A divorce can be one of the most difficult experiences for someone to go through. Even if the decision to end your marriage was both you and your spouse’s idea, there are many issues that require careful consideration before you can obtain your final divorce decree. Illinois is classified as a “no fault” state for divorce, and the only grounds for legally terminating your union is “irreconcilable differences.” This means you have tried to reconcile but the marriage is beyond repair. Although you and your soon-to-be ex may verbally agree on how to split up certain marital property, it is critical to get any decisions put in writing.  

Marital Settlement Agreement

In Illinois, parting spouses must create a marital settlement agreement (MSA). Every divorce is unique. For example, some couples may have children while others do not. They may also have signed a prenuptial or a postnuptial agreement that clarified how to divide assets ahead of time in case the marriage did not last. A parenting plan is often part of the MSA, and it specifies the allocation of parental responsibilities (child custody) and parenting time (visitation).

Drafting the MSA typically requires at least one settlement conference, which can be an informal negotiation or meeting between you, your spouse, and your attorneys or a more formal conference with a judge. Often referred to as a judicial settlement conference, this can avoid the expense and time spent in litigation if your divorce case goes to trial. The judge will listen to your concerns and suggest helpful solutions. Hopefully, this will help you and your spouse compromise on certain matters so you can finalize your settlement agreement. 

Parenting children under the same roof can be challenging in and of itself, but parenting them from separate homes almost always requires an even greater amount of effort. Yet, studies have consistently shown that children usually fare best in a divorce if they have the continued support of both parents. Illinois’ family laws encourage parents to work together in meeting the mental, emotional, and financial needs of their kids during and after their divorce. Most often, this goal is met through the drafting of a parenting plan, which contains two major components: the allocation of parental responsibilities (formerly known as child custody) and parenting time (previously referred to as visitation). 

Allocation of Parental Responsibilities 

Throughout the course of a normal day, parents make multiple decisions about their children’s lives and future. While most decisions are relatively minor and require no prior “clearance” or approval from the other parent, there are certain aspects of their kids’ well-being that are considered “protected.” Examples include choices regarding education and religion. Parents also have certain legal obligations to their children, such as ensuring that the children’s medical needs are met. These issues are covered under the allocation of parental responsibilities. 

Under the Illinois Marriage and Marriage Dissolution Act (IMDMA), the law seeks to ease the often difficult transition related to the division of parental rights and responsibilities, including the decision-making authority between the parents in addition to where the children will live. In handling these sections of their parenting plan, some divorcing parents may reach an agreement easily. However, they must also figure out how disagreements will be handled, should they arise in the future. 

One of the most difficult parts of the divorce process is the often division of assets. Married couples usually accumulate a significant amount of property during their marriage. When a couple decides to divorce, differentiating between martial property and non-marital property can become quite complex. Assets that were once considered personal, non-marital property can be transformed into marital property, which is then eligible for division. When property division issues become convoluted, it is best to hire a divorce attorney with experience managing complex property division during divorce.

Illinois Equitable Distribution Law

Illinois law regarding property division in a divorce follows a set of principles known as “equitable distribution.” Under the doctrine of equitable distribution, a couple’s marital estate is to be divided equitably, or fairly, according to each spouse’s needs and financial circumstances. There is no guarantee that each spouse will receive an equal share.

It is important to realize that only marital property is divided in an Illinois divorce. Marital property includes any assets which were acquired by either spouse during the marriage, and non-marital property includes assets which the spouses owned before the marriage as well as certain types of gifts and inheritances. Non-marital property is assigned to the original owner during a divorce. Asset division can become especially confusing when assets are commingled or mixed.

If you are feeling a heightened sense of anxiety since having the prenuptial agreement talk with soon-to-be spouse, you are not alone. Many engaged couples experience great trepidation when considering the idea of creating a prenuptial agreement. Whether you were the one who had to initiate the discussion because you would like your partner to sign one, or you are the one who was asked to sign, the subject of prenups and hypothetical divorce can be touchy and downright uncomfortable for both parties in a relationship.

The Marriage Business

One of the most obvious reasons the concept of a prenuptial agreement is so uncomfortable for some is that the idea seems to imply by signing one, you are essentially planning to divorce before you are even married. The mere mention of a prenup can be offensive to a person, making the conversation about whether or not to sign very difficult. It is natural to feel as if you need to tread carefully with the discussion. However, every couple, regardless of circumstance or which stance they take on the subject, can benefit from reminding themselves what psychology experts reiterate for us all: Marriage is a business relationship, whether we like it or not.

