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When Can an Illinois Prenuptial Agreement Be Considered Invalid?

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Oak Brook prenuptial agreement attorney

Research shows that prenuptial agreements, or “prenups,” are becoming increasingly popular – especially for the millennial generation. Many millennials are getting married later in life compared to their parents or grandparents. They may already own a home, a small business, or have other substantial assets by the time they tie the knot. They may also have accumulated significant debts, such as student loans. A prenuptial agreement is a great way for couples of any age to define and protect their financial rights in the event that their marriage ends in divorce. If you are considering creating a prenuptial agreement, it is essential to know the common mistakes that can make this important legal document invalid.

Financial Transparency Is a Requirement

A prenuptial agreement mainly deals with financial issues such as property or asset division and spousal maintenance (alimony). In order for a couple to come to a resolution about the details of their prenup, they must both fully disclose all of their assets, income, and debts. If a spouse lies about his or her finances, then the terms contained in the prenuptial agreement are based on misinformation. If the couple does end up filing for divorce, and it is determined that the prenuptial agreement was founded upon false financial information, the document may not be legally enforceable.

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3 Tips for Protecting Your Mental Health During an Illinois Divorce

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Western Springs divorce attorney

The Holmes-Rahe Life Stress Inventory lists divorce as the second-most stressful experience a person can endure. You may be surprised to learn that according to the inventory, the end of a marriage is considered to be more stressful than being fired from your job, the death of a close friend, and even experiencing a major injury or illness. If you are considering divorce, you know just how mentally taxing it can be. Fortunately, many people are able to build a post-divorce life that is much happier and more serene than they could have imagined. Because the divorce process can be so trying, it is essential that you make your mental well-being a priority during this time. The following tips can help you address the difficulties you may experience during your divorce.

Allow Yourself to Grieve the End of Your Marriage 

Some people assume that if they are the party who initiated the divorce, then they have no reason to be sad about the end of their marriage. This is simply not true. It is completely normal to feel sad and disappointed about your divorce -- even if the split was your idea. You may have had hopes and dreams of what you wanted your marriage to be, and you may be deeply upset that you were unable to meet these expectations. Regardless of why your marriage is ending, give yourself time to grieve this loss, and do your best to avoid bottling up your emotions. Many mental health experts suggest that writing your feelings down in a journal can help you work through these emotions and heal.

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How Is a Family Business Handled in an Illinois Divorce?

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Burr Ridge division of assets attorney

Property division during divorce can vary significantly in its complexity. If a divorcing couple does not own a home or significant assets, the division process is typically more straightforward. However, if the couple has complex assets such as a family business, the division of property will be much more complicated. Illinois courts use a method called “equitable distribution” to split marital assets and property. This means that the marital estate is divided fairly based on each of the spouse’s contributions to the estate, their financial circumstances, and other relevant factors. Before a family-owned company can be divided in a divorce, the value of the business must be determined. There are several different ways to perform a business valuation, so read on to learn which option will work best for your situation.

Determining the Monetary Value of a Business

The business valuation method used by a couple during divorce will depend largely on the couple’s plans for the business moving forward. If the couple is going to sell the business, one way to determine the value of the business is by comparing the business to similar companies that were recently sold. This is referred to as a “market approach.” Another way to value the business is to use an “asset approach.” This involves calculating the total value of the assets owned by the business and then subtracting the business’s liabilities. In an “income approach” to business valuation, the present value of projected future income is used to determine the value of the company. 

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What Are the Laws Regarding Parental Relocation in Illinois?

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Cook County divorce attorney parental relocation

Sharing parental responsibility and parenting time with your ex-spouse can sometimes be challenging. You and your child’s other parent may disagree about certain aspects of your child’s upbringing, or you may struggle to find a division of parenting time that allows you both to see your child as much as you want. One issue that often leads to disputes after a divorce is parental relocation. If you or your ex is planning to move, you may wonder how this relocation will affect your shared parenting time arrangements. Illinois law dictates when a parent must seek approval from a judge before moving, so it is important to know the stipulations that may apply to your situation. If you have any child-related disputes with your child’s other parent, an experienced divorce attorney can help find a solution that works for you.

How Far Away Is the New Residence?

