Divorce is a state law issue. This is a simple but important distinction to keep in mind when going through divorce in the state of Illinois, as the legal guidelines concerning spousal maintenance and property division may prove different than what you have may have heard about how divorce works under legal frameworks utilized by other states (e.g., California’s “community property” model).
Illinois Uses a Unique and Evolving Set of Terminology in Matters of Divorce
In Illinois, “spousal maintenance” is the official terminology for what is elsewhere referred to as “alimony” or “spousal support.” This somewhat abstracted language pairs with that used by the state with regard to child custody (“allocation of parental responsibility”), asset division (“equitable distribution”), and even the terms concerning the state’s position regarding the issue of fault in the dissolution of a marriage (“irreconcilable differences”).
Maddeningly, the closer you investigate the state’s divorce lexicon, the more circular or abstracted it becomes. “Equitable distribution” does not necessarily translate to “equal,” but rather to “fair and equitable.” “Permanent maintenance” has been reframed as “maintenance for an indefinite term,” though the duration, once determined, may for all practical purposes prove permanent. Divorce is hard enough on former spouses and …
When parents divorce, the chain of cause and effect extends far into the future. Where there was once a unit, with each parent a party to mutual decision-making and sacrifice for vocational and educational opportunities, there are now separate, often largely independent spheres. Where one parent occupied an at-home role, both parents may now either need or want to work. Where there was a stable support network of grandparents and other relatives, there may now be more tenuous circumstances.
Changes such as these reflect only a few of the variables in play following divorce – changes that may require or inspire one parent to look outside of the Chicago area or the state of Illinois for employment, educational opportunities (for him or herself or their child), and family support. Importantly, however, a divorced parent cannot just uproot and leave with their child in tow. The parental responsibility arrangement entered in their divorce decree must be honored, and modifications related to child relocation must be sought and obtained using formal processes in compliance with state guidelines.
Defining Relocation Under Illinois Law
Under Illinois law, “relocation” occurs in one of the following three cases:
- If the current primary residence of the child
People may behave irrationally in an acrimonious divorce, willfully disregarding court-mandated child support or spousal support. Reasons may involve wild recriminations or appeals to a misguided sense of justice separate from the judicial system. Make no mistake, though—the law is the law. When an Illinois court enters a divorce decree into court records, it is the last word on the subject, barring a judge’s formal legal modification. When a former spouse refuses to comply with their court-ordered child or spousal support obligations, the power of the law may be used to enforce the divorce decree and impose penalties for non-compliance.
Fault Is Not a Basis for Refusing to Comply with a Divorce Order
If, when refusing to pay court-ordered child support or spousal maintenance, your former spouse attempts to cast blame, remember that Illinois is a “no-fault” state in matters of divorce. The court that has already awarded child or spousal support is of course already fully aware of this fact, so it is doubly beside the point to attempt to evade an order by engaging in informal relitigation.
After the divorce has been finalized, each party has a legal obligation to abide by the terms and conditions of the …
Just as the legal formalization of a marriage has tax-related consequences, so does its dissolution. If you have recently divorced or are in the process of divorce, it is important that you understand and prepare for the tax-related consequences of the decisions made regarding spousal support, the allocation of parental responsibility, and the division of the marriage’s assets. In the interest of avoiding serious financial hardships, it is imperative that these issues are dealt with as early as possible.
Child Support and Spousal Support Are Primary Tax-Related Issues Following Divorce
Currently, child support payments and spousal support payments are taxed differently. Spousal support (sometimes termed “maintenance” or “alimony”) is tax-deductible for the payor and is classified as taxable income for the recipient, while child support is not tax-deductible for the paying parent or taxable for the receiving parent. In some cases, it possible for divorced spouses to reach what is termed an “unallocated support arrangement” in which child support and spousal support are not differentiated into separated payments. Rather, they are combined into one fully tax-deductible/taxable payment – a beneficial simplification in instances, for example, in which one spouse earns the bulk of the income and the other spouse has …
Some divorces hew surprisingly close to the dramatized version often depicted in television, film, and literature. There may be quarreling, recriminations, and accusations, all of which take place at a volume that would not be considered polite in domestic discourse. Other divorces, however, are the quite the opposite. Sometimes, in fact, divorce is a solitary affair. This may sound impossible, or at least paradoxical, until you consider the scenario in which one spouse has deserted the other. In such instances, when a spouse has left the state and refuses to return, or has altogether disappeared without a trace, it is still possible for the other spouse to lawfully obtain a divorce.
