There are two types of divorce cases in Illinois: contested and uncontested. If you and your spouse cannot agree about the terms of your divorce, your divorce is contested. You and your soon-to-be ex-spouse may be able to reach an agreement about divorce issues through negotiation, mediation, or collaborative law. If you cannot reach a settlement outside of court, your case will go to trial. Although divorce can vary from case to case, there are several basic steps involved in the contested divorce process in Illinois.

What to Expect During the Contested Divorce Process

Reaching an agreement about asset and debt division, the allocation of parental responsibilities and parenting time, child support, and spousal maintenance is not always easy. This is especially true in complex divorce cases such as those involving high income or hard-to-value assets. If you know that you and your spouse will struggle to reach an agreement about one or more divorce issues, your divorce will likely involve the following steps:

Leaving the workforce to become a full-time mother or father can be a huge advantage to your children as well as a risky career move. When you first decided to stay home with your children, you probably made the choice because it was in your children’s best interests. You placed your own professional goals on hold for the betterment of your family and trusted that your spouse’s income would sustain you. Now that you are facing the end of your marriage, you may have major concerns about the financial consequences brought on by the impending divorce. Fortunately, Illinois law provides several options that may help mitigate the negative financial effects of divorce for homemakers and stay-at-home mothers and fathers.

Non-Financial Contributions Are Considered 

Spousal maintenance refers to payments that the spouse with a higher income makes to the spouse with the lower income after divorce. If you and your spouse have already reached an agreement about maintenance through a valid prenuptial agreement, the court will likely uphold this agreement. If you do not have a marital agreement addressing maintenance, you have the right to petition the court for spousal maintenance. When deciding whether or not to award maintenance or alimony to a spouse, Illinois courts consider each spouse’s income and property, in addition to his or her needs. They also take into account any impairment to a spouse’s present and future earning capacity caused by child care obligations. The amount and duration of spousal maintenance is usually determined by statutory formula. If the combined yearly income of the spouses is greater than $500,000, the courts may deviate from the statutory formulas.

Research shows that approximately 60 percent of married individuals have committed some form of infidelity during their marriage. Marital infidelity may range from brief emotional affairs to long-term extramarital relationships. While some married couples can overcome an affair and rebuild a trusting relationship, others cannot and choose to divorce. If you have decided to end your marriage and infidelity played a role in the decision, you probably have questions about how the cheating will impact your divorce. Affairs can lead to legal implications as well as emotional complications during the divorce process.

Grounds for Divorce in Illinois

The spouse initiating a divorce is called the petitioner according to Illinois law. He or she petitions the court to grant the divorce. Traditionally, a spouse would need a valid reason or “grounds” for requesting the divorce. These grounds included impotence, abandonment, severe alcohol or drug abuse, mental cruelty, adultery, and other issues that led to the destruction of the marriage relationship. In 2016, Illinois eliminated all fault-based grounds. It is now a “pure no-fault” state and the only ground for divorce is “irreconcilable differences.” Although adultery is no longer a legal reason for divorce, there are still several ways that infidelity may influence the outcome of your divorce.

Dissipation of Assets

Illinois law defines the “dissipation of assets” as the use of marital funds for a purpose that does not benefit the marriage during a time when the marriage is experiencing an “irretrievable breakdown.” One common example of dissipation occurs when a spouse spends a great deal of money on an affair partner. If a divorcing spouse buys expensive gifts for his boyfriend or girlfriend or takes an affair partner on a luxurious vacation, the other spouse may have a valid dissipation claim. If the innocent spouse and his or her lawyer can prove that the other spouse dissipated assets, the innocent spouse may be entitled to a proportionally larger share of the marital assets during property division.

Spousal maintenance, also called spousal support or alimony, can be a valuable source of financial support following a divorce. However, the order for spousal maintenance may become inappropriate if either party’s financial circumstances change dramatically. If you are currently paying spousal support to your ex-spouse or you are the recipient of maintenance payments, you may have questions about how and when a spousal maintenance order can be changed. Illinois courts only grant spousal support modifications if certain qualifying criteria are met.  

