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Understanding Types of Property in Illinois Divorce
According to survey information, over two million people in the United States get married every year. As two households are merged into one, spouses often share a home, automobiles, income, and other property. Illinois law characterizes property as either non-marital property or marital property. Although the question of whether someone's property is considered marital property or not is usually only pertinent when the property is divided—such as upon death or divorce—individuals and couples may benefit from understanding how courts are likely to characterize their possessions.
Non-Marital Property
According to Illinois law, non-marital property may include:
- Real and personal property acquired by either spouse before marriage. This may include such items as a home, a business, a vehicle, furniture, jewelry, or the like.
Divorce in Illinois: Steps to Take Before You File
Regardless of how long you've been married or what caused things to break down, divorce is usually a very hard time for you and your family. Even though you may be anxious and eager to have the marriage officially ended as soon as possible, issues that can crop up during the divorce process can potentially slow things down, causing even more stress and anxiety for everyone involved. It is therefore wise to take some steps before you even file for divorce that will help eliminate some of these issues and complications. Helpful Steps to Take
Helpful Steps to Take Before Filing for Divorce
Quick divorces are possible, but they are rare and sometimes unwise. A lengthy divorce, however, can sometimes be avoided right from the get go. Before filing for divorce, it is helpful to:
- Talk to your spouse: If possible, have a conversation with him or her about the divorce—when and why you plan on filing, what each of you wants to see happen down the road, etc. Surprising your spouse with divorce papers can cause hostility and anger right away, making an already difficult time even more so. Talking to your spouse about how you feel beforehand can save you time and money on divorce proceedings, especially if you are not entirely sure that you want to end the marriage. But more importantly, it can help avoid feelings of anger and abandonment which can lead to even more contention when the divorce is officially pending.
Marriage Requirements in the State of Illinois
If you have found "the one," the special person with whom you want to spend the rest of your life; if the ring has been purchased and your beloved has said "yes;" if you've already started planning the celebration of your big day, then an important next step is to examine the marriage requirements for the State of Illinois and make sure that you follow them before you take that trip down the aisle.
Getting the License
First, parties who intend to marry must go to the County Clerk's office in the county in which they wish to be married to obtain a marriage license. The Director of Public Health is charged with prescribing the form for a marriage license application under 750 ILCS 5/202. The application itself is pretty straightforward, but requires some very specific details about the parties. These details include:
Calculating Child Support in Illinois
NOTE: A new Illinois law governing how child support is calculated went into effect in July 2017. Please visit our child support page for details
When parties going through a divorce have children, the issue of child support will inevitably arise. How child support is calculated is different in each state; some have complicated formulas which are difficult for parties to understand. The Illinois child support statutes are relatively straightforward, from a legal perspective. While there are some gray areas which allow room for argument regarding support, a skilled family law attorney can make the process of calculating child support relatively easy.
Illinois statute 750 ILCS 5/505 defines a child, with respect to child support, as one "under 18 or any child under 19 still in High School." The statute further states that parents have a duty of support owed to a child which includes an obligation to provide for "reasonable and necessary educational, physical, mental, and emotional health needs of the child." Although both parents technically owe a duty of support, the non-custodial parent (or non-residential parent) often ends up as the payor of support to the custodial/residential parent (the parent with whom a child or children primarily resides).
Making a Blended Family Work
Remarrying after a divorce can be a challenging endeavor; this is even more so when you also have children from that previous marriage. Readjusting to a new life and lifestyle after a divorce is difficult for both parents and children. Adjusting to the idea of a parent remarrying, however, can be particularly difficult and traumatic for children.
According to the American Psychological Association(APA), children can begin to feel competitive or even abandoned as their parent begins to spend more time with a new spouse. Teenagers may feel uncomfortable witnessing romantic gestures or expressions of physical attraction between their parent and a new stepparent. Therefore, parents have to be careful to balance the relationship with their children and the relationship with their new spouse.
Additionally, stepparents face the numerous challenges presented by caring for children that are not their own. This is particularly so with younger adolescents (ages 10-14), as this age group tends to have a more difficult time adjusting to a stepparent than children in other age groups. The APA suggests that stepparents attempt to bond with their spouse's children in a friendly manner (akin to a camp counselor or mentor) before attempting to become a disciplinarian with them.
Protecting a Family-Run Business in the Event of a Divorce
Divorce has many serious and far-reaching consequences, many of which are well-known: changing the make-up of a family home, altering the amount of time children spend with parents, etc. One area people may not consider, however, is the effect a divorce can have on a family-run business.