Here are three reasons engaged couples experience serious apprehension over the idea of signing a prenuptial agreement:

It is no secret that money can cause a myriad of problems for couples, but for some relationships, ongoing financial difficulties can mean the proverbial kiss of death. Experts tell us that money troubles that end up leading to divorce almost always begin with different attitudes about spending and saving. Not surprisingly, they also emphasize the importance of communication. When it comes to money management, a couple’s chances of divorce due to financial trouble is significantly increased when they do not talk about where the money is going and why.

Different Values, Different Visions

Some of the biggest causes behind financial disputes in marriage are different mindsets about money. The realization that you and your spouse’s financial priorities are different usually reveals itself in the following ways:

• Secrecy: When one partner discovers the other has been engaging in secret spending or sneaky money management, it can feel like a serious act of betrayal. This is especially the case for spouses who find their partner has opened separate bank accounts without telling them. Even if you are comfortable and not experiencing financial distress, a secret stash—even if it was set aside with good intentions—is enough to stir up strong conflict in a marriage.
• Impulsive decisions: It is not uncommon for couples to experience a rude awakening when it comes to their partner’s financial priorities after a sudden impulse buy. When your spouse shares that they have bought roundtrip tickets to Tahiti for a luxury vacation without consulting you or comes home from work with a whole new wardrobe when they know you are struggling to make rent next month, you may feel these kinds of purchases are not only impulsive, but inconsiderate, too. When one spouse does not feel their feelings, thoughts, or concerns are respected, emotional rifts tend to emerge.
• Different goals: Even when a couple does communicate about their money-related goals, sometimes those goals themselves are jarring when each spouse realizes how drastically different those priorities are once discussed. For example, one spouse may feel it is time to invest in a new family car, while the other would like to invest in furthering their college education. While it is natural to not always be financially in sync throughout the course of a marriage, if the money goals a coupe shares are consistently clashing and a compromise is not in sight, this tension tends to build up over time.

Contact a Kane County Divorce Attorney

When perpetual stress from arguments over money strain a marriage, partners often wonder where they went wrong and whether or not there is any salvaging the relationship. If financis have taken their toll on your marriage and find yourself making the decision to pursue a divorce, you need to speak with a competent St. Charles, Illinois divorce lawyer. Attorney Timothy Weiler is a Certified Financial Litigator (CFL) with experience in complex financial matters in divorce litigation and is well equipped to inform you of your rights and protect your best interests in a court of law. Call Weiler & Lengle P.C. today at 630-382-8050 to schedule your consultation.

Recently adding to his American, Illinois State, and Kane County Bar Association memberships, Attorney Timothy Weiler of Weiler & Lengle P.C. now also holds the title of Certified Financial Litigator (CFL), which further enhances his existing litigation skills in the family law arena. He is the 7th attorney in the state of Illinois to become AACFL certified. As a CFL, he is able to assist clients with greater depth and understanding of the financial issues that so often complicate family law and divorce cases. 

What exactly is a Certified Financial Litigator? A CFL is a law professional who has been granted a financial education certification by the American Academy for Certified Financial Litigators (AACFL), an exclusive recognition granted only to select practitioners who have completed the highest level of financial litigation training and have successfully passed the AACFL’s official examination. The certification demonstrates an attorney’s competence in various financial aspects of litigation, including: 

• Accounting
• Taxation
• Investments
• Valuation (appraisal or estimation of an item’s worth)
• Compensation
• Forensics (litigation involving complex financial accounting)

The Benefits of Working With a CFL

CFLs are valuable in many family law and divorce cases, particularly when money has proven to be a contentious issue. For example, for many couples, signs of divorce due to financial matters emerge as early as during the marriage planning process. Experts say this grim reality can start with a couple’s vision of the wedding budget from day one, which often sets a precedent for the tone and financial dynamic between spouses for the remainder of their union. One spouse may be open and willing to spend a significantly larger amount on the wedding expenses, while the other prefers to save a large portion and put it toward a down payment on a new condo instead. Experts stress that when couples do not talk about money management early on and have very different financial priorities and goals, divorce is very real possibility down the road. Chances are, if money was a problem throughout the marriage, it will likely be a source of conflict during the divorce process.