Alimony May Be Modified if There is a Substantial Change in Circumstances  

A spousal maintenance obligation typically terminates if the party receiving maintenance remarries or if either party passes away. If the receiving party is cohabitating with a romantic partner in a marriage-like relationship, the paying party may petition the court to have his or her maintenance obligation terminated. Illinois courts may modify the amount or duration of spousal maintenance if there is a “substantial change in circumstances.” When determining whether or not to grant a spousal maintenance modification, courts will consider factors such as:

When people get divorced, they may fear that they will never find love again. If you have met someone special after your divorce and intend to get remarried, you are probably excited to make this important commitment to your new partner. However, you may also worry about the possibility of your second marriage ending in divorce. A prenuptial agreement is a legally enforceable contract that protects a spouse’s rights in the event of divorce or death and helps an engaged couple ensure that they are on the same page before tying the knot. An experienced family law attorney can help you draft this legally binding document. 

Advantages of Signing a Prenup Before Your Second Marriage

Prenuptial agreements or “prenups” are often misunderstood. Signing a prenup does not mean that you think your marriage will fail. However, prenuptial agreements do provide a multitude of benefits if a couple does eventually decide to divorce. During the creation of a prenuptial agreement, a couple decides how they want to handle issues related to property or asset division, spousal maintenance, life insurance policies, retirement funds, and estate planning upon divorce or the death of a spouse. Many engaged couples find that creating a prenuptial agreement allows them to discuss money-related issues openly and honestly. Research shows that financial disagreements are the number-one predictor of divorce in the United States. By discussing concerns related to property and debt before getting married, you and your soon-to-be spouse set yourselves up for a happy, successful marriage.  

Marriages end for countless reasons. Some spouses simply grow apart while others experience a major breach in trust that brings the relationship to a screeching halt. If an issue such as infidelity has led to the breakdown of your marriage, there may be a great deal of tension and resentment between you and your spouse. If you are a parent, you are probably worried about how this tension will affect your children. Fortunately, there is considerable research about the effects of high-conflict divorce on children and the steps that parents can take to reduce their children’s stress during this tumultuous experience.

Avoid Arguing With Your Spouse or Discussing Legal Matters in Front of Your Kids  

Numerous studies have demonstrated the harmful effects of parental conflict on children. Although many parents in miserable marriages stay married for their children’s sake, research shows that many children feel less anxiety and depression once their parents separate compared to what they did when the parents were living together. Being exposed to arguments and tension between parents can increase a child’s chances of developing mental health problems and behavioral issues. One of the best ways to help reduce your children’s stress during divorce is to avoid talking about divorce-related issues such as child support or spousal maintenance in front of the children as much as possible.

Collaborative divorce is a process during which divorcing spouses, their attorneys, and other relevant professionals work together to reach an agreement about unresolved divorce issues. When spouses use collaborative law to settle the terms of their divorce, they avoid stressful courtroom litigation while still benefiting from their lawyers’ legal guidance and protection. Collaborative divorce may be right for you if you and your spouse do not see eye to eye regarding the terms of your divorce but you are willing to negotiate these issues amicably and cooperatively. The collaborative law process may help you and your spouse reach an agreement about the division of marital assets, child custody, spousal maintenance, and more.

What Happens During a Collaborative Law Divorce?

If you choose to use collaborative law to settle your divorce, you and your spouse will each hire your own attorney. Before you meet as a group, you and your lawyer will meet to discuss what you would like to achieve in the settlement as well as any concerns you may have. Next, the spouses and their respective lawyers will sign a “Participation Agreement” in which they agree to freely exchange information, negotiate in good faith, and cooperate in the collaborative divorce process. The spouses and attorneys will then hold a series of meetings aimed at reaching a resolution. Other professionals such as financial advisors, accountants, and child specialists may also participate in the collaborative divorce process.

Illinois is an equitable distribution state when it comes to the division of assets in a divorce. This means that marital assets are divided fairly, but not necessarily equally, based on the spouse’s financial circumstances, employability, health, and more. Whether a couple is determining their own asset and property division arrangement or the court is issuing a property division judgment, a complete and accurate inventory of the couple's assets must be taken. If a spouse owns complex assets such as a business, the value of those assets must be determined before the property can be equitably distributed.