Divorce by Publication Is an Option for Deserted Spouses
It may seem too cruel to believe, but sometimes one spouse will leave the other in the lurch. The absence may be willful, planned, and even carefully considered, or the disappearance may be related to issues of addiction or mental health. In addition, a spouse may disappear unexpectedly because of circumstances related to the criminal underworld (e.g., illicit means of debt collection and intimidation).
Whatever the reason for a spouse’s disappearance or unavailability, it is possible for the other spouse …
When parents divorce, the dissolution of the marriage must be formalized in a court of law, and decisions must be made regarding the allocation of parental responsibility, child support, and, when appropriate, spousal support. When, in a contested divorce, spouses cannot agree on child and spousal support, a full and fair financial accounting of income and assets is absolutely essential. In obtaining such an accounting, Illinois law provides spouses and their attorneys with processes which allow them to discover all income and assets relevant in establishing child and spousal support orders.
“Discovery” is the Legal Process Used to Determine Assets and Income
It is not uncommon, when a marriage is in disrepair and it becomes apparent that divorce is on the horizon, for one spouse to attempt to hide assets and other sources of income with the intention of lowering their anticipated child and spousal support obligations. Such efforts, however, not only stand in contradiction to the principle of equitable division of marital property mandated by Illinois law, but a spouse’s attempts to avoid paying their fair share of financial support can lead to a variety of legal consequences, including being held in contempt of court.
When one spouse attempts …
When a marriage breaks down, and a couple decides to get divorced, they are likely to experience some emotional trauma, and their distress will only be compounded by uncertainty over the cost and procedures of legally dissolving their marital union. Fortunately, some anxiety can be avoided by informing oneself about divorce laws in Illinois. One thing divorcing spouses should be aware of is the difference between contested and uncontested divorce.
Understanding Contested Divorce in Illinois
In Illinois, the only grounds for divorce (that is, the legal requirement for ending a marriage) recognized by state law are “irreconcilable differences.” Rather than demonstrating a reason why the marriage should be dissolved, a person only needs to state in their divorce petition that the relationship has irretrievably broken down. If the couple does not agree that this is the case, irreconcilable differences will be presumed if they have lived “separate and apart” for at least six months.
Rather than describing a disagreement about the reasons for a divorce itself, a contested divorce occurs in Illinois when a couple disagrees about the legal issues that they must resolve as they go about dissolving their partnership. If a divorce is truly uncontested, and the …
During divorce, spouses must address and settle a wide variety of legal issues related to how they will divide the various aspects of their shared lives into two separate households. The agreement or lack thereof with regard to these important issues speaks to whether the divorce is “contested” or “uncontested.” When a divorce is contested, it is important for spouses to understand the steps they must take as they work to reach a resolution.
Addressing the Issues Which Must Be Resolved During Divorce
Whether a divorce is contested or uncontested in Illinois, the dissolution of the marriage is a formal process that begins with the filing of a Petition for Dissolution of Marriage and ends with an action by a court of law. A divorce cannot be finalized until all outstanding legal issues are resolved. With regard to a contested divorce in Illinois, the subject matter in contest (in dispute) includes some or all of the following:
- Allocation of Parental Responsibility (formerly known as Child Custody)
- Child Support
- Spousal Support
- Property Division
With regard to parental responsibility, allegations of capacity or fitness-related deficiencies may be leveled by one party, accusing the other of failing to meet their parental responsibilities …
While child support payments become stable and predictable when parents’ employment circumstances remain constant over time, instability and stress can ensue when there is an unexpected decrease in income. This is true for both the parent paying child support and, when payments fall short or cease altogether, for the parent and child receiving support. When people’s circumstances change, Illinois law allows parents to request a modification of a child support order to increase or decrease the amount of child support payments.
