DIVORCE PROPERTY DIVISION: ALLOCATING ASSETS, DEBTS, AND LIABILITIES
Divorce property division can be a complex area of an Illinois divorce. When dissolution proceedings are initiated a number of issues typically arise. One of the biggest tends to be the allocation of the parties’ assets and debts. If there isn’t a pre-marital agreement, the parties will likely have a lot to discuss and there may be some confusion regarding what is truly on the table. What is Considered “Property” in Divorce? When you hear the word “property” you may think of real estate and land. That is correct and those are considered “real property” in the legal world. However, there is also “personal property,” which is everything that is not considered real property. The typical examples of personal property involved in divorce include:
How is Property Classified in Divorce? In an Illinois divorce, property is classified as “marital” or “non-marital.” However, things get complicated in divorce because some property can have both marital and non-marital elements, which will be discussed more below. What is considered marital property? Generally speaking, all of the property a couple acquires during their marriage is considered marital property. It does not always matter whose name is on a title or an account. What is considered non-marital property? Non-marital property is usually acquired prior to the marriage. Anything you buy up until you say, “I do.” Non-marital property may also include gifts and inheritances received during the marriage. There are eight (8) categories of non-marital property, which are identified in Section 503 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/2–503). How is Divorce Property Divided or Allocated? In Illinois, non-marital property is assigned to the owner, unless the parties agree otherwise. Marital property, however, is divided or allocated between the parties in an equitable manner. Some people associate “equitable” with an even 50–50 split, but in an Illinois divorce, it is important to understand equitable does not necessarily mean equal. In divorce, family law judges allocate marital property in a reasonable and fair manner depending on the circumstances of the parties and the marriage. What Divorce Property is Considered “Mixed” Property? There is divorce property that is considered “mixed property” which means the property has characteristics of both marital and non-marital property. Retirement accounts are a good example of potential property with marital and non-marital elements. If a party contributed to their retirement prior to the marriage, then that money is deemed non-marital. However, the contributions made to the retirement account from the date of marriage to the date of dissolution are considered marital property. What about property that was owned prior to the marriage but is then sold during the marriage? When property owned prior to marriage is later sold sometime during the couple’s marriage, that’s where things can get a little gray. You have to be very careful here. If you sell non-marital property and then deposit the proceeds into a separate account or if you then buy something in exchange for the non-marital property, you will generally have a better argument that the proceeds or later purchased property is still non-marital. However, if you sell your non-marital property and place the proceeds in your joint account and use those funds to pay the mortgage payment for the marital home and expenses for the next five years, those once non-marital proceeds are now commingled with marital funds. When commingling occurs, it is likely that the funds will be considered marital. The same result occurs in a scenario where you sell your non-marital boat in order to purchase a bigger boat put the title of the new boat in both your name and your spouse’s name. When you do that, you are losing that non-marital identity. What If We Agree or Do Not Agree on the Division of Our Assets and Debts? Divorcing couples are, of course, free to make their own agreements regarding the allocation of their assets and debts. The Illinois courts will enter a marital settlement agreement, as long as its terms are not considered unconscionable. If parties are unable to come to their own agreement about allocating divorce property and debts, the matter will be set for trial. At that point, the court will make the decision after weighing a variety of different factors. If you’re facing a divorce and it is common to have concerns about dividing the various kinds of property and debts accumulated during the marriage. When you need assistance and advice from knowledgeable and experienced divorce attorneys, contact Anderson & Boback and we’ll be ready to help you with all aspects of your divorce including divorce property division. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/property-division/divorce-property-division-allocating-assets-debts/
