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Lombard divorce lawyersEveryone 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.

Considerations for Equitable Distribution

Once the marital estate has been established and valuated, the court must make a determination regarding the portion of the estate to be allocated to each party. In doing so, the court is required by law to take into account:

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Lombard divorce lawyersOnce 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.

The IMDMA does, however, make more references to a petitioner and a respondent. The petitioner is the spouse who initiates the proceedings by filing the divorce petition, making him or her formally the plaintiff. The non-filing spouse is the respondent and is given the opportunity to file an answer to the petition including motions of his or her own. For the remainder of the proceedings, each party maintains equal status as a party to the case, with the ability to file motions, request considerations, and present evidence. From a legal standpoint, therefore, there is little official advantage to filing for divorce before your spouse does.

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Lombard spousal support attorneysIf you will soon be getting divorced, you may believe that you have the right to receive spousal support—also called maintenance—payments from your soon-to-be-ex-spouse. Spousal support, unlike child support, is not automatically assumed to be necessary in every Illinois divorce. Under Illinois law, the court must take each case individually to determine if a maintenance award is actually needed to promote an equitable outcome. This means that if you think you are entitled to support, you will probably need to ask for it explicitly.

Marital Misconduct Is Not a Factor

Unless you and your spouse included behavior clauses in a prenuptial or postnuptial agreement, the court will not consider the conduct of either party when deciding whether to award maintenance. While your spouse’s behavior may leave you feeling like he or she owes you some type of restitution, the law in Illinois specifically prohibits marital misconduct from being a factor in maintenance proceedings. Spousal support is meant to help you meet your financial needs and obligations, and is not intended to be used as a punitive measure against your spouse.

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Lombard divorce attorneysIf you are considering ending your marriage, you probably have a thousand different concerns. Will I be too lonely living by myself? How will the divorce affect my children? How will I tell my friends and family? Unfortunately, there is no way of getting through a divorce pain-free, but there are some steps you can take to help you cope with the emotional burden of ending a marriage.

Strategy 1: Do Not Take It Personally

It is reasonable to assume that if your marriage was unhealthy, the divorce will not be the most cooperative or collaborative process either. Often, couples getting divorced continue to struggle with the same issues they struggled with when they were married. If your spouse attempts to sabotage efforts to end the divorce efficiently and amicably, do not take it personally. Someone acting out in childish or hurtful ways toward you does not reflect on your character; it reflects on theirs.

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Lombard family law attorneyAs a divorced parent, you have probably had to work through a number of difficult discussions with your child. You may have been the one to break the news of your divorce to him or her and, in the time since, you may have answered dozens—if not hundreds—of questions about the future. Now, as you consider getting remarried, you will need to address difficult topics with your child once again.

Every Family Is Different

Your approach to talking with your child about remarriage will depend on a number of factors, including how long it has been since your divorce, the role of the other parent in the child’s life, and your child’s age and maturity. The relationship between your child and your new partner is also a major consideration. For example, if your child was very young at the time of your divorce and has come to see your new partner as a member of the family already, the conversation may much easier in many regards. By contrast, if you only recently got divorced and your child is extremely close with your ex-spouse, your child may not be prepared to accept a new stepparent so willingly just yet.

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Lombard estate planning attorneyOver the last couple of weeks, posts on this blog have discussed how your estate plan could be affected by a divorce. The first post covered your will while the second post talked about the impact of a divorce on certain types of trusts. While wills and trusts are two of the most common estate planning tools, there are others that might need to be updated if you decide to get divorced, including powers of attorney for property or health care.

Powers of Attorney

A power of attorney refers to an arrangement in which a person—called the “principal”—gives legal authority to another person—called an “attorney in fact” or an “agent—to make decision on the principal’s behalf. A power of attorney can include a wide range of decision-making responsibilities, but there are two basic types. A power of attorney for property gives the agent the authority to make decisions regarding the principal’s assets, debts, and other property, while a power of attorney for health care allows the agent to act on the principal’s behalf in matters related to health and medical care.

