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.

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.

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.

Life Insurance and Child Support

Life Insurance and Child Support

For litigants in divorce and paternity proceedings where child support is a consideration,  life insurance should also be an important consideration. In the event a parent who is contributing support passes away before his/her obligations of child support and college contributions conclude, life insurance proceeds can continue to provide for the financial  support of the children. Life insurance beneficiary designations, as well as such designations on other assets such as financial instruments and retirement accounts, may need modification to best protect the asset(s) for the benefit of the children. Many parents consider designating their children as beneficiaries instead of their ex-spouse, other parent or relative. Doing so more effectively assures the proceeds are allocated for the intended recipients. If minors are designated as beneficiaries, a custodian will be required to oversee the proceeds until the time the children are emancipated. Such a designation is regularly accomplished through insurance company forms. The custodian receives the proceeds from the life insurance policy upon the death of the insured, but the custodian has a legal duty to use the funds for the only the welfare of the beneficiaries. A trust is another estate planning option. If utilized, the trust can be designated as the beneficiary of the life insurance, and the terms of the trust can provide how the proceeds are to be distributed for the benefit of designated survivors. Consultations with experienced divorce and estate planning attorneys can offer the best direction for each person’s particular circumstances.

Divorce: Jurisdiction and Service

Once a Petition for Dissolution of Marriage is filed, the responding party must be made a party to the proceedings in order for the Court to obtain jurisdiction over that party. Jurisdiction is the authority of the Court to hear and render decisions in a pending case. If the responding party, or an attorney on his or her behalf, does not voluntarily file an appearance in the case, the usual practice is for the petitioning party to have a Summons issued by the Clerk of the Court where the divorce is pending and to place the Petition for Dissolution and Summons for service with the sheriff’s department in the county where the responding party resides or with a private process server. If service of process is accomplished on an out-of-state resident, additional requirements must be met.

When the responding party receives valid personal service, the Court obtains both: 1) the authority to adjudicate the status of matters, for instance: dissolving the marriage, adjudicating allocation of parental responsibilities (parenting time, parental decision-making authority), and assigning interests to property assets located in Illinois (characterized as in rem jurisdiction), as well as, 2) the authority to enter orders regarding the conduct of the parties, for instance: the payment of child support or maintenance, and the allocation of attorney fees and marital debt (characterized as in personam jurisdiction).

If a spouse cannot be located after diligent inquiry, rendering personal service unattainable, upon motion to the Court, service by publication of a notice of the proceedings in the local newspaper where the case is pending may offer an alternative means of service, although, service by such means only confers in rem jurisdiction, such that matters requiring in personam jurisdiction must be reserved until the responding party is either personally served or agrees to file an appearance with the Court.

Parenting Class in Divorce Proceedings

Parenting Class and Education Programs

Illinois Supreme Court Rules require that each county or circuit court establish an approved parenting education program. Such programs encourage parents to develop ways to relate to each other that keep their children out of conflict, motivate parents to focus on the best interests of their children, and emphasize the need for parents to set aside personal differences in order to provide the healthiest environment possible for their children.

 

Such programs are generally four hours in length and cover the subjects of parenting time, allocation of parental responsibilities and the impact of divorce and separation on children. Attendance and completion of such programs is mandatory for all parents of minor children who are participating in divorce or paternity cases, unless the requirement is excused by the court for good cause shown. Such programs generally should be completed as soon as possible after commencement of the court case, but not later than sixty days after an initial case management conference, which conference generally takes place about ninety  days into the proceeding.

 
Some counties offer programs that are available online as well in person seminars, and most programs cost in the range of $50.00-$100.00 per parent, although reduced costs are available in some cases, especially to litigants with limited resources. Parents are encouraged to attend different sessions. Courts may impose sanctions on any party willfully failing to complete the parent education program approved in that county, including findings of contempt, and in some cases, denial of parenting time

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