Fault and No-Fault Divorce in Illinois

Illinois law requires those seeking a divorce to specify a ground for the divorce. The grounds include fault-based grounds and a “no fault” divorce. The fault based grounds for divorce in Illinois include:

 

Without cause or provocation, the defendant was at the time of the marriage and continues to be naturally impotent;

The defendant had a living spouse at the time of the marriage;

The defendant committed adultery;

The defendant has willfully deserted the spouse for a period of at least one year;

The defendant has been guilty of habitual drunkenness for a period of two years;

The defendant has been guilty of gross and confirmed habits caused by excessive use of addictive drugs for a period of two years;

The defendant has attempted to kill the plaintiff by poison or other means showing malice;

The defendant has been guilty of extreme and repeated physical or mental cruelty;

The defendant has been convicted of a felony or other crime of infamy; or

The defendant has infected the plaintiff with a sexually transmitted disease.

 

Of course, a divorce can also be granted in Illinois on no fault grounds.

Bankruptcy and Divorce: What You Need to Know (Part 1)

Not every divorce involved a bankruptcy, but, unfortunately, it is not that uncommon either. Unfortunately, bankruptcy and divorce in Illinois always go hand in hand. Sometimes financial problems lead to the divorce. Other times, a couple already on the edge financially may incur fees and costs in getting divorced that a bankruptcy becomes an unavoidable reality. In Illinois, divorcing couples recently have had to face their divorce, a tough economy, relatively high unemployment, and lower home prices. In many Illinois divorce cases, this has meant foreclosure and bankruptcy.

First, bankruptcy cases are in federal court. A federal statute sets forth the bankruptcy law. Therefore, as with all other law, federal law preempts state law. That means if there is a conflict between Illinois law and federal bankruptcy law, the bankruptcy law will control. This is important because typically federal courts defer to Illinois law for domestic matters, but not when a bankruptcy is involved.

Next, a bankruptcy stops virtually all other types of legal or collection proceedings. This is referred to as the automatic stay. Whether the bankruptcy is filed jointly by the couple or by either the husband or wife individually, a significant portion of the Illinois divorce case will come to a halt when a bankruptcy case is filed. In Illinois, a divorce involves a division of property and debt, determination of child support and spousal support, and child custody and visitation issues. A bankruptcy estate takes control of the property and the automatic stay prohibits certain actions. The automatic stay is supposed to prevent any third party from attempting to exert any control over the property included in the bankruptcy estate. The exact property in the bankruptcy estate depends on whether the bankruptcy is a Chapter 7 complete liquidation or a Chapter 13 repayment plan.

Bankruptcy and Divorce Illinois

There are exceptions to the automatic stay, though. The family courts in Illinois can still establish paternity, establish or modify child support, maintenance, or alimony, and make determinations regarding child custody and visitation. An automatic stay also shouldn’t prevent an Illinois court from deciding an attempt to collect child support, maintenance or alimony from property not in the bankruptcy estate or withhold income for those same support obligations. However, if there are any doubts, you would be well advised to ask the bankruptcy court to lift the automatic stay and give you permission. The penalties for violating the automatic stay can be harsh.

Divorce and Federal Taxes: Filing Status

Filing StatusGenerally speaking there are four filing statuses available when you file your federal income taxes: Single, Married Filing Jointly, Married Filing Separately, and Head of Household. Normally, it is pretty easy to decide what filing status you should use. When you’re involved in a divorce case or after being divorced the decision regarding federal tax filing status can be more difficult. If you’re getting divorced in Illinois or were recently divorced in Illinois, keep the following rules for federal tax filing status in mind:

Single: In order to use the status of single, you must be unmarried or legally separated on the last day of the tax year. If you are married and in the process of being divorced, you cannot use single as your filing status.

Married Filing Jointly: In order to use this status, you must be married on the last day of the tax year. In addition, both parties must agree to file jointly. (See my article regarding an Illinois court’s authority to order you to file taxes jointly.) If two parties file a joint return, they are jointly and separately liable for the entire tax unless the IRS later approves a request for innocent spouse relief.

Married Filing Separately: If you are married at the end of the year and you do not qualify for head of household status and do not file a joint return with your spouse, you must use the married filing separately filing status. If you file in this way there are several disadvantages. You cannot take the child and dependent care credit. You cannot take the earned income credit. You cannot take the adoption credit. You cannot take any education credits. If you or your spouse itemize deductions, then both must itemize deductions. As a result, using this filing status usually results in a significantly higher total tax bill.

Head of Household: In order to use this status you must be considered unmarried at the end of the year, provide more than half the cost of keeping up a home, and have a qualifying person residing with you. Your child for whom you have custody is usually a qualifying person. There is a special rule that will allow you to use head of household status even if you are married as long as your spouse did not reside with you during the last six months of the year. However, you must also be able to claim a child as an exemption even if you ultimately release the exemption under other special rules.

Bringing it back to the most basic level, absent unusual circumstances, after a divorce the custodial parent would qualify for head of household status regardless of whether they claim the child as a dependent, as long as they could claim the child as a dependent. The non-custodial parent will not qualify for head of household status even if they can claim the child as a dependent under special rules for divorced parents. During a divorce, the same rules would apply as long as the parties did not reside together during the second half of the year.

