DIVORCE

In general, there are six issues in a divorce:

1. Dissolution - Ending the marriage.
2. Dividing property and debts between husband and wife.
3. Maintenance. (Alimony)
4. Child Custody
5. Visitation
6. Child Support

Dissolution

In Illinois, a divorce is started by filing a Petition for Dissolution of Marriage.  In this petition the reason for the divorce must be stated.  We have "fault" which we call grounds and "no fault" also known as irreconcilable differences. 

Many people prefer to use no fault.  If the court finds that the parties have been separated for two years, have unsuccessfully attempted reconciliation and irreconcilable differences have caused an irretrievable breakdown of the marriage, divorce  may be obtained on that basis.

If the husband and wife have been separated more than six months, the 2-year requirement may be waived by written agreement under oath, signed by both spouses.  They may live  under the same roof, but they are living separately, for example, separate bank accounts.

The other grounds are: mental or physical cruelty, impotency, bigamy, adultery, desertion for one year, drunkenness for two years, drug addiction for two years, attempted murder, convic­tion of a felony or infecting the petitioner with a sexually transmitted disease.

With a few exceptions, grounds have nothing to do with the division of property, maintenance, custody and support.  People are not punished for bad conduct by getting less of a property settlement, nor are people rewarded for their suffering by getting a greater proportion of the property. 

Property Division

All property acquired by the husband and wife after the marriage is marital property regardless of whose name the property is held in, except:

a)  Property gotten by gift or inheritance;
b)  Property which you brought into the marriage;
c)  Property brought into the marriage or obtained as a gift or inheritance which is exchanged for that property
d)  Property acquired by a spouse after a judgment of legal separation;
e)  Property excluded by valid agreement of the parties;
f)  Property obtained by judgment awarded to a spouse from the other spouse;
g)  Any increase in value of property acquired by the above methods.

The marital property is divided, without regard to marital misconduct in
"just proportions" considering all relevant factors, including:

1)  The contribution of each party to the acquisition, preservation or increase or decrease in value of the marital or non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
2)  The dissipation by each party of the marital or non-marital property;
3)  The value of the property assigned to each spouse;
4)  The duration of the marriage;
5)  the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
6)  Any obligations and rights arising from a prior marriage of either party;
7)  Any antenuptial agreement of the parties;
8)  the age, health, station, occupation, amount and sources of income, vocational skills, employability, state, liabilities, and needs of each of the parties;
9)  The custodial provisions for any children;
10)  Whether the apportionment is in lieu of or in addition to maintenance;
11)  The reasonable opportunity of each spouse for future acquisition of capital assets and income; and
12)  The tax consequences of the property division upon the respective economic circumstances of the parties.

As mentioned previously under "Dissolution," marital misconduct has no bearing on property division.  A spouse is not to be punished for his or her misdeeds by receiving less of the marital property than they would otherwise be entitled to, except for dissipation of assets during the time the marriage is irretrievably broken.

Also, note the words "just proportions."  In Illinois, there is no fixed percent­age of marital assets that either spouse gets.  The courts have wide discretion to divide marital property as they see fit, taking into account all of the "relevant factors" that include the above. There is no guarantee of a 50/50 split or a 60/40 split, or anything of the sort.  In most divorces, the parties come to some kind of an agreement as to how the marital property is to be divided.  A “pretri­al conference" with the Judge assigned to the case can provide valuable insight as to how the judge would rule, given all of the facts of the case.  The attorneys for the parties can then advise their clients of the likely outcome to a trial and facilitate a settlement regarding the division of property and any other unresolved issues.

The debts of the marriage are divided between the spouses on the same basis as the division of property.

Maintenance

Maintenance is the term for what used to be alimony.  It is spousal support, which may be awarded to the dependent spouse. Again, the court may grant a maintenance award, without regard to marital misconduct, for either spouse in amounts and for periods of time that the court deems just.  Maintenance can be permanent mainte­nance, rehabilitative or reviewable.  The period of time could be indefi­nite but is more often for a fixed period of time.  It may also be paid in one lump sum.  The relevant factors that the court takes into consideration when awarding maintenance include:

1)  The income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance;
2)  The needs of each party
3)  The present and future earning capacity of each party;
4)  any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having foregone or delayed education, training, employment, or career opportu­nities due to the marriage;
5)  The time necessary to enable the party seeking maintenance to acquire education, training, and employment and whether that party is able to support himself or herself through appropriate employment or is the custodi­an of a child making it appropriate that the custodian not seek employ­ment;
6)  The standard of living established during the marriage;
7)  The duration of the marriage;
8)  The age and the physical and emotional condition of both parties;
9)  The tax consequences of the property division upon the respective economic circumstances of the parties;
10)  contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse and
11)  Any valid agreement of the parties; and
12)  Any other factor that the court expressly finds to be just and equitable.

