For many people, navigating life as a divorcee means finding a balance between being able to trust again but also a need to learn from their past mistakes. While many people would ascribe these growing pains to romance and relationships, they also come heavily into play when thinking about money. When contemplating getting remarried, it’s important to consider the financial implications of remarriage and how income and property are viewed under the law, particularly if are a parent looking to leave an inheritance to your children. For many looking at getting remarried after divorce, a prenuptial agreement can be a powerful tool to against loss and provide financial protection for your children.
1. Understanding Finances When Getting Remarriage One of the most important legal concepts many couples fail to grasp until they plan to divorce is that all income and property acquired during the marriage is presumed to be marital and subject to division. These days, most married couples both work outside of the home. Many couples, particularly younger couples, have separate bank accounts created from when they worked prior to the marriage and, after the marriage, continue to deposit their paychecks into their individual bank account. The couple then generally work together to divide their shared living expenses like the mortgage/rent payment, utilities, groceries, etc. But it is important to know that even if your paychecks go into separate bank accounts, they still constitute married money that is subject to division based on how much you earn and how much your spouse earns. 2. Equitable is NOT Equal Many couples are surprised and disappointed by how Illinois law divides property, assets, and debts. Many feel that they should be able to take out of the marriage what they brought in, particularly regarding retirement accounts and bank balances. On the other hand, Illinois law seeks an equitable division of income, assets, and debts, which often means the person earning more ends up getting less as part of the divorce. Or they assume everything will be divided 50/50, even if they significantly out earn their spouse. It’s critical for people to understand that when dividing assets and debts, the keyword is “equitable”—NOT equal. If you earn more, you are most likely walking away with less. That is because, as the higher earner, you will have the ability to earn more in the future than your spouse. While the goal is equalization between the parties, this can leave some divorcees feeling like they lost their proverbial shirt. 3. Understanding Prenuptial Agreements For those unaware of the concept, a prenuptial agreement, or prenup, is a written legal agreement that both parties must enter into and sign, stating that they want to make certain financial arrangements prior to the marriage. This not only allows an individual to protect their property earned/acquired before the marriage, which can include houses, cars, jewelry, bank accounts, retirement accounts, and so on. A prenup can also protect nonmarital property from conversion to marital property, either intentional or unintentional. For example, if an individual decided to use $50,000.00 from an inheritance to put a down payment on a new home during the marriage, that $50,000.00 could be seen as a gift to the marriage, which the giver would be unable to recoup in full. But if they enter into a prenup stating that nonmarital assets always remain nonmarital, no matter how spent or where deposited, the individual who made the down payment will be entitled to receive their entire $50,000.00 down payment back. Likewise, it protects the owner of that inheritance from accidental commingling by depositing nonmarital funds into a share or marital account. In short, it allows couples to retain a certain amount of financial separateness and protection after the marriage to promote the stability of their individual estates. 4. Provide Financial Stability for Your Children The ability to exert greater control over one’s finances upon remarriage is also a valuable tool for parents creating blended families. A prenuptial agreement can be used to guarantee that each spouse’s nonmarital estate will remain separate, which allows them greater control in how they allocate and pass down their estate to their children. Preventing certain property from becoming comingled preserves the nonmarital designation of certain assets, allowing the parties to remove those assets from their soon-to-be spouse's possible possession or control. Keeping these funds separate can help maintain financial stability and protect from division funds saved to pay for college and/or create an inheritance for their children and grandchildren. However, when considering the impact of a prenuptial agreement on children, it is important to be aware that it cannot be used to make child-related decisions about parenting time, decision-making, or child support. No one can use a prenuptial agreement to waive their right to child support or get out of their obligation to pay child support. 5. Determine the Division of Future Marital Assets For those wanting to remarry but also wanting to avoid the possibility of financial loss and/or preserve a certain portion of their estate exclusively for their children, a prenuptial agreement is a means to preserve their nonmarital assets and control the division of future marital assets. It can also be an important way of reducing the time and money spent litigating their divorce, which can be an enormous drain on funds because a prenuptial agreement can include terms touching every part of the marriage except child support, parenting time, and parental decision-making. Negotiating the agreement while the parties are on good terms it promotes the ability to make thoughtful financial decisions at an amicable time, which can lead to better future outcomes if the second marriage goes the way of the first. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: illinoislawforyou.com/blog/prenuptial-agreement-tips-remarriage-and-the-blended-family/
