Most couples will experience some sort of conflict during a divorce. For many couples, the asset division process is one of the topics that bring about the most conflict. Prevailing during this process is important, because it can determine how financially stable you are after the divorce, and it can also affect your finances into the future. For many people, their retirement savings are among their most valuable assets.
In Illinois, retirement funds are considered to be marital property as long as they were acquired during the marriage. Marital assets may include individual retirement accounts, non-qualified plans, defined contribution plans and accounts, and pension benefits. These retirement funds must be divided between divorcing spouses, which can become tricky. In most cases, this is done using a Qualified Domestic Relations Order or QDRO.
What Is a QDRO?
A QDRO is a legal document that defines how retirement assets will be split between spouses. It acts as a set of instructions to use when the time comes to disburse retirement benefits from qualified retirement plans, such as a 401(k). Using a QDRO to transfer these funds will allow ex-spouses to avoid taxes on these amounts or penalties for withdrawing funds before reaching retirement age...
After English singer-songwriter Adele divorced her husband in 2019 without a prenuptial agreement in place, many wondered what would happen to her amassed wealth. Ultimately, the divorce settlement was worth 140 million English pounds, which is more than 175 million dollars in the United States. Some people have stated that the fact that Adele did not have a prenup in place was a mistake. However, there are other mistakes many people make when going through a high net worth divorce. If you are about to go through a divorce, and you or your spouse have a high net worth, you will want to understand how you can protect yourself financially. Here are some common mistakes that you will want to avoid:
1. Hurrying the Divorce Process
No one wants to go through a lengthy divorce, but high net worth divorces are rarely over quickly. Multiple professionals often have to get involved, including attorneys, financial advisors, forensic accountants and others. These professionals can provide valuable insight into how to resolve the legal and financial issues involved, and they can help divorcing spouses reach a fair settlement. If you try to rush the divorce process, you may end up making hasty decisions that will cost you in the long run, and you may regret these mistakes for years to come.
2. Letting Emotions Take Over
Feelings of guilt, anger, regret and resentment are common in any divorce. These emotions are all completely normal, but you will want to do your best to put them aside and to ensure that they do not influence the decisions you make. Failure to do so can lead to mistakes that you may regret in the future....
Divorce can be extremely hard on the children involved. That is certainly not a myth. However, there are other myths surrounding divorce and children that are not true, and parents going through the divorce process should be prepared to address concerns about how their children will be affected. Four of these myths, and the truth behind them, are outlined below:
Divorce Is Easier for Younger Children
Divorce is not easy for any child, but some people believe that the younger a child is, the easier the divorce process will be for him or her. This myth seems to stem from the belief that when a child is a toddler, he or she is unable to form sufficient memories, and if a child cannot properly remember a divorce, it cannot cause as much trauma. Unfortunately, this is not true. Fighting and tension between parents can be extremely difficult things for a toddler to deal with, and these conflicts can impact a child’s development. As such, it is important for parents to try to address divorce disputes as amicably as possible when children are involved, regardless of how old those children are.
Each Parent Should Have the Same Rules After Divorce
It is natural for parents to have different approaches to raising their children, both when they are married and after getting divorced. Following divorce, parents often believe that they will need to impose the same rules in each household, but that is not true. Different rules in different households will not harm the mental or emotional health of a child, and in fact, those differences can help the child become more adaptable and learn how to be flexible in different situations....
In many cases, people going through a divorce find themselves in a difficult situation simply because they did not fully prepare for their situation and take steps to protect themselves. If you know that divorce is in your future, there are a few steps you can take to help the process proceed more smoothly and ensure that you are able to achieve a fair settlement that will meet your ongoing needs.
Copy Important Documents
Before filing for divorce, you will want to make copies of all of the important documents pertaining to your finances. These may include tax returns, wills, mortgage documents, life insurance policies and statements for bank accounts, credit cards, retirement accounts or investments, as well as any other documentation related to your marital property. This will allow you to have a full understanding of the financial issues you will need to address during your divorce.
Understand Household Finances
You should keep track of your utility bills, mortgage or rent payments and other household expenses. You will also need to be sure you understand your spouse’s income as well as your own and any debts or financial obligations either of you may have. If either you or your spouse are self-employed or own a business, you should keep track of all of the income that comes in for a few months prior to the divorce. By understanding your ongoing income and expenses, you will be able to address these issues during divorce and ensure that you can meet your needs after your marriage has been dissolved....
Divorce can be very difficult for everyone who is affected by a couple’s breakup, including their children. One of the biggest concerns children of divorcing parents may have is how their living situation might change and when they will spend time with each parent following the divorce. In many cases, parents and children alike may expect that children will play a role in making decisions about their living arrangements. Although children’s opinions and desires may be a factor in some cases, this will not necessarily be true in every situation. When addressing child custody matters, a family law attorney can help ensure that children’s best interests are protected.