From big-time publications such as The New York Times and Forbes to hundreds of parenting blogs across the internet, the media is littered with strong opinions - and equally strong judgements - on the subject of divorce and stay-at-home parenting. Society, it seems, is especially hard on stay-at-home mothers who wish to remain at home after a divorce is finalized. Oddly enough, though, stay-at-home parents are bombarded with judgement no matter which path they decide to take. For many, choosing to stay at home is simply not a luxury they can afford. However, for those truly desiring to maintain their homemaker role after a divorce, even when finances are tight, the option can be explored and may still be a possibility, regardless of what critics have to say.

Stay-at-Home Parenting Preparation for Divorcing Couples

As you begin the divorce process, many factors need to be considered when deciding who will stay at home with the children or whether or not the stay-at-home parent will enter the workforce once the dissolution is final. Depending on the nature of your relationship with your ex-spouse, this can either be a contentious battle or a team effort to protect the best interests of the children and the family as a whole.

Whatever your circumstances, ask yourself the following questions as you move forward with your plans:

Whether you are in the process of pursuing past-due child support, need to create a new support order, or are the paying parent facing collections for support, such expenses quickly add up and make a significant dent on your finances. The process of collecting or paying child support can take time, as each case is different and some are more challenging than others. Newly divorced parents who are being introduced to the process can feel especially overwhelmed, and those who have been long divorced can suddenly find themselves in the midst of all new tensions when financial disagreements arise. The mere subject of collection can be a touchy one, which is why it is so important to educate yourself at the onset of child support proceedings, no matter what role you play in your child’s life.

What Does a Child Support Hearing Typically Entail?

Should you be required to attend a hearing for your child support order, the hearing will be conducted by either a judge or the Illinois Department of Healthcare and Family Services (HFS). You will be expected to testify to a variety of questions, which will help the court determine how to proceed with your child support order. The questions you must answer will depend on the type of hearing you are attending and the circumstances surrounding your support case. Unwed parents who have not yet established paternity will be required to answer a different set of questions than newly divorced parents, as the legal circumstances differ. 

In general, however, there are some common topics every parent can expect to address at a hearing, including:

Whether you are accepting a position with a new employer, can no longer afford your current residence, or need to be closer to extended family or friends, the decision to relocate in the midst of divorce is not an easy one to make. When you share a child with the other parent, planning a move after the separation can be especially challenging, yet circumstances can arise that leave you little choice in the matter. Whatever your situation, if you have children and find yourself planning to relocate during the divorce process, Illinois law will require you to adhere to specific guidelines as you begin putting your relocation plans into motion.

Relocation Guidelines for Divorced Parents

The state of Illinois considers the relocation of a parent after divorce to be a significant change in the lives of any children involved and for the family as a whole. As the state recognizes the impact a move can have on children of divorce, laws have been put into place to govern how the relocation process should be handled. 

Here are some basic guidelines that you will be expected to follow:

Whether you are about to be a parent or have just recently experienced the birth of a newborn, the issue of paternity is a critical part of protecting not only your relationship with your child but also protecting your child’s best interests. Paternity is a term that defines the legal relationship between a father and his child. In the state of Illinois, an unmarried man is only considered the legal father of a child when his name is placed on the birth certificate, regardless of whether or not he lives with the mother or is engaged to marry. 

Why Paternity Is Necessary

There are many reasons why establishing paternity is crucial for both parents and for the child, no matter what the circumstances are surrounding the family situation. Here are some major points every parent should consider when it comes to making parental status official:

• Your child’s security depends on it. By establishing paternity, your child will have the opportunity for financial security now and in the future. For example, they will have the right to social security benefits in the event that a parent passes away or becomes disabled, as well as the right to receive potential inheritances or veterans benefits, if applicable. Additionally, they will have the right to receive any health or life insurance benefits due to them.
• Your child may need access to medical history records. When paternity is officially established, a child also has the chance to obtain important medical information about their parents, which can be useful throughout the course of their lifetime.
• An unmarried father’s rights are limited without it. If an unwed father wishes to ask for any rights that allow him involvement in his child’s life—anything from visitation to custody, or a say in educational decisions—then  he must be recognized as the child’s legal parent.

