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When Should I File My Illinois Divorce?

Posted on in Illinois Divorce

Kane County divorce lawyerIn most cases of divorce, the erosion of the marriage takes place over a period of time. It is not uncommon for one or both spouses to change their minds many times before making a final decision about whether they truly want to end the marriage. Once that decision is made, however, the question then becomes when they should file their dissolution of marriage petition with the court. In some cases, the petition can and should be filed right away, but in other situations, it may be better for financial reasons to hold off for a bit before legally initiating your intention to end your marriage.

Equitable Distribution

When a couple is married, they amass what is referred to as their marital estate. This includes any real estate they own, financial assets, household property, and vehicles. Illinois is an equitable distribution state, which means that in a divorce, the court’s goal is to divide that marital estate in a fair and “equitable” manner. Keep in mind that equitable does not necessarily mean equal or 50/50 like in community property states. An exception to this division of assets is if the couple had a valid prenuptial or postnuptial agreement in place that stipulates what each spouse will end up with in a divorce.

Dividing the Marital Estate

Under Illinois law, the marital estate is distributed based on the valuation date. In most cases, the valuation date is the date of the divorce trial or as close to that date as possible. This means any assets that are acquired by either spouse up until the valuation date are considered joint marital assets.

There are some exceptions to the valuation date. For example, if the couple was legally separated, then the date of that separation is the valuation date. Keep in mind, however, that there is a difference between a legal separation (granted by the court) and a physical separation (where spouses are no longer living together prior to filing or during the divorce process). The majority of people filing for divorce do not usually file for a legal separation first.

There are also some exceptions to what types of assets should be included in the marital estate up until the valuation date. One type of asset that often becomes a bone of contention in an Illinois divorce is bonuses. Many companies award their employees bonuses for exemplary job performance, and funds may be accrued during a time when the couple was still legally married but not paid out until after the valuation date. If the funds are accrued during the marriage, is the bonus considered marital property or would it be deemed separate property because the funds were not paid out until a later date? Since the issue is not addressed directly in the Illinois Marriage and Dissolution of Marriage Act, it is left up to the courts to decide. One divorce case made its way to the Illinois Appellate Court and their 2013 ruling has become the standard.

In the case of In re Marriage of Wendt, the couple filed for divorce in July 2010. The judgment of divorce was entered in September 2012. The husband had a history of earning significant bonuses during the year; however, his employer did not pay out the bonuses until the following year. His 2010 bonus was paid to him in 2011 and his 2011 bonus was paid to him in 2012. The judge who presided over the divorce declared bonus funds paid out after the divorce was finalized as non-martial property and they were not included in the marital estate.

The wife appealed the decision to the Appellate Court, which affirmed the lower court’s decision. In its decision, the Court wrote that since bonuses are considered discretionary funds and since there are no guarantees that a person will receive them (in most cases), they should not be included in the marital estate.

Contact a Kane County Divorce Lawyer

There are many other financial issues to consider when you are ending your marriage besides the division of the marital estate, including child support, spousal support, and the division of marital debt. If you anticipate any complex financial division in your divorce, make sure you have a seasoned St. Charles, IL divorce attorney protecting your best interests. Call Weiler & Lengle P.C. at 630-382-8050 to schedule a consultation.

Sources:

https://case-law.vlex.com/vid/in-re-wendt-docket-887651175

https://www.ilga.gov/legislation/ilcs/documents/075000050k503.htm

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