Marital vs Non-Marital Property

Marital vs. Non-Marital Property

“Marital” property and marital obligations (debt) are divided by the Court and distributed to the spouses
in percentages that the Court considers fair. Marital misconduct is not a factor for property distribution. The court looks at several factors such as the
length of the marriage, contributions, including as a homemaker, dissipation of marital and non-marital assets, value of property assigned to each spouse, tax consequences, child custody and the parties’ economic circumstances.

“Non-Marital” property is not divided but is awarded to the spouse that owns the property.

If a husband or wife inherits or is gifted any property during a marriage, that property is non-marital property, and will remain the sole property of the spouse receiving any such inheritance or gift. However, if the inheritance or gift is placed in co-ownership with the other spouse, then the inheritance or gift is considered a gift to the marriage, therefore, changing from non-marital to marital asset.

Types of Divorce and Grounds for Divorce in Illinois

Simple Divorce (Joint Simplified Dissolution of Marriage):

To qualify for a simple Divorce the marriage cannot exceed eight years in duration. Irreconcilable differences have caused the marriage to breakdown and the parties have been separated for six months (can still be living in the same residence). No children were born of the marriage and neither party depends on the other for support. Neither party has any interest in real estate and each party waives any right to spousal support. The total market value of all marital property is less than $10,000 and the total annual income of both parties is less than $35,000.

If you qualify for a simple Divorce, a Judgment for Divorce can be obtained on the day of filing or within the next several days.
Uncontested Divorce:

In marriages of longer than eight years in duration with children, real estate and assets and income in excess of the simple Divorce minimums, you can obtain a Divorce within a relatively short period of time. This can only be accomplished if the parties are in agreement on all of the issues.
Contested Divorce:

A contested Divorce begins with the Sheriff serving the Petition for Dissolution of Marriage on the other party. An attorney represents each side and there may be temporary child custody, child support and alimony orders. Eventually most of these cases settle with a written agreement after financial investigation, negotiation, settlement conferences and ultimately litigation. A small number of cases are resolved by a contested jury trial.

Contested issues can include but are not limited to:

1. Grounds for the divorce
2. Custody of children
3. Visitation rights
4. Division of assets
5. Child support
6. Maintenance of alimony
7. Payment of family debts
8. Contribution toward education expenses (college or parochial)
9. Payment of health insurance for dependent spouse
10. Distribution of retirement accounts
11. Income tax structuring


Annulment:

An annulment is a legal proceeding to declare the marriage invalid (as if it never occurred). In Illinois, there are a just few grounds to declare a marriage invalid:

1. One of the parties lacked capacity to consent to the marriage at the time of the marriage ceremony because of mental incapacity or if they were under the influence of drugs or alcohol that inhibited their ability to consent; or a party was induced to enter into the marriage by force, duress or fraud involving the essentials of the marriage;
2. A party lacks the capacity to consummate the marriage by sexual intercourse, and the other party did not know of the incapacity;
3. A party was under the age of 18 and did not have parental/guardian consent or judicial approval; or
4. The marriage is prohibited.


The time limit to obtain an annulment depends upon the grounds:

1. Lack of capacity to consent to the marriage: either party may petition, but the petition must be filed no later than 90 days after the petitioner obtained knowledge of the grounds.
2. Inability to consummate the marriage: either party may petition, but the petition must be filed within one year after the petitioner obtained knowledge of the grounds.
3. Underage party: that party or guardian, may petition for annulment prior to the time that underage party reaches the age at which marriage is permitted.


Grounds for divorce

There are 11 grounds for divorce in Illinois:

1. Irreconcilable differences (commonly referred to as “no-fault”)
2. Impotence
3. Bigamy
4. Adultery
5. Desertion
6. Habitual drunkenness for two years
7. Drug addiction for two years
8. Physical cruelty
9. Mental cruelty
10. Conviction of a felony or other infamous crime
11. Infecting the other spouse with a sexually transmitted disease

Illinois Child Support amounts

One of the most common questions I get is "how much child support will the non-custodial parent have to pay?"

