When two people get married, any assets either spouse owned before the marriage generally remain under the exclusive ownership of the original owner. Many couples sign a prenuptial agreement before getting married to ensure assets that are personally owned remain that way if a couple gets divorced. 

However, sometimes both spouses use their personal property and money in a way that causes something called “commingling,” or the mixing of individual and marital assets. When a couple decides to get divorced, commingled assets can make it difficult to determine which parts of an asset or bank account belongs to which spouse during the asset division process. This can cause conflict when, for example, a spouse who shared his or her inheritance acted with generosity and now faces having to split the entire amount.

Illinois has strict laws when determining how commingled assets are handled, giving legal preference to a commingled asset over the process of “tracing” the source and use of an asset back far enough to prove individual ownership (or lack thereof, if you are the spouse claiming the previously personal asset is now marital). However, many individuals have successfully protected their premarital assets in divorce despite commingling them during the marriage. 

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American tabloids love to cover the sultry details of high-profile divorce trials. Consumers may love to read about other people’s divorces, but for those going through a divorce trial, it can be a nightmare. Long wait times between court dates, hostile disputes with former partners, and the expense of a protracted trial -- to say nothing of the public exposure -- are all strong incentives to avoid the trial process altogether. 

Fortunately, Illinois courts encourage divorcing couples to do exactly that. Using mediation, collaborative divorce, or a similar alternative dispute resolution process, even the most high conflict spouses can usually prevent divorce litigation. Although certain issues must be approved by a court before a divorce can be finalized, couples can spare themselves from the stress and expense of a lengthy divorce trial by working towards a mutually agreeable compromise using alternative dispute resolution. 

Mediation

Mediation is a popular method that is often mandated by Illinois divorce courts before a case can go to trial. The reason is simple: Mediation is really quite effective. Mediators are usually attorneys and are always trained in conflict resolution. They help spouses work out their differences by minimizing conflict and helping everyone stay focused on the relevant issues. 

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The “best interests” of a child are the primary concern of Illinois courts and judges when making decisions about a parent’s ability to spend time with and make decisions for their child. But reasonable people can and often do disagree about what is best for a child - parents getting divorced being a prime example - so how does anyone make decisions about what is truly best for a child? 

How Are a Child’s “Best Interests” Determined? 

In a divorce or parenting time modification, Illinois judges encourage parents to work together closely to try to create an arrangement for the children outside of court. When parents are able to cooperate, both parents generally find that, while the parenting plan may not be exactly what they hoped for, they are more satisfied than if a judge made all the decisions on their behalf. 

Unfortunately, it is not always possible for parents to agree on some or all of the parenting arrangements. Irreconcilable disputes about who gets to make important decisions for the children (parental responsibilities) and who gets to have the children in their physical custody (parenting time) can force courts to take action. In cases like this, the court considers many factors when determining the best interests of the child. 

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Couples owning a million dollars or more in assets face unique challenges when getting divorced in Illinois. There is a lot at stake in a high net worth divorce, and both parties are likely to hire excellent attorneys to represent them. The proceedings can be long and protracted and often involve the assistance of outside experts. 

In this blog, we will discuss some of the most common challenges we see in our clients’ high net worth divorces. If you are considering divorce and are worried about what it might mean for your assets, business interests, or spousal maintenance obligations, contact a qualified Cook County divorce attorney for help.  

Privacy Concerns

Many high net worth couples have public profiles and want to curtail any public interest in their decision to divorce. When couples have been involved in community, business, or political leadership, maintaining privacy during divorce can be more difficult. We go beyond the standard attorney-client relationship and make every attempt to help you protect your privacy and minimize public exposure during your divorce. 

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Formerly known as alimony, spousal maintenance is financial support that must be paid from one spouse to another following a divorce. The unique circumstances of each case determine which spouse is responsible for paying the maintenance and how much and for how long payments must be made. 

Spousal maintenance can be one of the most complex and high-conflict parts of a divorce. The paying spouse often feels as though they are being taken advantage of, and the receiving spouse often feels as though the time and effort they put into the marriage are not sufficiently compensated. 

Regardless of whether you are the paying or receiving spouse, spousal maintenance payments can be subject to change based on a change in your circumstances. In this article, we will address the circumstances in which payments may be modified or terminated, as well as how you can request a modification. 

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 An unmarried father-to-be may worry that he will have no say in the life or wellbeing of his child. After all, it is the mother who carries the child through pregnancy, and she may feel that if she wants no contact with the father, that is the end of the story. 