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It’s crucial to find the right team members to help you get through your divorce. I recommend working with people who have personalities who compliment yours and who will constantly be sure your case is heading in the direction to achieve your goals. Divorce can be emotional, expensive, and extremely confusing. Having the right team members in your cheering section can ease the difficulties. Finding cheerleaders you can lean on, ask for professional guidance, and address your concerns is important. The right team for your divorce can make all the difference. Chose Teammates Who Have Your Best Interests My main advice is to meet with everyone on your team in person before officially having them jump aboard your ship. Most professionals possess the competency to do their job. So, I recommend really looking deeper into each relationship and envisioning how they could be an asset to you. Be sure to get a feel for their communication style or general approach to handling cases such as yours. Give a little background information so they can understand what issues you will need to focus on. Building the right team will ease the feelings of doubt and allow you to turn the page into a new chapter of life smoothly. Your divorce team should help you navigate the rocky terrain ahead and hold your hand if necessary. They need to realize the importance of being there for you every step of the way. Be sure to effectively communicate your needs to each team member so your expectations are clear from the beginning. Only choose teammates who truly want to help and have your best interests at heart. The Right Team for Your Divorce Here are specific things to look for in each member of your “divorce team.” Family Therapist A family therapist is trained to listen to your concerns and teach you the tools to cope with the stress, anxiety, and anger that often come with divorce. Typically, clients who are seeing a therapist regularly during a divorce are able to emotionally process their divorce better and keep sight of the end goal. Many things become distracting throughout the divorce process. Divorce can be complex and difficult to navigate alone. Friends are great to lean on but not often helpful in finding a constructive resolution. Divorce rarely goes as expected, so it is a good idea to have someone you can count on when random things happen. Family law therapists help people process similar issues all day and are truly the experts in helping find peace in a gloomy situation. Divorce Attorney Obviously, we recommend hiring a skilled divorce attorney to help direct you through the court system. Although you can represent yourself, there are many advantages to hiring an experienced divorce attorney. People are often hesitant due to the expense, but communicating this concern to your attorney can help. Tell your attorney you want to do your best to save on litigation costs. They will likely recommend tactics such as working out smaller issues with your spouse outside of the courtroom or through mediation. I always recommend meeting with your attorney in person prior to retaining them so you can put a face with a name. Talking with someone for 30 minutes can give you a solid feel for their communication style and character. If you know you are headed for a contested divorce, you will you need a powerful, strong advocate by your side. If you believe you and your spouse can work out most of the main issues, you may prefer an attorney who takes a more collaborative approach to divorce and constantly strives to work towards an agreement. Visit our Chicago Divorce Attorney services page to learn more Family Law Judge Although you cannot select your Judge, getting on their good side will definitely benefit your case. You can do this by asking your attorney what the Judge prefers or just general questions about what to wear and how to act in the courtroom. After some time, judges do get to know the litigants. They remember the good and the bad. Some even take down notes of random things they want to remember. Showing a judge that you are reasonable and want to be civil can go a long way. If you are not meshing with your Judge, you get one opportunity to request a new judge without providing a reason in Cook County. When doing this, you want to keep in mind that having a new judge will often mean starting from scratch. You may have to continually remind the new judge of significant facts that have happened in the past. This could be a good or bad strategy for your case. Guardian At Litem If you have children involved in the divorce, you will need Guardian At Litem. If you have a Guardian At Litem (“GAL”) assigned to your case, it is imperative that you have a good relationship with them and demonstrate that you are a quality parent. It can be crucial in determining the time you get to spend with your kids because the GAL provides recommendations to the Judge, which are often taken. Financial Advisor Divorce often brings significant financial changes, including the division of assets, liabilities, and potential support payments. A financial advisor or planner can help you understand the financial implications of your decisions and create a post-divorce financial plan. They can assist in valuing assets, analyzing tax consequences, and ensuring you receive a fair settlement. Accountant or Forensic Expert Hiring an accountant or forensic expert can be essential in cases involving complex financial assets, such as businesses, investments, or hidden assets. They can uncover financial discrepancies and provide expert testimony if required in court. Estate Planning Attorney It’s essential to review and update your estate plan during and after divorce. An estate planning attorney can assist you in revising your will, trusts, and other estate documents to align with your new circumstances and protect your assets. Building the right team will help you take on this difficult experience and turn it into an empowering adventure. Take your time through the process of selecting team members, and keep your main goals in sight. Supportive Friends and Family Surrounding yourself with loved ones who will support you no matter what is key in a divorce. These are the people who are often most helpful because they’ve seen you at all stages in your life and truly want the best for you. If you’re ready to speak with an experienced Chicago divorce lawyer, contact Anderson & Boback. Taking that first step to speak with an attorney about your situation can help you start the process right with a strong advocate at your side. