Illinois is an equitable division state when it comes to property division in a divorce, but not all assets are necessarily easy to split. When one spouse begins a business during a marriage, the company typically becomes marital property. Both spouses have a right to an equitable share of marital property.

Even when a spouse starts a business before getting married, the company can still become marital property if both parties’ funds were used in the company or the non-owning partner makes any contributions to a business. There are steps people can take to protect their businesses in a divorce.

How Businesses Get Handled in Divorces

There are multiple steps people can take to protect their business interests when they are getting married, and the best move can often be to put an agreement in writing. Prenuptial agreements are one of the clearest ways to stipulate that a business will not be considered marital property.

The general rule with a divorce decree or order for child support, child custody, or spousal maintenance is that the order becomes final as soon as it is entered, but there are certain situations that warrant post-decree modifications. A modification usually requires a significant change in circumstances for one of the parties necessitating a change, and you will want to seek the help of a Naperville modifications attorney.

Reasons for Modifications

Courts in Illinois only agree to modify court orders when petitioners have valid reasons for seeking an adjustment to the terms of a court order. Some of the most common kinds of reasons people are able to get modifications to their court orders include, but are not limited to:

• One party loses their job

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In some divorce cases, a spouse may seek payments for maintenance, which used to be more commonly known as alimony or spousal support. When a court in Illinois is considering a spousal maintenance case, it is generally going to have to review a number of factors before determining if maintenance is justified, how much it should be, and how long it will last.

People who are dealing with spousal maintenance as part of their divorce will want to seek legal representation for assistance filing their claims, whether they are the party seeking spousal maintenance or the party being asked to pay it. A skilled DuPage County divorce lawyer will know how to present the best evidence in court and fight to get you the most favorable outcome to your case.

Illinois Maintenance Laws

Under 750 Illinois Consolidated Statute § 5/504, a court first needs to make numerous findings relating to whether maintenance awards are appropriate. Analysis under 750 Illinois Consolidated Statute § 5/504(a) will involve considering all 14 of the following relevant factors:

There are many disabled adults who are completely independent and living productive and normal lives. However, other adults with certain disabilities may not be able to manage their affairs on their own and could benefit from having a legal guardian. A legal guardian for an adult is a fiduciary tasked with managing a disabled person’s finances and other aspects of their life to ensure that the ward is safe and well-cared for. If you have a disabled loved one you are concerned about, such as an elderly parent or disabled child who is turning 18 years old, you may be able to help them by petitioning the court to name you as their legal guardian. To begin a guardianship, you must be able to show that the proposed ward has disabilities that prevent them from managing their own life. If you are considering becoming a guardian for a loved one, an attorney may be able to help you through the process.

Who Can Be Placed Under Guardianship in Illinois?

Not all disabilities render a person eligible to be placed under guardianship, as many people with disabilities are entirely capable of being independent. Others, however, could be in danger if they do not have a guardian protecting them. For the purposes of Illinois guardianship, there are generally three reasons a person can be placed under guardianship:

• Mental or physical incapacity - Someone with a mental or physical disability that prevents a person from capably managing their own personal life or property may be given a guardian.
• Mental illness or developmental disability - Severe mental illness, like a psychotic disorder, can keep a person from handling their own affairs. The same may be true for significant developmental disabilities, like Down’s Syndrome.
• Addiction issues - A person who is addicted to drugs, alcohol, or gambling, may spend money in such a way as to inflict hardship or suffering on themselves and their family. In this case, guardianship may be in order. Guardianship may not be permanent if the person receives treatment and reaches a point where they are capable of reentering society as an independent adult.

If your loved one is struggling with one of these issues and cannot manage their own life or estate, you may be able to become their legal guardian.

Prenuptial or postnuptial agreements can be used for a variety of purposes before or during a marriage. These agreements are contracts between couples who are married or are going to be married. Spouses or spouses-to-be can take steps such as setting aside separate property and reaching advance agreements regarding how property is to be divided in the event of a divorce. However, there are issues other than a potential divorce that can be addressed in the context of a prenuptial or postnuptial agreement. Many spouses also use their marital contracts to address the possibility that the marriage will terminate only when one spouse has passed away. While prenuptial and postnuptial agreements are commonly thought of as unromantic and strictly self-protective tools, they have a number of pragmatic legal uses. A majority of spouses could benefit from having a strong prenuptial or postnuptial agreement in place in some way, if only for peace of mind. Each party should be represented by an attorney during the creation of your agreement.

