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When you are considering a divorce there are a lot of variables that you may need to take into consideration. Illinois divorce law uses a lot of legal terms that not everyone may be familiar with, or be familiar with in a legal context. One part of divorce that is important to understand is whether the divorce will be contested or uncontested.
Contested Divorces
A divorce is contested if the parties cannot agree on basic elements of the divorce. The disagreement can be as big as whether or not to divorce at all, or as seemingly small as the specific details of the separation of property. Common disagreements include allocation of parenting time, formerly known as custody and visitation, and with whom the children will live after the divorce. Other sticking points that can commonly be found in contested divorces are how much child support or maintenance, formerly called alimony, should be paid. Finally, the division of assets between parties is also a frequent area of disagreement that can make a divorce contested.
A prenuptial agreement, known colloquially as a “prenup”, is a legal contract between a couple before they marry. In Illinois, prenuptial agreements are governed by The Illinois Uniform Premarital Agreement Act.
A prenuptial agreement will typically set up how current and future assets will be divided in the case of a divorce. Sometimes prenuptial agreements will set up penalties and bonuses to encourage or discourage certain behavior. For example, some prenuptial agreements will include language where one person will have to pay more to the other spouse if he or she performs or fails to perform a certain action.
Conversely, some prenuptial agreements will allocate more assets to a spouse after certain milestones, like having a child or after a certain number of years of marriage. If you are thinking about a prenuptial agreement it is crucial that you talk to an experienced family law attorney who can help you examine your specific situation. However, there are some factors that you may want to consider when you are considering a prenup.
Making the choice to get divorced is one of the hardest decisions you may ever have to make. Divorces can be as unique as the couples in them; what makes sense for you may not be the right choice for others. Yet once you and your spouse have made the decision to divorce, what comes next? The following suggestions may prove beneficial if you feel your marriage is irreparable.
Contact an Attorney
The first step in the divorce process is to contact an attorney so he or she can offer you specifics of what to do or what not to do. For example, sometimes leaving the marital home can hurt your case later; therefore, your attorney may suggest that you remain in the home.
Mediation? Collaborative Law? Litigation?
Once you have had the difficult conversation with your spouse, you will need to come together to make various decisions. One of the first decisions you need to make has to do with the legal process you want to use going forward. Mediation involves a third party who helps couples come to agreements about how to divide assets and parenting responsibility. Collaborative law is another kind of alternative dispute resolution where each party has an attorney, but the parties and their attorneys work together to try to come to agreements about important issues. Finally, there is traditional litigation. This is the adversarial way to approach the situation, but it may also be the best option for you. A qualified attorney can advise you on your options and recommend which one may be best for you and your individual situation.
Legal separation is a process that few people pursue, but it can be important for couples considering divorce to understand. Legal separation is not the same thing as just living apart. Most couples divorcing in Illinois will not be legally separated at any time, but there are some circumstances where legal separation is the best option. Below are some of the basics of legal separation; however, you will want to speak with an attorney to find out whether legal separation is right for you.
So are We Still Married?
When a couple is legally separated they are still married. Therefore, spouses cannot marry anyone else and there is not a divorce decree. However, legally separated couples can ask for child and spousal support from each other, but the marital property itself will not be divided.
What are the Requirements for Legal Separation?
There is a common myth in our culture that half of all marriages end in divorce. However, as recent graphics and articles make clear, that is not true and the figure is closer to one-third, though the rates vary among different groups.
Declining Divorce Rates
Divorce rates peaked in the 1970s and 1980s, and have gone down each decade since. The New York Times “Upshot” column reported that close to 70 percent of the marriages which began in the 1990s "reached their 15th anniversary (excluding those in which a spouse died), up from about 65 percent of those that began in the 1970s and 1980s." Moreover, couples who married in the 2000s are "so far divorcing at even lower rates.”
So even though conventional wisdom cites the divorce rate at 50 percent, the same article estimates that two-thirds of couples that get married today will never divorce.