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/right-team-for-your-divorce In Illinois, family law cases are governed by the Illinois Marriage and Dissolution of Marriage Act. The Illinois Marriage and Dissolution of Marriage Act is a statute which provides the Court with the power to decide the issues in a divorce proceeding, such as property issues and custody issues. In order for the Court to have the power to grant a divorce, the State of Illinois requires certain conditions be met. Illinois Divorce Jurisdiction Requirements First, the court must have subject matter jurisdiction. Subject matter jurisdiction is a lot like its name! A court must have the authority to hear the type of case or subject brought forward. For the purposes of Family Law, only a State Court will have jurisdiction over a divorce case. Federal courts never have jurisdiction over a divorce case. A federal court will only get involved in state matters if there are serious issues of justice in the case, such as a violation of equal civil rights or “for any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.” 28 U.S.C. § 1443 Trying to take a case to federal court involves showing that your federal civil rights were violated. Second, a court must have Personal Jurisdiction. Personal jurisdiction is the power a court has over an individual. Satisfying the personal jurisdiction requirement for a divorce in Illinois is simple. The requirement is based solely on a party’s residency. The law in Illinois says: (a) the court shall enter a judgment of dissolution of marriage when at the time the action was commenced one of the spouses was a resident of this State or was stationed in this State while a member of the armed service, and the residence or military presence had been maintained for 90 days. 750 ILCS (410(a) Which state you file for divorce in cannot be waived or agreed upon with your spouse. Venue refers to the county in which a divorce is filed. Venue can be waived by the parties. Illinois law states that you must file for divorce in the county in which you or your spouse lives. If you live in a different county from your spouse, a divorce case may be filed in either county. The law in Illinois says:
Can I Get a Divorce in Illinois? A few requirements must be met to properly file for divorce in Illinois. First, at least one of the spouses must have been a resident of Illinois for at least 90 days prior to filing the Petition for Dissolution of Marriage or 90 days prior to entry of a Judgment for Dissolution of Marriage. A Judgment for Dissolution of Marriage is the final order that a judge signs to make the divorce official. Second, the parties must have the required grounds for seeking a divorce. Back in the day, Illinois had both fault-based and no fault based grounds for divorce. Fault-based included things like adultery, mental cruelty, habitual drunkenness, abandonment, or even infection with a sexually transmitted disease. Many states in the U.S. still offer these fault-based grounds for divorce. However, in 2016, Illinois passed a law that eliminated all previous grounds for divorce. Now, the only legal “reason” available to file for divorce is irreconcilable differences. This means that the Court must find that the parties tried to reconcile their differences but could not do so. Proving irreconcilable differences requires that at least one party claims the marriage didn’t work out. The 2016 law means that courts, lawyers, and parties don’t have to spend time (and money!) trying to prove which party is “at fault” in the divorce, and people can get straight to resolving the issues, such as creating a parenting plan and dividing property. However, it also means you don’t automatically “win” the divorce if your spouse cheats on you or has substance abuse issues. When is Jurisdiction NOT Met? Here are some common examples of when filing for divorce in Illinois would not meet the jurisdiction requirement:
A great example of a “battle for jurisdiction” is the 2019 Netflix movie, Marriage Story. The wife, played by Scarlett Johanssen, files for divorce in California after moving in temporarily with her mother and bringing along their son. Adam Driver’s character continues to live in New York, but the divorce and custody battle continues in California. While the movie went on to win several awards, many divorce lawyers across the country cringed. Neither lawyer in the film brought up the issue of whether California was the appropriate state to proceed with the divorce case. If you are seeking to file for a divorce in Illinois, please arrange a free consultation with our experienced divorce attorneys in Chicago. When it comes to getting divorced, hiring an attorney to represent you, to guide you through the process, to explain the current laws, and litigate for you in court, is extremely important. There are certain intricacies in the law and the processes that you might not understand yourself that an attorney can help with. 4 Reasons Legal Representation Makes a Difference in a Divorce Here are a few reasons why obtaining legal representation for your Chicago divorce is important and how not obtaining legal representation could cause problems: 1. You need to understand the different types of retirement accounts you might be dealing with when it comes time to divide them in a divorce. Not all retirement accounts are the same. There are retirement accounts that might offer a set payment to you each month upon retirement, defined benefit plans, which are usually pensions. The longer you work, the larger your monthly payment will be from the pension plan. The other retirement plans are defined contribution plans, which include but are not limited to IRAs , 403(b)’s and 401(k) accounts, and the life. These accounts allow you to withdraw funds upon retirement age (with certain limits set by the law), but the balances of theses accounts fluctuate based on the investments. Any funds that were added the IRAs or 401(k) accounts during the marriage, and any pension benefits that accumulated over the years of the marriage are all considered marital. Knowing what retirement accounts exist between you and your spouse, and how they will be divided, will help you identify your current retirement position, and what action you might need to take in the future to feel secure about retirement. 