What You Can Accomplish With a Prenuptial or Postnuptial Agreement

There are legal rules set out in the Illinois Uniform Premarital Agreement Act governing what prospective spouses may or may not do using a prenuptial agreement. You and your spouse or future spouse may create provisions related to:

• Property division on divorce - For many spouses, this is the primary use of a marital agreement. Often, engaged people with an income or wealth disparity between them will use a prenuptial agreement typically requested by the wealthier spouse to govern the disposition of certain property in the event of a future divorce. However, it is important that care be taken so that the terms of the agreement would not leave one spouse destitute, as this may be grounds to invalidate an agreement.
• Reserve separate property - In modern times, many adults enter marriage at an older age than was common in the past. This means that many brides and grooms already own significant property prior to marriage, which they may desire to protect using an agreement.
• Spousal support - Spousal maintenance can generally be waived or required by the terms of an agreement.
• Estate planning - Couples may require one another to create an estate plan or to carry life insurance with the other named as a beneficiary. These clauses can be immensely helpful for spouses whose marriage survives until one spouse has passed away.

These are just a few of the types of clauses you and your spouse may choose to include in your prenuptial or postnuptial agreement.

Child support payments are calculated according to statutory guidelines. Child support payments may be ordered incident to a divorce, or for parents who were never married. These payments may be ordered judicially or administratively. After the initial child support order, there may be options for modifying the order. However, certain conditions must be met for a modification to occur. Either parent can move for a modification. In general, requests for child support modifications are sometimes granted based on a substantial change in circumstances or expenses. The Illinois Department of Healthcare and Family Services Division of Child Support Services reviews requests for modifications. It is wise to work with an attorney during this process. Some conditions are less clear-cut than others. If you are seeking a modification to your child support order, your attorney may be able to help you gather needed evidence.

3 Conditions That Can Lead to a Modification Request Being Granted

Child support orders may be modified for a number of reasons. You may be able to initiate the review process if:

• Time has elapsed - If it has been at least 3 years since your child support order was originally granted or the order has been reviewed for potential modification, you may be eligible for a modification.
• Healthcare - It is important for children to have access to the healthcare services they need. If there are no provisions regarding responsibility for the cost of a child’s healthcare or health insurance, your request for a modification may be granted.
• Income change - Losing a source of income can impact a parent’s ability to make child support payments. If the parent who does not have primary custody and is obligated to make child support payments experiences a substantial change in their earnings, this may be grounds to modify an existing order.

You can also submit a request for review in writing, whether you are the custodial or noncustodial parent. The Department of Healthcare and Family Services may also request a modification review. It is preferable to be represented by an attorney when you are seeking a modification to your existing child support order.

As nearly the totality of all married couples owns some property jointly, so does almost every individual spouse own property that belongs solely to them. The vast majority of people do not enter a marriage entirely empty-handed. As we discussed in our last blog, it is possible to commingle separate property, thereby adding marital interest to individual property, it is also possible to keep property entirely separated such that in the event of a divorce, your spouse has no claim. Additionally, it is possible - and likely, even - that a married person acquires property during the marriage that exists as separate property. Determining what is marital property and what is separate property is generally the first step toward dividing marital assets during a divorce. This step is essential, whether you plan to mediate, negotiate through attorneys, or litigate your divorce.

