How Property is Divided in a Divorce

Divorce:  Property Division

When parties go through a divorce, the first major thing the Court will decide are issues relating to the parenting of the child or children.  If the parties do not have any children, or once the parenting issues are decided, the Court will then turn to the financial side of the divorce.  While child support and spousal support do need to be determined, a more complex issue arises when the Court is tasked with dividing the marital estate.

What is the Marital Estate

The marital estate is the total value of all assets determined to be marital minus all debts determined to be marital.  This means the Court must first determine which assets are “marital.”  A general rule of thumb is that all assets acquired during the marriage, regardless of title, are marital assets that make up the marital estate.  There are various exceptions, which an experienced divorce lawyer or family attorney can explain in further detail.

Marital debts are those debts incurred during the marriage for a normal marital purpose, including most commonly mortgage debts and auto loan debts.

Determining the value of the marital estate can become complicated as the liquidity of the marital assets become more complex.  Calculating the value of a bank account is straight forward; calculating the value of a business is not.  In many cases it makes sense to hire an expert to value a business in a divorce case, as reaching an accurate valuation is necessary before the Court can divide property.  Tax consequences also must be considered when dividing retirement accounts.

Once the value of the marital estate is determined, the Court will then divide it equitably.  Many times the Court determines an equal division of the marital estate to be equitable, but the law only requires the division to be equitable, not equal.

There are a number of factors the court can consider in determining whether the division of marital property is equitable.  Contact a divorce lawyer or family attorney at our Lombard or Plainfield offices for a free consultation.  Our attorneys are able to meet in person or discuss your options via phone if it is more convenient for you.

For more information about marital property in divorce cases, see section 5/503 of the Illinois Marriage and Dissolution of Marriage Act.

Discovery in Divorce Proceedings

Discovery in Divorce Proceedings

In Illinois, discovery is common in most divorce cases.  It usually occurs after a Petition for Dissolution of Marriage is filed, but before any serious settlement discussions commence.  While most courts require the parties to exchange Financial Affidavits, formal discovery is a more thorough and time consuming process that consists of two main components:  written discovery and oral discovery.

Written discovery most often consists of serving and answering marital interrogatories and serving and answering requests for production of documents.  Marital Interrogatories are a series of questions, mostly involving finances and property ownership, which must be answered within twenty eight (28) days of being served with them.  These interrogatories must be signed or certified with an attestation page or an affidavit swearing to the truth of the written answers.  Requests for production of documents require a party to produce a number of documents in their possession.  These requests usually include paycheck stubs, bank account statements, credit card statements, retirement account statements, and documents related to property ownership.

Oral discovery most often consists of the taking of depositions.  This requires both attorneys to be present in front of a court reporter, where questions must be answered under oath.  The party being deposed is required to tell the truth, and their answers can be used against them at a future trial for impeachment purposes if they give an answer at trial that differs from their answer at the deposition.  Depositions are long and costly, but are a great way to figure out what a party (or another witness) is likely to testify to at trial.

Discovery is common in divorce cases in Illinois, however it can still be stressful for the parties involved.  The divorce and family law lawyers at The Law Offices of Robert F. Kramer, Ltd. can help you navigate through the discovery process.  Our attorneys are available to meet either in person at our Lombard or Plainfield offices or on the phone at any time.

For more information about discovery rules and procedure in Illinois, please see the Illinois Supreme Court Rules regarding discovery, which can be found here.

Can I Stop a Divorce Once It Is Filed?

Can I stop a divorce once it is filed?

It is fairly simple to stop a divorce at any point prior to the entry of a final Judgment for Dissolution of Marriage.  If the party who filed the Petition for Dissolution of Marriage no longer wishes to proceed with the divorce, they can request a voluntary dismissal of their Petition through a Motion to the Court. If the non-filing party has already filed a response to the divorce petition, and/or filed a counter-petition for divorce, additional procedural requirements may need to be met, and both parties’ agreement to dismiss the case may be needed prior to the dismissal.  Once a divorce is stopped, all previous Orders entered by the Court become unenforceable.

A more common scenario that occurs is when the parties wish to have a “reconciliation” period after a Petition for Dissolution of Marriage has been filed.  In this scenario, the parties have already begun the divorce process, but one or both parties are not one hundred percent sure they want to continue.  The Court will generally grant at least one request for reconciliation, which is a period of approximately 90 days during which the divorce process is “paused” as the parties attempt to work out their differences.  If the reconciliation period is successful, the Petition for Dissolution of Marriage can be withdrawn and the parties can continue as if no divorce had been filed.  If the reconciliation attempt fails, the divorce picks back up where it left off at the start of the reconciliation period.