Either Parent Can Request Child Support Modification
Life happens. On the positive side, there are promotions and pay increases. On the negative side, there are layoffs, demotions, pay decreases, and job termination. Whether positive or negative, a meaningful change in the income source of child support payments bears on the support itself. When a paying parent’s income increases or decreases significantly, either parent may petition the court to modify child support payments accordingly.
Importantly, child support payments cannot be modified informally, out of court. Only a judge is capable of entering a binding modification, and these modifications must be based on the supporting parent’s ability to make their required payments. This bright-line reality may be maddening for a child …
Attorney Nancy Kasko has started her own family law practice, named the Law Offices of Nancy Kasko, LLC. Her primary office is at 4320 Winfield Road, Suite 200, Warrenville, while her secondary office is conveniently located near the courthouse in Wheaton, at 2100 Manchester Road, Building C, Suite 1608.
Nancy Kasko helps clients with a variety of issues related to divorce and family law, including:
- Division of marital property;
- Allocation of parental responsibilities;
- Child support and spousal support;
- Post-divorce enforcement and modification;
- Divorce mediation;
- Name change orders and
- Adoption and guardianship.
Attorney Nancy Kasko earned her Juris Doctorate in 2015 from the John Marshall Law School. She had previously worked in the finance industry for Fortune 500 companies such as Hewlett Packard and Westinghouse Electric. However, she wished to pursue a career in law, as her mother had before her.
After graduation, Nancy Kasko worked as an associate attorney for a suburban Chicago firm, focusing on family law. She is certified as a mediator by the Center for Conflict Resolution and has experience resolving civil disputes in Cook County. During her career, she has accumulated several honors, including a perfect 10 rating on Avvo and being named one of the …
Illinois law requires the equitable distribution of all marital property in the event of divorce. Equitable distribution is, under state law, the fair and just division of marital property. Importantly, a fair and just division is not necessarily an equal division. Besides employment-based income, earnings from investments must also be analyzed, as well as benefits from pensions and other sources. Liabilities (e.g. debt) are also subject to equitable distribution.
In all matters, both parties are obligated to be fully transparent regarding income, assets, liabilities, and other financial matters during a divorce. If you have reason to believe that your spouse is lacking in transparency with regard to their complete financial picture during your divorce, an experienced divorce attorney will work to compel the discovery of income and hidden assets.
Means By Which a Spouse May Attempt to Hide Assets
It is upsetting to learn, but there are several ways a spouse may be attempting to hide income or other financial assets. Once it is clear that the marriage will end in divorce, a spouse may attempt to defer income, including bonuses and promotions, so that it is received after the process of equitable distribution. Estate planning resources, such as …
If you have children and are recently divorced or are in the middle of the divorce process, issues related to parental responsibility and parenting time may be a significant source of stress right now. The reason: the holidays. As parents coordinate time family and friends, plan holiday activities, and determine schedules while kids are home from school during their winter break, a fair and reasonable allocation of parental responsibilities is imperative.
Illinois Law Requires a Parenting Plan
No matter whether you have an amicable or contentious relationship with your ex-spouse or ex-partner, when it comes to the allocation of parental responsibilities, you are bound by Illinois law to obtain a court-ordered parenting plan. With a well-crafted and drafted parenting plan, each parent and the state of Illinois will have total clarity as to the legal rights and obligations of both parents as concerns their children.
