Divorce can be daunting and mystifying. No matter how someone comes to the process, questions are likely to abound from how one actually initiates a divorce to what an utlimate settlement may look like. There are also several common misperceptions people have about the process, whether it is a fear that if they give their spouse liberal visitation that they may receive less in child support, or whether it is important to be the first to file court papers. This article will attempt to demystify Illinois law with respect to some of the several common questions that often arise at the begininng of a divorce.
1. Is marital property always divided 50/50?
Illinois courts are required to divide a couple’s marital property, which is generally property acquired after the date of the parties’ marriage, equitably. An “equitable” division may be 50/50, but equitable, by definition, does not mean “equal.” The Illinois divorce statute requires the court to consider several statutory factors, such as the length of the parties’ marriage; whether one of the parties will receive spousal support; whether one party has a large non-marital estate; and each party’s ability to acquire assets in the future through employment or other means. If one party has a large non-marital estate (which may include property acquired prior to the date of the marriage or by gift or inheritance), that may be a reason to award one spouse a larger share of the marital estate due to the fact that non-marital property must be awarded to the party who owns it.
2. What role does marital misconduct play?
One of the most common questions divorce attorneys are asked in consultations is whether marital misconduct, such as an extramarital affair, will result in a higher settlement in favor of the other spouse. The short answer is no. The statute does not permit a court to consider marital misconduct when allocating marital property. The exception to this is that the court can assess one party with dissipation of marital assets, which is defined as one party’s use of marital funds for a non-marital purpose. The classic example of this is one party spending marital property on a boyfriend or girlfriend by way of gifts, travel, or entertainment.
3. Can my spouse freeze me out by refusing to pay my attorneys’ fees?
In Illinois, attorneys’ fees and costs are governed by the “leveling of the playing field” statute which has the purpose of ensuring that the non-monied spouse has access to funds to enable he or she to adequately participate in the case. If one party does not have access to funds in order to pay his or her attorney, and the other party has access to funds, the spouse who does not have funds will granted attorneys’ fees. The payment of the fees are generally considered an advance distribution of marital assets.
4. Can a party can earn no income in an effort to avoid paying child support or spousal support?
If one spouse attempts to claim that he or she earns no income and therefore does not have the ability to pay support, there are several avenues to be considered. First, the court has the ability to impute income to a party if the judge is shown evidence that the party who is not earning income is intentionally doing so in order to be able to reduce his or her support obligation. Second, in Illinois, a court can order that maintenance be paid out of assets. As for child support, it can be paid out of a child support trust from assets that the court places into the trust. This is known as a 503(g) trust. The court can also assess child support based on the payor’s historical access to funds, accounts, gifts and loans.
5. Can the parent who has primary parenting time move out of state?
The 2016 amendments to the Illinois divorce statute now carve out specific notification provisions for a parent’s relocation both within and outside of Illinois. Generally, if the parents do not agree, the parent wishing to relocate with the child(ren) outside of Illinois must file a petition with the court requesting permission to move. The court will rule on the petition under a “best interest of child” standard by taking into account a number of statutory factors.
6. Does a 50/50 parenting schedule mean that no child support is payable from one parent to the other?
In 2017, Illinois moved from a guideline percentage child support model to an income shares model. What this means is that before July 1, 2017, child support was calculated solely on the basis of the payor’s net income. Now, both parent’s incomes are taken into account in the new child support formula and the parenting schedule plays a role in the calculation. However, a 50/50 schedule does not equate to child support not being paid.
7. Does permanent maintenance mean that it will be paid forever?
Despite its name, “permanent maintenance” does not mean that it is truly permanent. All it means is that the payor has the burden to petition the court to terminate it for good cause, such as good faith retirement at retirement age, the loss of employment, or ability to continue to earn income.
8. Can a party can bypass full disclosure of financial information by going to mediation?
If mediation or another alternative dispute resolution (ADR) process is utilized to resolve a divorce case properly, the process will include good faith exchange of financial information between the parties so both parties are entering into negotiations and a potential settlement with all of the information that he or she needs to be able to make an informed decision. While the exchange of information is more informal than formal discovery in litigation, this does not mean that disclosure will not be necessary. If one party decides to hold back information, that could halt and potentially disrupt the ADR process.
9. It is important to be “file first” in order to gain an advantage in court?
Generally there is no advantage to one party filing first. Both parties have the same rights and responsibilities in a divorce case and judges do not view the initiating party one way and the responding party another way. However, if there is a potential jurisdictional dispute, meaning there are possibly two states that may have jurisdiction over the parties and subject matter, or two different counties in the same state, there may be an advantage to being the party who files first.
10. Does joint custody mean the children spend half of the time with each parent?
As a side note, in 2016, the term “custody” was officially removed from the Illinois divorce statute and replaced with the terms “parental decision-making responsibilities.” Prior to 2016, “custody” actually meant decision-making responsibilities with respect to a child’s health, education, religion and welfare – not physical possession of the child. The 2016 amendments clarified the legal definition of custody. Additionally, parenting time (formerly known as visitation) refers to the actual time the children spend with each parent. In practice, one parent could have sole decision-making responsibilities for the child and be the parent who is in charge of the child’s medical, educational, religious and extracurricular decisions while at the same time the child spends very close to 50/50 time with each parent.
As always, divorce is fact-driven and based on the laws of each individual state. Each case is different. It is necessary to consult your individual attorney with respect to your own case in order to understand the full ramifications of how the law interplays with your specific set of facts.