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Retirement accounts can be among the most valuable pieces of marital property spouses possess. It is not uncommon for spouses to have much more money sitting in a 401(k) than they do in their regular bank account. Contributions made to a retirement account by either spouse during the course of a marriage are treated as marital property, just as each spouse's earnings during the marriage are. Therefore, retirement accounts are subject to equitable division during divorce. However, splitting a retirement account is not always simple. If you know that you and your spouse will need to divide the funds in a retirement account as part of your divorce, it is important that you work with an experienced divorce attorney who can help guide you toward the best option for splitting the account. 

What Are My Options for Dividing a Retirement Account?

The first step to dividing a retirement account - or any other property - is determining which portion is marital property. Any contributions one spouse may have made before marriage generally are not considered marital property, so it will need to be determined exactly how much was contributed during the marriage. From there, you may have multiple options for how exactly to split the funds, including: 

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The COVID-19 pandemic aftermath has left many people financially overwhelmed. During the height of the pandemic, both federal and state governments provided financial assistance for many, as well as put many moratoriums in effect that prevented legal actions – such as evictions and utility shutoffs – for those who did not have the funds to pay these bills. While many of those moratoriums have been lifted and federal and state assistance has stopped, people are still left facing financial hardships. Bankruptcy may be the solution, however, it is critical to be aware that certain obligations associated with divorce are specifically exempted from bankruptcy and must still be paid regardless of any financial issues.

Child Support

Child support obligations are one of those financial issues that are almost never dischargeable. The U.S. Bankruptcy Code states explicitly that “domestic support obligations” are not dischargeable, and child support falls under this category. There is sometimes confusion on this score because if you file Chapter 13, any child support arrearages do come under the Chapter 13 plan - but this does not mean these debts are dischargeable; it merely means that under a Chapter 13 repayment plan, the arrearages will be part of that plan.

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dupage-county-child-custody-lawyer.jpgThe number one priority in a child custody case is the child’s best interest. In the vast majority of cases, the court will want a child to spend some time with both parents. Unless one parent presents a demonstrable risk to the child’s wellbeing, a shared custody situation is the most likely outcome. Using collaborative divorce to reach a custody agreement is often the best option. However, when this is not possible, there are a number of factors the court will consider in order to determine what type of arrangement would be best for the child. Your attorney will be able to discuss these factors and how they apply to your case in greater detail. 

Understanding Illinois Custody Terms 

Illinois uses updated language to describe child custody. In fact, the term “custody” is not used in a legal context. It is now called “allocation of parental responsibilities.” Physical custody used to be the term used to describe which parent would physically have the child with them. This is now called “parenting time.” Having decision-making rights about the child’s upbringing was formerly called “legal custody,” but this is now termed “parenting responsibilities.” 

Both can be divided between two parents, or be awarded to one parent alone. 

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shutterstock_1432030388.jpgDividing up the marital estate in an Illinois divorce is often a difficult task, but when marital property includes valuable assets, this can make asset division even more complex. If you and your spouse have decided to end your marriage but have amassed many high-value assets, you may want to seek the legal assistance of a skilled Illinois high asset divorce attorney for help in reaching a fair and appropriate divorce settlement.

Equitable Distribution

Illinois is an equitable distribution state, meaning that all marital property is divided between the spouses in the way deemed most fair for each spouse’s situation and future earning potential. With most marital assets, the question of who paid or who performed upkeep is somewhat irrelevant. Instead, the court considers who has the potential to earn more and place themselves in a better situation going forward. In many cases, a spouse who has a high-paying job and few obligations will likely end up with fewer marital assets than a spouse who makes very little and is saddled with many obligations to fulfill.

Something many spouses forget, however, is that debts are often divided along with assets during a divorce. If a debt is deemed marital, it will be assigned to the spouse most able to pay and balanced along with that spouse’s share of the assets. In other words, if a spouse is assigned to pay significant amounts of marital debt, they may receive more assets so as to ensure the distribution remains equitable.

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cook county divorce lawyerIt is estimated that there are just under 100,000 attorneys in the state of Illinois. With so many law firms to choose from, it is critical for a potential client to know how to weed out those attorneys who will aggressively advocate for them and those that simply want to settle up cases as quickly as possible and just collect their fees.

When a person is facing serious legal issues, it is important to find the best attorney for their situation. The first step is speaking with those attorneys who specialize in the client’s needed area of law. If you have decided to end your marriage, you want to make sure you have an attorney who specializes in divorce and family law. You also want to have one that can answer the following questions in a way that will assure you that they will be looking out for your best interests.

What Is Your Experience Level?