Illinois Courts determine child support payments by using a percentage formula:
Number of Children

Percentage of Supporting Party’s Net Income

1 child 20%
2 children 28%
3 children 32%
4 children 40%
5 children 45%
6 or more 50%

Net income is defined as total income from all sources minus the following deductions:

1. Federal and State Income tax property calculated
2. Social Security payments
3. Union dues
4. Mandatory retirement contributions required by law or as a condition of employment
5. Dependent and individual health/hospitalization insurance premiums
6. Prior obligations of support or maintenance actually paid pursuant to a Court order
7. Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent and exclusive gifts.

Welcome

Hi. I have expanded my blog topics to other areas of practice. I will give updates on caselaw, questions received from clients, useful tips, resources etc. So feel free to poke around, check out the information here. Don't forget I have other useful blogs at Chicago Bankruptcy Blog, and Chicago Sports Chat Blog. I hope to help make the divorce process easier for all of those involved...husbands, wifes, children, grandparents and friends. Feel free to post comments and tips, and use this as a sounding post for your feelings, ideas and thoughts. Thank you.
Terry

DIVORCE PROMOTION

In what has become a celebrity obsessed culture, I’m told that our children now believe that talent manifests itself in an ability to sing or kick a football rather than excel in other areas including academically. Whilst I can’t claim to have any genuine interest in the lives and achievements of purported celebrities, I do confess to reading trashy magazines in doctors’ and dentists’ waiting areas and as you will be well aware of repeating alleged quotes in this blog. However, I have come to the conclusion that the one person I would never hire to promote my business would be a celebrity divorcee. They only seem to give one line metaphors painting a picture of horror and pain.

Recently I reported Robin Williams’ comment about divorce being like “circumcision with a weed whacker”. Today I read that Alec Baldwin, the actor who came to fame in The Hunt for Red October and who was until 2002 married to Kim Basinger, is releasing a book to help couples through divorce, in which he describes the process as like “being tied to a pick up truck and dragged down a gravel road.” Imagine trying to advertise my services using that as a commendation!

Canine Custody: Who Gets The Dog?

Going through a divorce is difficult enough with pressing issues like dividing the assets and child custody, but for some couples, especially those who do not have human children, custody of the dog or dogs becomes a problem.

When a couple has children, the pets usually stay with the spouse who retains custody of the kids. It would be traumatic and heartbreaking to rip away a child's pet during his or her parent's divorce. But when there are no children, and both spouses consider the dog to be the "child", things can get heated and nasty. A canine custody battle can ensue.

There is a new book that addresses this problem and aims to guide divorcing couples through the difficult process of canine custody. Jennifer Keene is the author of We Can't Stay Together for the Dogs: Doing What's Best For Your Dog when Your Relationship Breaks.

Here are some tips to working out custody of your dog during a divorce:

1. Put your dog first. It is important to put aside your own needs and think of what is best for your dog. Consider his age, temperament health and tolerance for change.

2. Be fair. Working out an arrangement where you and your ex can share custody of the dog will take hard work and require you both put your emotions aside.

3. Don't fight in front of the dog. Dogs, like kids, sense negative energy and are affected by their owners lashing out at one another. Your goal should be to keep your dog's routine and surroundings as familiar as possible and make sure he feels safe and loved.

Your dog has given you unconditional love and has been there for you through the best and worst times. You owe it to him to do what is best and keep him happy, despite your changing circumstances. Try to work with your spouse to ensure that you both get quality time with the dog after the divorce and do it the most amicable way possible.

A BEACH BBQ

Little Girl had a beach party and barbecue today to celebrate another birthday. 40 miles from the seaside, it took a little organising at the bottom of the garden. Outdoor and Apprentice Men took the easy route out and went off sailing for the weekend leaving me to run the show. You know what the great thing is about having no menfolk around? You get to light the barbie and twiddle with the sausages!