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Divorce, Illinois Style

We've all seen the movies and the television shows about divorcing couples, but what really happens in an Illinois divorce?

In order to file for a divorce in Illinois, one of the spouses must have been a resident of Illinois (or stationed in Illinois while in the armed services) for 90 days. In addition, if the grounds for divorce are irreconcilable differences, the couple must have been living apart for at least six months. In connection with the divorce, the court will determine the custody of the children, child support, maintenance and the division of property.

The court's determination of custody of the children will be based on the best interests of the children. The court will consider all relevant factors including the wishes of the parents and the child, family relationships, any violence or abuse in the home, etc. In the absence of violence, the court is directed to presume that maximum involvement of both parents is in the best interests of the children.

In determining child support, the court begins with the statutory guidelines. The statutory guidelines are based on a spouse's monthly net income. Net income is defined as all income from all sources reduced by (1) appropriate federal and state income taxes, (2) social security taxes, (3) mandatory retirement contributions, (4) union dues, (5) health insurance premiums, (6) prior child support obligations and (7) certain limited debt payments. Support is then based upon the number of children. If there is one child receiving support, then the statutory amount is 20% of the spouse's net income. For two children support is 25%, for three children - 32%, for four children - 40%, for five children - 45%, and for six or more children - 50%. The court is directed to use the statutory percentages unless the court finds that they would be inappropriate based on the financial resources and needs of the child and the parents. The court may also require the spouse paying child support to provide health insurance for the children and to pay all or part of the children's uncovered medical expenses.

The court may award maintenance (commonly called alimony) to one spouse after considering all the facts and circumstances. Maintenance may be temporary or permanent. In determining maintenance, the court will consider the income and assets of each spouse, the needs of each spouse, the earning capacity of each spouse, the time required for a spouse to train for employment, the duration of the marriage, the age of each spouse, the physical and emotional condition of each spouse, the tax consequences of the divorce, the contribution by one spouse to the education of the other, and any other relevant factors. The court should allocate marital property to avoid maintenance if possible.

The division of property begins with the determination of marital and non-marital property. Marital property is all property acquired by the husband or wife after the date of the marriage and before the date of divorce or legal separation, with certain limited exceptions. The primary exception is property acquired by gift or inheritance. Title to property does not determine whether or not the property is marital property. If a husband takes compensation that he earned during the marriage and purchases a boat in his name alone, the boat is still marital property.

By definition, non-marital property includes all property owned by one spouse before the date of the marriage. In addition, reinvestments of non-marital property are non-marital property. For example, if the wife owned IBM stock before marriage and she sold it and purchased GE stock, the GE stock would continue to be non-marital property. However, it is possible to convert non-marital property to marital property by changing title to the property or commingling the property. For example, if a husband owned a home before marriage and after marriage transferred the home to himself and his wife as joint tenants, the husband would have converted the home to marital property. Likewise, if a wife owned $50,000 cash before marriage and after marriage transferred the cash into a joint bank account, she would have converted the cash to marital property. It is possible that commingling property will not convert it to marital property. However, the spouse claiming the property as non-martial will have to prove that it is non-marital property by clear and convincing evidence. This can be a very difficult burden.

If one spouse owns non-marital property and wants to preserve it as non-marital, then the spouses should execute a premarital or post-marital agreement. In addition, or if an agreement is not possible, the spouse should keep the property in his or her name alone, and marital property should not be commingled with it. For example, if a wife has a non-marital savings account, she should not deposit any marital property, such as her salary after marriage, into that account.

The court cannot award the non-marital property of one spouse to the other spouse. Therefore, the court's division of property is limited to the marital property of the spouses. The court will divide the marital property without regard to marital misconduct after considering the relevant facts and circumstances. Relevant factors generally include the overall financial condition of each spouse, the contribution by each spouse in acquiring the property, including the contribution of a spouse as a homemaker, the custodial provisions for the children, and whether or not the court has awarded maintenance.

Divorce is a very fact-specific legal matter. It can be a fairly simple, straight forward process if the parties are in agreement. It can also result in years of litigation, particularly if one spouse alleges the concealment of assets or claims assets as non-marital property. If you may be facing a divorce, you should consult with an attorney as soon as possible to best protect your rights and the rights of your children.
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