The law treats parental relocations differently depending on how far away the parent is planning to move. Local relocations do not require the parent to seek court approval. However, the parent will be required to take additional steps if moving involves any of the following aspects:

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Warning Signs That Your Spouse May Be Hiding Assets During Your Divorce

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Burr Ridge high-asset divorce attorney

As a general rule, the more wealth and property a married couple has, the more complicated their divorce will be. Divorces involving a family business, multiple real estate properties, 401ks, pensions, royalties, offshore accounts, deferred compensation, investments, stocks, trusts, and other complex assets are often especially hard to navigate. One issue that anyone undergoing a high asset divorce should watch out for is hidden assets. If you have reason to suspect that your spouse may be lying about financial information during divorce, speak with a knowledgeable divorce lawyer as soon as possible.

Red Flags of Financial Fraud

In order for a couple to reach a fair divorce settlement, each spouse must be fully transparent regarding his or her income, property, and debt. Decisions regarding property division, child support, spousal maintenance, and other issues are heavily influenced by the spouses’ financial circumstances. When a spouse does not fully disclose his or her assets and income for the purposes of skewing the divorce settlement in his or her favor, this is considered financial fraud. A spouse engaging in financial fraud may undervalue or fail to report certain assets or revenue streams, overstate debts, or claim that his or her expenses are much higher than they actually are.

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When Do Spousal Support Payments End in Illinois?

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DuPage County spousal maintenance attorney

In some divorce and separation cases, a higher-earning spouse is required to make payments to a lesser-earning spouse. These payments are called spousal maintenance under Illinois law, but they are also commonly referred to as spousal support or alimony. There are a variety of reasons that a spouse may be required to make these types of payments. Spousal maintenance arrangements may be stipulated in the couple’s prenuptial agreement, or a large discrepancy in the spouses’ assets and incomes may necessitate maintenance. Whether you are the payor or the recipient of spousal support, you may be wondering how long maintenance payments will be mandated. Like most family law concerns, the answer will depend on several factors.

Spousal Maintenance Duration

If the spouses have signed a valid prenuptial or postnuptial agreement that specifies the terms of spousal maintenance, the court will typically uphold these terms. If the spouses did not have an agreement dictating spousal maintenance arrangements, the court will consider factors such as the spouses’ income, assets, employability, health, impairment to future earning capacity, and other elements to determine whether maintenance is appropriate. Typically, spousal maintenance is intended to give a lesser-earning spouse time to gain the skills and education needed to become self-supporting, and it can also ensure that a person is able to maintain the standard of living they enjoyed during their marriage.

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How Should I Handle Disputes Regarding My Illinois Parenting Plan?

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DuPage County divorce parenting plan attorney

If you and your spouse have children together, and you are going to get divorced in Illinois, you will be required to create a parenting plan or agreement. A parenting plan outlines the way the allocation of parental responsibilities and parenting time will be managed after the divorce. In some cases, one parent may have all of the parenting time, often referred to as having “sole custody,” but many divorced couples have a shared parenting arrangement. Coming to an agreement about the required provisions in a parenting plan is not always easy, but with an experienced attorney’s help, you can resolve many of these issues. 

Key Elements of a Shared Parenting Arrangement

There are several issues that must be addressed in your parenting plan. You will need to list your child’s official address for school enrollment purposes as well as each parent’s address and contact information. You will need to decide which parent will have the majority of parenting time as well as how important child-related decision-making responsibilities should be divided or shared between the parents. You will also be required to create a plan for how the child will be transported between the two households. An Illinois parenting plan must also include information about how any future proposed changes to the parenting plan or future parental relocations should be handled. There are also provisions describing other parental rights and responsibilities.

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What Are the Legal Grounds For Divorce in Illinois?

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Burr Ridge high-conflict divorce attorney

Marriages end for countless reasons. Sometimes, a married couple simply grows apart and realizes that their marriage is no longer beneficial to either partner. Other times, spouses divorce soon after their wedding because they quickly realized that getting married was a mistake. Many marriages also end because an adulterous spouse is having an affair. If you are considering getting a divorce, it is important to know the grounds for divorce in Illinois. Major changes to the Illinois Marriage and Dissolution of Marriage Act (IMDMA) took effect in July of 2016, including an overhaul of the “grounds,” or reasons, a person can seek a divorce in Illinois. Read on to learn the current basis for filing for a divorce in Illinois and how instances of infidelity or other breaches of trust could affect your divorce proceedings.