Parenting Time in Illinois
In divorce cases, the time children spend with each parent is commonly referred to as “physical custody” or “visitation.” However, in 2016, the Illinois Marriage and Dissolution of Marriage Act was modified, and those terms are no longer used. Today, the time children spend with each parent is referred to as “parenting time.” The law recognizes that it is in children’s best interests to have regular, ongoing time with each parent, and during divorce, parents will need to create a parenting plan that includes a schedule for when children will live with each parent. The parenting plan will also address how parents will divide the responsibility for making important decisions for their children, such as where they will go to school and what religion they will be raised in.
Do Children Have a Choice Where They Will Live?
One prevailing myth that people may have heard states that once a child turns 14, the court will consider him or her to be mature enough to make a decision about where he or she wants to live. However, this is not a provision that is included in Illinois law. When making decisions about parenting time, a judge will take many factors into consideration to determine what is in the best interests of the child. The child’s desires are one of these factors, and a judge may listen to what a child has to say and take any preferences he or she has into consideration. Rather than identifying an age at which a child’s preferences will be considered, the law states that a judge may consider the child’s wishes if he or she is mature enough to be able to express his or her “reasoned and independent” preferences....
For many parents going through divorce, the biggest fear they have is that they will not be able to spend as much time with their children. This fear is an understandable one. Although the divorce laws in Illinois state that a parent’s gender should not be considered when making decisions about child custody, many judges still have a bias, even if they do not realize it. In many cases, parents worry that they will be treated unfairly when courts allocate parenting time, and they may be unsure of how they can protect their parental rights and ensure that the decisions made during divorce will provide for their children’s best interests. However, Illinois lawmakers are currently considering legislation that could change how parenting time is addressed in divorce and family law cases.
Are There Minimum Parenting Time Standards in Illinois?
Studies have found that it is in a child’s best interests to spend at least 35 percent of his or her time with each parent. However, under Illinois law, there is no minimum requirement for the amount of parenting time that should be allocated to a parent. The Illinois Marriage and Dissolution of Marriage Act (IMDMA) states that parents are presumed to be fit to care for their children unless there is evidence to the contrary. However, parents are only entitled to “reasonable” amounts of parenting time, and the IMDMA does not specify a minimum amount or percentage of parenting time that is considered reasonable. Because of this, Illinois has received a ranking of C- from the National Parents Organization in its Shared Parenting Report Card. Clearly, there is work to be done in the state regarding shared parenting, and some lawmakers are attempting to address this issue.
House Bill 0185
A bill has been introduced to the Illinois House of Representatives that would change the way judges decide on parenting time in the state. House Bill 0185 would require judges to begin a child custody case with the presumption that it would be in children’s best interests for parents to share equal amounts of parenting time, as long as each parent is fit and able to care for his or her child. If, after reviewing the facts of the case, a judge determines that one parent should have less parenting time than the other, he or she would be required to provide a written explanation for the deviation from this presumption. The goal is to reduce the amount of conflict in divorce and child custody cases and make them easier and fairer for everyone involved, while protecting children’s best interests at all times....
There are many assets the courts will divide between a couple during divorce proceedings. Some of the most common include the marital home, a business acquired during the marriage, bank accounts, and vehicles. Retirement accounts are one type of asset that many people do not consider when entering into property division negotiations. However, accounts such as IRAs, 401(k)s, and pensions are subject to division between spouses, just like other marital assets. How they are divided and when the funds are distributed will depend on several different factors.
Retirement Accounts as Marital Property
In Illinois, as in all other states, property is considered to be either marital property or separate property. Separate property is any property either spouse owned prior to the wedding that was brought into the marriage. Marital property, on the other hand, is any property that was acquired during the marriage by one or both spouses.
These same rules apply to retirement accounts. If one spouse had acquired funds in a retirement account prior to the marriage, those funds are considered separate property. However, any funds that went into the account after the marriage are considered marital property, even if only one spouse contributed to the account....
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....
There are few things more difficult for a family to go through than divorce. This is particularly true when there are children involved. Emotions run high, and everyone wants to leave the marriage in a manner that is fair to them, and the entire family can struggle to move on with their lives. In addition to all of this, parents must negotiate a child custody agreement and determine child support obligations. During this process, there are three very important things each parent must keep in mind.
1. Keep Your Emotions in Check
Spouses will normally experience strong feelings when going through a divorce, such as sadness, anger, disappointment and frustration. However, letting these emotions rule child custody negotiations typically results in a longer, more difficult process. Parents should do their best to try to avoid being confrontational during these proceedings, and remember at all times that negotiations are taking place in the best interests of the child, not the parents. In addition, remember that these negotiations can take time. Rather than rushing to reach an agreement as soon as possible, you should ensure that the final agreement protects your parental rights and meets your children’s needs.
2. Know the Laws
Child support is determined by a judge who will use the financial information the two spouses have submitted to make a decision. Due to this, both parents going through a divorce must provide accurate financial documents, and they should be sure to understand the laws surrounding child support....