Fortunately for fathers, this is simply not true. Illinois law recognizes the importance of fathers and recently updated its laws regarding parental responsibilities and parenting time to reflect the necessity of both parents’ involvement in a child’s life whenever possible. If you are an unmarried father living in Illinois and seeking a relationship with your child, this blog is for you. 

Establish Paternity

Unmarried fathers now have the same rights as mothers - but first, parents have to establish paternity. When a couple is married in Illinois, the mother’s husband is assumed to be the child’s father. However, when a couple is not married, the father will need to prove paternity in order to have parenting rights. There are a few ways to establish paternity: 

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The spouse who files for divorce has the right to choose where to file his or her petition. Once the petition is filed in a certain county, unless there is a change of venue, the divorce proceedings will take place in that county. 

Spouses getting divorced are not necessarily obligated to accept the initial venue. If your spouse has already filed for divorce, you have the right to file for an objection to their venue, and doing so may benefit you in a number of ways. 

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Substance abuse can have a devastating effect on marriages and families. Millions of Americans suffer from an addictive disorder, and the social isolation of the last year and a half has triggered a massive increase in substance use and abuse. 

Other kinds of addiction can wreak havoc on a family as well. Compulsive spending, gambling, pornography use, and even compulsive overeating can strain a couple’s relationship to the breaking point. Addiction does have an impact on the divorce process, so if you are considering divorcing a spouse struggling with addiction, protect yourself by keeping the following things in mind: 

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Marriage is an exciting period for couples. They often cannot imagine a time when they would not want to share everything, and so they feel as though a prenuptial agreement is not necessary. Sometimes couples avoid creating a prenuptial agreement together because they feel as though it dooms the marriage to fail. 

However, once the marriage takes place and they return to the routine of everyday life, spouses realize that marriage is often a challenging enterprise. What may have once seemed guaranteed may no longer seem so simple. When this happens - and even if it does not - it is beneficial for newly married couples to consider a postnuptial agreement. 

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In a high conflict divorce, it is common for spouses to disagree about who should have parental responsibilities and parenting time. Where the child should live, who the child spends certain holidays with, and who has the right to make important decisions for the child are all issues about which parents commonly disagree.

Unfortunately, children often get caught in the crosshairs of parental hostilities. Although parents may feel entirely justified in their reasoning for wanting custody of the child, the child’s best interests are often neglected in light of the parents’ disagreements. 

What if Co-Creating a Parenting Plan is Impossible? 

One consequence of this is that spouses may struggle to compromise on a parenting plan. A parenting plan is an agreement that addresses who has decision-making authority (“parental responsibilities”) and who gets to spend time with the child (“parenting time”). Ideally, parents will be able to create a parenting plan on their own through communication and compromise, but when they fail to do so and mediation has also failed, their case will go to court. 

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Raising children is an important, difficult, time-consuming endeavor. When a couple gets married and wants to start a family, it is common for them to decide on an arrangement in which one spouse works outside the home and the other spouse stays at home with the children.

Although this arrangement may work well for some families, one common concern for homemakers is what will happen to them in the event of a divorce. The homemaking spouse has often given up many years of being in the workforce, and so has not only given up those years’ worth of income but also the time he or she would have spent building up their career.

Homemakers and Spousal Maintenance

Formerly known as “alimony,” spousal maintenance is payments made from one spouse to the other following the divorce. Spousal maintenance payments are separate from the asset division that takes place during the divorce, although they will likely be affected by the way that asset division takes place. Some of the other factors that affect spousal maintenance are:

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High-conflict divorces are painful experiences, and they can be made even worse when the custody of a beloved pet is contested. A couple may disagree over who should have full-time custody of the pet or whether one person should have any visitation rights at all. Coming to a resolution on these issues can be difficult and emotionally draining. Some couples have planned to avoid conflict around pet ownership by using a “petnup.”

How Are Pets Treated in Illinois Divorce?

Illinois is one of the few states that allow for animals to be treated as more than property, thanks to a 2018 amendment allowing judges to consider the animal’s best interests when making decisions regarding custody and ownership. Among the factors judges will consider is whether it is actually good for pets to move from one home to another, especially since some pets are very attached to people and places, and moving regularly can be traumatizing and cause behavioral problems.

What Is a Petnup?