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Lombard estate planning attorneyIn Part 1 of this series of posts, we talked at length about how a divorce could impact the provisions and enforceability of a person’s will. A will, in many cases, is just one component of a comprehensive estate plan, which means that there are other estate planning instruments that could be affected by a divorce. For example, you may have established one or more trusts to protect and transfer your property to your chosen beneficiaries. The types of trusts that you have set up will determine how they are affected by your divorce.

Revocable Trusts

Illinois law provides that any provisions, appointments, or nominations made regarding a person’s spouse in the person’s will are automatically revoked when a judgment of divorce is issued. The law is similar in regard to trusts but with some important differences. The differences are caused by the nature of certain kinds of trusts and the rules that apply to them.

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Lombard divorce attorneyMost of us know at least one married couple who are living separately. In some situations, spouses may experiment with a “trial separation” while in others, they are living on their own as they prepare for a divorce. Living separately is a common precursor to divorce, but there are some things you should know about separating before you or your spouse moves out.

What the Law Says

Prior to 2016, the law in Illinois required a couple to live separate and apart for a minimum of six months before they could pursue a divorce on the grounds of irreconcilable differences. The standard requirement, in fact, was two years, but if the spouses agreed, the separation period could be reduced to six months. Today, a couple can only seek a divorce on the grounds of irreconcilable differences in Illinois, but the separation requirement has been eliminated altogether. The law was changed in 2016 to allow couples to pursue a happier post-divorce future without having to simply watch the calendar for months. If the spouses do not agree on the divorce, however, a six-month separation period is considered by the court to be irrebuttable proof that the marriage has broken down beyond repair.

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Posted on in Divorce

Lombard divorce attorneysNo matter how old or young you are, if you are married, there is the possibility that you could get divorced. Most people, however, tend to think of divorce as a reality that mostly affects couples who are relatively older. These notions may be linked to movies and television where a wandering eye or a mid-life crisis drives spouses apart when they are in their early forties or older. Divorce, however, can also become necessary for couples who are far younger, and those who get divorced in their 20s may face years of potential complications. This is especially true for 20-somethings with children.

Finding a Niche

Human beings are social creatures, and most of us derive a sense of belonging when we find a peer group where we feel comfortable. If you are recently divorced with no children, it may be relatively easy to socialize with other younger singles. If you have children, however, you may feel stuck in the middle. On one hand, our parental responsibilities may not allow to you enjoy the spontaneous, carefree lifestyle of single people your age. On the other hand, you may not feel very comfortable among other parents, especially those who might be a bit older or whose marriage is still intact. It is, however, important to avoid cutting yourself off completely from social situations. Find a sitter every now and again, and go out and a have a good time.

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Lombard divorce attorneysParents who get divorced almost always share the same top concern: how will the divorce affect their children? Divorce is a deeply stressful even for children of all ages to go through. They are losing the only reality they have ever been familiar with and plunging into the unknown. However, there are also many benefits to children when their parents’ divorce, some of which may surprise you.

Decrease in Household Tension May Come as a Relief to Children

Researchers from UCLA looked at 47 studies that connected children’s experiences in tension-filled home environments to later problems in adulthood. The researchers found what many would suspect:  Children that experience high levels of conflict at home had more physical, emotional, and social issues later in life compared to control groups. As adults, those who grew up in homes with intense arguments or feuding parents, were more likely to report vascular and immune problems, depression, substance abuse and addiction, loneliness, and problems with intimacy that those who did not grow up in high-conflict households. Research also shows that it is not only households with a lot of overt aggression or yelling that cause these issues for children. Stonewalling or a parent giving the other the “silent treatment” were also destructive actions with regard to children’s long-term mental health.

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Posted on in Divorce

Lombard divorce attorneysThere are many reasons why a couple’s marriage may break down. In some cases, the two spouses simply got married before they were ready for the commitment. Other times, one of the spouses is unfaithful and causes hardship in the marriage through his or her infidelity. However, one of the biggest causes of marital stress is money. Couples argue about whether to spend or save money, what to spend it one, or how their money should be managed.

