Divorce can be a difficult and stressful process, and the last thing you want is to be hit with unexpected tax obligations after the fact. If you are going through a divorce, considering your decisions’ tax implications before finalizing a settlement is essential.

Below are some key tax issues that arise during an Illinois divorce and offer tips for minimizing tax obligations.

Tax Implications of Divorce in Illinois

Divorce can have significant tax implications, particularly regarding property division, alimony, and child support.

If you are a business owner going through a divorce, you are likely concerned about how your business will be affected. Fortunately, there are steps you can take to protect your business during a divorce in Illinois. Here is what you need to know:

Identify the Whether the Business is Marital or Non-Marital Property 

Non-marital property is property that is not subject to division in a divorce. It includes property that was acquired before the marriage, property that was gifted or inherited, and property that is identified as non-marital in a prenuptial agreement or postnuptial agreement. If you have documentation showing that you started the business before marriage and did not use marital assets to finance or maintain it, this can be used as evidence to establish that your business is non-marital property. However, if you did not keep good records, it can be more challenging to prove that your business is non-marital.

If you have a prenuptial agreement that specifically outlines that your business is non-marital property, that agreement will be used to establish that your business is exempt from division in a divorce.

Divorce can be a complicated and emotional process, and mistakes made during this time can have significant consequences. That is why it is crucial to understand common mistakes to avoid, so you can be better prepared for what lies ahead.

In this blog post, we will cover some of the most common mistakes people make during a divorce and offer tips for avoiding them. Whether you are just starting the divorce process or are in the midst of it, this information will be valuable to you.

Mistake #1: Failure to Disclose All Assets and Liabilities

Another common mistake in divorce is failing to disclose all assets and liabilities. Full disclosure of assets and debts is required by law, and hiding or failing to disclose assets can have serious legal consequences. Failure to disclose all assets and liabilities can result in a court invalidating the entire divorce agreement and may lead to financial penalties.

In the best of circumstances, a couple agrees to end their marriage and is able to come to an agreement on all the issues involved in that decision, as well. Unfortunately, the reality is that when many couples reach the point to end their marriage, it is often the only thing they do agree on. The divorce process then turns into a battle over child custody, assets, and property.

When there are issues that the couple cannot agree on, their attorneys may suggest using experts to help resolve some of the issues and help navigate the process to a fair and equitable resolution for both spouses.

Child Custody Evaluator

A child custody evaluator is typically a licensed psychologist or social worker who provides an assessment of what type of custody arrangement would be in the child’s best interest. The evaluator will interview the child and the parents, as well as review both parents’ home environments. Once complete, they will present their recommendation for a parenting plan.

When a couple goes through a divorce, there are different phases to that process. One of those phases is the discovery phase. This is where each side gathers information in order to determine what they are looking for in the final divorce settlement. Having a skilled divorce attorney is critical in obtaining that information and evidence and protecting you from an intrusive and overly aggressive spouse's attorney. 

The Discovery Process

Discovery is used in both criminal and civil actions. The process itself is a legal and formal one and all parties must adhere to the procedures and rules put in place by the court in the case is being heard in. 

In a divorce proceeding, the goal of discovery is to ensure that both parties have the same information about their assets, debts, income, and other financial issues in order to negotiate a fair and just divorce settlement. 

You and your spouse have made the decision to end your marriage. Each of you is going through the process of hiring attorneys and adjusting to this new way of life. There is a myriad of decisions you will have to make throughout this process, including parenting time, where you will live, how your marital finances will be addressed, and more. Understanding the key points that should be decided in your divorce agreement is important in making sure you end up with a fair settlement. Having an experienced divorce attorney representing you is critical to that success.

Child Custody

One of the most important issues that need to be decided in a divorce is child custody. In Illinois, this is referred to as the allocation of parental responsibilities and also includes a parenting time schedule that determines when the child will be with each parent. It is not uncommon for parents to disagree over how custody should be divided – in fact it is more common for parents to disagree over custody than to agree, at least initially.

Your attorney will negotiate with your spouse’s attorney in trying to come up with a plan that both parties can agree on and also adheres to the best interest of the child doctrine, which is what every Illinois family judge bases their custody decision on.

