Property division is often one of the most contentious aspects of a divorce, particularly when it comes to the family home. You and your spouse will need to determine who will own your marital home, and many factors may come into play when making that decision. To help you decide what to do with the family home in your divorce, you can ask yourself the following questions:
Is the Home Separate or Marital Property?
In many situations, a husband and wife will purchase a home together after they have gotten married. If this is the case, the home is marital property, and it must therefore be included in the property division process during divorce. Illinois is an equitable distribution state, which means the home’s equity is subject to being divided between spouses. In some cases, one spouse will keep the home, while the other will receive other property of similar value. In other cases, the home may be sold, and the proceeds will be divided between the spouses.
If one spouse owned a home before getting married, it will likely be considered separate property and may not be subject to Illinois’ property division rules. However, if one spouse made contributions to a house owned by the other spouse, such as by sharing in mortgage payments or assisting with improvements that increased the value of the property, that spouse may be reimbursed for their contributions to non-marital property....
Child custody always has the potential to become an extremely complex issue. However, when parents are not married, it can become even more complicated. While married couples will make decisions about child custody as part of their divorce, unwed couples may need to take legal action to address issues related to their children. In some cases, paternity will need to be established before decisions can be made about the allocation of parental responsibilities and parenting time.
Establishing Paternity in Illinois
In Illinois, married spouses are presumed to be the parents of any children born during the marriage, unless there is documentation that says otherwise. However, when the parents of a child are not married, the same assumption is not made. In the case of unwed parents, the paternity of the father must be established. There are three ways to do this:
- Voluntary Acknowledgement of Paternity: If both parents agree on the paternity of the child, they can both complete and sign a Voluntary Acknowledgement of Paternity.
- Administrative Paternity Order: If the parents cannot agree, the State of Illinois’ Department of Healthcare and Family Services’ Child Support Services can issue an Administrative Paternity Order to establish paternity.
- Order of Paternity: The last method of establishing paternity is to appear in court and have a judge issue an order of paternity.
An Administrative Paternity Order and an Order of Paternity are typically only required if the father disputes that he is the biological father of the child. In these cases, DNA testing will usually be used to confirm that a presumed father is in fact the child’s biological father....
When a court orders a parent to pay child support, this is many times done as part of a divorce case. The parent required to pay support typically must begin paying it from the date the order is issued. However, there may be cases in which a custodial parent would ask for child support to be paid for a time period before the order was issued. Usually, these cases involve unmarried parents, although sometimes, a spouse that was at one time married to the other parent may ask for retroactive child support as well.
Retroactive Child Support for Married Parents
Married parents cannot ask for retroactive child support dating as far back as the child’s birth. The law assumes that during the marriage, both parents were contributing to the support of the child, and as such, child support is not owed for that time. However, there are instances in which a spouse may still ask for retroactive child support as part of a divorce. This may address the period of time before the child support order is issued. In this case, the parent receiving the support for the child can ask for retroactive child support from the date a petition for child support was filed with the court.
For example, a father may be served divorce papers on February 1. On May 1, the mother may file a petition for child support. After being awarded child support on July 1, she may ask for retroactive support. This would provide support for the two months between the motion and the hearing. A judge has discretion at this point as to whether to award retroactive support or not....
If you are going through a divorce, you will likely come across a variety of procedural rules that you will have to follow and many different legal terms you may not have heard before. One of these terms is “guardian ad litem.” Many divorcing couples do not understand the role of a guardian ad litem (GAL) or why one may be appointed by the court. However, this person can play an important part in decisions about child custody, so you will want to be sure to understand how to proceed if a GAL has been appointed.
What Is a Guardian Ad Litem?
In some divorce cases, matters related to the allocation of parental responsibilities and parenting time may need to be addressed by the judge. When making decisions about these issues, the judge must take a number of factors into consideration, including the home life of both parents, the financial situation of each parent and ultimately, what is best for the child.
While this information is all very important for a judge to have, he or she will be unable to perform extensive interviews with the parents, the child or other relevant parties, such as teachers, doctors, family members and counselors. To gather the required information, a judge may appoint a guardian ad litem who will investigate the case and report the findings to the judge. The GAL will typically prepare a written report, and each parent’s attorney may cross-examine the GAL in court. The judge is not bound by the recommendations made by the guardian ad litem, but he or she will usually take the report into great consideration when making decisions....
In April of 2019, daytime talk show host Wendy Williams filed for divorce from her husband, Kevin Hunter. During the divorce proceedings, Hunter requested a substantial amount in spousal support, as well as child support for the couple’s 18-year-old son, Kevin Junior. Hunter relied on his job as executive producer on Williams’ show for an income, and he was also her personal manager. Now, after being fired from both jobs, he has no source of income.
