When you start thinking about divorce and dividing your assets, the division of your personal and household belongings may not be top of mind. However, when you add up the cost of replacing those items, the total can be significant. Insurance companies generally estimate the contents of your home to be worth about 50 percent of the value of the structure itself. Thus, if your home is worth $400,000, its contents may be worth as much as $200,000.

In an Illinois divorce, all marital property must be divided equitably between you and your spouse. Your marital property broadly includes all household furnishings and other belongings acquired during your marriage with the exception of items received via inheritance or personal gift. In a typical division of property, each party keeps their own clothing, jewelry, and similar personal items, although a high-value collection of watches or jewelry may be excepted from that rule. You will need to inventory everything else and decide on an equitable division of those items.

In the past two decades, divorce after age 50 has become far more common, leading to the popular term “gray divorce.” What seems to be causing this, and what should you do if you find yourself considering divorce after age 50?

What Has Contributed to the Increase in Gray Divorce?

Experts hypothesize that longevity and technology trends have converged to make divorce more appealing to those over age 50. In 1970, the average American lifespan was 70 years. If spouses reached age 55 or 60 and felt they had grown apart, most would just stick it out rather than be alone. Today, the average lifespan is about 79 years, almost a decade more. Members of the Baby Boom generation who are now in their 50’s and 60’s also expect to remain healthy and active longer. When they have finished raising their children or their careers have peaked, they could be living for 30 more years. If life with their current spouse is no longer appealing, they feel they have an opportunity to do something different in their remaining decades. They have higher expectations for their remaining years in part because of what they see on the internet. Divorce seems a more viable option than it did in the past, in part because of the reduced stigma of divorce and the ease of meeting a new partner through online dating.

When a two-income couple divorces, each person may have no problem becoming self-sufficient immediately. However, if that is not the case, the higher-earning spouse may need to make maintenance payments, formerly known as alimony, to the other. Spouses are free to negotiate their own agreement regarding maintenance payments. If they cannot agree, the court must first decide whether a maintenance award is appropriate. If so, then the judge will determine the amount and duration of maintenance using statutory guidelines (750 ILCS 5/504).

Reasons One Spouse May Need Post-Divorce Financial Support

Marriage often changes how people think about their careers. In some families, one spouse takes on the role of being the primary manager of home and family needs, perhaps even homeschooling the children. That frees the other spouse to focus on building their career and generating income to support the family. In other families, one spouse works longer hours to support the other’s dreams of higher education, developing their own business, or working in a fulfilling but low-paying occupation. The longer a person remains unemployed, the harder it can be for them to re-enter the workforce. If you fall into any of these categories, you may need to negotiate for maintenance payments as part of your divorce settlement.

Building a business takes years of effort. The last thing you want to have happen is to lose the business, or a substantial portion of it, in a divorce. Three ways to protect your business in a divorce include: (1) Creating a prenuptial or postnuptial agreement, (2) Keeping clear documentation that the business was acquired with non-marital assets, and (3) Seeking early advice from a divorce attorney with substantial experience in handling divorces for business owners.

Is My Business Marital Property?

Under Illinois divorce law (750 ILCS 5/503), all marital property is subject to an equitable division between the spouses. Marital property includes all assets and debts acquired by either spouse during the time of the marriage, including income earned by the efforts of either spouse. Therefore, if you started a business during your marriage, it is most likely marital property.

However, your business will generally be considered your separate, non-marital property if:

If you want to live comfortably in retirement, you will need an income of at least $50,000 per year for an estimated 15 to 20 post-retirement years. That means you will need $250,000 to $500,000 in retirement savings to supplement your Social Security benefits. It should not come as a surprise, then, the division of retirement benefits is becoming one of the most contentious points in Illinois divorce cases. You will want to do everything you can to get your fair share of retirement benefits that you and your spouse have accrued during your marriage.

You might think that your entire pension or 401(k) plan at work is your separate property since it is under your name only and is tied to your employment. However, under Illinois law, any pension benefits or retirement savings built up during your marriage are a marital asset subject to a fair and equitable division. You will need to use historical records to determine what percentage of your retirement savings were accumulated prior to the marriage versus during the marriage. You will want to scrutinize these calculations to get as much of your account as possible designated as a non-marital asset. On the other hand, you will want to get as much of your spouse’s account as possible designated as a marital asset.

You might also think that one retirement account is the same as the next, but that is not correct. When you reach retirement age and start to withdraw money from a 401(k) or a tax-deferred IRA, you must pay ordinary federal income tax on the entire amount you withdraw, both original contributions and earnings. However, when you withdraw money from a Roth IRA, you will pay no federal income tax on any withdrawals as long as you are at least age 59½ and have had the account for at least 5 years. Thus, for someone with a 15% average federal income tax rate, $1,000 in a Roth IRA is worth 15% more than $1,000 in a tax-deferred IRA or 401(k). This is a good reminder of how important it is to understand the tax consequences of divorce decisions.

