Recent Blog Posts
Property Division in Divorce: I Get Half of Everything, Right?
The short answer to that question is no. More accurately, the answer is not necessarily. Dividing property during divorce is a bit more complicated than simply splitting the marital estate in half. In fact, the word "half" does not appear anywhere in the statute governing the allocation of assets in the state. Instead, Illinois law is based on the principles of equitable distribution which look to justly allocate marital property based on the consideration of a number of factors.
Community Property States
The basis for most people’s assumption of splitting property in half is the community property concept currently in place in nine states, including Wisconsin, California, and Texas. These principles maintain that, in marriage, both partners equally own all marital assets and that each is entitled to half upon divorce. This applies regardless of employment considerations, contributions to the marriage or family, or any other seemingly relevant concerns. In many cases, spousal maintenance or alimony awards are used to compensate for such considerations.
Separation Requirement Reduced for No-Fault Divorce
Beginning in 2016, the family law landscape in Illinois is set to change rather dramatically, as a sweeping new law goes into effect on the first of the year. The new legislation, signed by Governor Bruce Rauner last month, amends a number of provisions in the law pertaining to divorce, child custody, parental relocation, and other family-related concerns. Over the next few months, as details of the new law become clearer, future posts on this blog will address some of the various expected impacts.
"Separate and Apart"
Among the most significant changes offered by the new measure is the drastic reduction of the required separation period for a no-fault divorce. Under the current provisions in the Illinois Marriage and Dissolution of Marriage Act, a divorce on the grounds of irreconcilable differences—colloquially known as no-fault divorce—may not be granted unless the parties "have lived separate and apart for continuous period in excess of 2 years." By mutual agreement, the separation may be reduced but may not be less than six months.
Harmful and Helpful Technological Impacts During Divorce
When you are going through a divorce, there are many seemingly minor considerations that could have far-reaching consequences. One of these is the increased use of social media. According to Jeff Landers, certified divorce financial analyst and Forbes contributor, social media can have unforeseen ramifications for your divorce, especially in complex or high-asset marital dissolution. "Even if he’s blocked you from seeing his posts directly, your mutual friends can still tell you all about the ski trip he took to Switzerland with his girlfriend a week after claiming he couldn’t afford to pay spousal support," Landers said as an example. It is also vital to be aware that not every online "friend" is an ally, and even the most innocent posts can be seen and easily misinterpreted in a damaging manner.
Considering a Divorce in Illinois? Important Questions to Ask Yourself
Thinking about ending your marriage can be a devastating undertaking. Your marriage vows promised that both of you would commit your lives to each other. However, one day you may realize that you are unhappy in the marriage, or not able to connect with or find joy in being with your partner. It is important to remember that you are not a failure; people change as they develop in their careers and other parts of their life. In some cases, one partner’s actions can damage the marriage beyond the hope of reconciliation. Sometimes, the healthiest option for both parties is to consider a divorce.
Emotionally Healthy Living Environments Are Important for Children
Although staying together for the children is a tempting reason to remain married, this can lead to stressful interactions and potential bitterness among family members. Living in a family environment that harbors shouting, hostile feelings, and manipulation on a regular basis is extremely damaging to both the adults and children involved. In situations where domestic violence is present (physical, emotional, sexual, or psychological abuse, financial manipulation, etc), it is critical to seek help immediately.
Right of First Refusal for Child Custody Cases
If you are in the process of negotiating arrangements for child custody or visitation, you may wish to request the inclusion of the right of first refusal. This recent addition to child custody laws in Illinois provides parents with additional access to time with their children, with priority over non-parental child-care. When in effect, the right of first refusal can also help facilitate a more cooperative relationship between divorced or separated parents.
By Agreement or Court Order
As with most aspects of child custody and family law, you and the other parent may come to an agreement over the right of first refusal without intervention of the court. By including it in your arrangement, you agree that if you require child-care for a significant period of time, you will offer the other parent the opportunity to provide the needed care before seeking another alternative. The right of first refusal may be set up to work in both directions between parents or, alternatively, it may only apply to one parent, if appropriate.
