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What You Should Know About Equitable Distribution
Everyone knows that when you get divorced, your ex-spouse gets half of everything-unless you have a prenuptial agreement. That is just the way it works, right? Well, not exactly. Not in Illinois anyway, along with about 40 other states. The idea of an equal 50-50 split applies only to the nine states that maintain a standard known as community property in divorce. The remaining states, including Illinois, use what is called an equitable distribution standard, which may vary slightly from state to state, but generally requires a more in-depth consideration of a divorcing couple’s property and circumstances.
Determining and Valuing the Marital Estate
The equitable distribution guidelines in Illinois are contained in the Illinois Marriage and Dissolution of Marriage Act. The process begins with establishing which assets belong to the couple and which belong to each individual spouse. Those that belong to the couple include all property acquired by either spouse during the marriage with limited exceptions for gifts, inheritances, and judgments. Assets owned by either spouse prior to the marriage, along with the exceptions to marital property, are non-marital property and not subject to division. The value of the marital estate must also be determined, which may require the assistance of various experts, including real estate appraisers, financial advisors, and other professionals.
A Will or a Living Trust: Which Is Right For You?
Your family should not need to worry about your finances and assets after you die. That is why it is so important for you to create an estate plan. Even people of modest means have an estate and multiple options to choose from to ensure that their affairs are in order when the time comes. Two popular options are wills and living trusts. Understanding the difference between the two can help you decide which one is your best option.
A Last Will and Testament
A will is a legally binding written document that dictates how your property and assets will be distributed when you die. You can modify your will at any point during your lifetime, which means that the terms are not set in stone at the time of writing them. You can use a will to name a guardian of minor children in the event of your death, decide how debts and taxes will be paid, and name an executor of your estate.
Living Trusts
Working With Your Ex-Spouse to Parent Your Children After Divorce
It is normal for relationships to change, but it is when they change too much that couples may consider getting a divorce. Not all married couples decide to have children, but if they do, a divorce can become much more complicated. You may be able to resolve the various legal issues that must be addressed during divorce, but when it comes to the relationship with your ex, that is up to you. It is, however, in the best interests of your children to remain civil with each other while raising them together.
Positive Relationships in Sole or Joint Custody Situations
Following divorce, parents may have joint custody of their children, or one parent may have sole custody. With sole custody, one parent is granted primary responsibility of the child, and the other has visitation rights (known as parenting time in Illinois). With joint custody, both parents share decision-making responsibility when raising their children.
Spousal Maintenance and the Division of Marital Property
Financial and property considerations can be a very complicated part of the divorce process. It is often difficult to determine who should get what and how much is fair based on the specific circumstances of the case. For many couples, the concepts of dividing marital assets and spousal maintenance might seem like two, very separate ideas. In reality, they are often very closely related, and in many cases, decisions regarding one directly affects the other.
Spousal Maintenance
Spousal maintenance, or alimony as it is sometimes called, is intended to help a financially-disadvantaged spouse ease some of the economic impact of a divorce and a post-divorce life. To determine if maintenance is needed, in the absence of an agreement between the spouses, the court must take into account a number of factors regarding the marriage and divorce. These include each spouse’s income and needs, as well as their contributions to the marriage and toward the earning capacity of the other. The court will also consider the length of the marriage and the standard of living that was established.
Estate Planning When Your Spouse Is Hesitant to Participate
When married people create an estate plan, both parties are generally involved. What can you do, though, if you want to get serious about planning your estate and your spouse is still reluctant to get on board? Nagging certainly will not do the trick, nor will threatening or begging. Still, there are some ways that you may be able to ensure your heirs do not get shortchanged. It may be helpful to learn a few strategies for dealing with a spouse who seems hesitant to get on board.
Do What You Can On Your Own
While it is best to have your spouse on your side before you create an estate plan, you may not ever be able to persuade them. This does not mean you cannot create an estate plan. In fact, there are strategies that you can use on your own to ensure your assets go to the right people and charities. Assets that are yours-solely yours-can be drafted into an estate plan, regardless of whether or not your spouse participates. Further, you can ensure you have named your power or attorney for health or financial decisions just in case you ever become incapacitated.
Explaining Divorce To Young Children
Getting a divorce is rarely an easy process, and it is further complicated when children are involved. A divorce with children brings up the topics of child custody (allocation of parental responsibilities), visitation (parenting time), and child support. By choosing the right attorney, you can alleviate the stress of planning your upcoming divorce while ensuring that your rights are protected as you and your ex-spouse plan for how to continue to raise your children together after the end of your marriage.
