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Special Considerations for Late Life Divorce
Couples deciding to divorce later in life will deal different issues than those faced by younger couples. Often, a couple's children are adults or are in college. Therefore, the couple will not need to focus on developing parenting plans or making child custody decisions.
Additionally, dissolving the marriage may feel less threatening for a couple if they have both had successful careers and have established retirement accounts. This does not mean dissolving a marriage after 20 or 30 years is simple, but rather that divorce negotiations may center on issues related to retirement such as dividing Social Security payments or cashing out retirement accounts.
Dividing Social Security Payments
Most people can start collecting Social Security when they turn 62. Social Security payouts can become an important point to discuss in a divorce negotiation. This is true when both spouses are close to retirement and one spouse worked and accumulated Social Security. In this scenario, it is possible the financially supported spouse could be entitled to a division of those benefits in a divorce. It is also possible that both spouses are eligible for Social Security payments and the couple will only need to agree on how to split the Social Security payments. If a couple is divorcing later in life and there are young children, they may want to consider using the supporting spouse’s Social Security payments when calculating child support.
What’s in a Name? – Changing a Name after a Divorce
Changing your name can be the last step in completing a divorce, and it may even assist you in leaving behind the emotional difficulty of the divorce as you shed your former identity. However, after the emotional turmoil, it may be difficult to give up a name. Still, it does not have to be done immediately. You can legally change your name after a divorce when it works best for you.
Depending on your circumstances, you may want to maintain your name for professional reasons or to help your children cope better with the divorce. Whatever your reason, you can change your name at the best time for you and your family once a divorce is finalized.
Steps for Changing Your Name
Changing your name is an easy and straightforward process under Illinois law. The process happens in a few stages yet is relatively simple. The name change process after divorce in Illinois is as follows:
Moving Out of State and Modifying a Custody Agreement
After a couple has separated and decided upon parenting and custody agreements, it is possible that the custodial parent may want to move out of state. The parent seeking to move out of state will need to follow a process before relocating with his or her child or children. Illinois has set up a specific statute that lays out the process for a parent seeking to move out of state with a child.
Filing a Out of State Removal Petition
In Illinois, a parent seeing to temporarily or permanently move a child out of state must ask the court for permission before doing so. The court will consider the best interests of the child and make a decision about permitting the parent to move out of state with the child.
A parent must file a petition to seek out-of-state removal with the court. This should be done before the parent relocates with the child. If not, the custodial parent may be in violation of the custodial agreement and may be subject to criminal sanctions. The court will review the petition and will determine whether moving out of state is appropriate. The court will consider many factors; key factors the court will consider include:
Long Term Support for Special Needs Children
Parents who have a disabled or special needs child understand the complexity of ensuring adequate care for their child. A divorce adds to the complexity of this issue both financially and emotionally. Whenever possible, divorcing parents should seek to develop a parenting plan and come to an agreement on long-term care for their special needs child.
Generally, child support is calculated using a formula. The court uses the net income of the non-custodial parent and the number of children supported to determine the total amount of support. In most cases, child support terminates when a child is 18. However, when a child is disabled and has special needs that require long-term care, then the court may extend child support. This is particularly true if a child has a severe disability. In these extreme cases, it is possible that the court may order child support to extend for the child’s entire life.
Court May Order Lifelong Child Support
Identifying Marital and Non-Marital Assets: A Quick Guide
Divorcing couples must decide how to divide assets and marital property. If a couple can decide how to divide assets without contention, this process can be simple. Sometimes, however, it is not easy for a couple to identify marital assets or decide on how to divide the assets. When this happens it is important to understand how marital property is defined. Understanding basic differences will allow a divorcing couple to properly discuss marital assets with their divorce attorney.
Defining Marital Property
Illinois is a non-marital property state. This means that property either spouse gained during the marriage is marital property. It does not matter if only one spouse has the title to the property. If the property was purchased during the marriage it will be divided in the divorce. Examples of marital property acquired during a marriage include:
Visitation Interference and Visitation Abuse
Divorce and child custody are complex issues. These issues are even more complicated when one parent attempts to prevent the other parent from seeing his or her child during a court ordered visitation.
Visitation interference and visitation abuse are two common issues that a non-custodial parent may need to address. Therefore, if you are a non-custodial parent, it is important to understand the difference between visitation interference and visitation abuse.