Struggling to make ends meet puts a strain on the best of relationships, and if it lasts for a considerable period of time and/or is extreme, overcoming this challenge may prove more than a couple can bear. Marital assets and debts must be divided in divorce, and when finances start to break down, the ramifications can reach all the way to the possible loss of a home through foreclosure. Navigating the divorce process is hard enough in straightforward circumstances, but it can become quite complicated when an active foreclosure is being sought, because the mortgage lender has a legitimate interest in how this asset is divided. This situation may be further complicated if one spouse wants to attempt to save the home and assume sole possessory rights and ownership.
In an unusual case, an Illinois appeals court upheld a default judgment that terminated the interest of a divorcing couple’s mortgage lender in the marital home, which was in the middle of a foreclosure, because it failed to respond to a complaint by the husband challenging its validity. While uncommon, this case highlights how intertwined a divorce and a foreclosure can be.
Who Is Responsible for the Debt?
Financing the purchase of a home involves the legal assumption of the obligation to repay a promissory note, the contract that outlines how long and how much the buyer must pay to satisfy the loan. In addition, a lien is placed on the property, which gives the lender the right to repossess the property in the event of default. Most couples jointly sign these documents, making both spouses liable to meet the terms or face foreclosure....
A spouse’s reaction to the news of divorce can vary widely. The significance and repercussions of divorce often make it difficult for spouses to cooperate with each other, and some may even feel compelled to engage in actions designed to punish or hurt the other spouse. One form of revenge, or perhaps just simple disregard for the laws of marriage and divorce, involves one spouse wasting or destroying marital assets during the time surrounding the divorce, thereby depriving the other spouse of the ability to receive these assets in a property settlement.
The financial fallout of divorce is one of the most difficult consequences that couples must face, and both spouses may struggle to support themselves if the terms of the divorce are not properly structured. The division of marital property is a huge part of finding financial security following divorce, and if one spouse deliberately misuses marital assets, this can put the other spouse in financial jeopardy.
Property Division During Divorce
Illinois follows the equitable division of property model, meaning marital assets will be divided according to what is most fair. Most settlements are roughly equal, unless circumstances require a different outcome....
Divorce reaches every aspect of a person's life, and often requires adjustments in both behavior and outlook to make the transition possible. People tend to focus on the legal procedure, since divorce has such a pivotal role in finalizing the outcome, but this tendency can make addressing the practical issues of divorce more difficult, as well as ways of approaching the divorce process itself.
The purpose of divorce is to legally end a marriage, but the route taken to arrive at that point does not necessarily need to involve a drawn out, highly-litigated case, though litigation is sometimes necessary. Other, less contentious options are available and worth exploring for some couples.
The stereotypical image of a divorcing spouse doing everything possible to make the other party look bad is, unfortunately, not always an exaggeration. However, Courts are not interested in hearing divorcing spouses badmouth one another and will generally not give this type of information any consideration unless false allegations are made that significantly affect a party's rights. Under these circumstances, the situation changes and becomes more than bickering that may be disregarded.
Falsifying documents or making untrue allegations principally affects a party's rights in property distribution and the allocation of parental responsibilities. Typically, false allegations come in the form of claims of abuse (child and/or domestic), drug use and submissions of fabricated financial affidavits/documents.
While dishonesty between spouses is rarely worth taking legal action, lying or misleading a Court can result in serious consequences. Statements made directly to the Judge and documents filed with the Court all come with the stipulation that the information provided is true and accurate. If the Court later discovers a party intentionally lied or provided erroneous information, the potential consequences can reach both the outcome of the divorce case and include the imposition of criminal penalties....
The build-up that leads to the end of a marriage can be slow and methodical, with each spouse looking for ways to avoid the potential unfortunate outcome. The last step some couples take, before starting formal divorce proceedings, is to separate for a period of time in one final effort to salvage the marriage.
Periods of separation are commonly informal, and spouses mutually and privately decide how living arrangements, child custody and finances will be handled. Additionally, periods of separation will typically lead to either reconciliation or divorce; however, couples do have the option of formalizing their separation with the Courts.
Legal separation may be a mere formality before initiating divorce, or separation could be an in-between arrangement a couple remains in for a significant period of time. Legal separation provides most of the legal mechanisms and benefits offered in divorce, yet this process stops short of dissolving the marriage. Consider the following suggestions as to when couples may want to consider legal separation over divorce, the drawbacks of separation and how Courts handle these petitions....
The divorce process requires both spouses to accept and expect that a considerable amount of money will be spent to dissolve the marriage. The expense of divorce is especially an issue for couples with high net-worth, and the associated complications often relate to property division and spousal maintenance.
One cost that parties are particularly reluctant to pay is attorney fees. While this cost may seem like a considerable amount, divorce attorneys provide valuable services that contribute to the outcome of Court decisions on pivotal issues, such as child custody and the division of assets. However, which party pays attorney fees is a common negotiating point in divorce settlement agreements between wealthy spouses.
The Illinois Supreme Court recently issued a ruling in a case on the issue of attorney fees in a divorce that involved a considerable amount of litigation initiated by the same party. This decision could impact how legal fees are paid in divorce cases going forward, making the exploration of the Court's rationale necessary....