One of the worst parts about divorce is the anxiety of the unknown. What will happen to my kids in my divorce? What will happen to my money after a divorce? What can I do now to protect myself when the divorce is filed? It is overwhelming but there are, in fact, several things you can do to prepare for a divorce in Illinois.
Set Goals For Your Illinois Divorce
The divorce process is what drives people’s anxiety. The result of your divorce should be the focus for you from the very beginning.
The end result of your divorce will result in three final documents:
The Judgment For Dissolution of Marriage. This document actually “dissolves the bonds of matrimony” between the couple. This is the divorce. The document will also refer and incorporate two other documents that detail the children’s schedule and the financial aspects of the divorce.
The Allocation of Parenting Time and Parental Responsibilities. This document has two parts: a clear assignment of which parent makes what decisions for the children and a specific schedule for the children in regards to each parent.
If this is a divorce with children, I, personally, always start with identifying my divorce client’s goals for the children. Children’s issues are obviously dependent on financial issues but we are merely setting goals not tempering those goals with restrictions.
Decision-making power for the children is a bit of a red-herring. The Illinois law requires that education, health, religion and extracurricular activity decisions each be assigned to a parent. In reality, 90% of all parents share the decision-making for those factors. Former spouses who cannot communicate will find that one parent will be assigned all of the decision-making responsibility. If either parent makes a crazy or stupid decision on behalf of the children, the other parent can just go to court to challenge that decision.
The real issue goal is to determine what your goal is for parenting time. The children’s schedule will determine the children’s relationship with each parent. There is no default custody or parenting time in Illinois. You have to ask for the parenting schedule that you want.
For financial matters, you need to identify what you need after the divorce and what you want after the divorce. There will be a certain amount of assets and support that you will need just to survive. You need to determine that number as your bottom line. This will involve creating an imaginary budget where you are living under your new divorced circumstances.
If you are likely to be a child support or alimony payor after your Illinois divorce, you need to know what is the maximum you would be able to pay and still survive. This is your bottom line.
After outlining your minimum requirements, start considering reasonable amounts of assets and support that would be your ideal scenario. Can you ask for all the assets and 50% of your ex-spouses income? Of course you can! You probably won’t get that much….but, as my mother always said: “If you don’t ask, you don’t get.”
Now that you have a reasonable idea of what you want your life to look like after a divorce, you can take real steps to make sure you get those results…or at least get closer to them.
Adjust Your Schedule To Your Ideal Divorce Outcome
If you have an idea of what you would like your final divorce documents to look like, you need to be adopting behaviors now that reflect what those final orders should be.
For parenting time, if you want more time with your children, you need to be available NOW for them on that proposed schedule. In determining the allocation of parenting time, an Illinois divorce court will consider “the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child’s birth” 750 ILCS 5/602.7(b)(3)
Additionally, if the other parent can agree (or appear to agree) to these pre-divorce parenting changes, the court will likely adopt them in their final orders as the court will consider “any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child.” 750 ILCS 5/602.7(b)(3)
Your work schedule in advance of divorce will also determine the support you will pay or receive. Support is determined by calculating each party’s gross income.
‘[G]ross income’ means income from all sources” 750 ILCS 505(a)(2)(A)
Gross income. For purposes of this Section [the maintenance section of the statute], the term “gross income” means all income from all sources, within the scope of that phrase in Section 505 [the child support section of the statute]. 750 ILCS 504(b-3)
If you can manipulate your gross income in advance of divorce, you can reduce the support you will pay or increase the support you will receive. Be careful! If the court believes you reduced your income solely for the purpose of reducing support, the court will impute your income at the previous level. In re Marriage of Ebert, 400 NE 2d 995 – Ill: Appellate Court, 5th Dist. 1980
“If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income.” 750 ILCS 5/505(a)(3.2)
“A determination of potential income shall be made by determining employment potential and probable earnings level based on the obligor’s work history, occupational qualifications, prevailing job opportunities” 750 ILCS 5/505(a)(3.2)
Gather Documents For Your Pending Divorce
If the two parties cannot agree on a split of assets and debts or whether those assets and debts are even marital or not, then the party must prove the asset or debt exists and has a marital or non-marital character.
“For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property.” 750 ILCS 5/503(b)
If you want to prove that a property exists and is marital, just get some kind of document showing the property, item or asset was purchased or acquired during the marriage.
If you want to prove the property is non-marital and, therefore, non-divisible in an Illinois divorce, then get some kind of document showing the property, item or asset was purchased or acquired prior to your wedding date or that the property, item or asset was a gift, inheritance or the proceeds of other non-marital property.
Documents reflecting initial acquisition are what is important. The value of an asset will change as time passes, but the asset’s marital character will not change (most likely).
Documents to prove income in an Illinois divorce are a lot simpler. The Illinois Financial Affidavit is a good guide. Filed tax returns and their supporting documents, W2s, K-1s, 1099s are usually enough. Beyond that, bank statements reflect income coming in and spending going out. If you can’t prove income, you can prove spending (which, logically, must be supported by income).
Finally, evidence of expenses should be collected. When making the decision to award maintenance (formerly known as alimony) an Illinois divorce court must first consider several factors including “the needs of each party” 750 ILCS 5/504(a)(2) and “the standard of living established during the marriage” 750 ILCS 5/504(a)(7).
Don’t go overboard with expense evidence. The amount of support is not determined by either party’s expenses. In Illinois, alimony is determined by a formula based on both parties’ incomes. The existence of expenses are merely a pre-requisite to receiving a calculated alimony award from an Illinois court.
One kind of expense will need to be specific: expenses that prove you were not dissipating assets. An allegation of spending money for a non-marital purpose (gambling, drugs and/or adultery) must be proven false by accurate expense records.
“If expenditures are not documented adequately by the person charged with dissipation, the courts will affirm a finding of dissipation.” In Re Marriage of Tietz, 605 NE 2d 670 Ill Appellate Court, 4th Dist. 1992.
Consider The Timing Of The Divorce
When preparing for an Illinois divorce there are certain timing considerations that either spouse needs to be familiar with.
As we wrote above, marital property is divisible in an Illinois divorce for ANY property acquired during the marriage. This includes property acquired after the filing of the divorce but before the entry of the final divorce judgment.
So, if a party is to receive a large bonus or other asset at some date certain or uncertain, it may pay accelerate or delay filing of the divorce to change the marital character of that asset.
One of the only things that are truly determined by the date of filing of the divorce is the length of the maintenance (formerly known as alimony) award. The duration of a maintenance award “shall be calculated by multiplying the length of the marriage at the time the action was commenced” 750 ILCS 5/504(b-1)(1)(B) with a schedule of accelerating multipliers.
The other matter that the filing date determines is what, if any, dissipation of marital assets can be considered by an Illinois divorce court.
“[N]o dissipation shall be deemed to have occurred prior to 3 years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5 years before the filing of the petition for dissolution of marriage;” 750 ILCS 503(d)(2)(iv)
In Illinois, “Dissipation is defined as the use of marital property for one spouse’s benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown” In Re Marriage of Tietz, 605 NE 2d 670 Ill Appellate Court, 4th Dist. 1992.
What To Do When You’re Done Preparing For An Illinois Divorce
When you are finally ready to file your divorce, you should know what you want and also know what you are likely to get. Using that information, you should prepare the final proposed documents immediately.
Present those final proposed documents to your soon-to-be-ex-spouse and you may be surprised. Your spouse might sign the proposed documents without much argument (I have seen it happen hundreds of times).
When the disputed issues are outlined, parties to an Illinois divorce can efficiently proceed directly to a pretrial to resolve said issues.
If you’re considering divorce, you need to think strategically starting today. For a free consultation regarding that strategy, contact my Chicago, Illinois family law firm to speak to an experienced Chicago divorce lawyer.