2. Accounting for taxes in your divorce settlement/case is important. Just about everything about your tax situation is going to change upon divorce. You will have a new filing status, a different tax bracket, and possibly a change to the dependents you claim if you or your spouse will get to claim the minor children or you alternate. You should consider the tax implications of divorce before your case is final so you can adjust your withholdings appropriately on your paychecks, and so you know what money you may or may not be getting back from a tax refund in the future. You also need to consider your future liability when it comes to your income. If you have dividends, or sell stock, or withdraw funds from your retirement, this could negatively affect your tax liability for the next tax year. Your divorce attorney can advise on some of the tax implications when discussing the settlement of the case, but you should also consult with a skilled accountant or tax preparer. 3. Don’t assume that “Equal” division is the fair division of marital property. A house in divorce does not have the same value as a retirement account. A rental or investment property does not have the same kind of value of a car. When trying to settle a case, you need to think about more than just the inherent value and whether it is worth it on your end to fight for an unequal division of some assets. If you are planning on receiving 50% of the equity from the marital house, that is money you get at the divorce and unless you invest it, that’s all the money you get. However, a retirement account that is divided has the potential for losses and gains, but hopefully, gains if you won’t be retiring for many years. A car’s value will go down the longer it is used and the older it gets, but a rental property has the potential to earn you additional income despite having bills to pay and possible loss in value. Consider the real value of the property and other assets you will be dividing in your case, and think about what might have more value for you based on your current and future financial situation. 4. Calculating child support and/or maintenance can be tricky depending on how each party earns an income. Child support and spousal maintenance in Illinois are calculated by inputting each party’s gross income into a software program called “Family Law Software.” This program calculates accurate taxes based on income but requires you to input additional information like mandatory retirement deductions, medical insurance premium costs, length of marriage, etc. There is a program that is similar and available through the Illinois Department of Healthcare and Family Services website, but it is not as accurate when there are more details to add or if the parties are not W-2 wage earners. If your spouse has his or her own business, is a contract worker, or works on commission, calculating child support or maintenance with the program can be tricky. You want to ensure that any support you will be receiving from your spouse will be an accurate amount. Not having a skilled attorney able to do accurate calculations and include all the necessary elements could result in you being paid much less than you are supposed to. Or, on the other side of things, possibly paying much more than you should. Retaining an experienced family law attorney for your divorce case will ensure that the correct support amount is being paid. Ready to Seek Legal Representation for Your Chicago Divorce? If you are considering representing yourself in a divorce or family law dispute, consider seeking advice from an experienced Chicago divorce attorney before making a final decision. Your future may depend on it. Schedule a free consultation with the Chicago family law attorneys at Anderson & Boback to explore your legal options. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/importance-of-legal-representation-in-chicago-divorce-proceedings/ As Chicago divorce attorneys, we’re often asked if there is a residency requirement in order to file for divorce in Chicago. While a simple question, the answer involves legal concepts like "jurisdiction" and "venue" that are important to determine where you should file for divorce. Understanding Divorce Jurisdiction, Venue, and How it Applies to You A divorce case is not filed with a state or a city court but with a county court. Personal jurisdiction is the power a court has over an individual. Satisfying the personal jurisdiction requirement for a divorce in Illinois is simple. The requirement is based solely on a party’s residency. The law in Illinois says: (a) the court shall enter a judgment of dissolution of marriage when at the time the action was commenced one of the spouses was a resident of this State or was stationed in this State while a member of the armed service, and the residence or military presence had been maintained for 90 days. [750 ILCS (401(a)] Which state you file for divorce in cannot be waived or agreed upon with your spouse. Venue refers to the county in which a divorce is filed. Venue can be waived by the parties. Illinois law states that you must file for divorce in the county in which you or your spouse lives. If you live in a different county from your spouse, a divorce case may be filed in either county. The law in Illinois states: “Venue. The proceedings shall be had in the county where the plaintiff or defendant resides.” [750 ILCS 5/104(a)] Where do I file for divorce? In which state can I file for divorce? First, you must determine which State is appropriate to file for divorce. In general, you should file for divorce in the state where you reside. You may also file for divorce in the state in which your spouse lives. In which county can I file for divorce? Next, you must determine which county to file for divorce in. Similarly, the county in which you file should be the same as where you or your spouse lives in. How do I determine my "residency" for divorce? For the purposes of divorce, residency is determined by the intent of one of the parties to have a “permanent home.” Garrison v. Garrison, 246 NE 2d 9 – Ill: Appellate Court, 2nd Dist. 1969. You can prove the intent to reside in a particular county with testimony