While many think family law is a ‘safe’ or easy discipline, it is in fact extraordinarily complex. Over the past several years, the Illinois Marriage and Dissolution of Marriage Act went through a major overhaul that affected how child custody, child support, and other family law issues are addressed. If your attorney does not have significant family law experience, consistently staying on-top of the frequent changes that have taken place, it can have a significant detrimental impact on the outcome of your case.

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shutterstock_627696287.jpg In Illinois, legal paternity is not assumed, but rather, it must be affirmatively acknowledged. It is imperative that you understand how to establish paternity so that you do not wind up with limited rights to see your children. A failure to acknowledge paternity at the appropriate time can severely restrict your right not only to see the children, but to exercise a father’s rights with regard to their lives and welfare.

Illinois Paternity Process

The procedure to formally acknowledge paternity differs, depending on whether the father is married to the child’s mother. If the couple is married at the time of the child’s birth, then the husband is presumed by law to be the father of that child, unless the father completes a Denial of Paternity form.

If the couple is not married when the child is born, and the mother is married to someone else, her husband must complete the Denial of Paternity, and both father and the mother must sign a Voluntary Acknowledgment of Paternity. Failure to do so will place the husband by default as the father.

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shutterstock_1695503737.jpgIn the United States, a woman is killed as a result of domestic violence every six hours. One in four women in this country will be a victim of domestic violence at some point in their lives. Statistics show that every nine seconds, a woman is battered by her partner. Seventy-five percent of domestic violence victims have children living in their homes. Studies show that the closer a woman is to leaving and divorcing her abuser, the more dangerous the situation becomes.

At Botti Marinaccio, LTD., our legal team is well aware of these tragic statistics. If you are a victim, a family lawyer from our firm may be able to help you take legal action against your abuser.

The Effects of Domestic Violence

Domestic violence can result in complex psychological damage for the women who are its victims. Many times, they do not want their abuser arrested and jailed; they only want the abuse to stop. As a result, many victims suffer in silence for years, not sharing with anyone the abuse they are experiencing. Restraining orders can be obtained to keep the abuser away from the victim, but victims need to depend on police departments and the court system to uphold those orders.

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oak brook divorce lawyerIt is fairly common when a person is going through a divorce to vent about their frustrations about their soon-to-be-ex on social media. Many people who do this believe that since they are in control of their privacy setting, what they are posting is not “public” view, not realizing that their spouse’s attorney can actually gain legal access to these posts if they feel it would be useful evidence in the divorce. This is why it is important to be cognizant of everything you post since it could end up costing you money or even parenting time.

Understanding the Full Scope of Social Media

One of the biggest misconceptions people have about social media evidence is that they think it only applies to sites like Facebook and Instagram when it comes to divorce. However, even things like emails, text messages, and any other forms of electronic communication can be used. Whether communication is sent or viewed on a laptop or a cell phone, a family court judge can allow it to be introduced as evidence.

Text messages and private messages are especially common forms of divorce evidence. In fact, in a well-known survey conducted by the American Academy of Matrimonial Lawyers (AAML), 97 percent of all attorneys surveyed said they had seen a significant increase in the use of text messages in divorce cases they handled.

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oak brook divorce lawyerMany people would like to believe that once their divorce decree is final, they will never have to deal with their ex in a courtroom again. The truth of the matter, however, is that there are several issues that could come up that may necessitate a modification to the couple’s divorce judgment. Whatever the reason for the modification petition, there are requirements set forth by the state of Illinois that must be shown to the court to be granted the requested modification.

What Can Be Modified?

Under Illinois law, almost every part of a divorce decree can be modified if sufficient evidence is shown for its necessity. In the majority of cases, changes are requested due to alterations in living conditions, such as the loss of a job or a relocation. Generally, however, the most common type of change requested is support modification. In Illinois, child support, in particular, is often the subject of modification requests.

To have a modification granted, the individual requesting the change must show a substantial change in circumstances. That substantial change must be shown even if your situation is in dire need of adjustment, because without that requirement, in theory, any spouse could just appear in court and demand a change without justification.

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oak brook family law attorneyIn today’s society, we see all types of blended families. There are often many different people who are involved in the raising of a child, including stepparents and grandparents. Unfortunately, it is also not uncommon for there to be a change in familial circumstances and because of the wishes of the child’s biological parents or other legal issues, these adults find themselves shut out of the child’s life. In some circumstances, they may have legal recourse under Illinois law.

Visitation and Blood Relatives

Under current Illinois law, a non-custodial parent is entitled to reasonable visitation rights unless the court determines visits would be determinantal or dangerous to the child’s wellbeing. The only other familial relations that the law recognizes as having a right to apply for visitation are grandparents and siblings (including stepsiblings).  