If you have questions regarding a divorce you are going through or planning to go through, contact our experienced lawyers today.  Our attorneys are available to meet either in person at our Lombard or Plainfield offices or on the phone at any time.

What is a Legal Retainer?

What is a legal retainer and how does it work?

A legal retainer is a lump sum payment made by a client to an attorney at the commencement of legal representation.  It facilitates the satisfaction of costs (court costs, clerk filing fees, process server fees, etc) and attorney fees (services performed by the attorney at a specified hourly rate) contemplated to be incurred as a result of the attorney’s representation of the client.  A legal retainer is not a “quote” and is not meant to cover the total expense  of the legal representation, rather it is meant to serve as a prepayment or a good faith down payment for expected court costs and a limited number of service hours at the attorney’s billable hourly rate.

A legal retainer is refundable to the extent that the funds have not been applied towards the satisfaction of costs already incurred or attorney services already performed on a client’s matter.  If the total amount of costs incurred and attorney fees exceeds the initial retainer deposit, attorneys generally request additional retainer sums and payments as their representation of the client progresses.

The attorneys at The Law Offices of Robert F. Kramer, Ltd. understand that each client has a unique set of circumstances leading them to need legal representation.  That is why our attorneys work with clients to come up with convenient legal retainer arrangements that are specifically tailored to the facts and circumstances surrounding their case.  With offices in Lombard and Plainfield, our lawyers are able to meet in person or on the phone with clients and always offer a free 30 minute initial consultation.

Uncontested Divorce

What is an uncontested divorce?

An uncontested divorce is one in which both parties are in agreement with each and every request in the Petition for Dissolution of Marriage.  The Petition for Dissolution of Marriage is the initial filing with the Court that commences a divorce proceeding.  Many parties believe they have an uncontested divorce, when in reality they only have an agreement on a few major issues.  For a court to determine your case to be an uncontested divorce, all issues, both small and large, must be addressed.

If the parties have children, this includes schedules of parenting time, decision making for the children, transportation arrangements, vacation schedules, etc.   All financial issues must also be in agreement.  This includes, but is not limited to, the amount and duration of child support and maintenance (formerly known as alimony), allocation of marital property, including the marital residence, retirement accounts, bank accounts, and automobiles.

If both parties agree to all the settlement terms for both the financial issues and parenting issues, and certain procedural requirements have otherwise been met, the divorce may generally be concluded with a single appearance before the Court, called a prove-up hearing, where settlement documents, which have been signed by both parties, are approved by the Judge and the divorce is finalized.

If you are unsure whether your divorce will be considered an uncontested divorce by the Court,  contact our experienced divorce lawyers.  Our attorneys are available to meet either in person at our Lombard or Plainfield offices or on the phone at any time.

When do I need an Order of Protection?

What is an Order of Protection?

An Order of Protection is a court order which restricts someone who has abused a family or household member. An Order of Protection may:

  • prohibit an abuser from continuing threats and abuse;
  • order an abuser out of a shared home or residence;
  • order an abuser out of that home while they are using drugs or alcohol;
  • order an abuser to stay away from you and other persons protected by the order and keep abuser from your work, school, or other specific locations;
  • prohibit an abuser from taking or hiding children, give you temporary custody, or require the abuser to bring the child to court;
  • require an abuser to attend counseling;
  • require an abuser to turn weapons over to local law enforcement; and/or
  • prohibit an abuser from other actions.

How do I obtain an Order of Protection?

To obtain an Order of Protection, you should ask your attorney to file in civil court or in a criminal prosecution.  If you are already going through an existing divorce or family court proceeding with the abuser, you may file it in that proceeding.  The divorce and family law attorneys at The Law Offices of Robert F. Kramer, Ltd. are experienced in helping clients in need of Orders of Protection obtain the legal remedies they need to protect themselves and their family members.

If you do not have an attorney, you can go to your local circuit court clerk’s office and get the necessary forms to seek an Order of Protection for yourself, or you may contact a domestic violence program for help completing the necessary forms.

What is Domestic Violence?

What is Domestic Violence?

Any person who commits an act of abuse against another family member or household member has broken Illinois domestic violence law.

How are family or household members defined?  Under Illinois law, family or household members are defined as:

  • family members related by blood or marriage;
  • people who are married or used to be married;
  • people who share or used to share a home, apartment, or other dwelling;
  • people who have or say they have a child in common;
  • people who have or say they have a blood relationship through a child;
  • people who are dating or used to date, including same sex couples; and
  • people with disabilities and their personal assistants.

