Property division is often one of the most complex aspects of divorce. The division of retirement plans can be especially complicated. If you are getting divorced, you may have concerns about how your or your spouse’s IRA, 401(k), pension plan, or other retirement benefits will be divided. In Illinois, marital property is divided according to “equitable distribution.” Non-marital property, or property which was obtained by either spouse before the marriage, is not eligible for division. The specifics of how your retirement plan will be handled during divorce will vary depending on your unique circumstances, so it is important to contact an attorney and discuss your legal options.

Is My Retirement Plan Part of the Marital Estate?

Property accumulated during a marriage is typically considered part of the marital estate. Only certain gifts and inheritances are exempt from this rule. So, if you earned retirement funds through work that occurred during the marriage, these funds are marital property. If you started contributing to a retirement plan before you got married and then continued to make contributions during the marriage, part of the retirement plan may be considered marital property, and part of the plan may be considered non-marital property. However, retirement plans excluded from the marital estate through a valid prenuptial or postnuptial agreement are not eligible for division. 

There are several options available for dividing these funds during the property distribution process. One option is for the retirement funds and benefits to be divided between the spouses through a Qualified Domestic Relations Order (QDRO). Another option is for one spouse to keep the retirement funds while the other spouse receives marital assets which are of approximately equal value.

Just as no two marriages are the same, no two divorces are the same. There are several different paths that a person getting divorced in Illinois may choose to pursue. Some couples are able to work out the terms of their divorce on their own. Others require help from a qualified mediator to come to an agreement about property division, child custody, and other divorce-related issues. Collaborative law offers yet another option for couples ending their marriage. In some situations, especially those involving spouses with a high net worth, a divorce case may require courtroom litigation. Here are some situations in which a divorce may need to be resolved in court:

Cases Involving Financial Fraud

In order for a divorcing couple to reach a fair settlement, the spouses must fully disclose their incomes, assets, and debts. If a spouse is unwilling to be honest and transparent about his or her financial circumstances, effective mediation or a successful collaborative divorce may not be possible. Some spouses will attempt to hide assets or income in hopes that these assets will not be divided during divorce. A person may misreport the income they earn in hopes of influencing decisions about spousal maintenance or child support. If you have reason to believe that your spouse is hiding assets or revenue streams, speak with a divorce attorney right away.

Couples With a History of Abuse or Domestic Violence

The Centers for Disease Control and Prevention (CDC) reports that approximately 1 in 4 women and 1 in 10 men have been the victim of intimate partner violence. If your spouse has physically abused you, used threats to manipulate your actions, or made you feel unsafe, mediation is typically not recommended. You may be coerced or intimidated into accepting a divorce settlement that is not fair. Many victims of domestic violence find that litigation is the only way to get the divorce settlement they truly deserve.

Being cheated on by your spouse can be heartbreaking. Not only do you have to deal with the sadness and anger caused by the betrayal, but you may also have to deal with the financial consequences of your spouse’s infidelity. If you are getting divorced, and your spouse has been unfaithful to you, you should know about a legal concept called “dissipation of assets.” Through a dissipation claim, you may be able to receive compensation for marital assets that were spent on an affair during the end of your marriage.

Defining Dissipation in Illinois

The Illinois Supreme Court has identified dissipation as the use of marital assets for a purpose unrelated to the marriage and that only benefits one spouse. Assets may be dissipated, or wasted, through an affair, gambling addiction, substance abuse problem, intentional destruction of property, or other means. However, in order to be considered dissipation, the wasting of assets must have taken place during or after the “irretrievable breakdown” of the marriage. A marriage is generally considered to be undergoing a breakdown if the spouses are not living together, spending free time together, having marital relations, or have decided to divorce.

Dissipation Claims Related to an Extramarital Affair

There are several ways that a spouse can dissipate marital assets through infidelity. Perhaps your spouse spent a substantial amount of money on expensive jewelry or other gifts for his or her lover. Your spouse may also have dissipated assets if he or she spent marital funds on airfare, hotels, and other travel expenses related to visiting the other person or taking a vacation with him or her. You spouse may have even given away marital property to his or her paramour.

Many people use the start of a calendar year to make New Year’s resolutions. If you are a divorcing or unmarried parent, you may wish to make a resolution related to more effective co-parenting. Raising a child with someone who you used to date or be married to can be extremely complicated. It can be nearly impossible to keep personal feelings toward the other parent separate from parenting issues. However, studies show that children can be deeply affected by parental arguments and tension. Finding a way to work with your child’s other parent instead of against him or her will benefit both you and your child in a multitude of ways.

Keep Conversations Brief, Respectful, and Child-Focused

One of the best ways to avoid adding additional stress or complications to the already difficult process of co-parenting with an ex is to communicate effectively and respectfully. Keep conversations focused on your child and resist the temptation to discuss issues related to why your relationship ended or other personal matters. Do not criticize the other parent or use profanity. Even if the other parent chooses to disrespect you, do your best to take the high road and remain calm. Many parents find that communicating through email or text messages helps reduce the risk of arguments, but you should find the communication strategy that works best for your unique situation.

Stick to Your Parenting Plan

Divorcing parents in Illinois must submit a parenting plan to the court. This plan details how parental responsibilities will be shared, and it contains a schedule for parenting time, among many other important provisions. This parenting plan is not simply a formality. It is essential that you and your former partner follow the directions contained in your parenting plan. Do not make a habit of deviating from the parenting plan, because this will only increase the likelihood of miscommunication and confusion. If your child’s other parent refuses to obey the directions contained in your parenting agreement, contact a family law attorney to learn about your legal options for enforcement.

In July of 2017, Illinois enacted major changes to the way child support is calculated. Previous to this change, child support obligations were calculated by applying a percentage based on the number of children requiring support to the obligor parent’s income. For example, if you had one child, you would pay 20 percent of your net income in child support, and if you had two children, you would pay 28 percent of your income. Some parents are still subject to child support orders created under the old law, but any new child support arrangements will be calculated using the “Income Shares” method. Illinois child support orders now take both parents’ net incomes and amount of parenting time into consideration. If you are a parent who has children with more than one person, you may wonder how the court will determine a child support arrangement that is achievable with regard to your financial resources while still providing for all of your children’s needs.

Income Shares Child Support Guidelines

The Income Shares model for child support calculation involves the following steps:

• Both parents’ net income is added together to determine their combined net income. This combined amount represents the financial resources that would be available to the child if the parents were married.

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