and supplemental evidence. For example, a party can say, “I work in Chicago, but I live in Bolingbrook.” The statement is the testimony, and a job offer letter or paystub would be the supplemental evidence. Is there a residency requirement to file for divorce in Chicago? Yes, there is a residency requirement to file for divorce in Chicago. Chicago is in Cook County, Illinois. Therefore, if you live in Chicago, you may file for divorce in Cook County. If you live in Bolingbrook, Illinois, you may file for divorce in Will County. To file in Chicago, you or your spouse must have been living in Illinois for 90 days prior to filing or 90 days prior to entry of a Judgment for Dissolution of Marriage. A Judgment for Dissolution of Marriage is the final order that a judge signs to make the divorce official. How soon can I file for divorce in Chicago if I just moved? There is no waiting period to file for divorce in Chicago. You can file for divorce the day you move to Chicago! However, a judgment can only be granted once a party has lived in Illinois for 90 days. Can I file for divorce in Illinois if I live in another state? You may be able to file for divorce in Illinois if you live in another state if your spouse lives in Illinois. For example, if you live in Wisconsin, but your spouse lives in Illinois, you may file for divorce in either Wisconsin or Illinois. However, you should be cautious about where you file if you cannot easily travel to a state for important court proceedings. While many courthouses in Illinois are still using Zoom for their day-to-day proceedings, some courts and judges will order the parties to be physically present for their court dates. If you are still deciding in which state to file for divorce, it is best to talk to a Chicago divorce lawyer about where to file. The different laws in each state may provide different benefits or disadvantages for your specific situation. What if I have kids? The jurisdiction rules apply when filing for divorce with children. However, there are other factors to consider. The court needs to have jurisdiction over the children, too, in order to make decisions about their lives. A court has jurisdiction to make decisions about children’s custody if the court is in the child’s “Home State.” The home state of a child is where that child has lived with a parent for six consecutive months. If a child has lived in more than one state in the past six months, then a court will have to make a determination if it is the correct state to make decisions about the child. A court can do this by determining which state has the most direct relationship with the child. Visit our Chicago Child Custody Lawyers page to learn more Schedule a Consultation with our Chicago Divorce Attorneys If you are thinking about filing for divorce in Chicago, be sure to speak with an experienced divorce attorney first to get the peace of mind you need to move forward with confidence. Schedule your consultation to see how our legal team of skilled Chicago divorce attorneys can assist you with your family law needs. Contact us today to get started. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/residency-requirements-to-file-for-divorce-in-chicago/ Worried about going through an ugly divorce? If you are going through a divorce or are thinking about filing for divorce, you may be worried about the outcome. Remember that, for the most part, you are in control of how the divorce process goes. So, if you have not filed for divorce yet, think about the big picture and focus on your main goal. If you are already involved in the dissolution process, maybe let this all sink in and re-evaluate your strategy if need be. First, Is the Marriage Over? For whatever reason, you no longer want to be married, or your spouse no longer wants to be married. In some cases, the marriage can still be saved. Many people get a therapist when having marital trouble. Some couples even go to marriage therapy together. Sometimes, people just need some time apart. Some people divorce and remarry later in life. Every relationship has a unique story. When you've determined your marriage is OVER, here are some important tips to remember to avoid an ugly divorce. 1. Spouses Do Not Need to Agree to a Divorce Spouses do not need to agree that they want a divorce, which sometimes sparks an ugly divorce. If your spouse files for divorce, you cannot just decide to ignore what is happening, and making it “ugly” won’t help. If you do, the Court could end up finding you in “default” and then your spouse will likely get whatever they requested in the divorce petition they filed. Related topic: What to Expect When Filing for Divorce 2. It's Time To Set Your Goals Once you start to accept the fact that the marriage is over, start thinking about what your main goals are. Yes, of course, you cannot simply flip a switch and be okay with what is happening in your but the quicker you can control your emotions, the quicker you can get in control of the divorce. Find a good therapist to get you through this trying time and figure out what is most important to you. How you react now will impact you later.
3. Save Money and Conserve Assets Money is something most people would agree is a big goal in a divorce. Whether your assets are big or small, it is likely that you want them to continue to grow in value. Conserving assets during the dissolution process should be high on everyone’s list because the more you have at the end of the divorce process the more financial stability you will have moving forward when the Divorce Judgment is entered. 4. Consider Divorce Mediation The more you and your spouse can agree to, the more you can conserve your assets. Have you and your spouse discussed mediation? That can often be a cost-effective way to work towards a resolution and move on with your life. Try not to let communication issues stop you from trying to work something out with your spouse. Utilize a mediator, a divorce coach, or your attorneys. The sooner you can start talking settlement with your spouse the better. Remember that the court is there is decide legal issues only. The court does not really care about what caused the breakdown in the marriage. Illinois is a “no-fault” divorce state, so it doesn’t matter what you or your spouse did or did not do in the marriage. If you want a divorce, you can get a divorce. During Divorce Time Is Money Remember that time is money. The less time your divorce takes, the more money you will likely save in the long run. Don’t let yesterday's and today’s emotions negatively impact your life tomorrow. 