 

What is an act of abuse?  An act of abuse in Illinois includes:

  • physical abuse (such as pushing, hitting, forced sex);
  • harassment (such as creating a disturbance at your job, repeatedly telephoning, following or watching you, preventing you from seeing your child, threatening to hurt you);
  • interference with personal liberty (such as not allowing you to leave);
  • making a child or other person watch abuse; and
  • denying a disabled person access to needed care.

Domestic violence is a serious issue and assistance may be obtained from law enforcement, domestic violence programs, court personnel and family law attorneys. The divorce and family law attorneys at The Law Offices of Robert F. Kramer, Ltd., are experienced in helping clients who have been victims of domestic violence obtain the legal remedies they need to protect themselves and their family members.

 

Mediation in Divorce: What Issues Must be Mediated?

Mediation in Divorce and Family Cases

In most Illinois counties, if the parents cannot agree on the issues of parental responsibilities or decision making, custody, or parenting time (or other non-financial issues), the Court will Order the parties to attend mediation prior to proceeding to a contested hearing on their issues in dispute.  This serves two main purposes:  encourage discussion and possible settlement, and also to deter court action over relatively minor disputes.  If the parents must attend (and pay) a licensed mediator prior to bringing the matter before the Judge, usually only serious and major disputes will remain unresolved.  Mediation may be waived by the Court for good cause and is not required if impediments exist such as: domestic violence, mental illness, cognitive impairment, drug use, alcohol use, prescription medication use, physical impairment, fraud, duress or undue influence.

If you are unsure whether your dispute is subject to mandatory mediation, contact our experienced divorce and family law attorneys.  We are available to meet either in person at our Lombard or Plainfield offices or on the phone at any time.

What is a Pre-trial Conference?

A pre-trial conference in a divorce proceeding usually occurs towards the end of the case, once the parties have been able to narrow down their dispute to a handful of issues.  At a pre-trial conference, the attorneys for both parties meet with the Judge and explain what their arguments are and what the evidence will show in the event the matter is taken to trial.  The Judge will hear the arguments and make recommendations as to how he/she would likely determine the issue at trial.  The recommendations are non-binding, and the parties are free to accept or reject the recommendations.

The primary benefit of a pre-trial conference is to get the Judge’s opinion on a few disputed issues in a cost-efficient manner.  Instead of presenting arguments for the first time at trial, which requires significant preparation and cost to the clients, the parties are able to present their arguments and receive the Judge’s opinion in one afternoon.  This encourages settlement between the parties; since the parties know how the Judge is likely to rule on a disputed issue, they can decide whether it makes sense to spend the time and money taking the issue to trial.   It is usually prudent to accept the Judge’s pre-trial recommendations, as it it difficult to change a Judge’s mind absent a change in circumstances or a newly discovered argument that was not used at the pre-trial conference.

New Illinois Child Support Law Takes Effect July 1, 2017

New Child Support Law Takes Effect July 1, 2017

Beginning July 1, 2017, the child support law of Illinois will see significant changes.  Under the current law, a parent with a majority of the parenting time with the children (custodial parent) receives a set percentage of the non-custodial parent’s net income, no matter the custodial parent’s income or the children’s actual needs.  Often times this results in a windfall to a custodial parent in situations where the custodial parent is gainfully employed and/or where the non-custodial parent earns significant income.

With the new law taking effect July 1, 2017, Illinois will join 39 other states that utilize the “income shares model” for child support.  Under this new law, the parties’ incomes are combined, and a “total child support”, also known as the “basic support obligation”, is determined by a table, which can be found here.  For example, if the parties have two minor children together and the mother earns a net monthly income of $5,000, and father earns a net monthly income of $3,050, the parties’ combined net monthly income is $8,050.  Utilizing the aforementioned table, the “basic support obligation” for the two children is $1,904 per month.

Under the new law, the $1,904 monthly child support obligation is to be split in accordance with each parent’s portion of the combined monthly income.  Therefore, since the mother accounts for approximately 62% of the combined monthly net income ($5000/$8050 = 62.11%), she will be responsible for 62% of the “basic support obligation” for the minor children, or $1,181.  Similarly, the father will be responsible for 38% of the “basic support obligation” for the minor children, or $783, since the father accounts for approximately 38% of the parties’ combined monthly net income.  In this situation, if the mother is the parent with a majority of parenting time, the father would pay $783 to the mother each month for child support.  If the father is the parent with a majority of parenting time, the mother would pay $1181 to the father each month for child support.

There are a number of other expenses that can be allocated between the parties under the new Illinois child support law.  The schedule of parenting time can also have an impact on the calculation of the “basic support obligation” and each parent’s respective obligations.  Be sure to consult with an experienced divorce lawyer or family attorney to learn the details and intricacies of the new child support law in Illinois.

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