Maintenance and Property Division are closely related, in that the factors that the court considers in awarding each are similar and they are occasionally combined.  Depending upon the relevant factors, the party seeking maintenance may receive a larger share of the marital property as a form of lump sum maintenance payment and in lieu of maintenance for a period of time.  Maintenance is most often not permanent.

Child Custody

In DuPage County, divorcing parents must attend a divorce education program "Caring, Coping and Children", soon after filing for divorce. 

Who the children will live with is often the most emotional issue of them all.  The courts determine child custody in accordance with the best interests of the child.

The relevant factors include:

a)  The wishes of the parents;
b)  The wishes of the child (this becomes more important as the child gets older);
c)  The interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;
d)  The child's adjustment to his home, school and community;
e)  The mental and physical health of all individuals involved;
f)  The physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person;
g)  The occurrence of ongoing abuse, whether directed against the child or directed against another person and
h)  The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

The court shall not consider conduct of a parent or proposed custodian that does not affect his relationship to the child.

Joint Custody is essentially joint decision-making, and is determined by a Joint Parenting Agreement or Joint Parenting Order.  Such an agreement specifies each parent's powers, rights and responsibilities for the personal care of the child and for major decisions such as education, health care and religious training. The agreement must specify a procedure by which proposed changes disputes and alleged breaches may be mediated or otherwise resolved and provide for a periodic review of its terms by the parents.  The court may order mediation, evaluation or investiga­tion to assist in determining whether joint custody should be awarded.

The judge considers:

1. a)  The ability of the parents to cooperate effectively and consistently in matters that directly affect the joint parenting of the child, or the parents capacity to substantially comply with a Joint Parenting order;
   b)  The residential circumstances of each parent and
   c)  All other factors which may be relevant to the best interest of the child.

Joint Custody does not necessarily mean equal parenting time.  There is still a single physical residence for the child.  That is determined by agreement of the parties or the judge.  Child support is paid by the non residential parent.

Joint Custody does mean access to records, information pertaining to a child, including medical dental child care and school records by the non-custodial parent.

Visitation

Visitation is very closely related to the subject of custody.  A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would seriously endanger the child's physical, mental, moral or emotional health.  This is rare and difficult to accomplish.  Reasonable visitation privileges are also available to grandparents, great-grandparents, siblings and, under certain specific circumstances, steppar­ents.

Child Support

The court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for the child's sup­port.  The duty of support owed to a minor child includes the obligation to provide for the reasonable and necessary physical, mental and emotional health needs of the child.  Generally, the parent not granted custody has the duty to pay child support to the custodial parent.

The court determines the minimum amount of support by using the following guide­lines;

      Number of Children            Percentage of Supporting Party's Net Income

            1                                               20%
            2                                               28%
            3                                               32%
            4                                               40%
            5                                               45%
            6 or more                                       50%

"Net Income" is defined as the total of all income from all sources, minus the following deductions:

(a)  Federal Income Tax
(b)  State Income Tax
(c)  Social Security (FICA payments)
(d)  Mandatory retirement contributions required by law or as a condition of employment
(e)  Union dues
(f)  Dependent and individual health/hospitalization premiums
(g)  Prior obligations of support or maintenance actually paid pursuant to a court order    
(h)  Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expendi­tures for the benefit of the child and the other parent, exclusive of gifts.   

Generally, the supporting party will be required to carry health and life insurance for the benefit of the minor child or children, in addition to paying for child support.  If the custodial parent incurs child care expenses, the con-custodial parent may be ordered to pay for half of the child care expenses and a share of medical expenses not covered by insurance.

Child Support, under Illinois law, is supposed to terminate when a child completes high school, is emancipated, or turns 18.  If a child has a mental or physical disability, child support may continue beyond the age of 18.

The court may also make provision for the post high school educational expenses of the child or children after they have attained the age of majority.  Educational expenses may include room, board, tuition, dues, transportation, books, fees, registration and application costs, medical expenses including medical insurance, dental expenses and living expenses during the school year and periods of recess.  The court shall consider the financial resources of both parties, the standard of living the child would have enjoyed had the marriage not been dissolved and the financial resources of the child.

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