5. Stay Calm and Informed While it may sound easier said than done, staying calm and informed during the divorce process is key to avoiding an ugly divorce. Emotional reactions can escalate conflict in your day-to-day life and hinder productive discussions during negotiations. Stay informed of your legal rights and responsibilities throughout the process and empowers you to make informed decisions. Visit our Chicago Divorce Attorney page to learn more Choose the Right Divorce Attorney If you are wondering if the time is right to proceed with a divorce or if your spouse has already made that decision for you it’s important to seek sound legal advice. Choosing a skilled and experienced divorce attorney that is right for you can make all the difference. If you are in the Chicago area, feel free to contact the experienced divorce attorneys at Anderson and Boback for a free consultation. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/tips-to-avoid-ugly-divorce/ There are common back-to-school issues many divorced and single parents face as summer vacation comes to an end. As children and parents prepare for a new school year, there are a number of issues that arise in family law related matters. From school selection to parenting time schedules, last-minute vacations and school supplies and uniform shopping, it's an especially crazy time for blended families. Here are some key things to remember as you and your child get ready for the back-to-school rush and related issues to avoid in Family Court: Coordinating Schedules Coordinating schedules is one of the most significant challenges for divorced or single parents during the back-to-school season. Different households may have different routines, making it crucial to establish open communication and a reliable shared calendar. Online tools and apps can help parents keep track of important dates, such as parent-teacher conferences, extracurricular activities, and school events. Set up a digital shared calendar where both parents can input their schedules. Regularly update the calendar and ensure both parents have access. Consider streamlining communication using apps like Google Calendar, Our Family Wizard, or Cozi. It's a good idea to try out a few different ones to see which one works best for your co-parenting needs. Additionally, make sure to discuss the choice of app with your co-parent to ensure that both parties are comfortable with the platform and its features. Choice of School is NOT an Emergency Perhaps you have wanted to change your child’s school for some time, and the other parent won’t agree. This is not an emergency. Any issue that does not qualify as an emergency must be agreed to for a Court to enter an order on any given matter that is not properly before it in a pending case. I have heard more times than I can count Judges say to litigants and their attorneys that they have “known school starts in August or September all year long – it starts in these months every year, it isn’t an emergency!” Bringing an emergency of this nature is not likely to be looked upon happily by a Judge. Avoid Tardies and School Absences at All Costs If you are the residential parent for school purposes and your child is consistently late in arriving at school, the responsibility for excessive tardies will likely to fall on you. If the other parent brings a motion to Family Court concerning your child’s absences and/or tardies, that, coupled with poor academic performance, may be grounds to make some changes to the current arrangement. Likewise, if you are not the residential parent for school purposes and you have the minor child overnight and they arrive late, are absent, or don’t complete assignments, that, too, can cause some changes to the current arrangement. School Supplies – Who's Going to Pay? Each new school year brings a long list of school supplies that must be purchased. Some parents agree to split school supplies out of the goodness of their hearts. However, most parenting agreements don’t provide for this unless the parties specifically agree to it or unless there is some “catch-all” language regarding school expenses that includes it. First Day of School For most parents and children, the first day of school can be charged with a mix of emotions. For students, the excitement of seeing old friends and meeting a new teacher helps them look forward to a new year. At the same time, it's normal for them to be a bit nervous about starting the new school year. As parents, it can be a sentimental day that reminds you just how quickly they’re growing up. Make the first day of school less overwhelming for them by working together so everyone can enjoy this special day. Back-to-school issues can be complex for divorced and single parents. Still, these challenges can be navigated successfully with effective communication, thoughtful planning, and a focus on the child's well-being. By working together and prioritizing your child's needs, you can create a supportive and positive environment that helps your child thrive academically and emotionally. When issues or questions arise regarding the allocation of parental responsibility, contact Anderson & Boback’s family law attorneys for legal advice and guidance you can trust. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/common-back-to-school-issues-divorced-parents Divorce is a difficult situation even for the most well-adjusted people who are going through it. However, divorce oftentimes is the choice of one of the parties to marriage, but not the preference of the second party. A divorce will be granted, regardless of whether or not one party wishes to proceed with one; however, a situation where someone doesn’t want to get divorced can make the process more challenging. Someone who does not want the divorce may refuse to cooperate and stall the proceedings by any means possible, and in those scenarios, it is important to have a divorce attorney who knows how to circumvent those actions and proceed to the finish line.