How to Go About Establishing Paternity

Once you have explored the various advantages of establishing paternity and are ready to get started, you can proceed in any of the following ways:

During a divorce, parents may develop  a parenting plan that is beneficial for both themselves and their children. Although these plans are often created with much thought and detail, changes can occur that may require a modification. Updated schedules, unexpected relocations, and the children's education or extracurricular activities could cause issues to arise. Depending on the reasons behind the potential adjustment, as well as the agreement of both parents, a court may approve a modification request. Ultimately, the court will make a decision that is in the best interest of the involved children.

What Should Parents Consider Before Deciding Responsibilities?

Aspects of a person's life may change significantly after a divorce is final. For parents that are getting divorced, it is important to reach mutual agreements on key factors that will affect your future and that of your children. For example, the distance between each parent’s residences is a topic that may lead to significant difficulties if either parent wishes to find a new place to live. Although a new residence may work better for one parent, it might not be compatible with the children's school schedule. Furthermore, children may have difficulties adjusting to a new community. The wishes of each parent and the child (as appropriate) should be considered before a parenting plan is finalized.    

Modification Limitations

For children going through a divorce, having a relationship with both parents could be in their best interest. Creating a stable environment for children can help foster their growth and development. According to the Illinois Marriage and Dissolution Marriage Act, unless the children's well-being is at risk, an adjustment will not usually be made within the first two years of the original agreement.

A postnuptial agreement, or postnup, is a legally binding contract that can be executed after a couple finalizes their marriage. Similar to a prenuptial agreement, a postnup can help two individuals identify marital and non-marital assets following a divorce. Although the introduction of this topic might upset a spouse, a legally binding document may be beneficial for both parties. If a dissolution of marriage were to take place, having an agreement in place could expedite the process and better prepare each individual for the future. 

Why Should I Establish a Postnuptial Agreement?

When the thought of a postnuptial agreement goes through an individual's head, a preconceived notion of a failed marriage can quickly resonate. Although it may be simple to make that connection, it is oftentimes not true. Before a marriage is enacted or if situations start to change, the idea of planning for your future could be favorable for both members. 

A postnuptial agreement may be beneficial if:

A marriage is a partnership that requires a give-and-take mentality. Going into a marriage, a couple may decide to designate one person as the “breadwinner” and the other as a ”stay-at-home” spouse. Children, financial status, skill sets, and personal preferences can all factor into the decisions that are made. If a divorce were to take place, a stay-at-home partner may feel that he or she is at a disadvantage, having already given up a significant amount of time in the workforce to focus on life at home. If you are a homemaker that is going through a dissolution of marriage, speaking to a knowledgeable attorney could better prepare you for life after divorce.   

Securing Financial Stability

Transitioning to a life away from your spouse can result in increased amounts of stress. Not being able to pay bills, find a place to live, or being able to purchase everyday necessities can all be results for a spouse that is coming out of a divorce. Prior agreements or mediation can resolve topics such as alimony, also known as spousal maintenance, property division, and child support. If an agreement cannot be made by the divorcing couple however, the presiding judge will make a final ruling. 

When determining whether or not to grant alimony, the court may consider the following factors:

A dissolution of marriage can be a difficult decision for a couple. Making drastic changes on your own can present more challenges than one would expect. Concerns related to your home, assets, businesses, and pensions are all worrisome topics that come to mind. Most concerning for many individuals facing a divorce, however, is the dispersion of debt between you and your ex. The state of Illinois recommends that a divorcing couple works together in order to divide their debts equally, however, decisions will be made by the judge if an agreement cannot be reached.      

Marital Debt vs. Non-Marital Debt

Illinois defines “marital debt” as any financial obligation acquired by either spouse after the marriage was finalized, and before the divorce is complete. An example of marital debt could be the amount owed on a credit card that was accrued while the marriage was intact. The court will take certain factors into account to ensure the accuracy of the determination, such as whether or not the credit card was opened prior to the marriage, or whether it is a joint or separate account. Hidden assets are commonly addressed in a divorce proceeding, as well. 