A Forensic Accountant Is Often Necessary

If you and your spouse agree to do so, you have the option to figure out the business’s value on your own. However, most people do not have the skills needed to accurately value a business. Mistakes made during the valuation of your business can lead to arguments between you and your spouse, an unfair divorce settlement, and unnecessary headaches during an already stressful time. Hiring a business valuator may be the best way to ensure that the estimated value of your business is as accurate as possible. If a more in-depth analysis of the business’s finances is necessary, you may want to hire a forensic accountant. A forensic accountant has special investigative and auditing skills, which he or she can use to thoroughly examine the business. The forensic accountant, if he or she is not also qualified to conduct business valuations, will provide vital information to the valuation professional. If you suspect that your spouse may be lying about business revenue or assets, a forensic accountant is essential to make sure you receive your fair share of the marital estate.

You may be surprised to learn that the divorce rate for adults over 50 has more than doubled in the last several decades. Called “gray divorce,” divorce involving older adults often presents unique challenges. One of these challenges involves the division of retirement funds. If you have been out of the workforce for many years, you may be worried about making ends meet without your spouse’s retirement benefits. If you were the main income earner during the marriage, you may have concerns about how much of your hard-earned retirement funds will be awarded to your spouse. Read on to learn about how retirement accounts are divided in an Illinois divorce and how you can obtain the legal support that you need.

Marital Assets Versus Non-Marital Assets

Only marital assets are divided in an Illinois divorce. Non-marital assets, including assets acquired by the spouses before getting married, are not divided. Before a retirement account can be divided, a determination must be made about the account’s identity. Retirement accounts are different from other types of assets because they can be classified as both marital and non-marital. Typically, the portion of the retirement account that a spouse earned before getting married is considered non-marital. The non-marital portion of the account is assigned to the original owner. However, the portion of the retirement account that was earned while the spouses were married is part of the marital estate and therefore subject to division.

Every parent should understand his or her parental rights under Illinois law. If you are a father or soon will be and you are unmarried, taking action to protect your parental rights is essential. When a married couple has a child, the husband of the woman who gave birth is automatically presumed to be the biological and legal parent of the child. However, if you are unmarried at the time of your child’s birth, you will need to take certain steps to establish yourself as the child’s legal parent. This is crucial in protecting your parental rights, including your right to enjoy parenting time with your child.

Establishing Paternity in Illinois

The first step you need to take to protect your rights as a father in Illinois is to establish your legal parent-child relationship. Establishing paternity provides a number of benefits to both the child and the parents. Unless there is a reasonable concern that spending time with the father would put the child’s well-being in danger, a father who has established paternity has a legal right to parenting time. Once you have established paternity, you will be able to put your name on your child’s birth certificate. Additionally, your child will gain access to your health insurance, Social Security benefits, veteran’s benefits, and pension benefits if applicable. Establishing paternity also allows the custodial parent, meaning the parent with the majority of the parental responsibilities, to collect child support payments.

When a married couple decides to divorce, one of the most pressing concerns often involves the family home. If you are a homeowner and you are considering divorce, you may wonder what Illinois law says about who gets to continue living in the family home and who must find another place to live during the divorce proceedings. As with most family law concerns, the answers to these questions will vary dramatically depending on the circumstances of the case. However, there are some situations in which a spouse may be ordered to vacate the family home.

Negotiating an Agreement With Your Spouse

The divorce process can last months or possibly years depending on the circumstances. If you are like most divorcing spouses, you probably do not want to continue living in the same home as your soon-to-be ex-spouse during the divorce proceedings. In this situation, the easiest solution is for you and your spouse to negotiate an agreement regarding who will stay in the family home during the divorce process and who will move out. You will also need to decide how to pay for the new accommodations. In some cases, these issues may have been resolved ahead of time through a prenuptial agreement or a postnuptial agreement. 