Financial Stress Causes Friction in Relationships

A study conducted by the American Psychological Association found that about 75 percent of Americans are experiencing financial stress at least some of the time. Furthermore, almost a quarter of U.S residents are experiencing extreme financial stress. Couples do not have to be living paycheck to paycheck to experience this stress. Many financially-secure couples also experience the stress of not knowing which money decisions are right for them and their family.

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Posted on in Divorce

Lombard divorce attorneysDivorce can touch the lives of people of any race, gender, income level, or age. Some marriages that seemed doomed to failure from the beginning end up flourishing while other marriages that seemed like perfect matches end up dissolving. Researchers have known for years now that there are certain demographics of people who are statistically more likely to get divorced than others. For example, those who marry very young or wait until their late 30s or longer to marry are more likely to get divorced than those who get married in their 20s. It is also fairly well-known that women are more likely to initiate divorce than men are. For non-married couples, however, men and women are equally likely to end the relationship.

Women More Likely Than Men to Be Unhappy in Their Marriage

A survey conducted by the American Sociological Association found that in heterosexual couples, women start the divorce process or first seek a divorce 70 percent of the time. The study’s lead author, Michael Rosenfeld, theorizes that women may be more likely to initiate divorces because they are more likely to be dissatisfied with the quality of the relationship than men are. Rosenfeld said that these results support the idea that some women experience heterosexual marriage as oppressive or unfulfilling. He explains further, “I think that marriage as an institution has been a little bit slow to catch up with expectations for gender equality. Wives still take their husbands’ surnames…husbands still expect their wives to do the bulk of the housework and the bulk of the childcare.”

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Lombard family law attorneyMarried couples get divorced for an endless variety of reasons. For some, infidelity may an issue while financial stresses drive others apart. Of course, there are often many factors that play into a couple’s decision to end their marriage, and researchers are always trying to identify trends that could help married couples recognize possible red flags. According to several recent studies, however, a first-born daughter could be one of the potential warning signs.

Australian Team Studies Dutch Families

Dr. Jan Kabatek and Dr. David Rebar, faculty members at the University of Melbourne, conducted one such study. The pair examined more than two million marriages in the Netherlands over the course of 10 years. They chose the Netherlands because Dutch marriage and family records are very comprehensive and provide exact dates of marriages, divorces, and births. Other, similar studies have been based on participant’s responses to surveys—which rely on memory and recollection as opposed to objective data.

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Lombard divorce lawyersFor years, scientists have known that children of divorced parents are more likely to get divorced as adults. People have speculated that this was because children spend time with their divorced parents during their formative years and therefore grow up to have a similar lifestyle. However, a new study suggests that genetics may play a role in whether children grow up to get divorced or not.

The study was conducted by Virginia Commonwealth University and published in the journal Psychological Science. It examined data regarding divorce in adopted children and children who grew up around their biological parents. The study’s findings showed that children who did not grow up knowing their biological parents and siblings still had a tendency to match their biological family’s decisions regarding divorce. The adopted children were less likely to have similar histories of divorce as their adoptive parents. This could mean that many of the choices we make about our relationships as adults are influenced by our DNA. When it comes to divorce, nature may be a stronger factor than nurture.

Destined to Divorce?

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Posted on in Divorce

Lombard divorce lawyerMost of the time, when two people want to get divorced, they simply inform the other person by having a copy of the papers served upon them, usually by hand delivery. However, there are some very rare situations when the spouse cannot be located. When that happens, a suitable alternative must be found. The answer in Illinois and many other states is called divorce by publication.

A “Good Faith Search”

In all cases, your soon-to-be-ex-spouse must be informed of your desire and intention to file for divorce. However, if they have moved or are trying to avoid you and have left no forwarding address, the normal methods of mail or hand delivery are impossible. Yet it is contradictory to public policy to demand that two people remain married when they are not even living together and all communication has broken down. Publication is generally the best possible chance for your information to reach your absent spouse.