What is Visitation Interference?
Visitation interference, or parenting interference, is criminal offense. Visitation interference happens when the custodial parent intentionally interferes with the non-custodial parent’s visitation time. Under Illinois criminal law, visitation interference occurs when a parent violates “visitation, parenting time, or custody time” as ordered by a court and attempts to “detain or conceal a child with the intent to deprive another person of his or her rights to visitation, parenting time, or custody time.”
Guardian Ad Litem: An alternative to Custody Evaluations
Divorce is a complex issue. The complexity only increases when the divorcing couple has children. The couple must make many decisions about child custody, visitation and parenting plans. Some couples are able to arrive at a decision on custody issues. Other times, the couple is not able to make a decision even after trying mediation or other efforts to settle. When this happens, it is not uncommon for the divorcing couple to ask the court to decide issues of child custody. The Illinois Marriage and Dissolution of Marriage Act directs the court to seek the advice of a mental health professional (e.g. psychologist, psychiatrist or licensed social worker) on child custody. The court may make this decision by requesting a child custody evaluation.
When Do I Need a Child Custody Evaluation?
The child custody evaluation process allows a mental health professional to evaluate a child in his or her environment and then recommend a custody, visitation, or parenting plan. Child custody evaluations have tremendous influence on a court’s custody decisions. A custody evaluation is critical when the mental health of a child is a concern (e.g. eating disorder, anxiety disorder, schizophrenia). The opinion of a mental health professional will help the court determine a custody arrangement, which serves the best interests of the child, and will ensure the child's mental health will remain stable.
Ending Spousal Support
There are several forms of spousal support, or alimony, under Illinois law. Alimony can be periodic or permanent. Alimony may also take the form of a lump-sum payment or a transfer of property. Most alimony, however, is periodic. A supporting spouse will usually make regular payments to the supported spouse for a specific period of time. If the supported spouse decides to remarry or cohabitate, alimony payments will be impacted.
Remarrying and Alimony Awards
Generally, alimony ends automatically when the receiving spouse marries again or has a marriage ceremony. Alimony will end even if the supported spouse is not yet legally married. Therefore, the supporting partner may cease paying immediately on the day of the receiving spouse’s marriage. The supporting spouse does not need to head back to court or perform additional tasks. However, if the alimony was a lump sum payment, then the payor spouse must still facilitate the payment even if the receiving spouse has chosen to remarry. Conversely, if the supporting spouse remarries, this does not immediately alter alimony payments. However, the court will consider the new marriage when considering whether alimony should proceed.
Divorce Property Division: Identifying Debts of the Marriage
When you and your spouse are going through a divorce, you already anticipate the division of property and assets. However, most people fail to realize that debts are also a major part of this process. Most divorcing couples focus on who gets the house, car, or big screen television; still, they must also consider who handles the mortgage, car payments, and credit card debt. These debts might have been manageable when both spouses were paying the debt down, but it might be much more difficult to pay those debts on one's own.
Fortunately, when it comes to debts, Illinois law has certain provisions that deal with marital and non-marital debts. Under Illinois law, “Neither husband or wife shall be liable for the debts or liabilities of the other incurred before marriage, and they shall not be liable for the separate debts of each other, nor shall the wages, earnings or property of either, nor the rent or income of such property, be liable for the separate debts of the other.” Therefore, neither spouse will be liable for the debts of the other spouse. Creditors will not be able to go after assets you own when they are going after your spouse.
Facelift Coming to Illinois Divorce Law in 2016
Today, in Illinois family courts, the divorce process is governed by the Illinois Marriage and Dissolution of Marriage Act (“Act”), which was passed in 1977. Society was different back then, and the Act was created to address the many issues families were facing. Today, however, the landscape of society has changed and families have several new needs that the Act can no longer satisfy.
In order to get divorced under the current statutory scheme, you have to identify a specific ground that provides for the dissolution of marriage or you must have been separated from your spouse for at least 24 months. There are many grounds for divorce in Illinois, some of which include adultery, cruelty (mental/physical), drunkenness, and irreconcilable differences. In certain instances, people desiring divorce have used these grounds to obtain an unfair advantage over the other spouse when it came to child custody or alimony, among others.
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