Understanding What Separate Property You May Own

It can be more challenging than one may think to accurately label separate as opposed to joint or inextricably commingled. Types of separate property you may own right now include:

• Inheritances - Whether received during the marriage, before the marriage, or while separated, an inheritance belongs solely to the spouse named in a decedent’s estate plan or by intestacy. The policy purpose of this is largely to respect the wishes of a testator, who most likely sought to provide for their own family members, as well as to protect married persons from having family heirlooms or wealth removed.
• Property prior to marriage - In general, property you owned before the marriage remains your separate property before, during, and after the marriage unless you took steps to convert your wealth into marital wealth.
• Gifts - Gifts are usually intended for the recipient, not their spouse. It would make little sense to offer a spouse a claim to a birthday present meant for the other spouse. This can become a subject for debate in the case of gifts clearly intended to be enjoyed by both spouses.
• Personal injury settlements - If you won a settlement or award stemming from a personal injury case, such as a car accident or a slip-and-fall, it remains your property after a divorce - as you were the one personally injured, no one else should have a rightful claim to your compensation.

If you own property in any of these categories, it is quite likely safe during divorce. An attorney can help you understand what is and is not separate property.

Because couples are getting married later in life, divorce attorneys in Illinois have observed an increasing trend of divorcing spouses who own valuable personal property they acquired before their marriage. Unless a couple signed a clear and enforceable prenuptial agreement and was circumspect about keeping their personal and marital property separate throughout their marriage, it can be very difficult or impossible to separate personal and marital property in a divorce.

However, doing so is an important first step in the asset division process so each spouse can ensure they keep what is theirs in addition to securing their fair portion of the marital estate. To learn more about how marital and personal property can become commingled (combined) during a relationship, read on and then contact an Illinois divorce attorney for answers to your questions.

How Does Marital and Personal Property Become Commingled?

Once a marriage legally begins, everything of monetary value that either partner earns from employment is considered part of the marital estate. Any property that belonged to either spouse before the marriage, or that was inherited by or gifted to only one spouse during the marriage, remains the personal property of that spouse.

Whether during a divorce, as part of a first-time parenting plan for unmarried parents, or a dispute arising after several years of co-parenting, child custody disputes can be cases of serious contention. Determining how parenting time and parental responsibilities are allocated is often hotly contested by both parents.

Complicating things is the fact that children often develop their own opinions about how things should be, especially as they get older and have a better understanding of the difference between each parent’s home environment and parenting strategy. If either you or your child believes your child deserves a fair say in your Illinois parenting plan negotiations, read on.

When Can a Child’s Wishes Be Considered?

While young children often have strong opinions about homework, hygiene, and personal discipline, they do not have the maturity or perspective to make wise decisions that are in their own best interests. Left to their own devices, children would often gravitate towards a parent who has a more relaxed disciplinary approach to parenting just because it is easier.

Not every person is cut out for the responsibility and commitment that marriage and children entail. Some parents leave their families to pursue relationships with other people; some wander off because they miss living a life of spontaneity and solitude; still others leave without any explanation, leaving their family to fend for themselves.

The spouse who is left picking up the pieces generally does not want to remain married to someone who is no longer interested in shouldering their share of the family burden. But getting divorced when your spouse is missing or unwilling to participate in the divorce process presents some additional challenges. Read on for a brief overview of how you can divorce a missing spouse, and then contact an Illinois divorce attorney for customized help.

Do I Have to Try to Find My Spouse?

Sometimes the spouse who stays to care for a family is not sorry to see a cold, abusive, or neglectful spouse hit the road. If you are in this situation, you may not want to ever see or speak to your spouse again - and understandably so. But to get divorced from your spouse, you will need to prove to a judge that you have tried to contact your spouse without success. A judge will expect to see proof of significant efforts. These include:

Being a parent can be one of the most joyous and rewarding things a person can do, but parenting is not without its challenges. Fathers often face particular challenges when they are not married to the mothers of their children and may sometimes feel as though the legal system’s hurdles are too much to overcome. Other times, a mother or a father may feel totally unequipped or unprepared to raise a child he or she did not want to bring into the world and may wonder whether relinquishing parental rights is an option. Wherever you are in your parental journey, you can get legal advice from an experienced Illinois family law attorney who can help you understand your options and assist you in making wise decisions.

When Can a Parent Voluntarily Give Up Parental Rights?

The feelings and emotions of parents are often complex and influenced by many factors, all of which are real and legitimate. Parents who are very young or who hardly know each other may be devastated by an unplanned pregnancy and understandably feel reluctant to take responsibility for a child they do not want.