In order to obtain legal visitation rights, the grandparent or sibling needs to petition the court for visitation. However, the law does have stringent limitations under which those visitations can be granted, regardless of prior living situations or relationships the child had with the adult who is filing the petition:

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illinois divorce lawyerIt is not uncommon after a divorce for one parent or the other to make the decision to move from the area they were living in while the divorce was taking place. If the move will only be in the same municipality or close by, then it should not pose any issues regarding the parenting plan that the ex-spouses have. But how do Illinois courts address parental relocation when one parent wants to move further away, and how much say does the other parent have?

Moving Versus Parental Relocation

Under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), there is a specific geographical radius a parent may move with their children without needing the court's permission prior to that move. However, if the planned move is outside the specific radius, then the parent must give proper notice to the other parent and the court, depending on the proposed relocation.

If the parent is moving from a residence in that is further than 25 miles from the child’s current residence in the following counties, they must seek permission:

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shutterstock_132478784.jpgThe process of untangling marital finances is complicated and often very messy. Divorce is already a tough process in many ways, but when significant financial issues are at stake, an already degrading relationship between spouses can quickly become hostile. Every divorce is different, with its own unique challenges and complexities, but there are certain steps divorcing spouses can take to prepare themselves financially for a high-asset divorce. 

Be Cautious When Acting on Advice

Everybody has an opinion when you get divorced. You may have a friend whose attorney recommended they take a specific action that yielded positive results; your mother may be certain that you need to do the exact opposite. Before you make any major financial decisions that could have long-term consequences, get help from financial experts and divorce attorneys who are familiar with the details of your case and can explain your options to you. Once you know the options, you can make an informed decision. 

Spend and Save Prudently

Although individuals in high-asset divorce cases may be accustomed to living a comfortable lifestyle, refrain from taking on any major financial expenditures before filing for divorce or while your divorce is ongoing. While you may be able to afford it, the appearance of conspicuous wealth can affect the negotiation process over child support and spousal support. Whether you anticipate giving or receiving support payments, be fiscally conservative and avoid flashy or showy purchases. Illinois courts have wide discretion when making decisions about support payments in high-net-worth cases that may deviate from standard formulas. 

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oak brook divorce lawyerFinancial differences and disagreements are among the most common reasons couples cite for relationship breakdown. The inability to manage financial resources can lead to difficult and complex issues, such as debt or burdensome shopping habits, that can ultimately make a divorce inevitable. Perhaps surprisingly, higher-income couples with significant net worth are actually more likely to disagree about finances in ways that lead to divorce. If you are considering a divorce in Illinois and are worried that your spouse may take irresponsible financial actions, a financial restraining order may benefit you. 

What is a Financial Restraining Order? 

A financial restraining order is a temporary court order that freezes a couple’s marital assets until they can be divided equitably as part of the divorce process. A financial restraining order can keep a spouse from hiding, spending, transferring, or otherwise disposing of any money, assets, or property they do not need for daily necessities. Spouses who seek a restraining order must prove the following in court: 

  • There is a clear need for a financial restraining order (such as evidence of behaviors of concern)

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Burr Ridge Family Law AttorneyOften, the only things we hear about divorce are the worst parts. It can be expensive, stressful, and last far longer than one might hope. But there are also major benefits to getting divorced–especially if you are trapped in an unhappy marriage or find that you and your spouse no longer share common goals. If you are considering divorce, here are five ways that doing so could make your life better. 

Your Finances Could Improve

Although divorce is notoriously expensive, for many people the money they save from divorcing a spouse sooner rather than later can pay off in the long run. For example, although a divorce settlement with your spouse might involve spousal maintenance for a fixed period, if your spouse is a serious spendthrift then you may actually save money compared to staying married to them forever. 

Your Relationships Could Get Better

Many toxic relationships leave spouses alienated from family and friends. Ending such a marriage could have a positive impact on your relationships with everyone else in your life. Rediscovering old friendships, nurturing relationships with family members, and committing yourself to better romances in the future are all positive relational outcomes of divorce. 

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oak brook divorce lawyerOf the many parts of your financial picture that will likely change after divorce, health insurance is one of the most important. This is especially true for spouses who have been homemakers or out of the workforce for any other reason. Becoming financially self-sufficient can take some time and knowing whether you can remain on your former spouse’s insurance is an important part of preparing financially for your divorce. Fortunately, Illinois’ Spousal Continuation Law allows former spouses to continue coverage after the divorce is finalized. 

Getting Continued Insurance Coverage After Divorce 

If you want to remain on your spouse’s insurance, your spouse must notify their employer that you want spousal continuation coverage within 30 days of receiving your final divorce decree. In turn, your spouse’s insurance company will give you notice, letting you know the details of the continued coverage. You have 30 days to respond to this notice and confirm your request. 