You may be surprised to learn that although the overall divorce rate is declining in the United States, divorce among spouses over age 50 has dramatically increased. Research shows that the rate at which older adults get divorced in this country has doubled since the 1990s. This may be due to increasing life spans, a reduction in the stigma associated with divorce, or simply because older adults want to enjoy their retirement years on their own terms. Whatever the reason, if you are over age 50 and considering a so-called “gray divorce,” you should know that it may involve unique challenges and obstacles. It is very possible that either you or your spouse will be entitled to spousal support payments. For help with maintenance-related concerns and much more, speak with an experienced family law attorney.

Spousal Maintenance in Illinois

Spousal maintenance, also known as spousal support or alimony, refers to financial payments that a higher-earning spouse makes to the lesser-earning spouse after divorce. While it is not appropriate in every situation, it may be necessary in a gray divorce, especially if one spouse has been out of the workforce for many years and would struggle to support themselves without assistance from their former partner. 

The division of assets is often one of the most complex aspects of a divorce case. Whether spouses negotiate their own property division agreement, or the court makes a decision on their behalf, a fair asset division arrangement can only be reached when both spouses are honest and forthcoming about their finances. However, spouses are not always as truthful as they should be. Some divorcing spouses may attempt to influence property distribution during divorce by withholding or falsifying information. If you are getting divorced, and you are worried that your spouse may lie about financial information in an attempt to avoid sharing these assets, an experienced divorce attorney can help you uncover this type of deception.

Start Preparing Now by Copying Financial Documents

You may be in the very beginning stages of the divorce process. Perhaps you have not yet even filed for divorce. However, it is never too soon to start preparing. One of the best things you can do to protect your right to a fair division of property is to educate yourself about your financial situation. Read over important financial documents so that you can have a full understanding of the assets that you and your spouse own. These documents will provide valuable insight into your family's finances, and they may also be crucial pieces of evidence in the event that your spouse attempts to conceal assets from you. It is important to make copies of:

The term “dissipation” refers to assets that are wasted, destroyed, or used recklessly near the end of a marriage. When a spouse uses assets for a purpose not related to the marriage while the marriage is undergoing a breakdown, the other spouse may have a valid dissipation claim. Illinois law describes what type of spending constitutes dissipation and when the spending must occur in order to qualify as dissipation. If you are planning to get a divorce, and you have reason to believe that your spouse has squandered assets, a divorce lawyer experienced in handling dissipation claims can help protect your rights during the division of marital property.

What Type of Spending Is Considered Dissipative?

The Illinois Supreme Court defines dissipation as “the use of use of the marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an irretrievable breakdown.” Spending money on groceries, utility bills, or other legitimate needs is not considered dissipative. However, spending that is wasteful or reckless in nature may be considered dissipation. In previous Illinois divorce cases, the following types of spending have been deemed as dissipation:

If you are considering divorce, you may have several questions about how it will impact you and your spouse financially. If you share children with your spouse, it is likely that either you or your spouse will be required to make child support payments to the other. Child support allows a child to benefit from the financial support of both of his or her parents, even when the parents are not married or living together. Child support can be a major expense for the paying parent, and it also represents a major source of financial sustenance for the receiving parent. Whether you are the payor or recipient of child support, it is important to understand how child support payment amounts are calculated in Illinois.

Income Shares Guidelines

The way child support is calculated in Illinois underwent dramatic changes in 2017. Prior to the change, child support payment amounts were based only on the paying party’s income and the number of children needing support. This outdated calculation method was replaced by the Income Shares calculation model. This method takes both parents’ net incomes into consideration. With this method, a child support obligation will be determined based on the parents' combined income and the number of children they have together. This amount will represent what parents would be expected to spend to care for their children if they remained married. The support obligation will then be divided between the parents according to each parent's percentage of their combined income. Typically, the non-custodial parent who has the minority of the parenting time with the couple's children will pay his or her portion of the child support obligation to the custodial parent.

Marriage is not only a romantic relationship, but it is also a financial partnership. Consequently, the complexity of any divorce case is largely determined by the couple’s finances. Divorcing couples who do not own significant assets are often able to resolve divorce issues such as property division much faster than those with more complicated financial portfolios. Many high net worth individuals own assets such as business holdings, real estate, stock options, and more. These complex assets can significantly influence the divorce process. Therefore, if you are contemplating divorce, it is crucial for you to have legal assistance to ensure your rights are protected during the proceedings.

Determining the Worth of Hard-To-Value Assets  

Typically, the more wealth an individual has, the more likely he or she will be to have put that wealth toward investments. High net worth individuals may own a variety of assets in many different classes. Many of these assets may not be owned by the person himself or herself, but they may instead be contained in businesses, holding companies, or investment structures. For example, he or she may own assets such as retirement plans, pensions, life insurance policies, stock options, restricted stock, brokerage accounts, and deferred compensation. An individual may also have invested in fine art, an extensive wine collection, antiques, or other high-value items. Before these assets can be fairly divided during a divorce, the assets must be properly inventoried and valued. In many cases, the assistance of financial appraisers or other experts will be required to establish a value for all of the property owned by a couple.

Child support payments can be a significant expense, but they are also vital to helping unmarried or divorced parents share the costs of raising their child. Child support amounts are calculated using the Income Shares model in Illinois. Both parents’ net incomes and other factors are used to determine a fair, reasonable child support arrangement. However, circumstances can change, and a parent may need to modify a child support order, whether he or she is the paying or receiving parent.

Adjusting Child Support

Illinois child support orders are eligible for a “modification review” every three years, but this does not mean that a modification will automatically be granted. During the modification review, the parents’ financial circumstances and other information are evaluated in order to determine if a modification is necessary. Child support orders may also be eligible for modification if there has been a “substantial change in circumstances,” the child’s healthcare needs are not being met, or there is a considerable difference between the current child support order and the child support guidelines established by Illinois law.

For many children, spending time with grandparents is just as vital to their happiness and success as spending time with their parents. Across the country, millions of grandparents are an integral part of their grandchildren’s lives. Many older parents worry that if their child gets divorced, they will no longer be able to spend time with their grandkids. In some cases, a grandparent may need to petition the court in order to be granted visitation with their grandchildren. If you are seeking this type of order, it is essential that you obtain professional legal counsel so you fully understand your rights as a grandparent.

Circumstances That May Lead an Illinois Court to Order Grandparent Visitation

Unless parents have lost their parental rights due to abuse, abandonment, serious drug addiction, or another reason, they have a legal right to spend time with their children. This right does not automatically extend to grandparents. However, grandmothers and grandfathers may be able to receive a court order that grants them the legal right to visitation with their grandkids in certain situations. If you are a grandparent, you may be able to receive court-ordered visitation with your grandchildren if:

In many marriages, “yours” and “mine” can become “ours” in regard to property and debt. Marriage is as much a financial partnership as it is a romantic relationship, and undoing those financial ties in a divorce may be a complicated process. Property division becomes especially challenging when there is a question as to what property should be classified as marital property and what should be deemed nonmarital property. When marital and nonmarital property is commingled, determining a fair and reasonable property division arrangement during divorce can be very difficult, and it is crucial to receive assistance from a qualified divorce attorney.

Understanding Equitable Distribution

Not every state has the same laws about how marital property is dealt with during divorce. Some states use a property division method called “community property," in which a married couple’s estate will be divided 50/50. Illinois, on the other hand, is an “equitable distribution” state. This means that if a divorcing couple cannot agree on how to divide their assets, the court will divide the assets according to equitable distribution rules. Illinois courts divide property in a way that is reasonable and fair based on each spouse’s health, employability, financial circumstances, needs, and other factors.

Going through a divorce when you and your spouse have a child together is often much more complicated than a divorce that does not involve a minor child. There are many questions that divorcing parents will need to address as part of the legal process of ending your marriage, including whether you will share custody of your child or assign the majority of the parental responsibilities to one parent. If you plan to have a co-parenting arrangement, you will need to determine which parent the child will spend the majority of his or her time with, how the child will be transported between households, and a number of other issues, such as parenting time during the holidays.

Parental Responsibilities and Parenting Time

Illinois replaced the terms “child custody” and “visitation” with the terms “allocation of parental responsibilities” and “parenting time” in 2016 as part of a major overhaul of the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Divorcing parents in Illinois must decide how they will distribute parental responsibilities and parenting time, and these decisions will be formalized in their official parenting plan or parenting agreement.