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When parents split up or divorce, child support orders are certain, however, many questions may remain regarding the financial contributions to college expenses. Below we discuss the most frequently asked questions we hear from parents about contributing to college expenses. Is Payment of College Expenses Part of a Child Support Order? If you are party to a child support order, you may be wondering if there is any provision for college expenses once your child reaches the age of 18 or graduates from high school. The answer is not clear-cut for all individuals and may depend upon various factors. Typically, child support in Illinois stops when your child turns 18 years of age, or upon graduation from high school, whichever comes later. Support will end altogether at age 19 even if the child is still in high school. Once child support ends, it is important to start your case for contribution to college expenses immediately. Do not procrastinate as it is difficult, if not impossible, to get retroactive relief from the other parent if college expense contributions are not already established. If your high school graduate is planning to attend college, addressing your support order for contribution to his or her college expenses should be done when filling out college applications. What are College Expenses Under Illinois Law? In Illinois Section 513 of the Illinois Marriage and Dissolution of Marriage Act, (IMDMA), allows for a parent to petition the noncustodial parent for contributions to college education expense for their non-minor child. College expenses include tuition, room and board, fees, books and even travel to and from college. Child support is shifted to and may be continued under the “college expenses” law which applies to non-minor children over the age of 18. If your divorce decree is not clear on establishing support for college expenses, you may petition the court to obtain an order for future expenses. And while you may win an order for future expenses, the court will not order payment on retroactive expenses, making it imperative that you do not delay in filing your case. Does the College Expenses Provision Apply to Parents That Were Never Married? If you do not have a divorce decree because you were never married, you might wonder if the other spouse will be obligated to pay college expenses for your non-minor child. Child support for non-married parents is detailed in Sec. 801 of the Illinois Parentage Act, which does not mention or address college expenses. It was not included because in the Illinois Appellate Court case of Rawles v. Hartman, appellate judges decided that what is good for children of divorced parents is good for children of parents that were never married. This gives broad discretion to the court when reading the two acts together to determine any award of child support including college education expenses. Where two acts are construed together with one omitting provisions the other contains, the omitted provision will be applied under the act without such provision. It is consistent for the court to apply section 513 of the Dissolution Act to allow for education expenses of a non-minor child to treat all children equally regarding matters of support. The court cannot discriminate against children born out of wedlock, as this would be unjust and illogical for the State to deny such an essential right. If your child is preparing to go to college and there is no order for college expenses in a child support order issued under The Parentage Act, it is imperative that you work with an experienced family law attorney to file a petition immediately as no retroactive support will be granted, but future college expenses can be awarded to the other parent. What it Means if College Expenses are Reserved in the Dissolution If the college expenses obligation is noted as reserved in your divorce, this means that the issue was not decided at the time of the Dissolution of Marriage. If this is noted in your Dissolution, it is important to file a petition to the court immediately as an award for college expenses will not be retroactive. If your Dissolution of Marriage Judgment does not address any reservation for college expenses the court has the authority to enforce each party to contribute. Support Orders and Seeking Contribution to College Expenses If you are seeking contributions from the other parent for your child’s college expenses, it is important to be aware of the recent DuPage County case Yakich v. Auld. In that case, the judge held that requiring divorced or never-married parents to contribute to a child’s college expenses to be unconstitutional. Yakich v. Auld is now on direct appeal with the Illinois Supreme Court which may result in significant changes to orders to pay a child’s college expenses. Changes occur in family law all of the time so it is imperative to work with an experienced attorney who knows and understands the law. Anderson & Boback help you to evaluate all areas of your child support order, whether through the Illinois Marriage and Dissolution of Marriage Act or the Parentage Act, and advocate for you and your children. We help parents understand their rights and obligations and help to provide fair and equal treatment to all children party to a support order. Anderson & Boback are dedicated to helping you make the best decisions by explaining all your options and taking the necessary action to protect you and your child’s interests. Contact us today for a confidential consultation to learn more about your rights under the Illinois college expense law. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-support/faqs-about-contribution-to-college-expenses/ When it comes to child custody jurisdiction, Illinois child custody laws have adopted the Uniform Child Custody Jurisdiction and Enforcement Act, otherwise known as the UCCJEA. This law has been adopted by many United States jurisdictions to ensure that all jurisdictions use the same criteria when determining what state has jurisdiction for child-related issues. This makes sense because having multiple courts in multiple jurisdictions entering conflicting orders relative to children would be messy and not in anyone’s best interests. What is the “Home State” for Child Custody Cases? For child custody cases which have not yet been filed, the “home state” determines where initial jurisdiction should lie for child custody or allocation of parental responsibility cases. The home state is the state where the minor child most recently resided for a period of six (6) months prior to the proceedings. Keep in mind, that 6 month period does not include any temporary absences from the “home state” for things like vacation, etc. A parent or person acting as a parent of the child must continue to reside in this state as well. For example, let’s say a child was born twelve months ago in Illinois. However, a month ago, Dad decided to take the minor child and move to Florida. Mom continues to reside in Illinois. Illinois would still have jurisdiction under the UCCEA, due to the fact that Illinois is the minor child’s home state and because the minor child’s mom still resides in Illinois. Mom could file a case in Illinois relating to said child. What Happens if the Parties Move Out of Illinois After the Custody Case is Over? Where Do They Go to Court Now? Once a Court has made a child custody determination, that Court retains what is called “continuing and exclusive jurisdiction” over the child and the case relative to the minor child. Continuing and exclusive jurisdiction over the minor child only ends when an Illinois Court determines that the child, and the child’s parents (or a party acting as child’s parent):
What about Victims of Domestic Violence Who Flee the State with Their Children? There is an exception made in the UCCJEA regarding when a Court which is not the Court in the child’s home state can exercise jurisdiction over a child related matter. If the Court has a child present in the state who has been abandoned, or it is necessary in an emergency to protect the child because the child, the child’s sibling or the child’s parent is subjected to or threatened with mistreatment or abuse. In that scenario, a state which is not the home state could exercise what is called “emergency jurisdiction” to enter an order to protect the child, temporarily, until an order can be obtained in the home state. Temporary Emergency Jurisdiction If the Court exercising Temporary Emergency Jurisdiction finds out that there is a State which has been asked to make a child custody determination, the two competing courts must communicate. A UCCJEA conference is then held to determine which state should retain jurisdiction over the matter. These hearings are often held in camera by the Court, but a court reporter makes a record of the conversation. The complexities of jurisdiction and child custody laws require sound legal advice from experienced family law attorneys. Contact Anderson & Boback if you would like to discuss your family law situation or have questions about child custody jurisdiction. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-custody/child-custody-jurisdiction-what-court-decides/ Child Custody agreements are now referred to as “Allocation Judgments” in the state of Illinois, allocating parental responsibilities to each parent in piecemeal fashion. Parents may choose which responsibilities they will be responsible for such as one parent taking responsibility for school decisions while the other maintains decisions for medical care.
Allocation Judgments may also be written so that these responsibilities continue to be shared. The establishment of a parenting plan is now required under the Illinois Marriage and Dissolution of Marriage Act, addressing the allocation of parental responsibilities regarding time spent with the child and decision making which affects the child. If faced with child custody or allocation judgment decisions, be sure to work with an experienced family law attorney who can help you sift through the legal language to help you determine what is best for your child. Child Support and Modification in Illinois If you are entering into a child support order or considering requesting a modification, you may be wondering how much you will receive, or have to pay under child support law in Illinois. New laws affecting child support in Illinois took effect July 1, 2017 with the income of both parents now considered when determining a child support order. The new guidelines in Illinois child support law take relevant factors into consideration which include:
When questions arise regarding child support orders or modification, it is critical to speak with an experienced child support lawyer who understand the laws and all new revisions of the law. Anderson & Boback for Child Allocation and Support Orders Anderson & Boback are experienced family law attorneys with a clear understand of divorce, child custody and child support laws in Illinois. We strive to provide peace of mind by explaining what to expect and helping you to obtain the best possible outcome for your child. Anderson and Boback are top-rated child support attorneys in Chicago with experience in Illinois family law. We help to establish and enforce child support, and provide guidance when a child support modification is called for. Contact us today for a confidential consultation and to learn more about your rights under Illinois child support law. |
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