Illinois is a Pure “No-Fault” State

Prior to the 2016 revamp of the IMDMA, there were several fault-based grounds for divorce in Illinois. They included adultery, impotence, a spouse infecting the other with a sexually transmitted disease, bigamy, alcohol or drug abuse, extreme physical or mental cruelty, a felony conviction, abandonment for at least a one-year period, and attempted murder of a spouse by the other. There was also a no-fault ground for divorce called “irreconcilable differences.” In 2016, all of the fault-based grounds for divorce were eliminated. Today, Illinois is a “pure no-fault state” when it comes to divorce. The only legal reason divorcing couples can site is “irreconcilable differences” which caused the irretrievable breakdown of the marriage with no hope for reconciliation.

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How Can I Change My Child Support Obligation in Illinois?

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Hinsdale child support attorney

Child support can help divorced or unmarried parents share the costs of raising their children. Child support orders in Illinois are created using the Income Shares method. This means the amount a parent pays in child support is based on several factors, including the parents’ income, the amount of parenting time each parent has, and the expenses that are necessary to provide for children's needs. Sometimes, a parent needs to modify the amount he or she pays in child support. However, certain criteria must be met in order for Illinois courts to grant a child support modification.

Orders Are Eligible for Review and Modification Every Three Years

Illinois assigns child support orders that are fair and reasonable based on the parents’ financial circumstances and the child’s needs. Because of this, parents cannot change a child support order simply because they want to pay a lower amount. Child support orders are automatically eligible for review every three years. During the review, the current child support balance, the non-custodial parent’s employment circumstances, and other applicable information may be analyzed. If it is determined that the child support obligation needs to be adjusted, the case can be submitted for modification.

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Special Considerations for Divorce When You Are Near Retirement

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Burr Ridge gray divorce attorney

Although the overall divorce rate in the United States has been declining, there is one demographic that is experiencing a major increase with regard to the number of couples getting divorced. Interestingly, the divorce rate for adults over age 50 has doubled in the last few decades. Getting divorced after age 50, referred to as “gray divorce,” can be much more complicated than divorcing at a younger age. If you are considering ending your marriage, and you are nearing retirement age, there are certain considerations you should keep in mind.

Property Division During a “Gray Divorce” Can Be Complex

Older couples typically own higher-value and more complex assets than younger couples do. Assets like businesses, retirement accounts, life insurance policies, investments, and social security benefits can be difficult to value and divide. Retirement accounts are usually considered a marital asset, which is subject to division under Illinois equitable distribution laws during a divorce. However, funds accumulated in an IRA, 401(k), or pension before a couple got married may be considered non-marital and therefore not subject to division. Depending on the circumstances, you may need to get a court order called a Qualified Domestic Relations Order (QDRO), which dictates how retirement account funds are divided between divorcing spouses.

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Filing for an Illinois Divorce When Your Spouse Has an Addiction

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Hinsdale complex divorce attorney

The National Survey on Drug Use and Health (NSDUH) estimates that nearly 18 million U.S. adults suffered from a substance abuse disorder in 2017. If you are married to someone who abuses drugs or alcohol, you know just how devastating this type of addiction can be to a family. Of course, substance abuse is not the only type of addiction that can negatively impact a marriage. A gambling addiction, compulsive shopping, sex or pornography addiction, or even food addiction can put a major strain on a relationship. If you are considering filing for divorce in Illinois, and your spouse has addiction issues, there are several things you should keep in mind to protect yourself.

Protecting Your Finances

Many individuals do not realize how serious their spouse’s addiction is until they check their bank account balance. The money needed to fund an addiction can easily reach up to tens of thousands of dollars, if not more in some cases. If you are worried that your spouse may be recklessly spending marital funds, there are several steps you should take immediately, including the following:

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Understanding Equitable Distribution in an Illinois Divorce

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Hinsdale asset and property division attorney

One of the most contentious parts of the divorce process is often the division of marital property. Divorcing couples have the option of dividing property on their own, but couples who cannot reach an agreement will require court intervention. Illinois courts divide marital assets and debts according to “equitable distribution.” Unlike other states that divide the marital estate exactly in half, Illinois instead considers a variety of factors to determine an asset division arrangement that is fair and reasonable for both spouses. If a couple has a high net worth or owns complex assets, the property division process can become especially complicated.

Differentiating Between Separate and Marital Property is Not Always Straightforward

Only marital property is divided during an Illinois divorce. Marital property generally includes property obtained by either spouse during the marriage. Separate property typically includes any assets or debts that the spouses acquired before the marriage took place as well as certain gifts and inheritances acquired throughout the union. Differentiating between separate and marital property is not always as easy as it may seem. Assets that are commingled can lose their identity and be transmuted from separate property to marital property. For example, if a spouse receives an inheritance from a relative during the marriage, those funds are typically considered separate property. However, if the spouse uses some of those funds to pay for shared expenses during the marriage, the funds may be transmuted into marital property.  