Decision Making and Parenting Time Are the Cornerstones of a Parenting Plan
The legal rights and obligations allocated to each parent in an Illinois parenting plan cover two major areas: 1) decision-making responsibility, and 2) parenting time (sometimes termed “visitation”). In other words, a parenting plan concerns all of the important things that go together …
Divorce is common, an outcome dissolving between 40 and 60% of marriages in the United States. Importantly, the laws governing divorce are state-specific, meaning that, if you were married in Illinois, live in Illinois, and will divorce in Illinois, it will be Illinois law that applies to the division of marital property. When dividing property during divorce, Illinois law utilizes a principle of “equitable distribution.”
Equitable distribution demands that all marital property – property acquired by either spouse while married – be divided fairly and equitably. Importantly, however, “fairly and equitably” does not necessarily equate to “equally.” Rather, the courts will attempt to divide property in a fair and just manner.
Marital Property May Include More Than You Realize
Cash, cars, and houses are three items that may spring to mind when contemplating the assets of a marriage. However, marital property often contains a far greater diversity of assets (and, in many cases, liabilities such as credit card debts) than a bank balance, residence, and means of transportation.
To get an idea of other assets that may be considered marital property, think of the full picture of your employment-related income and benefits for the year 2017. Besides a paycheck, …
In January 2018, Illinois will begin its third year of “no-fault” divorce under state law. When spouses are considering divorce, it is important to understand this philosophical and legal principle that governs divorce in the state.
Irreconcilable Differences Are All That Is Required in a No-Fault Framework
On January 1, 2016, “irreconcilable differences” became the sole legal grounds for the dissolution of a marriage in Illinois. While irreconcilable differences could be considered possible grounds for divorce prior to 2016, they were not the sole grounds. For many years, fault-based grounds (e.g. adultery or mental cruelty) were considered relevant as well. However, this is no longer the case. Under current state law, irreconcilable differences, which speak to the irretrievable breakdown of the marriage – the point at which present or future attempts at reconciliation become impracticable and inconsistent with the best interests of the family – is all that needs to exist for a marriage to be properly dissolved in the state of Illinois.
Agreement on Irreconcilable Differences Hastens a Divorce Decree
While both spouses do not need to agree that irreconcilable differences exist for a divorce to be obtained in Illinois, agreement allows for the pre-divorce decree waiting period imposed …
When a divorce is contentious and can only be resolved through litigation rather than mediation, allegations concerning a parent’s “fitness” to raise a child can often be a flash point. “You are not fit to raise our child” are words that cut deep and may turn an already hostile process into the most bitter of contests. If you believe that your ex-spouse is unfit to raise your child, know that parental fitness is a legal question. In other words, you cannot unilaterally decide that your ex-spouse is unfit as a parent. Lack of fitness is a multi-factor inquiry that is considered formally and has important legal ramifications.
Illinois Law Provides Criteria By Which to Establish If a Parent Is Unfit
On the ground in the real world, there are words that speak clearly to a lack of parental fitness: abuse, addiction, incarceration, and psychological instability, to name but a few. These blights on the welfare of a child are the true metrics by which the state of Illinois evaluates whether one or both parents of a child are legally unfit to have parental responsibility for their child. Here, the toughest of questions are asked:
- Does the parent have
Thanksgiving is only a few weeks away, and many families are currently making plans for the holidays. For recently divorced parents and their children, this season can be a stressful and even contentious time of year. The transition to living in separate households and abiding by custody and visitation arrangements can be difficult when children are used to spending holidays under the same roof. While parents and children need time to adjust to new arrangements, parents can decrease post-divorce stress and anxiety during the holiday season by staying informed about their parental responsibility rights.
Child Custody vs. Parental Responsibility
In educating yourself about Illinois child custody, it is important to know that, though the state has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which most states have used to define jurisdictional matters related to child custody, it uses the specific terminology of “allocation of parental responsibility” with regard to laws and processes concerning custody. Here, the thinking is that the new terminology at once resists contentiousness and promotes collaboration in arriving at a custody arrangement that is agreeable to divorced parents and children alike.