The Dangers of Verbal Agreements in Divorce Proceedings
As you work through the divorce process, you and your soon-to-be ex spouse will undoubtedly attempt to discuss dozens of different topics related to your split. Some may be rather mundane, such as who gets to keep the coffeepot as a wedding present. Others, however, may have more of an immediate impact, such as who is responsible for making the mortgage payments or taking the kids to school. While it may seem easier for the two of you to rely on verbal agreements, consider an aphorism that is widely known throughout the medical field and employment law: "If it is not written down, it did not happen."
Oral Contracts
Strictly speaking, a verbal agreement can constitute an oral contract. An oral contract, in turn, may be enforceable under Illinois law. The challenge, however, lies in proving the existence of the oral contract. Your husband may have told you not to worry about the rent this month, but if you cannot prove he promised to pay it and your name is also on the lease, you are likely to be stuck with no avenue for relief.
Related Adoption: Family First
Adoption can be a wonderful opportunity, and one that is particularly appealing to adoptive parents who are actually related to the child. This type of adoption is known as a related adoption or a kinship adoption, and it is among the common method of adoption in the state. In fact, related adoptions are preferred by state agencies, as they are required to give preference to relatives when making adoptive placements for children in their custody. Adoption laws in Illinois specifically require state-sponsored agencies to make reasonable efforts to identify and locate a child&s relative when out-of-home placement is needed.
Federal and State Compensation
In order for a state to be eligible to receive assistance from the federal government for foster care and adoption programs, federal law, under the Social Security Act, requires that agencies within the state "consider giving preference to an adult relative over a non-related caregiver when determining placement for a child, provided that the relative caregiver meets all relevant state child protection standards."
New Law Would Eliminate At-Fault Divorce
Lawmakers in Illinois recently sent Governor Bruce Rauner a bill that would make a number of sweeping changes to a number of family law provisions in the State. The legislation takes aim at several different family-related concerns including parental relocation regulations, child custody agreements and spousal maintenance issues. It will also significantly impact divorce proceedings around the State in two primary ways.
Irreconcilable Differences
Known currently as Senate Bill 57, the new law, if enacted, would eliminate the at-fault grounds for divorce from the Illinois Marriage and Dissolution of Marriage Act. As a result, every divorce would be handled as a no-fault divorce on the grounds of irreconcilable differences. A large number of Illinois divorces already cite irreconcilable differences under the existing law, and, by law, fault cannot be considered in property division or spousal maintenance proceedings anyway. The proposed law would simply remove fault grounds such as infidelity, impotence, and physical cruelty as an option in divorce.
What to do After Separation but Prior to Divorce
For many couples, separating is the first step to divorcing. In fact, Illinois law requires a separation period of no less than six months for a no-fault divorce. Separating gives the couple time to work out their issues without the pressure of having to comply with the court&s deadlines or having to pay for lawyer meetings, hearings, and other divorce-related fees. During the separation period, couples can save money and stress by working together to develop a plan before officially filing for their divorce.
There are a few steps that a couple should take after separating that can make their divorce quicker and easier. A quick divorce is almost always less expensive than a long, drawn-out divorce. If you are currently separated from your spouse, some of the following may help you more efficiently end your marriage.
Prepare the Necessary Documents
During the divorce process, you and your spouse will have to divide your assets. In Illinois, assets are divided according to the equitable distribution principle, which means that rather than splitting your assets 50/50, the court will award them according to each partner&s needs and contributions. Have the following documents ready for your attorney and the court:
Parental Communication in Custody and Visitation Arrangements
If you are subject to child custody or visitation order, you have undoubtedly faced challenges related to dealing with the other parent. They may have been minor issues, if you are lucky, or they may be larger problems, including a complete lack of consistency on the part of the non-custodial parent. You may feel obligated to continue to push the other parent to comply with the arrangements you have in place, but it is important for you to realize where your responsibility to do so ends.
Moral Obligations
Like any responsible parent, you want what is best for your child. Studies continue to show that active participation of both parents in a child’s life can lead to a more positive outcome for the child, regardless of the parents’ marital status. It is totally understandable that you would want your child to have every possible opportunity to grow up healthy and well-adjusted, even if it means continuing to encourage the other parent to uphold their responsibilities. If he or she continues to act with inconsistency, you may wish to consult a pediatric health professional to help you understand where you should draw the line with the other parent.
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