Reasons for Declining Divorce Rates
Illinois law now requires divorcing couples with children to submit a “parenting plan” to the court in order to be granted a divorce. This is part of the changes made by the new Illinois family laws that went into effect January 1, 2016. There are several important rules and considerations surrounding parenting plans and it is advisable to work with a skilled family law attorney to make sure that the plan that gets approved will be one that is best for you and your children.
What is a Parenting Plan?
A parenting plan is a document that lays out the rights and obligations of both parents in relation to the children. A parenting plan specifically allocates parenting time (formerly known as custody and visitation) and other matters that need to be worked out in order to parent separately.
Generally a parenting plan will lay out who has the children when, including birthdays and holidays. The parenting plan may also include agreements about what school the children will go to and perhaps who will pay for it, as well as other important matters like religion, ability for parents to relocate, and decision making powers.
Have you ever wondered how family court judges make decisions on behalf of children? Illinois, and most other states, uses a standard of the “best interest of a child.” Though the specifics differ between states, the best interest of the child, or BIOC for short, is usually a statutory list that is part of the state’s code that governs family law. Judges must refer to this list as guidance when considering the factors of the situation to decide the BIOC.
Changes to Illinois Family Law
January 1, 2016 brought several changes to Illinois family law, including changes to the list of factors considered for BIOC. One change was that Illinois now has separate—though very similar—BIOC factors depending on whether parenting time or decision-making responsibility for the child is being allocated. Illinois also added some factors that were not previously included.
Generally, if a parent is incarcerated after being found guilty, they do not cease to be a parent. Illinois courts tend to abide by the axiom that a child benefits most from having both parents in their life, and will try to practice this whenever possible. As such, unless a parent has committed a violent crime, it is likely that a court will at least consider their position in terms of being a factor in their children’s lives.
Parenting Time
When a parent is incarcerated, he or she will lose his or her ability to visit or take care of their children for the period of the sentence. However, this does not mean that his or her parental rights will be abrogated, or even that they should, depending on the nature of the case and the crime committed.
If the parents stay married while the mother or father is in jail, parenting time distribution may change; however, the allocation of parental responsibilities (what used to be referred to as physical custody) likely will not. If a mother elects to divorce an incarcerated father, she will retain physical custody unless clear and convincing evidence is put forward for the child to be surrendered either to the state or to another guardian. A father divorcing an incarcerated mother will have a different path to follow depending on whether he can establish paternity or not. If he can establish paternity, he will be granted custody in most circumstances.
Reasons Supervision May be Ordered
There are several circumstances in which a judge may order supervised parenting time. Sometimes a judge will order supervised parenting time based on the facts of a case. Other times one parent may feel that a child is at risk when in the care of the other parent and will ask the judge for visits to be supervised. Or, there may be certain situations that require supervision or no contact, such as when one parent drops off the child to the other parent. However, the reason is always the same: the best interests of the child.
The Illinois Marriage and Dissolution of Marriage Act lays out the factors that a judge will consider in order to find what is in the best interests of the child. Some factors that are taken into account are the wishes of the child, the mental and physical health of the parties involved, the child’s health, and a history of abuse.
If you are considering divorce, changing custody agreements, negotiating a prenuptial agreement, or any other family law conflict, you may want to consider mediation. However, it is important to understand the process and whether it may work for you.
What is the Mediation Process Like?
Mediation is a process where the two parties who are looking to make an agreement try to come to a consensus about all the aspects of the agreement. This keeps all outcomes in the hands of the parties. With traditional litigation the judge ultimately gets to decide the parameters of the agreement.
Everyone will not likely get everything they want, but mediation tries to help couples get to a place where they can live with the agreement that is made. Additionally, it is important to understand that the mediator is not a judge and it is up to the parties to make decisions. However, different mediators can offer different levels of direction and you will want to find someone with whom you are comfortable.
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