In the panic of considering a divorce in Illinois, both parties will be quick to consider the “worst case scenario” and research what they are each entitled to.
Inevitably, the parties to a potential divorce specifically want to know what the more vulnerable member is entitled to. This party is usually the wife. Typically, the wife wants to know what she will get and the husband wants to know what he will pay.
The goal of Illinois divorce law is to “make reasonable provision for support during and after an underlying dissolution of marriage…[and] make provision for the preservation and conservation of marital assets during the litigation.” 750 ILCS 5/102(8)(9)
There are various formulas and factors which determine what a wife is entitled to in an Illinois divorce. As you will find, that level of entitlement is usually due to the skill of the wife’s attorney in pleading the wife’s case…and the husband’s attorney’s skill in arguing the opposite.
What Assets Is A Wife Entitled To In An Illinois Divorce?
A spouse is entitled to have the court consider the division of any asset or debt which is determined to be marital.
Illinois divorce courts “shall divide the marital property” 750 ILCS 5/503(d)(emphasis mine)
If the property was acquired after the wedding date by either party, that property will be considered marital property.
‘[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a)
“[A]ll property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed [to be] marital property.” 750 ILCS 5/503(b)
After a property is determined to be marital property, that property is not automatically divided 50/50 between the two parties. Instead an Illinois divorce court will divide the property equitably.
“The [Illinois Marriage and Dissolution of Marriage] Act does not require an equal division of marital property, but an equitable division” In re Marriage of Jones, 543 NE 2d 119 – Ill: Appellate Court, 1st Dist. 1989
A spouse is entitled to have an Illinois court take a fair look at what marital property the two parties have, how they earned that property, how they kept up that property and who will need that property in the future.
An Illinois court will divide marital property “in just proportions considering all relevant factors, including:
(1) each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including (i) any decrease attributable to an advance from the parties’ marital estate under subsection (c-1)(2) of Section 501; (ii) the contribution of a spouse as a homemaker or to the family unit; and (iii) whether the contribution is after the commencement of a proceeding for dissolution of marriage or declaration of invalidity of marriage;
(2) the dissipation by each party of the marital property, provided that a party’s claim of dissipation is subject to the following conditions:
(i) a notice of intent to claim dissipation shall be given no later than 60 days before trial or 30 days after discovery closes, whichever is later;
(ii) the notice of intent to claim dissipation shall contain, at a minimum, a date or period of time during which the marriage began undergoing an irretrievable breakdown, an identification of the property dissipated, and a date or period of time during which the dissipation occurred;
(iii) a certificate or service of the notice of intent to claim dissipation shall be filed with the clerk of the court and be served pursuant to applicable rules;
(iv) no 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;
(3) the value of the property assigned to each spouse;
(4) the duration of the marriage;
(5) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having the primary residence of the children;
(6) any obligations and rights arising from a prior marriage of either party;
(7) any prenuptial or postnuptial agreement of the parties;
(8) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(9) the custodial provisions for any children;
(10) whether the apportionment is in lieu of or in addition to maintenance;
(11) the reasonable opportunity of each spouse for future acquisition of capital assets and income; and
(12) the tax consequences of the property division upon the respective economic circumstances of the parties.” 750 ILCS 5/503(d)
A spouse has an absolute right to have a court consider each of these factors in determining who should be awarded what marital property and in what proportion.
A spouse is also entitled to any assets which are determined to be non-marital and in their own name.