This case is interesting, raising several questions. One significant issue involves Williams’ claim that she should not have to pay spousal support because Hunter cheated on her. Those who are divorcing in Illinois may wonder how the state’s laws would address these issues. Does adultery affect the terms of a divorce?
Adultery as Grounds for Divorce
In Illinois, the only grounds for divorce is “irreconcilable differences.” This simply means that there has been a breakdown in the marriage and that there is no hope that the couple will reconcile. This is different than how divorce worked in Illinois historically, as previously, there was once a long list of grounds for divorce, including adultery....
Protecting a child from harm is the number one priority for parents. Rarely does this danger come from within a family, but when it does, a parent may be forced to make hard choices to ensure the child is properly protected.
Parents are presumed to have a fundamental right to spend time with and make decisions for their children, and this is reflected in the child custody laws that govern divorce cases in Illinois. As a result, in the vast majority of divorces, both parents will receive some amount of parenting time on a consistent basis. Unfortunately, this arrangement is not always appropriate, and in some cases, corrective action needs to be taken to ensure the child’s safety.
The normal way to address children’s safety involves requesting a modification of the family’s parenting plan, but this process takes time, and that is something a parent concerned about his/her child’s safety may not have. However, refusing to allow parenting time that has been allocated in a divorce decree is a direct violation of court order, and this can have serious consequences. Parents may wonder what to do if circumstances exist that would negate this rule for the child’s sake....
Children are known to suffer negative emotional and social effects following divorce, and parents must be willing to address these issues both during and after a divorce case concludes to prevent long-term damage. To support the wellbeing of children struggling with the adjustments divorce demands, various counseling programs are specifically targeted to this group and often need tailored approaches to avoid the academic, behavioral and financial repercussions.
After parents seek to intervene (and in some cases before), Courts also have the authority to order counseling as a measure to potentially save a marriage and help families with child-related issues deal with this difficult transition.
Consider the following information with regard to when a Court may order participation in counseling, as well as an overview of the parenting class all divorcing couples must attend, which is intended to facilitate more effective communication and parenting post-divorce....
Studies repeatedly support the fact that continuous engagement with both parents is key to a child’s long-term development and wellbeing. Divorced parents in Illinois are expected to divide parenting responsibilities (absent issues of danger or neglect), including childcare duties; however, this mandate does not necessarily translate into equal time for both parents. While a growing number of states at least state a strong preference for, if not outright demand, equal parenting time, Illinois has no such provision and merely says both parents are presumed fit and some amount of parenting time should be allocated to each.
A recent study by Custody X Change that looked at how states divided parenting time between mothers and fathers found that Illinois ranked among the bottom, only surpassed by Mississippi, Oklahoma, and Tennessee. Specifically, Illinois fathers, on average, get 23.1 percent of time with their children. Obviously, this number is low, and does not bode well for fathers who must rely on the Court system to make this decision. Consider the following on how Courts evaluate parenting time questions, as well as strategies to boost a father’s chance at receiving more parenting time.
Court’s Assessment of Parenting Time...
Parents are traditionally, legally and historically associated as the primary caregivers in their child’s life. This standard is supported by the fact that society and the law presume parents to be the most fit individuals to provide for their child’s needs and to make decisions in their child’s best interests. This paradigm works well in the vast majority of families, including those in which child custody is shared following a divorce or separation. However, in a minority of families, one or both parents are unavailable to provide adequate care, usually due to illness, substance abuse, or criminal issues. These children still require care, and if the living situation at home is unsafe or unstable, then alternate arrangements must be found.
The question that routinely arises in these situations is the long-term custody rights of non-parents to care for these children. In the worst case, these children end up — at least temporarily — in foster homes or State shelters. In fact, a recent article about Illinois’ handling of children unable to live with their parents reveals hundreds suffered unnecessary weeks and months in State psychiatric facilities, even though cleared for release, because there was nowhere for these children to go. Children should always have the benefit of growing up in a supportive environment.
Who Can Request Custody Rights...
Divorce does not have the best reputation for promoting civil and cooperative relationships between spouses. Traditional divorce actions pit the parties against each other in an adversarial process that does everything possible to limit — or completely cut off — direct contact. While this can make moving from the marriage easier, both emotionally and physically, the litigation model of standard divorce cases does not prepare the parties for working together over child custody, or allow them to have much a say in the terms of the divorce decree.
