Divorce can be very stressful on all members of the family. You will be better off emotionally and financially if you take the time to plan carefully. Adequate pre-divorce planning can help protect you and your family financially. If you suspect your spouse may be considering filing for divorce, then you should also take steps to protect yourself financially.
Understanding the divorce process and requirements will help you prepare for your divorce. It is important to understand that the judicial system has many rules and procedures to be followed. An experienced family law attorney will know how best to navigate this system and guide you through. Because every family situation is unique, you should consult with an attorney personally for a more tailored assessment of what your case may entail. Below is an outline of some of the more common elements in a divorce and answers to some frequently asked questions.
If your divorce includes a business, it is important to select an attorney who understands the financial complexities of business law and business valuation. Because William J. Arendt & Associates also represents businesses and handles business litigation, we are trained and experienced in navigating business formation documents, tax returns, balance sheets, profit and loss statements, income statements, general ledgers as well as other corporate and financial documents.
The use of a financial mediator in divorce proceedings is increasingly prevalent in Illinois. Using a skilled financial mediator can provide an unbiased, in-depth analysis of the parties' financial portfolio often leading to a more equitable settlement that both parties understand and accept.
Division of property in Illinois is on an "equitable" basis; meaning what is considered fair. In some cases, that may be a 50/50 split, a 60/40 split, or even a 95/5 split depending on the circumstances of the parties. So what is fair? The Court can take many factors into consideration when deciding a "fair" property distribution.
Maintenance is money paid by one spouse to the other spouse for his/her financial support. Maintenance is gender neutral. The Court can order maintenance be paid to a husband or a wife depending on the circumstances. An award of maintenance can be for a specific period of time or indefinitely. The determination for whether maintenance is appropriate is on a case-by-case basis and depends on the specific facts of each case.
Each parent a duty to provide support for their children's needs. Beginning in July of 2017, Illinois changed the way it calculated child support from a straight percentage model to what is called the Income Shares Model. Illinois became the 40th state to adopt an Income Shares Model. The old method simply required payors to pay a percentage of their net income based on the number of children without any regard to actual child-rearing costs. The Income Shares Model uses actual child-rearing costs taken in part from the Bureau of Labor Statistics. It also takes into account the total net income from all sources, including maintenance, of both parents.
Parents have a legal obligation to care for their children. Parents also have the right to parenting time with their children and to make important decisions about their children's welfare. This division of rights and responsibilities is written into a Court Order that is known as a Parenting Plan. Generally, both parties submit a proposed Parenting Plan to the Court within 120 days of the filing of a divorce. If the parties can't agree on a Parenting Plan, the judge will often send the parties to mediation to help them reach an agreement.
In 2016, Illinois made sweeping changes to what used to be called custody and visitation in an attempt to take some of the acrimony out of parenting issues involved in divorce. Illinois eliminated the words "custody" and visitation" in favor of "parenting time" because parents do not visit with their children; they parent their children. Parents often fought to win the badge of being the labeled the custodial parent which was not helpful to the children and often a bar to resolving other child-related issues.
Because divorcing parents are each establishing their own homes, the issue of relocating the children often arises. Illinois law lists the various requirements for what parents with either equal or a majority of the parenting time must do prior to moving with the children.
Once you are divorced, you may need to divide retirement assets between you and your former spouse. Retirement accounts can be marital property, but they can only be held in one person's name. Certain types of retirement benefits, for example, pensions, IRAs, 401(k) accounts and others may require a separate court order called a QDRO or QILDRO to divide the benefits between the spouses. QDROs and QILDROs have specific requirements and must comply with federal and state law and be approved by the plan administrator of the company holding the retirement benefits.
A prenuptial agreement, also known as a premarital agreement, is an agreement between prospective spouses prior to marriage. Prenuptial agreements are becoming increasingly popular, especially for second marriages. Prenuptial agreements can eliminate lengthy court battles over the payment of maintenance and the division of assets and liabilities. Both parties should have legal representation before signing a prenuptial agreement so they understand all of the pros and cons in the agreement.
Parties may return to court after their divorce has been finalized to modify the terms if there has been a substantial change in circumstances. Modifications of Judgments are most often related to the payment of maintenance, child support, or other child-related issues such as the payment of college expenses.
After a trial and the judge issues his or her decision in a Judgment for Dissolution of Marriage, a divorce is usually final and complete. However, an appeal can be filed if a party believes there was a legal error made which caused the judgment to be unfair or incorrect. An appeal cannot be filed just because a party does not the like the results and would like a "do-over."