Parental Responsibility and Parenting Time
In Illinois law, parental responsibility concerns the right …
Most people are familiar with the concept of a “prenuptial agreement.” A legally binding agreement between two prospective spouses, a prenuptial agreement stipulates in advance how the assets and liabilities of the soon-to-be-married couple will be distributed in the event the marriage ends in divorce. Such agreements are relatively common when there is a sizeable age or wealth gap between prospective spouses, or when children from previous unions will be brought together by the new marriage.
Despite the statistic that between 40 and 50% of U.S. marriages end in divorce, prenuptial agreements remain a rather touchy subject, perhaps because they are perceived as “unromantic” – the possible end of the marriage is the last thing one wants to contemplate prior to uttering the words “til death do us part.” Given the statistics, such a dismissive attitude is problematic. Prenuptial agreements, and their post-union counterpart, postnuptial agreements, are worth giving serious consideration to. With the assistance of an experienced family law attorney, it is possible to craft a pre- or postnuptial agreement without introducing excessive tension into a relationship. Really, it is just sensible planning.
Prenuptial and Postnuptial Agreements Are Legal Contracts
Because prenuptial and postnuptial agreements are contracts much …
Adoption has been in the news more than usual of late. The reason: politics. Surprisingly, the issue of adoption is at the center of special counsel Robert Mueller’s investigation of possible obstruction of justice on the part of the current U.S. presidential administration. While some people believe that members of Donald Trump’s presidential campaign met with Russian officials with the purpose of influencing the 2016 presidential election, the administration contends that its members met with a prominent Russian attorney to discuss the issue of the adoption of Russian children.
Beyond its political dimension, this news highlights the increased complexity of situations in which adoptive parents and children are of different nationalities. In these cases, it is important to secure the services of an attorney who understands the laws surrounding international adoption.
The Hague Convention Applies to Intercountry Adoption
For a strictly domestic adoption of a child by an Illinois resident or family, the Illinois Adoption Act is applicable. However, in the case of intercountry adoption, in which a citizen of one country adopts a child from another country, one must look to both the laws of the country of which the child is a citizen and the Hague Convention.
Divorce is a foundation-rupturing event, especially for spouses who have children together. Whole worlds are upended for all involved – parents, children, and even grandparents and friends. Day-to-day life, living arrangements, holiday plans, and so much more are all subject to change in the wake of the dissolution of a marriage. This is especially the case when both spouses move out of what had been the family home or apartment, whether to new residences in the same town or city, or to a new state or even new country.
When the spouses have children, parental responsibility (formerly known as child custody) must be allocated between the parents. In some cases, one spouse is awarded primary parental responsibilities in the areas of healthcare, education, religion, and extracurricular activities. In most cases, however, parental responsibility is shared between the parents.
As you are surely already aware if you divorced, separated, or even considering a divorce or separation, working out an agreement for the allocation of parental responsibilities can be a complex matter, and in some instances, it can be an unfortunately contentious process. Here, a court approved parenting plan is a must. With so much already on your plate in terms of …
Divorce is a difficult matter. If you have gone through a divorce or are currently in the midst of the divorce process, you know this truth all too well. Besides the emotional toll of a divorce, there are numerous complexities associated with the dissolution of a marriage. If there are dependent children involved, the issue of parental responsibilities and parenting time is of primary importance and one that becomes challenging to solve if one parent has moved or intends to move to a different state or country. Courts, as they should, consider the best interests of the child when crafting an order to allocate parental responsibilities – a calculus that can drastically alter parenting plans.
Whether or not the responsibility for dependent children is an issue in your divorce, property division almost certainly will be. Your primary residence, any secondary properties, vehicles, personal belongings, and items of sentimental value will likely be at issue as you and your spouse cease to live under the same roof. Dividing this property can be difficult, especially with regard to items that cannot easily be split in half. When division gets difficult, a certified Illinois mediator can prove invaluable in helping divorcing spouses to …