One way of mitigating these issues is by using a “petnup,” which gets its name from a prenuptial agreement, or “prenup.” A petnup is a written agreement between a couple determining what will happen to a pet in the event of a divorce or separation. Without a petnup, the only way one spouse could maintain ownership of the pet in the event of a divorce is if they adopted and registered the pet in their name alone and paid for all expenses related to the pet out of their own account and not with joint funds. Even in this situation, there would be no guarantee a divorce judge would grant that spouse sole custody of the pet.

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The cultural stereotype of asset division in divorce is that all marital debts and assets are split 50/50, but the reality is more complicated. While some states do have “community property” where marital assets are divided equally, Illinois is not one of those states.

In Illinois, divorce law requires something called “equitable division.” Equitable division is exactly what it sounds like: Marital assets and debts are divided according to what is fair, rather than right down the middle. Here, we will look at what factors judges can use when determining equity, and other issues that might contribute to the division of marital assets.

What Factors Into Equitability?

Because Illinois is a “no-fault” divorce state, spouses do not have to give a reason for divorce besides irreconcilable differences. Even if one spouse committed an act of infidelity that led to the end of the relationship, spouses cannot “fault” each other in divorce proceedings and courts will not award more marital assets to the spouse who was cheated on.

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If you are considering divorce and feel concerned that it may be a high-conflict divorce, you may want to speak with a divorce attorney without letting your spouse know. The reasons for this are varied: Perhaps you still live with your spouse and fear retaliation or abuse, or you yourself are unsure of how serious you are about pursuing a divorce. You may want to give yourself the upper hand in preparing for the divorce and serving the papers.

Regardless of the reason, it is perfectly legal to meet with a divorce attorney without telling your spouse. You can even file for divorce without telling your spouse – they do not have to know that you are considering divorce until they are served divorce papers. Here are a few things to keep in mind as you seek a confidential meeting with a divorce attorney.

Speak with More than One Attorney

Although it may feel risky to meet with a divorce attorney without your spouse’s knowledge, you need an attorney who is going to represent your interests in a way that feels comfortable and secure. Even though every attorney-client relationship is legally protected, you may not be a good match with the first attorney you meet. Take time to find a firm that listens to your needs and is willing to advocate aggressively on your behalf. Meet in a safe, discrete manner

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Finding out that your spouse has gone behind your back and had an affair is one of the most upsetting experiences a person can have. You may feel as though your world has turned upside down and that you now doubt many of the things you previously assumed to be true. Complicating your personal experience is the ensuing divorce. Illinois is a no-fault divorce state, meaning that regardless of the reason for your divorce you will simply file citing “irreconcilable differences.” Nevertheless, marital infidelity can still affect the outcome of your divorce.

Child Custody

Typically, infidelity will not impact parental responsibilities and parenting time. Your spouse will generally still be able to advocate for their right to see your child and spend time with them. However, if your spouse’s new partner presents a credible threat to your child, courts will take this into account when parental responsibilities are allocated.

For example, if your spouse’s new boyfriend or girlfriend is a registered sex offender, or if they have a criminal history of child or domestic abuse, the court will take this into consideration and may limit your spouse’s parenting time.

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Although circumstances can vary when building towards a high asset divorce, common contributing factors are spouses who are high earners and have had a long marriage. When spouses commonly hold many assets that are valuable and complicated, a complex divorce is inevitable.

If you are considering divorce and have high-value assets or high net worth, you will need an experienced, assertive attorney who will advocate for your best interests. In addition to having an outstanding legal team, here are other things to consider when beginning a high asset divorce.

Hire a Forensic Accountant

Complex assets include things like stock options, overseas investments, trusts, pensions, retirement plans, and private art or vehicle collections. Assets such as these can make divorce very complicated.

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Statistically, about 40% of first marriages end in divorce. That jumps to around 60% for second marriages, and all the way up to 70% for second or third marriages with children. In addition to these statistics, fewer people are getting married before they have children, resulting in large numbers of blended marriages later in life. Of course, some of these marriages end in divorce.

Blended families – where both parents have children from previous relationships – face special complications during divorce. Here, we look at some of those factors affecting parents who are getting divorced for the second or third time.

Custody Arrangements

Figuring out a custody plan is complicated, especially when parents seek visitation with their step-children. If you did not adopt the children from your spouse’s previous marriage, visitation is not guaranteed.