There is no denying that many families right now are having a more difficult time making ends meet. Food prices, gas prices, utilities, and the price of all kinds of products have increased. According to the U.S. Bureau of Labor Statistics, the Consumer Price Index increased 6.5 percent for the 12 months ending December 2022.

While these increasing prices can be difficult for all families, single-parent households are often particularly hit harder. If the parent is receiving child support from another parent, are they able to request a modification in that child support to help cover these rising costs? Is inflation a basis for modification?

Child Support Modification

Under Illinois family law, a parent may file for child support modification every three years or if they have experienced a significant change in circumstances. In some cases, there is an automatic cost of living adjustment (COLA) for the child support amount. This usually only applies to child support that is paid through the Support Collection Unit (SCU). In order for an annual COLA to take place, the child support order must have been in effect for at least two years.

Many couples reach a point where they are no longer sure if they want to be married any longer. Even good marriages can hit bumps in the road. So how do you know when you are in a “this too shall pass” moment or if the marriage really has too many problems to work through and it would be better to divorce? The following are some signs that indicate it may be time to contact a Kane County divorce attorney and find out what your legal options may be.

Apathy

Just like the old song “The Thrill Is Gone” laments, one of the most difficult realizations a person can have when examining the state of their marriage is that they are no longer in love with their spouse. The spark that once was there has disappeared. If you no longer feel as if fighting for your marriage is worth it, it may not be. 

Avoidance

Having time to yourself is important, especially when juggling children, household duties, and work. But spending time with your spouse is also important to the health of your marriage. If you find yourself avoiding spending time with your spouse, looking for excuses to leave the house when they are there, and just avoiding making plans together, this is another indicator that there are issues in your relationship that may be impossible to fix.

Getting divorced brings about myriad changes in a person’s life. One of the most significant of those changes is the impact that divorce has on a person’s financial landscape. In many situations, a person getting divorced is going from a two-income household to a one-income household. If you are thinking about ending your marriage, there are some important steps you should take to protect your financial future.

Figure Out Your Budget

It is important to know what your monthly expenses are. Make a list of what your typical monthly expenses are, including your mortgage or rent, electric, heat, internet, phone, vehicle payment, child care, insurance, etc. This list should also include other expenses you may have such as entertainment expenses, vacations, out-of-pocket medical expenses, children’s extra-curricular activities, etc.

Once you have determined what your expenses are, take a look at what your monthly income is, including what it will be once the divorce process is complete. In addition to your income, will you be receiving child support and/or spousal support or will you be paying those obligations to your ex?

Most people who hear about prenuptial agreements think that these legal contracts are used by engaged couples who have high assets in order to protect those assets should the marriage not work out and they divorce. And while that is true, what is also true is that prenuptial agreements can also be used to protect one spouse from the other spouse’s debt should they divorce.

How Much Debt Are We Carrying?

Years ago, most people did not “live on credit.” Other than the mortgage on their home and vehicle loans, cash was king. If you wanted to purchase a large ticket item for your home, take a vacation, etc., you saved your money and then paid for the item in cash.

In the late 1960s and 1970s, retail stores began offering customers store credit cards, where the customer could charge their purchases and pay the balance off over time. Although there were some bank-issued credit cards during this time, MasterCard, Visa, and other major cards did not really gain popularity until the 1980s. Today, the average American owes approximately $5,200 in credit card debt.

It is not uncommon for married couples to sometimes go through periods of difficulties. The couple may try to work through these problems, but find them too overwhelming and question whether they want to stay married. While many of these couples will go straight to the phone and call a divorce attorney, some couples may be unsure if divorce is the right option for them. They may not be ready to take that permanent step of ending their marriage, yet they also know they do not want to live with their spouse at this time. In these situations, a legal separation may be the solution.

Legal Separation

When a couple decides to divorce, one spouse will file a divorce petition and the process will begin – working out a parenting plan, deciding the division of assets, setting spousal support, etc. When a married couple decides to take a break from each other, they may not think that they need to involve the court, without realizing that there are still legal issues that should be addressed.

Some of these issues include which spouse will remain in the family home, how much parenting time each spouse will have, and how the household bills are going to be paid. In order to ensure that both spouses are protected, they should enter into a legal separation. A legal separation addresses some of the same issues a divorce agreement does, but the couple is still legally married.