Keep in mind that once the divorce is final, your spouse’s company will no longer pay their portion of the insurance premium - covering the entire cost is up to you. While this means you will likely pay 70 to 80 percent more for insurance than you did previously, the cost of insurance premiums is so high that many former spouses still save money and have a better plan than they could get on the exchange. 

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oak brook divorce lawyerAccording to the Illinois Department of Public Health, divorce rates have been on the decline since 2012. Even so, divorce is still a common practice amongst adults who have tried to make their marriage work yet no longer believe the partnership is worth continuing. 

The decision to pursue a divorce is not one that anybody takes lightly. Whether you have made the decision to divorce your current spouse or your partner presented you with divorce papers, the process can seem daunting. 

Thankfully, an attorney can support and guide you through the process of getting a divorce in the state of Illinois. Before you hire a divorce attorney, you should pose a handful of questions to make sure you find the right lawyer for your situation.  

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dupage county alimony lawyerDivorce is a very complex matter. It signifies the finality of a marriage, but divorce proceedings do not end there. They also entail a lot of technicalities, such as child custody, the separation of assets, and alimony. 

Otherwise known as spousal maintenance or spousal support, alimony is a main player in many divorce cases. Alimony is financial support paid by one former spouse to the other.

Who Determines the Value and Dispersal of Alimony? 

During divorce proceedings, whether or not alimony will be paid by one former spouse to the other party will depend on the specific details pertaining to the divorce at hand. Some of the many factors that play a role in the presence or absence of alimony are as follows: 

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shutterstock_1933822739.jpgChild support can be a difficult part of divorce to navigate. The parent paying child support often feels upset because he or she may be paying more money but getting less parenting time, and the parent receiving child support often feels as though the amount is inadequate to meet the children’s true needs. Whichever side you are on - paying or receiving - you have a legal obligation to provide financial support to your children, and it is important to know how child support is calculated in Illinois. Here are three factors to consider as support payments are determined: 

Both Parents’ Net Income

Because both parents are responsible for financially supporting their children, both parents’ incomes are considered when establishing payments. It is important to provide documentation establishing your income honestly - hiding income to try to raise or lower payments can result in legal consequences. It is also important to include certain expenses, like pre-existing child support or spousal maintenance obligations from another marriage. 

The Children’s Health Care

Child support covers basic needs like food, clothing, and shelter, but parents are also usually responsible for paying for their children’s medical care. This can include monthly insurance premiums, whether through a parent’s employer or via the health insurance exchange, and the cost of premiums may be divided between parents according to the percentage of their combined net income that each parent earns. Parents should also consider the potential cost of copays, regular doctor visits, prescription costs, and ongoing treatment such as occupational therapy. 

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cook county divorce lawyerParents getting divorced in Illinois with underage children face the daunting challenge of understanding Illinois’ child support laws. Although the laws are not unnecessarily complex, it still requires some effort to set clear expectations and ensure parents always meet their obligations. If you are getting divorced and have questions about child support, these five facts may be helpful. 

Child Support is Calculated Using Both Parents’ Incomes 

Some people may be surprised to learn that the income of both parents is considered when calculating child support payments. Both parents’ net incomes are combined and then divided according to how much each parent earns and the percentage of time the child spends with each parent. Illinois has a standardized income table for estimating child support payments, although, as discussed below, these estimations are subject to change depending on the circumstances. 

Child Support Pays for More Than Just Food and Clothing 

Although child support does cover the basics, it can also cover daycare or other childcare costs, extracurricular activities, vacations, and medical expenses. If a child has needs that exceed the average child support tables, such as an ongoing illness or need for regular therapy, child support payments can be adjusted accordingly. 

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oak brook divorce lawyerCouples enter marriage with high hopes - nobody wants or expects to get divorced in Illinois. But divorce rates are notoriously high, and many relationships ultimately come to an end. When a couple decides to get divorced, certain issues must be resolved and codified in a formal divorce decree. Asset division, parenting agreements, and child support payments are either agreed upon by both spouses or ordered by a judge and then written in the divorce order. 

It is one of those unfortunate facts of life that both spouses may not be completely satisfied with the divorce arrangements. Under very limited circumstances, a divorce order may be appealed and changed. If you feel as though your divorce judgment was made in error, it is important to understand when divorce decrees can be appealed. 

When Can a Divorce Decree Be Appealed? 

Although the right to appeal is an important part of Illinois law, individuals cannot appeal their divorce decree simply because they dislike it or disagree with the terms. Appeals can only be made within 30 days of the original judgment when there has been a potential error. Examples of errors include: 

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Botti Marinaccio, LTD.

630-575-8585

2015 Spring Road, Oak Brook, IL 60523

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