“[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d)
Non-marital property is property that came into the marriage from pre-marital sources or from sources entirely outside the marriage (like an inheritance or a gift)
[T]he following…which is known as “non-marital property”:
(1) property acquired by gift, legacy or descent or property acquired in exchange for such property; (2) property acquired in exchange for property acquired before the marriage; (3) property acquired by a spouse after a judgment of legal separation; (4) property excluded by valid agreement of the parties, including a premarital agreement or a postnuptial agreement; (5) any judgment or property obtained by judgment awarded to a spouse from the other spouse except, however, when a spouse is required to sue the other spouse in order to obtain insurance coverage or otherwise recover from a third party and the recovery is directly related to amounts advanced by the marital estate, the judgment shall be considered marital property; (6) property acquired before the marriage, except as it relates to retirement plans that may have both marital and non-marital characteristics; (6.5) all property acquired by a spouse by the sole use of non-marital property as collateral for a loan that then is used to acquire property during the marriage; to the extent that the marital estate repays any portion of the loan, it shall be considered a contribution from the marital estate to the non-marital estate subject to reimbursement; (7) the increase in value of non-marital property, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and (8) income from property acquired by a method listed” 750 ILCS 5/503
If the court cannot determine whether a property is marital or non-marital, the court must find that the property is marital. “Any doubt as to the nature of the property must be resolved in favor of the finding that it is marital” In re Marriage of Steel, 2011 IL App (2d) 080974
The one asset that can be divided into marital and non-marital portions are retirement plans.
“[R]etirement plans…may have both marital and non-marital characteristics” 750 ILCS 5/503(a)(6)
Retirement plans’ marital portions are divided to the penny based on actuarial analysis through Qualified Domestic Relations Orders.
What Maintenance Is A Wife Entitled To In An Illinois Divorce?
Maintenance (formerly known as alimony) is a more certain factor in an Illinois divorce.
“Entitlement to maintenance. In a proceeding for dissolution of marriage….the court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just” 750 ILCS 5/504(a)
Maintenance must first be approved by the court based on a multitude of factors.
“The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors:
(1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage;(2) the needs of each party;(3) the realistic present and future earning capacity of each party;(4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;(5) any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought;(6) the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment;(6.1) the effect of any parental responsibility arrangements and its effect on a party’s ability to seek or maintain employment;(7) the standard of living established during the marriage;(8) the duration of the marriage;(9) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties;(10) all sources of public and private income including, without limitation, disability and retirement income;(11) the tax consequences to each party ;(12) contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;(13) any valid agreement of the parties; and(14) any other factor that the court expressly finds to be just and equitable.” 750 ILCS 5/504(a)
An Illinois divorce court will then grant maintenance or deny maintenance based on all of the factors. In my experience, if the parties have been married for any significant period of time without an extended separation, maintenance is likely to be granted.
Once granted, the maintenance a wife is entiteled to is presumed to be in an amount pursuant to the following calculation:
“Maintenance…shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income.” 750 ILCS 5/503(b-1)(1)(A)
The amount of maintenance owed has a ceiling of the payee not receiving more than 40% of the total incomes of the two divorced parties.
“The amount calculated as maintenance, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties.” 750 ILCS 5/503(b-1)(1)(A)
Likewise, the duration of maintenance a wife is entitled to in an Illinois divorce is set by formula.
In Illinois maintenance duration “shall be calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.” 750 ILCS 5/504(b-1)(B)
An Illinois divorce court is not bound to these formulas when calculating maintenance. But, if the court doesn’t use the formulas, the court must explain why they deviated from the guidelines maintenance formulas.
[I]f the court deviates from applicable guidelines…it shall state in its findings the amount of maintenance (if determinable) or duration that would have been required under the guidelines and the reasoning for any variance from the guidelines; and…the court shall state whether the maintenance is fixed-term, indefinite, reviewable, or reserved by the court.” 750 ILCS 5/503(b-2)(2),(3)
This written explanation exposes the court to an appeal based on that reasoning, therefore, courts rarely deviate from guidelines maintenance.
The entitlement to guidelines maintenance will be waived if the parties make in excess of $500,000 between them both or the payor is paying more than 50% of their income in maintenance and child support.
What Child Support Is A Wife Entitled To?
The entitlement to child support is usually the right of the parent who has the children the majority of the time.
Married parents are going to get parenting time. “It is presumed both parents are fit and the court shall not place any restrictions on parenting time… unless it finds by a preponderance of the evidence that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health.” 750 ILCS 5/602.7(b)
The amount of parenting time each parent receives is based on what is best for the child.