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Lombard estate planning lawyerWhen you get divorced, virtually your entire life is affected. Your relationship with your children changes, your living arrangements are different, and even your outlook on the future is likely to evolve. A divorce can also have a dramatic impact on the viability and the appropriateness of your existing estate plan. If you have recently gone through a divorce, it is a good idea to sit down with your lawyer and go over the details of your will, trusts, and any other estate planning tools you have in place.

Changes in What You Own

One of the most important reasons to update your estate plan after a divorce is the potential change to the property that comprises your estate. According to Illinois law, marital property must be divided equitably between divorcing spouses, which means that you probably own less now that you did when you were married. If your estate plan only makes general references to the property in your estate, the existing terms may be sufficient. Many estate plans, however, contain provisions for specific items or assets such as a particular vehicle or the family home. In the wake of your divorce, you may no longer own these assets, thus making an update necessary.

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Posted on in Divorce

Lombard divorce attorneysIn the past, divorce proceedings were often heavily biased against wives, for a multitude of societal and anthropological reasons. Society has changed over time, as one might expect, but there are still very different issues that women face after a divorce than those affecting men. Women—especially older women—are often put in positions they are unfamiliar with and may require help in handling.

Financial Issues

One of the major issues that many women face, especially older women, is that financial concerns are often foreign territory. Especially in marriages among older people, finances are traditionally the responsibility of men, so women after divorce may find themselves at a disadvantage in handling their money. An experienced divorce attorney may be able to advise on how to keep your assets safe. For example, a living trust may be an effective way to keep your assets in a form that cannot be accessed by creditors.

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Posted on in Mediation

Lombard family law attorneysIn this day and age, divorce is no longer the exclusive province of family law courts. Many couples, especially if they enjoy a fairly civil relationship, choose alternative dispute resolution methods to achieve their objectives. Couples who use such methods are often driven by a willingness to move their case forward faster than would possible in court. If this avenue appeals to you, Illinois law provides several different options.

Mediation

Divorce mediation is not for everyone. In fact, it is definitively not appropriate for spouses who will not or cannot maintain a civil relationship. If, however, you and your spouse are able to talk and be in the same room, mediation could be an option. While most mediators undergo specialized training, they are not necessarily required to be licensed by any governing body or accreditation entity. This reality can sometimes be a deterrent for those who fear that something may go wrong. However, Illinois does have a Uniform Mediation Act, which sets out requirements and prohibitions that must be followed.

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Lombard divorce attorneysAsset distribution is a part of nearly every Illinois divorce, and it has unique potential to cause arguments and misunderstandings. Nowhere is this more common than in attempting to distribute assets with significant sentimental value. Both spouses may wish to retain an asset like a piece of art or jewelry that has good memories associated with it, and it can very often devolve into a fight over who will keep the item.

When, How, and Why?

The little details can make a difference. For example, the date, or rough date, of acquisition can often decide who actually has ownership of the item. If you or your spouse acquired the item before your marriage, it is your (or your spouse’s) property, with no obligation to share it. Illinois law holds that nonmarital property encompasses all that you owned before your marriage, unless you actively take the step of making it marital property. For example, if you own a parcel of land before your marriage, and sign half the interest over to your spouse, that land would qualify as marital property, because you took the affirmative step of involving your spouse in its administration.

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Lombard estate planning attorneyFollowing a divorce, the terms and provisions of your estate plan may become obsolete, especially if your ex-spouse factored prominently in your plan. While there are laws that help prevent estate planning issues after a divorce, it is still a good idea to take another look at your will, trusts, and any other estate planning tools to determine if modifications are needed.  

Revocable Trusts

A revocable or living trust is the most common instrument that requires review during or after a divorce. In a revocable trust, the holder of property (called a settlor) confers that property to a trustee to hold for a beneficiary while still retaining the right to take the property back. It is very common for either the trustee or the beneficiary to be a spouse.

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