Prior to filing for divorce, a devious spouse may try to hide assets either to capture a greater share of the marital estate out of greed or fear of future financial insecurity or to prevent their spouse from getting a fair share out of spite. This is more likely to happen when certain conditions exist. If any of the conditions discussed below exist in your marriage, then be sure to alert your divorce lawyer about your concerns. Your attorney may recommend hiring a forensic accountant who can study several years’ worth of your tax returns, bank statements, and other financial records to uncover evidence of hidden assets.

When to Be Concerned About Hidden Assets

Some conditions that create greater opportunity for assets to be hidden include:

• Wealth. In a high-income, high-asset divorce, assets may be spread across numerous investment accounts, real estate holdings, and expensive personal property such as antiques, jewelry, and boats. A couple may also have multiple sources of income. The more complicated the marital estate, the more options a spouse has for hiding places. A devious spouse could also try to argue that parts of the estate are actually their separate property, acquired before marriage, by gift, or by inheritance.

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For divorce settlements finalized on or after January 1, 2019, the tax treatment changed for spousal maintenance, aka alimony. This has had two effects on divorcing couples, one involving current-year income tax and the other affecting retirement savings.

Most divorce lawyers have focused on the income tax effect and how it makes the payment of spousal support less financially attractive to the payor. However, the revised tax law opens a new tax-savings opportunity related to the transfer of 401k and IRA accounts incident to divorce.

Paying maintenance via the transfer of tax-deferred retirement savings can offer multiple benefits. This approach can be especially beneficial for a maintenance recipient who has been a stay-at-home parent prior to divorce, particularly one over age 59½.

Effective January 1, 2018, Illinois changed the number of cases subject to the statutory maintenance guidelines and the method for calculating maintenance in all pending divorce cases and for all divorces filed after January 1, 2018. Public Act 100-520, effective January 1, increased the combined income of divorcing individuals that would be subject to the statutory maintenance guidelines from $250,000 per couple to $500,000 per couple.

Read the rest of the article here: https://www.bestlawyers.com/article/new-year-ushers-in-new-formulas-for-calculating-maintenance-payments-in-divorce-proceedings/1839

Sweeping changes to the way Illinois courts will calculate child support are set to take effect July 1, 2017. Most people paying or receiving child support aren’t even aware of the first massive change to Illinois child support law in over 25 years, and in fact, many attorneys are similarly unaware of the new calculation methods.

For years Illinois has used a "percentage guideline" approach to the calculation of child support. This percentage guideline approach has simply taken a statutory multiplier (20% in situations where one child is to receive support) and applied it to the payor’s net income to reach a child support amount. For instance, a payor with $2,000 of net income was required to pay a $400 child support obligation for one child.

Effective July 1, 2017, Illinois will employ an "income shares" approach to the calculation of child support, and each party will have a specific, statutory amount of child support for which he or she is legally responsible. Although the new rules provide that the parent with the majority amount of parenting time with the children will not actually pay the statutorily determined support amount, the effect of establishing that parent’s child support obligation is a reduction in the amount of child support he or she will receive from the parent with less parenting time.

Your divorce will likely require you to testify, either at the time of the final "prove-up" hearing (which is a short proceeding where the agreement reached by you and your spouse is presented to the court for approval) or at certain types of preliminary proceedings. The testimony at the prove-up is somewhat routine, and rarely requires a great deal of advance preparation. The preliminary proceedings are somewhat more complicated, and generally fall into two categories: a "discovery'' deposition, or a hearing before the court concerning temporary matters, such as a request for temporary child support or maintenance.

Unfortunately, most folks' ideas about "testifying" are formed by movies and TV shows, which, almost uniformly (and due largely to creative and time constraints imposed on those mediums) bear little relation to what you will experience. You will likely find your testimonial experience vastly different from what you have seen on TV.

The following information is provided to help assist you in preparing for your "day in court" and to answer certain common questions that almost everyone has. Prior to testifying, you and your family law lawyer will discuss your testimony with specificity to the issues involved and, as always, be sure to ask any questions you might have. Remember, your divorce lawyer has done this before. You probably haven't. Therefore, there is no such thing as a "stupid" question.

"I always thought of the law as being this noble profession that was important," Weiler says. "I'm really a sap when it comes to the idea we're government of laws, not men, and the law protects people—all of those good concepts, which sometimes don't get as much attention as they should."

Read the full article by Dan Campana, "Rory Weiler: Doing the Right Thing to Assist His Clients, Invest in Profession", in Law & Lawyers (2014).