Situations Where a Spouse Refuses to Cooperate Separated - But Not Legally Separated One situation where a party may refuse to cooperate with a divorce case is in a situation where the parties are separated but not legally separated, and one party doesn’t want to take the next step to file for a divorce. In this scenario, the person seeking a divorce can file a divorce case and elect to have the non-confrontational party served. Once that party is served, they have 30 days from the date of service to file an answer and appearance in the divorce case. Otherwise, the case may proceed without them. This ultimately may mean that they end up divorced by “default”, where a divorce is granted without their participation. If they are personally served, the court can even award property to the spouse who filed, to the detriment of the non-participating spouse. However, the divorce will be completed, whether or not they choose to participate, and if they don’t participate, they may also lose property or assets which they would have wanted. They are given the chance to participate and request what they want from the court, but choose to ignore the proceedings to their own detriment. Doesn't Want a Divorce Another scenario ripe for non-cooperation between spouses includes when one party has filed, and the other party doesn’t want to go through with the divorce. Like the first scenario, the party may allow themselves to be served and then ignore the divorce process, or they may try to dodge being served altogether. In the latter case, it may be best to employ a special process server to complete the service. This is usually a detective or other private individual, such as a private investigator, who will work to have the person served. The sheriff is the “default” service provider in a divorce case, but if they knock on the door and no one answers, they will not stake out the house and wait for the person to arrive home to serve them. Usually, if they don’t serve them, they will return the summons as not served. A private investigator or special process server, however, usually works on some hourly arrangement, and they will wait for someone outside their home or place of business or even their gym. The party requesting service can provide car make and model and license plate information, photographs of the person, a synopsis of their daily routine or schedule, and other information to effectuate service. This allows service upon an individual who otherwise would try not to be served, moving the process along more quickly. Refuses to Cooperate with the Litigation Process We also see a lack of cooperation in situations where the parties are already in the litigation process. The spouse trying to avoid a divorce may take actions to delay or stall the proceedings, including not complying with court orders, not completing discovery requests, refusing to comply with discovery, finishing discovery, making scheduling of court dates, depositions, mediations, and settlement conferences difficult, and more. There are mechanisms in place to allow for the court to enforce court orders and to force parties to complete discovery or mediation, including, but not limited to, imposing monetary sanctions, barring the party from producing evidence or testifying or calling witnesses at trial, or even incarceration, in some scenarios. The courts have the power to force the divorce to proceed, even if someone doesn’t want it. The most certain way to force the divorce to proceed is to set a trial date. If the party is not ready for trial by the scheduled trial date, or if there isn’t a full settlement, the attorneys must proceed to trial. It is truly amazing how many cases will be settled the evening before or the morning of a trial. If you are facing a divorce with a spouse who refuses to cooperate, you have options. Speaking with an experienced divorce attorney is the best first step to assessing how to push the divorce forward. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/what-if-my-spouse-refuses-to-cooperate-in-the-divorce-process/ Dividing retirement accounts during a divorce can be a complex and crucial aspect of the asset division process. To follow are answers to the top five questions that arise regarding dividing retirement accounts in an Illinois divorce.
1. How is retirement split in divorce in Illinois? Retirement accounts contributed to during a marriage do not belong to only one party; rather, they are considered marital property that will have to be divided equitably in a divorce. To divide retirement accounts in a divorce proceeding, Judges enter a Qualified Domestic Relations Order (or a “QDRO”) to do so. A QDRO allows the transfer of a portion of one 401(k) account into a separate retirement account established by the other party. Using the QDRO allows the typical 10% penalty for an early withdrawal to be waived. Alternatively, suppose the other party opts for a lump sum payment from the other party’s 401(k) account. In that case, the person receiving the funds as cash will have to pay the required taxes on the disbursement at the rate associated with their income tax bracket. 2. Do I have to give my wife/husband half of my retirement? Illinois differentiates between marital and non-marital property in the division of assets. For retirement accounts, 401(k) earnings and contributions during the course of the marriage are considered “marital,” whereas 401(k) earnings and contributions before and after the marriage are considered “non-marital.” Illinois is an equitable division State, which means that while divisions of marital property, including the marital portion of retirement accounts, are not presumed to be divided 50/50, in most cases, the assets do result in an equal split absent extenuating circumstances. These circumstances include situations such as the length of a marriage, the parties’ future earning capacity, a significant age difference, the amount of non-marital funds each party has, and others. The division of the non-marital portion of a retirement account is different, though. Usually, the earner of the 401(k) will retain 100% of the nonmarital portion of the 401(k) earned before and after the marriage. If you have statements showing the balance of the 410(k) as of the date of the marriage, the interest accrued on the non-marital portions can be accounted for as well. The 50/50 division of marital retirement accounts can be changed if the parties are able to agree upon a different arrangement. These outcomes are case-specific, and we recommend speaking with an experienced family law attorney to discuss whether this could be an option for you. 3. How can I avoid losing my 401k in divorce? In a negotiation to reach a settlement, a party can try to protect their 401(k) by agreeing upon divisions of other assets or accounts. This can be favorable if people want to avoid certain tax consequences or penalties for disbursing from retirement accounts early. For individuals who have not yet married, a prenuptial agreement is an option. A prenuptial agreement, or a “prenup”, allows parties to come to agreements before their marriage regarding the division of assets after the marriage. One asset that can be determined in a prenup is a retirement account. For individuals who are already married, a postnuptial agreement may be an avenue to keep separate retirement accounts separate in the case of a divorce. 