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How Will Gifts be Treated during a Divorce?
During a dissolution of marriage in Illinois, a court will approve a settlement agreement that provides for an equitable distribution of assets. Usually, this means that any marital assets or property owned jointly by the spouses must be divided equally. Non-marital assets, or property that belongs solely to one spouse, will remain the property of that spouse and generally will not affect the way the marital property is divided. Exceptions can be made when an equal division of marital assets would be extremely unfair to one spouse, for example, when the other spouse has a disproportionately larger amount of assets.
Marital vs. Non-Marital
When classifying assets as either marital or non-marital, one of the clearer rules under Illinois law is that gifts to one spouse are presumed to be non-marital property. This presumption provides only a default starting position, however. It can be rebutted or shown to be otherwise with evidence and testimony in court.
Child Support and Other Court-Mandated Expenses
NOTE: As of July 2017, the law governing child support in Illinois has changed. Please see our Child Support page for more information.
Illinois Statutory Guidelines set a minimum percentage of a parent’s net income that must go towards child support, but judges are free to exceed this minimum. Net income is the amount of earnings that remain after basic deductions have been factored in, including federal and state income tax; Social Security or mandatory retirement contributions; health insurance premiums and necessary medical expenses; union dues; preexisting child support or alimony obligations; repayment of debts necessary for producing of income; and expenses that benefit the child and the other parent. The minimum percentage of the remaining net income that must be paid to support children ranges from 20 percent for one child, to 50 percent for six or more children.
Payment for Additional Expenses
Division of Retirement Benefits during a Divorce
Of all the tricky issues to sort out during a divorce, the equitable division of retirement benefits is among the most complicated. Because you have spent years working to earn your pension, fill your retirement fund, and otherwise prepare for your future, splitting these funds requires great care, and a considerable amount of technical know-how.
One good starting point, however, is knowing that only funds that were added to these accounts during the course of your marriage will be eligible for division between you and your spouse. Any money that you contributed to 401(k)s, pension plans, annuities, IRAs, or other types of retirement funds before your marriage will be yours, and yours alone after your divorce.
The Process of Dividing Your Benefits Fairly
Illinois courts prefer for you to decide on the details of how you will divide your marital property. You are encouraged to spell out the terms of your decision in a marital settlement agreement. A judge will review the agreement and approve it if it is fair. These terms will become part of the judge’s order of dissolution of marriage, finalizing the divorce.
Spousal Support After a Divorce
Alimony, also known as spousal support, is intended to provide a financial cushion for divorced spouses who find themselves at a financial disadvantage after the end of the marriage, often because they declined to further pursue their education or career in order to care for the family. As traditional gender roles shift, it is increasingly common for ex-husbands to turn to the court to require their ex-wives to pay them spousal support. Although women, in general, still earn less than men in this country, many wives contribute significantly or solely to the family’s finances.
The Process of Deciding on Alimony Amounts
Some former spouses are able to come to an agreement about the amount of alimony that the more financially advantaged spouse will provide to the other spouse, either independently or with the help of a divorce lawyer.
However, as is commonly the case, if spouses cannot come to an agreement about a schedule and amount of alimony payments, a family law judge will decide for them. When awarding alimony to one spouse, a judge must consider a set of factors that is laid out in Illinois statute (750 ILCS 5/504), which includes the income and property of both spouses, both spouses’ needs, both spouses’ current and future earning capacity, any negative impact on the earning capacity of a spouse who delayed further education or career opportunities, the length of time it will take for the disadvantaged spouse to secure employment or education, the ability of the disadvantage spouse to become self-supporting, and current demands on the disadvantaged spouse’s time due to caring for children.
Sole Custody or Joint Custody?
Under Illinois child custody law, the idea of custody encompasses two sets of rights: physical custody, which is the responsibility for the child’s personal care; and legal custody, which involves making major decisions about the child’s life. Custody can be shared by both parents, or vested only in one parent, depending on what a family law judge decides is best for the child.
For all court decisions relating to children, the central consideration is the best interests of the child. Many factors go into determining the best interests, including the wishes of the child, the wishes of the parents, the quality of the relationship of the child with her parents, siblings, or other close relatives, the child's level of adjustment to her home, community, and school, the mental and physical health of the child and parents, physical violence, threats, or other abuse by the parent, of the child or others, and the willingness of each parent to cooperate to allow for a relationship between the child and the other parent to continue and grow.