However, parents do have automatic legal responsibility for their children. For example, even if a father does not want a relationship with his child and declines the opportunity to exercise parental responsibilities and parenting time, a court can still determine the child’s paternity and require the father to pay child support.

So you have finally made up your mind to get a divorce and now you have to actually do it. While filing for divorce in and of itself is not so difficult, many couples get hung up on the bureaucratic elements of the divorce process because the forms can be confusing and it can be difficult to get answers to your questions. 

Court clerks, judges, and secretaries cannot give you legal advice, nor can they assist you in filling out the forms. If you want to file for divorce but do not feel comfortable handling the paperwork yourself, you may want to get help from an experienced Illinois divorce attorney. 

How to File for Divorce

Before you can formally start the divorce process, you will need to fill out the paperwork and pay a filing fee. It is important to fill out the paperwork carefully and include accurate information; making mistakes on court paperwork can lead to petitions being rejected and the divorce process prolonged. 

While couples usually get divorced because they no longer have the same vision for the future or have unsolvable conflict, the tension between them usually reaches new heights during the divorce. The task of resolving complex issues like property division, child custody, and alimony can seem impossible when you dislike your spouse and want to avoid talking to them if at all possible. 

One way many divorcing spouses handle the stress of divorce is by venting about it on social media. While this behavior is common, it can be a huge mistake–once something is on the internet, the record of it may exist forever, even if the person who posted it tries to delete it. Practicing minimal social media use may be difficult during divorce, but it pays off in the long run. 

Do Not Delete Old Posts, Profiles, or Photos

The first thing many people getting a divorce want to do is distance themselves from their spouse. It may seem like the easiest way to publicly do this is by deleting every shred of evidence you were ever together. However, deleting things off social media may not be a good idea. 

Just as no divorce is easy, no divorce is quite the same. Individual spouses (and many cooperative couples) have to decide the tenor they want their divorce to have, as well as the strategy they are going to pursue. Some spouses opt for a scorched-earth approach after a long and bitter marriage, while others decide from the get-go that they want to cooperate as much as possible. Each potential strategy has advantages and an attorney can help you settle on the right choice for you. Here are the three most common divorce strategies in Illinois. 

Litigated Divorce

A litigated divorce is the old-school, in-the-courtroom, showing-evidence and calling-witnesses style of doing things. Today, even in highly complex or acrimonious separations, litigated divorce is far less common than it was even twenty years ago. Judges can now order spouses to pursue mediation and only allow a divorce to proceed to trial if mediation fails. Allegations of spousal or child abuse or financial misconduct may also result in a divorce going to trial. 

Mediation

Divorcing couples are increasingly conscious about separating carefully, especially when minor children are involved. To that end, even before a judge orders a couple to seek mediation, they may choose to pursue it on their own. If a couple hires a private mediator before filing for divorce, they can seek assistance from a mediator of their choice for as long as it takes to resolve all their issues. Once a couple has reached an agreement, they can file for an uncontested divorce, which moves much faster and costs less than a contested divorce. 

While every child deserves to have loving parents, the unfortunate reality is that many children do not get the love and care they deserve at home. When one or both parents have died or are out of the picture because they are in jail or have lost their parental rights, a court may need to appoint a guardian. If a deceased parent left a will designating someone to be a child’s guardian, a court will usually follow the parent’s wishes. But if the designated guardian is also deceased or is unfit or unwilling to be a guardian, a court may pursue other options. 

One potential option is having a child’s older sibling become their guardian. If you live in Illinois and are wondering whether you can become your younger brother or sister’s guardian, read on. 

Who Can Become a Legal Guardian? 

When a child’s parents are no longer able to care for her, the foster system may seem like the next best option. But the foster system has serious shortcomings and an older sibling may rightly worry whether he would be better equipped to care for the child, rather than entrusting her to a stranger.  

With the prevalence of television, movies, and sensationalized media, it can be hard to know what information regarding divorce is true. The process can be complicated, and there are many misunderstandings about the law. Some people who consider divorcing their spouse first seek advice from others, who while well-meaning, are often not trained in family law matters or informed about recent changes to the law. The following are some of the most persistent divorce myths that are simply not true.