Child custody cases are rarely simple. Unfortunately, many parents lose sight of what is really important and instead are determined to “win” at any cost. This mindset usually continues after the case is over and it can be challenging to co-parent with these types of people. If parents are unable to collaborate during the negotiations for determining the allocation of parental responsibilities and a parenting time schedule, this can have a negative impact on the final outcome of any custody agreements.

It is critical for the child’s emotional well-being that both parents focus on being the best parents for their child during these negotiations and beyond. The following are some of the issues that parents should absolutely avoid. For more detailed information about your particular circumstances, contact a Kane County family law attorney.

Do Not Let Negative Feeling About Your Soon-to-Be Ex Become a Priority Over Your Child’s Best Interests

The judge in your case does not care why you are divorcing (unless the situation involves family violence, addiction, or criminal issues). Instead, the judge has his or her focus on what is in your child’s best interest. Regardless of your feelings, never speak badly about your spouse in front or to your child.

Many of the divorces we hear about in the media that involve celebrities, athletes, and politicians often involve knock-down, drag-out fights, taking months – if not years – to settle. These types of divorces can also be found in our own social circles. If you are considering divorce but cannot imagine you and your spouse engaging in this type of process, you may just qualify for a joint simplified dissolution of marriage.

Contested and Uncontested Divorces in Illinois

If a spouse contests a divorce, it does not mean that they will permanently stop the divorce. It just means that the couple does not agree on at least one major issue they need to decide on, such as asset division or child support. While a contested divorce usually ends up taking much longer and costs a lot more than an uncontested divorce – one where the couple does agree on all major issues – it will eventually come to a legal conclusion.

The timeline for an uncontested divorce is typically much quicker. This is because the only task for the court is to give its stamp of approval to the divorce agreement the couple has come up with after determining that the agreement abides by Illinois law. In most cases, the uncontested divorce process is approximately six months.

In an Illinois divorce, the assets the couple has amassed during their marriage have to be equitably distributed between the two. If the marriage is young, that marital estate is often not a complicated one. However, in today’s society, one of the fastest-growing types of divorce is a “gray divorce.” Gray divorce is one in which couples over the age of 50 decide to end their long-term marriage. Due to the length of the marriage, the marital estate is often a more complex one to distribute than an estate from a marriage between a younger couple. Not only may the older couple have property to divide up, but there are also often complex financial accounts, such as pensions and 401(k)s, that are part of the marital estate. This leads many people to wonder how their Social Security retirement benefits could also be impacted by their divorce.

Social Security Retirement Funds

The good news is that the court does not consider Social Security retirement benefits as part of the marital estate. Divorce is handled on a state level, with each state making its own dissolution of marriage laws. However, Social Security rules and regulations are handled by the federal government. States have no oversight or input into how that system is run.

One issue in many gray divorces, however, is that one of the spouses was the primary breadwinner while the other spouse had primary care of raising the children and taking care of the home. This means that one spouse may have made significant contributions to their Social Security retirement fund, while the other spouse did not have the same opportunities, resulting in a significantly less amount of benefit.

On January 1, 2023, the SAFE-T Act (Safety, Accountability, Fairness, and Equity-Today Act) will go into effect. The Act addresses a number of criminal justice reform issues, including the elimination of cash bail. According to the new law, judges will determine whether defendants charged with a specific set of violent misdemeanors and specific felonies pose a flight risk, pose a risk to another person, or pose a risk to the public or if they can be released. The changes mean that a judge has the discretion to release a defendant who is charged with domestic violence or other violent crime without the requirement of monetary bail.

This has led some state prosecutors to begin filing individual petitions to keep violent defendants – who could qualify for release when the new law goes into effect – in jail while they await trial. One county’s state prosecutor’s office has already filed petitions on more than 50 domestic violence defendants.

Domestic Violence in Illinois

Last year, an Illinois domestic violence hotline received almost 30,000 calls from domestic violence survivors, an increase of five percent from the year before. Domestic violence organizations were able to help more than 49,000 survivors. Tragically, there are thousands of women and men in Illinois and across the country that are trapped in the cycle of domestic violence.

Many people are familiar with the line, “You are (are not) the father!” The line – often repeated tongue-in-cheek – was made famous by daytime talk show host Maury Povich. Many episodes of the show were centered around participants who were either trying to prove or disprove allegations that they were the parent of a child. At some point during the episode, the results of a paternity test would be revealed to the show participants and the audience the results, with the host delivering his famous line.

The reality for many people, however, is that paternity of a child is anything but entertainment. Proving paternity means a father will have parenting rights, as well as being required to contribute to the financial support of a child. In Illinois, paternity is determined in several ways.

Presumptions of Paternity

The state of Illinois has enacted presumptions of paternity in certain cases where there is a question of who a child’s father is. The state may presume the person is the child’s father in the following situations:

Parental Alienation Syndrome (PAS) has been recognized by some in the medical community since 1985 when one child psychologist identified the similar behaviors that children exhibit when they have been exposed to parental alienation by one or both parents. In the decades since, the syndrome has yet to be recognized by the American Psychological Association or the American Medical Association.

Despite the debates over whether PAS per se actually exists, there is no debate about the existence of parental alienation. Unfortunately, it occurs far too often in divorce and child custody situations.

What Is Parental Alienation?

Parental alienation is when one parent disparages the other parent to their child, deliberately manipulating the child’s perceptions of the parent, with the goal of turning the child against that parent. For example, a father may tell his children that their mother will stop loving them just like she did him or a mother tells her children that their father is going to forget all about them now that he has a new girlfriend.

When a couple is planning their wedding, they are usually focused on their future together and their goals for their married life. Divorce is not usually a topic that comes up during this planning, but national statistics belie that optimism. Although the divorce rate has dropped over the past several years, it still hovers at close to 50 percent. The percentage is even higher for second and subsequent marriages.

This is one reason why engaged couples should have prenuptial agreements on their wedding to-do lists. A prenup is a contract the couple enters into that details what would happen in the event of a divorce. Prenuptial agreements are legally binding contacts and are enforceable, but like many contracts, there may be legal issues a spouse can cite in a divorce that would nullify the prenup.

Contents of a Prenuptial Agreement

A prenuptial agreement can address several issues that the couple would need to agree on in a divorce, essentially stating the rights and responsibilities of each spouse in the event of a divorce. Some of the issues that can be included in a prenup include:

According to the National Coalition Against Domestic Violence, approximately 20 people are physically abused by an intimate partner every minute. Statistics gathered by Illinois domestic violence advocacy organizations reveal that domestic violence also continues to rise in the state of Illinois, which saw a 40 percent increase in requests for services last year. More than 40 percent of women in Illinois and 25 percent of men say they are survivors of domestic violence.

If you are a domestic violence survivor who is seeking to leave your abusive partner, it is imperative for your safety and your children’s safety to take the necessary steps to protect yourself. A Kane County divorce attorney can help. One of the first things your attorney can do is help you obtain a protective order against your abuser. 

Emergency Orders

When the survivor is facing an imminent risk of harm, they can file for an emergency order of protection. In these situations, the alleged abuser is not notified of the requested hearing or given a chance to object to the petitioner’s request in order for the court to issue the order. Typically, the emergency order will be in effect for 14 to 21 days, but when the court issues the emergency order, it also schedules a hearing for a plenary (long-term) order before that expiration date. If the hearing cannot be scheduled before the expiration date, the court will extend the emergency order’s date.

Part of our job as parents is teaching our children how to be independent. This includes encouraging them so they are ensured their voices are heard and that their opinions and feelings matter. This process is an ongoing one and there are times when parents do need to overrule what their child wants because it is not in their best interest. One question that parents going through a child custody case often ask is whether or not the court will take into consideration the child’s wishes. Although in many cases the judge will consider the child’s wishes, it will not be the deciding factor.

Allocation of Parental Responsibilities and Parenting Time

In 2016, there was a major overhaul to the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Lawmakers eliminated the phrase “child custody,” replacing it with the allocation of parental responsibilities and parenting time. What did not change is how family court judges decide the allocation and parenting time, basing those decisions on the best interest of the child doctrine.

When it comes to whether or not the child’s wishes have any sway in the court’s decision, that often depends on the age of the child. Under the statute, the court will take into consideration the child’s “maturity and ability to express a reasoned and independent preference.” While this usually refers to older children, it can also apply to a younger child who is especially articulate and mature for their age and is able to clearly express their wishes in a manner that assures the court they are not just repeating what they have overheard or been told what to say by one of the parents.