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Considerations During a High Asset Divorce in Illinois

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Burr Ridge high-asset divorce attorney

The divorce experience is different for everyone. A young couple who does not have children, own a home, or have valuable assets may be able to get a divorce relatively quickly and effortlessly. The more assets you own and the more complex those assets are, the more likely it is that you will have a complicated divorce. If you are planning to end your marriage, and you and your spouse have a high net worth, own complex assets, or have high-value assets, your divorce may involve more negotiations. There is much more at stake in a high asset divorce, so it is crucial for couples in this situation to be informed about the unique issues presented by a high asset or complex asset divorce.

Child Support and Spousal Maintenance Payments Are Usually Much Larger

Illinois child support orders are decided using the “Income Shares” method. This approach involves evaluating each spouse’s income, determining the total amount of support for which the parents are collectively responsible, and then splitting the cost between the spouses in proportion to their incomes. Similar to property division, the spouses’ financial circumstances must be fully understood before a child support order can be entered by the court.

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Tips for Helping Your Child Through a High-Conflict Illinois Divorce

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Cook County high-conflict divorce lawyer

While all divorces involve at least some degree of hostility, a high-conflict divorce is especially contentious. Child psychiatrist Dr. Mark Banschick calls high-conflict divorces “malignant divorces” because of the stress and emotional burdens these splits can incur. If you are a parent who is getting divorced, and you have a combative relationship with your spouse, you probably worry about how this conflict will affect your child. There is no perfect way to help your child cope through a high-conflict divorce, but experts do have suggestions for how to minimize your child’s emotional trauma during a difficult divorce.  

Have Adult Conversations Away from the Children

Experts agree that children can be deeply disturbed by parental conflict and fighting. The best way to minimize your child’s trauma during divorce is to keep adult conversations away from your child as much as possible. Studies show that when children watch or overhear their parents fighting, they are more likely to have behavioral and emotional problems. Working with a skilled mediator may be one way to keep divorce-related discussions compartmentalized, but this is not always a possibility during a high-conflict divorce. If possible, take divorce-related phone calls in another room and avoid “bad-mouthing” the other parent in front of your child.

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Why You Should Consider a Prenuptial Agreement in Illinois

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Western Springs prenuptial agreement attorney

Prenuptial agreements, or “prenups” for short, have long been the subject of misinformation and misunderstanding. Outrageous celebrity weddings, television shows, and movies have shown prenuptial agreements in an unfairly negative light. However, signing a prenuptial agreement before getting married can be a responsible and beneficial decision for many couples. Read on to learn how a prenuptial agreement or premarital agreement can benefit you and your partner in Illinois.  

A Prenuptial Agreement Protects Your Financial Interests

The main benefit of a prenuptial agreement is that it protects the financial interests of both parties should the marriage end in divorce. In Illinois, a divorcing couple’s marital estate is divided according to equitable distribution laws. Through equitable distribution, property and debts are divided fairly, but not necessarily evenly. If you and your soon-to-be spouse sign a prenuptial agreement, you have the option to make your own property division decisions in advance and override these state laws during a divorce.

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How Does Infidelity Affect My Illinois Divorce?

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Western Springs child support attorney

If your marriage is coming to an end because your spouse cheated on you, you may wonder how this could affect the divorce process. Illinois is a “pure no-fault” state, which means that there are no fault-based grounds for legally terminating your matrimonial union. If you and your spouse are getting divorced in Illinois, you will simply list “irreconcilable differences” as to the reason that you are seeking a divorce. However, marital infidelity can still affect your divorce proceedings in several important ways.

Assets Wasted During an Affair Can Constitute Dissipation

Illinois law prohibits courts from considering cheating or other types of marital misconduct when making property division, child support, or spousal maintenance decisions. However, there are several exceptions to this rule. According to the Illinois Supreme Court, “dissipation” occurs when a spouse uses marital funds or property “for a purpose unrelated to the marriage” while the marriage is “undergoing an irretrievable breakdown." Dissipated assets can include money spent on gifts or vacations for a secret lover, property which was sold in order to fund the affair, or other assets which were used to benefit the paramour. If you and your legal counsel can prove that your spouse dissipated assets, you may receive a proportionately larger share of the marital property in the divorce.

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Botti Marinaccio, LTD.

630-575-8585

2015 Spring Road, Oak Brook, IL 60523

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