Non-marital debt, simply put, can be classified as financial obligations that are specifically assigned to the person that accumulated the debt. Non-marital debt typically happens before the marriage begins,but there are other ways for a debt to be considered non-marital. Examples of non-marital debt include:

In a divorce, the marital home is a considered a piece of property. As with all property in a divorce, the couple must consider what will happen to the home once the marriage is officially over. Due to its value and the fact that a home cannot truly be divided, divorcing spouses will often need to be creative in deciding how the home will be accounted for in the asset distribution process.

Separate and Marital Property

Under Illinois law, property in a divorce is classified in one of two ways: separate and marital. Separate property is any asset or debt that was owned by one person prior to the marriage. These types of property are generally not subject to division in a divorce, though there may be exceptions. 

On the other hand, marital property is any property or debt acquired during the marriage by either spouse, with limited exceptions for gifts and inheritances to one spouse. In most cases, the marital home is considered marital property.

In Illinois, basic child support payments end when the child reaches 18 years of age or if the child earns a high school diploma (whichever comes last). During the divorce process, parents can come to an agreement in regards to their child’s continuing education costs. If an agreement cannot be reached, either party can petition a family court to address the matter and possibly assign a fair amount to be divided between both parents and the child. This amount is intended to specific eligible expenses related to college, trade school, or other post-high school education programs (i.e. tuition, housing, textbooks, etc…). Pre-college expenses such as application fees and ACT/SAT test fees could be included in the parental support payment agreement.

Support can be granted for a college-level child until their 23rd birthday or their graduation (whichever comes first). For good cause shown, the court could extend the support until the child’s 25th birthday.

How Is College Expense Support Determined?

Many college students pay for tuition and other expenses on their own. Others are granted scholarships for academic or athletic ability to help with college expenses. Why then would it be necessary to order divorced parents to pay for their non-minor child’s school fees?

Many things change after a couple decides to separate. In some cases, one parent may have been a stay-at-home parent before the divorce, but now they must find a new job. When they land a job, they may need to move to be closer, and they will, of course, want to bring their children.

If it is a short distance, the parents should have no trouble relocating with their children. However, in the Chicago metropolitan area, a parent cannot move over 25 miles within Illinois or out of the state without permission from the other parent and/or the court. In other parts of Illinois, in-state moves of over 50 miles require prior permission. 

What Are Some Reasons to Want to Move?

As already stated, a new job may be a reason for the primary parent to move, but it is not the only reason a parent will elect to move. Sometimes, a move is necessary to:

Too often, children believe that a divorce is their fault and that if they had behaved better, maybe mom and dad would not be splitting up. Parents know that this is not true, but these thoughts can lead youngsters down a path of mental disturbance.

This is why having a proper parenting plan put in place is important for children whose parents are  involved in a divorce. As part of a parenting plan, both parents can decide on a schedule for visitation—now called parenting time in Illinois—after the physical separation of the family.

Keeping Parents Involved

Child development experts and mental health professionals tend to agree that is usually best for children of divorce to have both parents continue to play an active role in the children’s lives. There are exceptions, but children who grow up with only one active parent seem to be at a higher risk for:

Every child has the right to be supported by both a mother and a father. There are some cases in which this is unable to happen due to the death of a parent. However, in cases where two parents are alive, both should be responsible for the upbringing of the minor. Unwed couples often have a more difficult time raising a child together, especially if the alleged father is denying paternity of the child. Most men deny a child because they do not want to assume the financial responsibility of raising a baby with a woman to whom he is not married.

In these cases, a mother can ask the court to order a paternity test to prove that a man is the father of her child. Once paternity is established, the mother can move on to file a petition for child support, and the couple can work on visitation rights of the father.

Why is it Important to Establish Paternity?

Unmarried parents in Illinois must establish paternity if they birth a child before marriage or else the father cannot be llsted on the child’s birth certificate. The child will suffer as well if paternity is not established because he or she might not have:

Child custody is usually an issue between the two parents of the child. However, there are some cases in which a grandparent is considered for custody of the child(ren). In Illinois, custody disputes that are taken into family court are settled based on what is in the child’s best interests. If the judge finds that neither parent is suitable to take custody of a minor, he or she can allocate parental responsibilities to the grandparents.

Cases of this nature sometimes can be found in single-parent households where the sole parent is shirking—or unable to fulfill—their responsibilities for whatever reason. Some divorce cases have also ended with grandparents stepping into the parental role. It all depends on the capability of the parents.

Factors that are taken into consideration when determining child placement include: