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What Are My Options in a Divorce Case?

Whether you are currently involved in a pending  case, or are considering filing for divorce, this article will give you an overview of common issues that arise in Illinois divorce cases.

Maintenance, “Alimony”

Whether maintenance, or “alimony” as it is often called, will be awarded to a spouse will depend on the facts of each case.  It is often determined, in part, by how much of a difference there is between the two parties’ income levels.  The more one spouse earns than the other, the higher likelihood of there being a maintenance award, and the higher the actual payments could be.   The closer the income levels are, the less likelihood of there being a maintenance award.  Illinois courts use a formula for determining a basic maintenance calculation.  The court should also determine whether a maintenance award is appropriate, taking into consideration the income, needs, and earning capacity of each spouse, as well as other factors.

In some cases, a spouse’s income level might not be clear, for example, when a spouse is paid by commission instead of a base salary.  In such cases, the lower-earning spouse may try to maximize his/her potential maintenance award by minimizing his/her claimed income level, and maximizing the other spouse’s income level, so that the parties’ incomes appear further apart.   To try and minimize the maintenance award, the higher-earning spouse may try to minimize his /her claimed income, while maximizing  the other spouse’s income level, so that their incomes are closer.  No matter what outcome each spouse “wants,” they are both required to truthfully disclose their income levels.  If they do not, the divorce process could take longer and be more expensive, as more discovery may be required.

Division of Property – “Will my spouse get half of my assets?” 

As part of every divorce case, the parties will have to fully and truthfully disclose all of their assets, whether they were acquired before or during the marriage.  Some examples of property that could potentially be divided in a divorce case include, but are not limited to, bank accounts, retirement or investment accounts, the available equity in real estate property or vehicles, and the settlement awards from personal injury or workers compensation claims.  Generally, property acquired during the marriage (“marital property”) could be divided as part of the divorce.  However, property acquired before the marriage, or other non-marital property, could be taken into consideration when dividing the available marital property.

Although it is not required by law, in practice, many judges often try to allocate marital property equally.  However, if one spouse has spent or disposed of marital property in an inappropriate manner, the other spouse could potentially have a claim for dissipation of marital assets.  If successful, the dissipation claim could result in an offset of the division of available marital property, such that the spouse claiming dissipation could receive a higher percentage of the remaining property.

Debts

Any debt that was accumulated during the marriage is potentially marital debt.  Both spouses could be ordered responsible for paying off this debt, regardless of who actually incurred the debt.  In some cases, a claim of dissipation could be made whereby a spouse argues that he or she should not be responsible for contributing towards a certain portion of the marital debt, because the other spouse incurred it for reasons that did not benefit the family, or marital interests.  This would require an examination as to whether the debt was incurred for a purpose that was one-sided, wasteful, or whether incurring such debt and making such expenditures was typical during the marriage.

Custody of Children

In every divorce case where the spouses have minor children, the court must make a determination as to the authority that each parent will have in making major decisions for the children.  Such major decisions can include the choice of medical providers, educational opportunities, choice of day care providers, extracurricular activities, and religious upbringing.  If there is a dispute between the parents as to how to arrange parental decision-making responsibilities, the court may look at the level of involvement that both parents have had with the children within the two years before the divorce was filed.

Parenting Time or Visitation

Typically, a parenting time schedule will also be established, listing both parents’ regular and holiday time with the children.   Factors which are taken into consideration usually include, but are not limited to, both parents’ work schedules, the children’s school schedules, and the age of the children. 

The parent with whom the children primarily live, that is, the parent with the “majority of parenting time,” will typically be awarded child support, paid by the other parent.  Sometimes there will be a disagreement as to which parent should have the majority of time.  In these cases, the court may also look at the parents’ involvement with the children in the two years prior to the filing for divorce, as well as other factors.

Child Support and Child Expenses

Child support in Illinois is now calculated based on both parents’ incomes.  Both parents’ incomes will be run through different charts to determine the paying parent’s child support obligation.  

In addition to child support, both parents are also typically responsible for contributing towards medical, educational, extracurricular, and day care expenses for the children.   The judge could order that the parties contribute to the costs 50/50, or, in his or her discretion, could also divide the parents’ contributions based on their respective incomes. 

What do Judges Want From Spouses in a Divorce Case?

Divorce court judges want to see spouses truthfully disclose their incomes and assets (this should go without saying, but unfortunately does not always happen), and be reasonable in attempting to reach a settlement.  With regards to child custody and parenting time, judges generally want to see parents who act maturely, who cooperate and work together for the best interests of their children. 

For a more detailed look into your potential options for proceeding on a Will County, Dupage County, or Kendall County divorce or child custody case, contact family law attorney Michael Navarro at (815) 207-9570 and schedule an initial consultation.

Call to schedule an initial consultation

(815) 207-9570