“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 5/602.7(a)
There is no formula for who spends what time with the child or who will be the custodial parent.
“A determination of the best interests of the child cannot be reduced to a simple bright-line test, but rather must be made on a case-by-case basis, depending, to a great extent, upon the circumstances of each case.” In re Marriage of Eckert, 119 Ill. 2d 316, 326, 518 N.E.2d 1041, 1045 (1988).
“In determining the child’s best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:
(1) the wishes of each parent seeking parenting time;(2) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time;(3) 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;(4) any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child;(5) the interaction and interrelationship of the child with his or her parents and siblings and with any other person who may significantly affect the child’s best interests;(6) the child’s adjustment to his or her home, school, and community;(7) the mental and physical health of all individuals involved;(8) the child’s needs;(9) the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement;(10) whether a restriction on parenting time is appropriate;(11) the physical violence or threat of physical violence by the child’s parent directed against the child or other member of the child’s household;(12) the willingness and ability of each parent to place the needs of the child ahead of his or her own needs;(13) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;(14) the occurrence of abuse against the child or other member of the child’s household;(15) whether one of the parents is a convicted sex offender or lives with a convicted sex offender and, if so, the exact nature of the offense and what if any treatment the offender has successfully participated in; the parties are entitled to a hearing on the issues raised in this paragraph (15);(16) the terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed; and(17) any other factor that the court expressly finds to be relevant.” 750 ILCS 5/602.7(b)
Once an Illinois divorce court has determined parenting time for each parent, child support can then be awarded.
“[T]he court may order either or both parents owing a duty of support to a child of the marriage…to pay an amount reasonable and necessary for support.” 750 ILCS 5/505(a)
If property distribution’s wishy washy non-formula and maintenance’s floating calculation weren’t enough uncertainty, then get ready for the income shares method of calculating child support in Illinois.
“The court shall determine child support in each case by applying the child support guidelines” 750 ILCS 5/505(a)(2)
“The court shall compute the basic child support obligation by taking the following steps:(A) determine each parent’s monthly net income;(B) add the parents’ monthly net incomes together to determine the combined monthly net income of the parents;(C) select the corresponding appropriate amount from the schedule of basic child support obligations based on the parties’ combined monthly net income and number of children of the parties; and(D) calculate each parent’s percentage share of the basic child support obligation.” 750 ILCS 5/505(A)(1.5)
“The corresponding appropriate amount from the schedule” refers to the income shares chart that the Illinois Department Of Health And Family Services publishes each year.
Each parent will owe a percentage of the child’s presumed expenses. The parent who does not exercise majority parenting time, will pay the other parent their share of the child’s presumed expenses.
“Although a monetary obligation is computed for each parent as child support, the receiving parent’s share is not payable to the other parent and is presumed to be spent directly on the child.” 750 ILCS 5/505(A)(1.5)
If the child spends more than 40% of their time with both parents the child support formula is modified to reduce the obligation of the parent with less (but not much less) time with the child.
“If each parent exercises 146 or more overnights per year with the child, the basic child support obligation is multiplied by 1.5 to calculate the shared care child support obligation.” 750 ILCS 5/505(a)(3.8)
This byzantine calculation of child support is not certain. “The court may deviate from the child support guidelines if the application would be inequitable, unjust, or inappropriate.” 750 ILCS 5/505(a)(3.5)
In conclusion, there is very little that either spouse is entitled to in an Illinois divorce. Illinois divorce law is a textured tool to efficiently, effectively and sympathetically divide two lives. Divorce law in Illinois is by no means a one-size-fits-all series of entitlements. The results each party will get in their Illinois divorce will largely be a result of the skill in which their lawyers present evidence and argue their client’s position.
If you’d like to know more about what you’re entitled to and what your spouse is entitled to in your Illinois divorce, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Chicago divorce attorney.