The first step in protecting a family business interest is to draft a quality pre-nuptial or post-nuptial agreement which addresses the way a business will be divided in the event of divorce. These types of agreements can include clauses that define and control how businesses are valued. For example, if the business increased in value during the marriage, that profit could be shared by both spouses. But if the agreement states that premarital property (in this case, the value of the business) retains its character, then that profit would not be divided and would remain the non-marital property of the owning spouse.
Illinois Legalizes Same-Sex Marriage
In November, Illinois Governor Pat Quinn signed a bill legalizing same-sex marriages in Illinois. While Illinois previously allowed same-sex couples to participate in civil unions, Senate Bill 0010 now allows them to obtain the legal status marriage provides.
This legal status provides several benefits that civil unions don't necessarily provide. For example, a married spouse will be guaranteed the right to make medical decisions for an incapacitated spouse without having to provide a signed power of attorney. This also guarantees employment benefits for same-sex spouses, when such benefits depend on the couple being married. When added to the federal same-sex protections, such as social security survivors' and spousal benefits, marriage-based immigration rights, and federal spousal employment benefits, Illinois same-sex couples will now be guaranteed the full spectrum of rights, responsibilities, and privileges given to heterosexual married couples.
Same-sex couples in Illinois may begin marrying as soon as June 1, 2014 (though for those couples facing terminal illness, marriage licenses may be issued sooner in some counties). Those couples who are currently in civil unions who may wish to convert their union to a marriage will be able to do so by applying for a marriage license; returning the signed marriage certificate to the county clerk's office will officially solemnize the marriage.
Social Media in Divorce
Facebook now boasts over one billion users worldwide, and Twitter hosts more than 50 million tweets per day. In an age where so much information is shared online, and with so many potential ramifications because of that outpouring of information, it is of the utmost importance to maintain some privacy if you are considering filing for divorce.
Information that you or your spouse post on Facebook, Twitter, or other social networking websites may be discoverable and used as evidence in divorce proceedings. Because of the sheer volume of information we've started to share online, the amount of information that can be used against you or your spouse is potentially quite vast. This can include information or documentation relating to drug or alcohol use, romantic involvements, information on new partners, negative comments about a spouse, money and other assets spent on affairs, documentation of how assets are being used, and even potential evidence of hidden assets. All of this information can have a significant impact on a divorce case. In a study from the American Academy of Matrimonial Lawyers, the organization found that 80 percent of surveyed lawyers used Facebook data in preparing divorce cases, and 66 percent considered Facebook the most important source of evidence in divorce cases.
Putting Off Divorce? Long Term Separations May Have a Harder Financial Impact than Divorce
Family law practitioners often encounter couples who have been living separately for quite some time without either party having started the process of filing for divorce. These long-term informal separations can last for years, but not only do they have no legal basis (only a formal legal separation is recognized in Illinois), they can also have serious financial implications for the parties. While living separately without going through the formal divorce process may seem like a good idea at the time, and may be the “easiest” route for a couple and their family, these long-term separations can have disastrous financial effects. In determining whether to take the plunge and begin the divorce process, it is important to keep in mind the following:
1) Control over marital assets.
If you are living apart from your spouse, you may not have control over some of the marital assets or debt. For example, you may not know what your spouse is earning, how money is being spent or invested, or what debts are being incurred by that spouse. Furthermore, Illinois is an equitable distribution state. This means that the marital assets and debts are equitably (i.e. “fairly”) distributed between the parties, without regard to marital misconduct. Courts consider a wide range of factors when distributing debt. Hence, if you have any joint debt with your spouse, you could potentially be held liable for any additional debt accumulated during your separation. You also may not have any control over the use of marital assets and any decrease in value of these assets, which may affect your property distribution when you finally do divorce.
Insurance and Other Benefits After Divorce
For many companies, autumn marks the open enrollment period for employment-provided benefits. According to USA Today, “open enrollment is typically a period of several weeks during which you can opt into your company's benefits programs, from health insurance to a retirement plan.” Enrollment periods also apply to changing any benefits you currently receive. Knowing what benefits you're eligible for and wish to enroll in or change, both for yourself, your spouse, and your family, is important, especially if you have to make a decision by a certain deadline, as with open enrollment. This process is all the more complicated if you're going through, or think you might soon be going through, a divorce.
For those who are going through a divorce, separating one spouse from the other's benefit program can be one of the most painful and expensive aspects of the whole divorce process. It also tends to be more difficult for women, who are less likely to work outside of the home and are more likely to be enrolled in their husband's employer-provided benefits. Staying on an ex-spouse's health insurance plan after divorce is not an option. However, with many employer's provided plans, an ex-spouse has a certain period of time in which he or she can opt to enroll in a similar plan on their own. State and federal law dictates which employer provided plans are subject to this option and when the enrollment must take place. In addition, minor children can always stay on an employee's benefit program, regardless of a divorce or who is awarded custody.