No matter the feelings between the parents, it is important to talk with children and discuss what divorce entails for your family. Depending on their emotional maturity, older children may have an easier time understanding divorce, but younger children often struggle to understand and adjust to the changes in their lives. Here are some guidelines for discussing divorce with children who are six years old or younger:
The Race to the Courthouse: Does Filing First Matter in Divorce?
Once you have reached the decision to end your marriage, the real work must begin. You and your spouse will need to decide how to divide your property, how to make arrangements for your children, and how to adjust to your new post-divorce lives. Before you can get there, however, one of you will need to start the legal process of divorce by filing a petition for the dissolution of marriage at the county courthouse. Many clients approach us with questions about this, often wondering how important it is to be the one who file for divorce and whether it makes any difference at all.
Knowing the Law
The divorce process in Illinois is governed by the Illinois Marriage and Dissolution of Marriage Act (IMDMA), which is a comprehensive collection of statutes that address matters from choosing a venue to how parenting time matters will be decided by the court. A divorce, as a matter of law, is essentially a legal action used to dissolve a marital contract between two parties, and, as such, in every divorce, there is technically a plaintiff and a defendant. These terms, however, are far less important in a divorce than in other areas of the law, such as personal injury or criminal law, and, in fact, the IMDMA refers to the parties in a divorce as a plaintiff or defendant in just one paragraph.
How a No-Contest Clause Can Strengthen and Protect Your Will
During probate, the formal vetting process all wills must go through, heirs who believe a will is invalid can challenge that will in court. For example, if a relative worries that his elderly grandmother was coerced into agreeing to her will, he can contest that will. The court will examine the evidence and make a decision to either enforce the will or start from scratch and distribute the deceased person’s property according to state law. Wills can also be contested for dishonest reasons. For example, an heir who is unsatisfied with his or her inheritance may contest the will simply in an attempt to receive a greater inheritance. If you wish to make your will much less susceptible to being contested in court, a no-contest clause may be right for you.
What Exactly is a No-Contest Clause?
A no-contest clause, often called a terrorem provision, is a set of directions written into a will or trust which addresses potential contests. The Latin phrase “In terrorem” literally translates to “about fear.” It is called this because the provision includes a penalty for anyone who tries and fails to contest the will during probate. If a disgruntled heir challenges the will without justification, that heir may be penalized. In this way, a no-contest clause can help discourage heirs or beneficiaries from challenging a will or trust.
4 Tips for Back-to-School Time for Newly-Divorced Parents
“What did you do this summer?” This question is often asked when children go back to school, but for some children, summer was not all pool parties and playgrounds. For a child whose parents got a divorce over the summer, this question can be intimidating and stressful. A child who has divorced parents can exhibit certain behaviors and symptoms in school which can affect their education if not handled properly. The logistics of having a child in school can be complicated for any family, and a family with divorced parents can experience more stress and trouble than others. However, by following these tips, you can help your child’s school year go more smoothly:
1. Determine Who Will Pay for School Supplies
A new school year means new school clothes, shoes, uniforms, backpacks, and lunch boxes--not to mention the long list of school supplies. These costs add up quickly, so you should determine how they will be divided between you and your ex. If you already have a preset arrangement, stick to that. If not, dividing the cost in half is usually a good way to meet your child’s needs without causing conflict.
What You Need to Know About Jurisdiction After a Relocation With Your Child
The application and enforcement of the law can be very complex in many situations. This can be especially true in cases related to allocated parental responsibilities-formerly child custody-and parenting time, or visitation. One of the fundamental principles of law is the concept of jurisdiction, which refers to the authority that a particular county, state, or federal court system maintains over the parties and the subject matter of the case in question. Only a court with appropriate jurisdiction can make decisions and enter orders in accordance with applicable statutes.
In some situations, jurisdiction may be fairly straightforward. For example, if you live in DuPage County, and were injured in an accident near your home caused by another resident of DuPage County, you probably realize that the DuPage County circuit court has jurisdiction over your case, and your claim should be made there. In other cases, however, jurisdiction may not seem quite so clear, at least to the average citizen. One such example can be found in the area of family law. If your parenting plan and parental responsibilities orders were entered in Illinois, and you decide to move out of state, which state has continuing jurisdiction over your family’s case? Fortunately, there are laws in place to address this exact scenario.
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