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When you feel as though your marriage is reaching its end, deciding what to do can be difficult. Is there hope for reconciliation? Do you really want something as final as a divorce? Legal separation and divorce are both processes that couples use in Illinois to end a relationship. They are similar in some ways, but they have fundamentally different outcomes: A divorce completely ends the marriage under the law, but a legal separation does not.

Legal Separation

Legal separation is different from a couple merely deciding to break up or live in different homes; legal separation involves petitioning an Illinois court with formal filing for separation. A legal separation enables couples to navigate issues like child support, visitation rights, and property division in a way that is legally binding but does not dissolve the relationship.

Legal separation also allows couples the chance to begin separate lives while still having the opportunity to reconcile. At the end of a legal separation, a couple may ultimately go forward with a divorce; but in the meantime, they have more time and space to tackle problems in the marriage, attend therapy, or do anything else before they are completely sure the relationship has irretrievably broken down.

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During a divorce or separation, child custody is often among some of the most contentious issues that a couple can face throughout the process. Any topic has the potential of becoming an issue in a divorce, but child-related issues are especially subject to disagreement. When parents do not live in the same state, things can become even more complicated. Many parents move away after a divorce or separation, sometimes to a different state, even when they have children. Before you are able to begin a custody case, you will first need to make sure that you file the case in the correct state. A knowledgeable Illinois family law attorney will help you determine which state has jurisdiction over your case.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

When it comes to things like parenting time and decision-making responsibilities, each state has its own laws regarding the way those issues are handled. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a law that was enacted by 49 states and various U.S. territories to determine how the jurisdiction would be decided in custody cases that involved parents living in a different state from their child. In general, the state that is considered to be the child’s “home state” is the one with jurisdiction over the custody case.

Can Your Child’s Case Be Heard in Illinois?

As a parent living in Illinois, you are likely wondering whether or not your case can be heard in Illinois, or if it must be heard by the state in which your ex lives. The UCCJEA states that there are four different elements that are used to determine which state the custody case should be filed in. These elements are, in order of importance:

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In uncontested divorces, both spouses are typically willing to hand over whatever information the other party requests or needs. However, in divorce cases that involve spouses who do not get along with one another, it is not always guaranteed that you will get all of the information that you asked for. The process of discovery is simply just the formal process of asking your spouse for their financial information and handing over any information that they request in turn.

How Can I Gather Information During the Discovery Process?

There are various things you can do during the discovery process to help gather information. Not all divorces will include all forms of discovery, but they are all available to use as legal tools for gathering information. These discovery tools include:

• Formal requests: Generally, the discovery process begins when an attorney sends a formal request for certain financial information to the other party. This request could be for documents such as tax returns, bank statements, pay stubs, retirement account ledgers, insurance policies, and even estate planning documents.
• Interrogatories: If your attorney utilizes interrogatories, a list of questions will be sent to your spouse for them to answer. They are required to answer these questions truthfully, under the full disclosure requirement of Illinois law. These questions typically serve the purpose of gathering evidence to support your claim for marital property and/or spousal support.
• Admissions of fact: If your spouse is dancing around a question and will not directly answer it, an admission of fact can force them to answer. An admission of fact is similar to an interrogatory, though your spouse must answer simply “yes” or “no” depending on the question.
• Requests for reproduction: You can ask for a request for reproduction of certain documents if they were not already handed over. For example, if you are notified that your spouse is going to call an expert witness during the trial to testify, you might want to request any and all documentation that the other party has on the witness.
• Depositions: A deposition is a sort of interview that takes place between your attorney and your spouse. Your attorney will have a list of questions that they will ask your spouse in the presence of a court reporter. The statements taken by your spouse through a deposition are sworn statements that could result in perjury if they lie deliberately. The court reporter will transcribe the entire conversation between your attorney and your spouse.
• Subpoenas: If your spouse is difficult and does not comply with your discovery requests, a subpoena may be warranted. Subpoenas are court orders that are often used as a last resort when a party is being particularly uncooperative and can force that person to either testify in court or produce certain documents.

Discuss Your Situation With a Burr Ridge, IL Divorce Attorney

If you and your spouse do not agree on property division issues during your divorce, you should speak with a knowledgeable DuPage County contested divorce lawyer about your case. At Botti Marinaccio, LTD, we have experience working with a variety of couples in many different situations, including contested divorces. Our team of skilled attorneys can help you fight for your best interests. To schedule a consultation, call our office today at 630-575-8585.

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