4. Should I cash out my 401k before divorce? First and foremost, before pulling any money out of a 401(k) or other retirement account, it is important to recognize that doing so can result in tax consequences or penalties. Nonetheless, if a party pulls from their retirement account, that money will have to be accounted for, as it remains marital property regardless of whether it is in that retirement account or not. Additionally, if a party tries to hide funds of any sort, including those from retirement accounts, their case can and will be severely impacted. Trying to hide money or other assets will backfire, and it will cause credibility issues in the case. Additionally, a Court may issue sanctions against such a party, meaning the party may have to pay a monetary penalty to the other party for these actions. Rather than trying to hide assets from a spouse and causing severe damage to your case, it is always recommended to speak to an attorney about how to make the best argument to keep your retirement accounts or to divide them in a beneficial way. 5. Will I lose my ex-spouse’s retirement if I remarry? Getting remarried after a divorce can be an exciting time, but it can also be a confusing time regarding what happens to any assets from a prior marriage. What happens with an ex-spouse’s retirement depends on many circumstances that are case-specific. For example, if you opt for a lump-sum payment at divorce, you will keep that lump sum. But what if you were getting social security benefits from an ex-spouse? Whether you can receive benefits from your ex-spouse’s social security benefits would depend on how the first marriage ended (death or otherwise) or whether the new marriage ends. Numerous factors can affect the answer to this question, so it is highly recommended to speak to an experienced Chicago divorce attorney to see what impact a new marriage may have on your retirement plans. Related topic: Guide to Property Division in Divorce THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/5-faqs-about-dividing-retirement-accounts-in-an-illinois-divorce/ In Illinois, we sometimes award a party support from their former spouse, called maintenance. Many other states typically refer to this as alimony or spousal support. In Illinois, the maintenance statute indicates that spousal support will terminate if the recipient of the maintenance cohabits on a continuing, conjugal basis with another person while receiving maintenance. The statute in Illinois also indicates that the support terminates on the death of the payor, or upon the death of the recipient. However, parties can agree to modify the statute and come to their own agreement regarding what events will terminate their spousal support or maintenance, even if it varies from what is written in the statute.
Termination Factor: Cohabitation For example, parties will occasionally agree to continue to pay spousal support to someone even if they live with or "cohabit" on a continuing, conjugal basis with another person. And, in the event that this is agreed upon by the parties, the agreement should outright say that the support won’t terminate upon cohabitation occurring. Parties have many reasons for why they might agree to this. For one thing, cohabitation can be extraordinarily difficult to prove in court. What is a "De Facto" Marriage? The case law in Illinois seems to implore parties to prove that their spouse is actually involved in a “de facto” marriage before support will be terminated, as seen in some of the appellate court rulings. This means carrying out to the community that they are in a relationship similar to a marriage, calling each other husband and wife to third parties, comingling finances, vacationing together, spending holidays together, and more. Usually, the only window of opportunity the paying spouse has into the recipient spouse’s living situation is what they might hear from their minor children. Most parents don’t want to question their children about the comings and goings of the other parent’s significant other and what goes on in the other home, and some allocation judgments prohibit parents from questioning their children about the other parent’s activities altogether. Proving Cohabitation - Easier Said than Done So, while a party might be certain that their ex-spouse is cohabiting, it can be extraordinarily difficult to prove it in court. Often this will cost the parties a lot of money to litigate, with the paying spouse sometimes hiring a private investigator to conduct surveillance and requiring extensive discovery to prove a de facto marriage. When it comes down to it, a party who has to pay support for several years and then it terminates may agree to remove the cohabitation termination language because the amount it would take everyone to litigate the issue should it arise would be cost-prohibitive versus actually paying the maintenance itself. Termination Factor: Death of a Paying Spouse Another situation where maintenance terminates is upon the death of the paying spouse. This leaves the recipient spouse in a bad spot because they rely on the financial support, which is suddenly gone. Marital Settlement Agreements are sometimes drafted where a life insurance policy can secure the maintenance or spousal support payments so that if the paying spouse unexpectedly passes away during the maintenance term, the recipient spouse is not destitute. Oftentimes in this situation, the recipient spouse will pay the premiums on the life insurance policy, so this security blanket is at their own cost. Additionally, for the life insurance policy, the marital settlement agreement should also contemplate what happens if the life insurance policy is unilaterally reduced by the payor spouse. This is unusual for a term policy, but it is possible to reduce the death benefit for a whole-life policy, where someone can take out loans against it. The marital settlement agreement can contemplate all of this and can even provide that the unpaid maintenance amount that isn’t available via the life insurance proceeds could become a lien against the estate of the paying spouse to try and secure the money even in the event the life insurance policy is somehow reduced. While the Illinois statutes provide guidelines for maintenance termination and the factors, the parties can always reach their own agreement. Should their agreement deviates from Illinois guidelines, the Court will enter it so long as it is agreed upon and the Court finds that it is not unconscionable. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/blog/spousal-maintenance-awards-in-illinois-termination-factors/ |
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