Myth: Half of All Marriages End in Divorce

Reality: This myth is quite complicated but a myth nonetheless. There are many different ways of analyzing data regarding divorce rates. According to the National Marriage Project, the divorce rate in the United States is between 40-50 percent. Other sources show that the divorce rate is between 42 and 45 percent. Divorce rates are different for different demographics. For example, people with a college degree have lower divorce rates than those without a degree.

Myth: Divorce Is Becoming More and More Likely

Reality: There are many people who believe that the institution of marriage is nearly meaningless nowadays. However, there are several reasons to believe that divorce will become less and less common over time. While it is true that the U.S divorce rate now is nearly twice what it was in 1960, that rate has been declining since the early 1980s. Experts believe that if current divorce trends continue, that nearly two-thirds of marriages will never involve a divorce.

A personal jewelry collection is accumulated over many years and is often made up of gifts, inheritances, and collectible pieces bought during travels to faraway places or in locations of great personal significance. When an Illinois couple is facing a divorce, a spouse who has a significant jewelry collection may justifiably feel sorrow and frustration at the idea that their personal collection may be considered part of the marital estate and subject to a claim from the other spouse, whether all or in part. 

Nevertheless, all assets must be accounted for during a divorce. Determining whether a piece of jewelry is personal or marital property is not always easy and, because of this and other complications, having the help of an experienced asset division attorney can be very helpful when managing the division of marital assets. 

Is Jewelry Personal Property in an Illinois Divorce? 

Certain types of property are exempt from the asset division process. Gifts and inheritances, including property purchased with inherited funds, generally are not considered marital property and remain in the exclusive possession of the person who inherited or was given them. 

Parenting after a divorce can be a challenging proposition. A single parent’s struggles are only made greater by an ex-spouse who has stopped paying child support. While your ex-spouse may provide excuses about why payments have stopped or are behind, obligations for child support are court-ordered and not subject to modification by the parties involved. Only the court can approve a modification, and only then with a legitimate and qualifying reason. To ensure your child support payments are made on time, the first step is to contact an experienced child support enforcement attorney.

Options for Child Support Enforcement

Child support payments serve to assist the parent with the greater allocation of parental responsibilities to provide basic needs for their children. If those payments are late, less than required, or stop altogether, it could have a serious impact on the children’s life and wellbeing.

While payments are set up based on the circumstances of both spouses at the time of the divorce, including the parents’ net income and the number of children, Illinois law recognizes that circumstances can change in the months and years that follow. Modifications to child support payments can be considered by the court, including if the payor has lost their job, has taken an involuntary cut in pay, or has become sick with a major illness that impacts their ability to make a living.

While as many as 40 percent of marriages end in divorce in the United States, each marriage will have its own unique relationship dynamics and combination of factors that led to the decision to split. However, it is clear that similar reasons plague many marriages. In most cases, there is not just one reason, but likely a combination of different factors that caused the divorce. If your marriage is headed for a divorce, it is time to talk to an experienced divorce attorney.

Wide-Ranging Reasons for the End of a Marriage

From traits that you just cannot stand about your partner to difficult circumstances in your relationships, there can be many contributing factors to a divorce. Family and relationship experts have compiled lists of dozens of causes for divorce, and they run the gamut from very simple to much deeper.

Here are ten of the most common reasons that divorced adults gave as the reasons their marriage fell apart.

For those in an abusive relationship, using the force of law to keep your abuser away can be the key to safety. By securing an order of protection, sometimes known as a restraining order, you can again begin to feel a level of safety in your home. At Calabrese Associates, P.C., we have been helping victims of domestic abuse for over 20 years and are ready to help you secure a restraining order to get you and your children the security you need.

Definition of Domestic Violence in Illinois

Under the Illinois Domestic Violence Act, an accused abuser must have a relationship with the victim. This can include current and former spouses, dating and romantic partners, family members including children and parents, and assistants to adults or children with disabilities.

Actions that are classified as acts of domestic violence include: