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Wheaton, IL 60189
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Recent Blog Posts
What Are the Advantages of Collaborative Divorce?
When many people think of divorce, they imagine a tense courtroom scene involving two bitter spouses intent on “winning” the divorce. Fortunately, there are many ways to end a marriage without the need for aggressive court battles. If you are planning to get divorced, you and your spouse may understandably struggle to see eye-to-eye about certain things. You may have different opinions about who should retain ownership of the family home, how bank account balances should be divided, who should have the majority of parenting time, or other issues. Collaborative divorce offers a way for divorcing couples to work on finding a resolution to divorce issues without the hostility, expense, and stress associated with divorce litigation.
The Collaborative Divorce Process in Illinois
During a collaborative divorce, each spouse retains an attorney who has been trained in collaborative law. The spouses and their respective attorneys hold a series of meetings to identify unresolved divorce issues and work on finding solutions to these issues that both spouses agree to. Before negotiations begin, spouses and their lawyers sign a commitment called a “Participation Agreement.” In the agreement, each member of the collaborative team commits to work together cooperatively and honestly. The spouses also agree to voluntarily provide any relevant information needed during the collaborative process, such as financial documents. The collaborative team may also include experts such as child specialists, divorce coaches, and financial planners.
What Should I Do if My Spouse Refuses to Agree to Divorce?
Marriages end for countless reasons. Sometimes, spouses get divorced because they both agree that the marriage is simply no longer working. In other cases, only one spouse wants to divorce, while the other spouse believes that the marriage is still salvageable. If you are ready to end your marriage, and your spouse does not want to get divorced, it is important to know that he or she cannot stop you from filing for divorce. However, when a spouse does not agree to the divorce, he or she may take actions that could delay and complicate the divorce. Fortunately, you have options if your spouse refuses to cooperate with the divorce process.
Spouses Who Do Not Respond
The only grounds for divorce in Illinois is “irreconcilable differences,” and either spouse may name this as the reason he or she is petitioning the court for a dissolution of marriage. The person who files the Petition For Dissolution Of Marriage is called the petitioner, and the other spouse is the respondent. During the divorce filing process, a court hearing will be scheduled. The petitioner is responsible for making arrangements to serve notice of the petition and the hearing to the respondent. The respondent has 30 days to respond to the notice, and his or her response may state why he or she disagrees that the marriage has irretrievably broken down. If the respondent does not respond and does not show up to the hearing, the petitioner has the opportunity to request a default judgment granting his or her requests for how matters such as child custody and property division will be handled during the divorce. The court may schedule a default judgment hearing in order to give the respondent a second chance to participate. If the respondent does not attend this second-chance hearing, the court will typically grant the petitioner a default judgment.
What Happens to Rental Property During Divorce?
Real estate considerations are often one of the most complex parts of property division during divorce. If you and your spouse own one or more rental properties together, you may be unsure of what will happen to this property after you are divorced. You have probably put a great deal of time, effort, and money into maintaining the property, and you may rely heavily on the income generated by tenants. As with any complex property issues during divorce, it is highly recommended that divorcing spouses who own rental properties receive legal guidance from an experienced attorney.
Options for Rental Properties During an Illinois Divorce
Divorcing spouses in Illinois have the option of working out their own agreements for property division outside of the courtroom. With help from your lawyer, you and your spouse may be able to negotiate a rental property arrangement that does not leave either of you at a major financial loss. There are several different ways that spouses may divide rental properties during divorce. Some choose to have the rental property appraised so they can sell the property and split the profits. Another option is for one spouse to retain complete ownership of the property and “buy out” the other spouse. The spouses may also agree upon a property division arrangement that assigns ownership of the rental property to one spouse while the other spouse is assigned other marital property of similar value. For example, one spouse may own the rental property, while the other spouse will own the family home. Divorcing spouses may also choose to retain joint ownership of the property and continue to share the rental income.
When Can a Parent Be Considered “Unfit” in an Illinois Family Law Case?
Illinois courts presume that it is in a child's best interests to have both parents involved in their life. However, it takes a great deal of responsibility and attention to adequately care for a child. If a parent cannot satisfactorily provide for a child's needs, or if spending time with the parent may put the child in danger, the parent may be considered “unfit.” When a parent is declared unfit, the courts no longer presume that it is in the child's best interests to spend time with that parent. When addressing family law issues, the parties involved will want to understand how parental fitness laws may affect the outcome of their case.
Illinois Law Regarding Parental Fitness
The issue of parental fitness is often explored during adoption. Typically, consent from both biological parents is required for an adoption to occur. However, if a parent is found to be unfit by “clear and convincing evidence,” the parent's parental rights may be terminated. The adoption may then be permitted even without that parent's consent. An unfit parent is typically defined as a parent who does not have the child's best interests at heart. In Illinois, parental rights can only be terminated through a juvenile case initiated by the state or in conjunction with the Adoption Act. During a parental fitness hearing, the burden of proof is on the party claiming that the parent is unfit.
How to Protect Electronic Devices from Access by Your Spouse During Divorce
Unfortunately, divorce can bring out the worst in some people. If you are considering leaving your spouse, or if you have already decided to get divorced, you may have concerns about how he or she will take the breakup. Some spouses become resentful and meddlesome during the divorce process. They may attempt to gain access to their former partner's email accounts, bank information, text messages, and more. You may need to take steps to protect your privacy during a contentious divorce, including:
Change Your Passwords
Many people mistakenly assume that if something is password-protected, no one can access it without the password. However, things become much more complicated when a couple who has shared computers, tablets, and cell phones are divorcing. For example, you may have previously logged on to your email using your spouse's phone because your phone was out of battery. Many devices have settings that automatically remember usernames and passwords for easy future logins. Your spouse may therefore have your email password saved in his or her phone without you even knowing it. The safest bet is to change all of your passwords and security questions to something unique that your spouse will not be able to guess.
Is Bird Nesting the Right Co-Parenting Strategy for My Family?
If you are a parent who is planning to divorce, you probably have concerns about how the end of your marriage will affect your children. Fortunately, research shows that children with divorced parents can lead lives that are just as happy and healthy as children with married parents. In some cases, children are actually happier after their parents' divorce, because they no longer see their parents arguing all the time or otherwise being miserable. Nevertheless, adjusting to a two-household family after divorce can be challenging for many children. One solution that more and more divorced parents are utilizing is “bird nesting.”
How Does Bird Nesting Work?
In the majority of divorce cases involving parents who share parenting time, the parents live in separate homes, and the children are transported between the two homes. While this scenario works for many divorced families, it can also sometimes lead to confusion and complication. For example, children may struggle to keep track of school supplies and special projects when they must move these items back and forth between the houses.
How Are Retirement Accounts Divided During an Illinois Divorce?
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.
Is Divorce Litigation the Right Choice for Me?
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.
Can a Dissipation Claim Recover Money My Spouse Spent During an Affair?
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.
What Are Some Effective Co-Parenting Strategies for the New Year?
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.
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The Stogsdill Law Firm, P.C.
1776 S. Naperville Road, Building B, Suite 202Wheaton, IL 60189630-462-9500