In recent years, the legal system has increasingly favored settling divorce cases in less contentious environments due to the practicalities of limited Court resources and also to facilitate a better outcome for the parties. This reduces the likelihood of needing to return to Court to settle additional issues.
A fairly new process in the alternative dispute resolution realm is collaborative divorce — mediation being the form with which most people are familiar— which was formalized into Illinois law this summer and will become effective January 1, 2018. Collaborative divorce is the least combative way to end a marriage, and in fact tries to give the parties a firm foundation for future interactions by teaching them more effective ways to communicate and cooperate....
As the summer comes to a close, parents of children entering school for the first time must adjust to the change in routine and their child's daily needs. Yet while this transition is challenging for any parent, those who share child custody have the added factor of coordinating decisions on education, transportation and health with an ex-spouse.
Most schools, including those in Illinois, require all incoming students to prove they received certain vaccinations as a measure of preventing the spread of dangerous diseases. The vaccination of school-aged children has become a controversial issue in recent years, with some parents opposing the practice due to fears that vaccinations can provoke serious physical/developmental reactions in children. A difference of opinion on this issue can create complications when parents are together. However, conflicting viewpoints post-divorce can lead parents to seek Court intervention if a compromise cannot be struck.
Decisions related to a child's health are some of the most important matters a parent will ever consider, and determining how to balance this shared responsibility with an ex-spouse is a critical aspect of co-parenting....
Every parent takes precautions to protect their children from exposure to violence, including depictions in the media and, more importantly, in real life interactions. Continued contact with incidents of violence is almost guaranteed to leave a negative and long-lasting impact on the child.
Typically, the consistent presence of violence in a child's life comes from domestic violence issues in the home. One method used by the state to curtail the perpetuation of violence is to take serious account of domestic violence issues in the allocation of parental responsibilities (often referred to as child custody).
According to statistics gathered by the Illinois Coalition Against Domestic Violence, the number of domestic abuse victims helped by the organization in 2016 was 41,916. Disturbingly, 8,124 children witnessed some of this abuse....
Why a person decides to divorce is often varied. Yet many divorced individuals cite financial and family pressures as the impetus for ending a marriage. However, a situation that is particularly difficult to navigate is when one spouse has a mental health issue, either due to substance/alcohol abuse or a psychiatric condition, which makes staying married unworkable.
Individuals with mental health problems can be unstable and unpredictable, which complicates the legal process. Even amicable divorces are likely to have some amount of contention due to the nature of the situation. Still, divorcing someone with mental health issues can greatly inhibit, if not completely eliminate, the ability to negotiate a settlement or avoid a highly-litigated divorce case.
While mental illness can impact a number of issues related to divorce, the one that rightfully gets the most attention is child custody/parental responsibility. Courts will work with struggling parents to give them every opportunity to see their children. Still, mental health problems frequently reverberate far beyond child custody....
When divorced parents are asked what part of the experience was hardest to confront, most will respond that the impact the divorce had on their children was most difficult. A number of studies have shown that children thrive best in two-parent households that divorce suddenly and permanently takes away. However, parents still have the ability to mitigate this negative impact with proper intervention and long-term planning.
Shared child custody, the situation most divorced parents face, presents many logistical and financial challenges for the adults. Moreover, shared custody can be emotionally upsetting the child. To minimize the likelihood of future disputes between ex-spouses and to better protect the well-being of the child, advanced long-term planning should be a large aspect of any parenting plan or custody agreement and should be executed as part of any divorce or legal separation.
Advanced planning presupposes the parties mutually and privately agree on terms that will govern the exercise of parental responsibilities. While parties do have the option of allowing Courts to decide this issue for them, a Judge can never fully know the unique needs of each family, nor have the capacity to address every potential concern of each parent....
Transitioning from a two-income household down to one, following divorce, is a large adjustment for most individuals. In most instances, though, each party is able to financially support himself or herself, excluding child support, without contribution from the former spouse. However, maintenance, or spousal support, is sometimes necessary to sustain a former spouse while he or she, for example, gains new skills or training to make him or her more employable.
Illinois amended the laws on spousal maintenance in 2015 to make these awards more predictable by removing any subjectivity on the amount and duration of the maintenance obligation — although, a Court's obligation to first determine if maintenance is appropriate remains the same. A set formula now determines how much and for how long maintenance awards will be, and only marriages of 20 years or more are eligible for permanent maintenance, which is left to the Court's discretion to decide.
However, even though maintenance awards are easier to predict under the new provisions, changes may occur once the Court order is in place that justify a modification or cancellation. Someone subject to pay maintenance should not be locked into this obligation if circumstances make this arrangement untenable or unfair....