Changes Could be Coming to Illinois Divorce and Family Law
Illinois family law relating to marriage, divorce, child custody, alimony, and other related matters, is governed by the Illinois Marriage and Dissolution of Marriage Act. The Act, which was passed in 1977, is now slated for a big restructuring. For the first time in 40 years, Illinois lawmakers are considering sweeping changes to the patchwork of laws that govern close family relationships. Changes could impact many people who are currently involved in the process of divorce, or who are thinking about beginning the process.
The Illinois legislature has asked an advisory group, the Illinois Family Law Study Committee, to make recommendations for updating the marriage law. They have been collecting information and perspectives of judges, lawyers, and families impacted by the law for several years, and have crafted a set of changes. The changes are intended to reflect more modern cultural values and norms relating to divorce and custody of children. Although the advisory committee agrees that even if the changes were implemented, the law would still not be perfect, they believe that these changes would vastly improve the law as it stands today.
The Chronology of a Divorce Case
As you are undoubtedly aware, divorce cases can drag on for months and even years, preventing the parties from moving on with their lives. But why does it take so long? The lifespan of a divorce begins even before either party files for dissolution of marriage under the Illinois Marriage and Dissolution of Marriage Act, and lasts until a full agreement has been reached. Many cases involve complex circumstances that take longer to sort out. Below you will find more information on the main phases of a divorce.
Filing of a Petition for Dissolution
Your case officially begins when your lawyer files a petition in court. Once the petition is filed, you can wait before telling your spouse, if it is to your advantage, but you cannot wait forever. An attorney can help you decide when the time is right to ask the sheriff to serve your spouse with divorce papers.
Does Child Support Include Paying for College Tuition?
If you are a divorced parent in Illinois, and your child is nearing adulthood, you may be wondering what your financial obligations will be after he or she turns 18. Under Illinois law, if you are currently ordered to pay child support, you may also be responsible for covering a portion of your child’s educational expenses. Educational expenses can include post-high school costs, during the period before your child obtains his or her bachelor’s degree.
More often than not, judges entering divorce judgements for couples reserve the decision of college expenses, postponing it until the children grow older. This is because circumstances can change significantly during the time that passes until the children are ready to graduate from high school.
Dissipation of Assets: My Spouse is Wasting Our Money
If you are considering divorce, or are already beginning the process, and your spouse has been spending your shared funds imprudently, you may be able to get some of the money back.
Under Illinois’ marriage dissolution law, when one spouse uses marital funds for his or her own benefit, and not for the benefit of the marriage, it is called dissipation. For these purposes, marital assets include income from employment or investments, and funds in shared accounts such as IRAs, savings accounts, CDs, and 401(k)s that built up throughout the marriage. Senseless spending of such funds is only classified as dissipation if it occurs when the marriage is undergoing an irretrievable breakdown.
Often, the date when this breakdown began is very hard to pinpoint, and is a source of bitter disagreement in itself, especially since it can impact how any funds spent during this time will be viewed by a court. Sometimes, the date of separation is used; more rarely, it could be the date when one party filed for a divorce. However, courts often find that the breakdown began well before either of these dates.
Visitation Rights for Grandparents and Other Relatives
As a grandparent, you know that the relationship you have with your grandchildren is one of the most rewarding and special bonds that you can have. However, if your child has gone through a messy divorce or custody battle, it can impact your ability to spend as much time with your grandchildren.
Many states uphold a strong set of rights for grandparents and other close relatives, including siblings. But under Illinois law, many rights afforded automatically to parents are harder for grandparents to assert.
How to Seek the Right to Visitation
Unlike visitation for parents, visitation for grandparents is not guaranteed. However, as a grandparent, you do have the right to ask a family law judge to grant you visitation time with your grandchildren. Under Illinois statute, you can file a petition if certain circumstances exist that have been preventing you from seeing your grandchildren. The statute requires you to establish that one of the parents has caused an "unreasonable denial of visitation," and that one of these conditions applies:
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