each other or with their ex-in-laws. However, when children are part of the equation it is best to consider the best interest of the children. Determining whether staying in contact with grandparents should include considerations for the physical, mental, and emotional well-being of the child. When the focus is placed on the child, parents and grandparents are often better able to work together to handle any personal issues that they may have.

    Divorce often brings with it a new set of concerns that have to be dealt with. By handling any problems with in-laws well, parents can allow their children to foster relationships that have always been a part of their lives.

     

     

  • Choosing the right valuation date for property division

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    During the divorce process in Illinois, marital assets are divided equitably by the court. Factors such as spousal contribution and debt are considered before the judge determines the suitable division. Another important factor that affects the allocation of assets is their individual value. With some assets, such as money in a bank account, it is a fixed amount. The worth of more complex assets, such as real estate, antiques and stocks may be difficult to define because the value may fluctuate, at times even daily.

    Fixing the date to determine the value of assets

    If there is a period of weeks or months between the marital separation, the time of filing, or the final dissolution of the marriage, the value of these assets may have undergone a substantial change. Choosing a date at which to set the monetary value of an asset may result in a significant gain or loss for one spouse in the proceedings, and the way that this date is determined is not always fixed.

    Illinois law sets the valuation date at or near the time of the trial. Sometimes the date is based on the filing of the paperwork for separation or divorce. At times, a couple who seek legal separation may have a trial for the separation and then a later trial to finalize the dissolvement of their union. In these cases, the court may choose to determine the value of the property at either trial, or one of the spouses may choose the date.

    Bifurcation of a case often affects the date of valuation

    The court may allow the case to be divided into two separate parts, which is called bifurcation. Illinois courts are not quick to allow bifurcation, but it is justified in certain instances, including the following:

    • When there is a delayed property settlement or child custody battle
    • When maintenance payments would make a difference on taxes
    • When a bankruptcy is involved

    When this happens, the marital status and the other issue are considered separately, and the date chosen must be determined based on one trial or the other. Spouses who delay the process through bifurcation or other means may find themselves at an advantage, but these actions can also backfire. The date cannot be changed once it is set, and property may just as easily lose value as gain it.

    Property division is often one of the most disputed parts of the dissolution of a marriage, and the more assets a couple has, the longer the process is likely to take. A spouse who is involved in a complicated division process can benefit from the advice of an attorney who has experience with the Illinois legal system.

     

     

  • Illinois courts have right to suspend driver’s licenses over unpaid child support

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    In Illinois, divorcing couples must determine which parent needs to pay child support and how much by using the Illinois Child Support Guidelines that determines the proper amount based on income and the number of children for whom one is responsible. If a couple is unable to agree, a court order is required to set up child support. When a parent fails to pay child support, the state of Illinois can legally use the threat of driver’s license suspension to entice payment.

    The Family Financial Responsibility Act 

    In conjunction with the Illinois Secretary of State’s Office, the Family Financial Responsibility Act gives courts the ability to revoke the driver’s license of a parent who is more than 90 days behind in child support payments required by court order. The law allows for two methods of suspension depending on which state’s department invokes the law against the non-compliant parent.

    Court-ordered suspension 

    According to the Family Financial Responsibility Act, an Illinois circuit court judge can use the law when he or she rules that a parent has been delinquent in payments for over three months. The court is required to complete a record of nonpayment that is submitted to the Secretary of State’s Office, which then notifies the parent that their driver’s license will be suspended in 60 days unless full payment is made. A parent can avoid having his or her license suspended by doing the following:

    • Notifying the Secretary of State’s Office that the requirements have been met
    • Requesting an administrative hearing during the 60 days prior to suspension
    • Paying the missing and current child support in full

     DHFS-ordered suspension

    The second system for driver’s license suspension is used by the Illinois Department of Healthcare and Family Services. The DHFS can report directly to the Secretary of State’s Office when a parent has not been paying child support following a divorce. The process is then the same as it is through the court-ordered method once the Secretary of State’s Office is notified, with a notice of upcoming suspension sent to the parent. Both systems allow for the Secretary of State’s Office to provide a driving permit for the offending parent if needed for travel to work or for medical needs.

    The state of Illinois takes a hard stand on child support payment. Parents should be sure to follow through on financial responsibilities in order to avoid license suspension and other legal ramifications. Working with an attorney can help ensure that parents are held accountable for the financial well-being of their children.