Don’t Make Tape Recordings In Illinois

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Don’t use this to record your spouse without their knowledge in your divorce. Not only is it illegal, it could hurt your case more than help.

As a divorce lawyer in McHenry County Illinois my client’s often ask me about tape recordings. In a worst-case scenario, a client comes in and tells me they’ve been recording telephone conversations with their husband or wife without the other side’s consent or knowledge.

I cannot put enough emphasis on this: Do Not Do This.

Illinois is a two-party consent state.  Therefore, if you tape record your spouse without his or her knowledge, you are breaking the law.  Yes, you may not be prosecuted, but do you really want to take that chance.  The tape recording probably won’t even help you — it is not admissible as evidence in the court proceeding.

Recordings can be used if they are taken with consent or implied consent.  Answer machine messages and voice messages are instances where the person being recorded is impliedly consenting.  Customer service lines sometimes tell you you are being recorded and you consent by continuing.  Absent these types of circumstances, though, it probably isn’t worth it.

I’ve practiced as a divorce lawyer in McHenry, Crystal Lake, Woodstock and the surrounding McHenry County are for a decade and I have yet to see a surrepetitious recording make a significant difference in favor of the party making the recording.  Usually, such a recording is used as evidence of the recording party’s inability to foster a relationship between the other parent and the child.

Limited-Scope Attorney Services Approved by Illinois Supreme Court

In June, the Illinois Supreme Court made some major changes to three rules.  These changes will allow attorneys at their option and upon agreement with clients to provide “limited-scope” representation.

Attorneys always used to say “in for a penny, in for a pound” meaning that once you hired an attorney, they were responsible for everything.  You were receiving full service or no service.  The new rules provide an alternative.

What does this mean for clients in divorce?  I can’t count the number of times I’ve seen attorneys withdraw from representation for non-payment, client’s walk out of an initial interview concluding they simply cannot afford representation, or person’s of limited means trying to muddle through the court system with no help.  Pro-bono services are only available for the most extreme of cases.

Limited-scope representation means there is now an alternative for those who cannot afford an attorney, but cannot afford not to have an attorney.  Pro-se litigants can get help with the technical aspects of their case without having to pay an attorney for every little task.

As for me, I’m excited about this change and hope to be on the forefront of developing a do it yourself divorce with attorney assistance program.  Check out my Woodstock Illinois divorce lawyer website for more information on do it yourself divorces and limited scope representations.

For more information, see this article by the Illinois State Bar Association.  http://iln.isba.org/blog/2013/06/14/illinois-supreme-court-amends-rules-allowing-limited-scope-representation

Maintenance and Spousal Support Guidelines

Illinois has officially passed guidelines for maintenance and spousal support in Illinois.  Until the guidelines were passed, judges had a considerable amount of discretion in determining whether to award maintenance and, if so, for how long.  The guidelines now create defaults for the judges to follow under specific circumstances.

First, before the court awards maintenance or alimony at all, the court will consider all the factors it previously would have considered.  These factors are set out in the statute and include things like the length of the marriage, the ages of the husband and wife, and the income of each party.  Once the court makes the determination that maintenance is appropriate, however, then the guidelines kick in.

The guidelines apply in cases where the total income of both parties is less than $250,000.  If this standard is met, then maintenance or spousal support “shall” be set at 30% of the obligor’s income less 20% of the obligee’s income (I assume the obligor will be the spouse with higher gross income).

The duration of the maintenance or alimony in Illinois award will depend on the length of the marriage.  In marriages of 0-5 years, the payments will last for 20% of the length of the marriage.  In marriages of 5-10 years, the payments will last for 40% of the length of the marriage.  In marriages of 10-15 years, the payments will last for 60% of the length of the marriage.  In marriages of 15-20 years, the payments will last for 80% of the length of the marriage.  In marriages of 20 or more years, the maintenance or alimony can either be permanent for one year per year of marriage.

In marriages of less than 10 years, the statute allows the Illinois court to make the award permanently terminate upon the completion of the initial payments.  That means the award cannot be extended.  This implies that in all other cases, the award is subject to extension at the discretion of the court at the end of the initial period.

The statute, however, does allow the court to decide not to use guideline support.  If the court chooses not to use guideline maintenance or spousal support, the court needs to make specific findings and state specifically why guideline alimony is not appropriate.  If the court’s apply maintenance guidelines in the same way as child support guidelines, then it is likely going to be fairly difficult to convince judges to deviate from guideline support.

The law also clarifies how to calculate gross income for spousal support purposes.  Under the old law, there was a specific formula for calculating income for child support, but no provision defining income for maintenance.  The new law explicitly states that income for maintenance purposes will be the same as income for child support purposes.

A change was also made in how to calculate net income for child support purposes.  Now, the maintenance or alimony paid is deducted from the obligor’s net income for child support purposes.  This means that there will be a small offset for the obligor versus the child support that would have been paid under the old statute.

Overall, this is a fairly generous maintenance statute when many other states are moving towards more restrictive maintenance provisions.  In McHenry County, Illinois, this statute will likely have the effect of increasing maintenance awards in general.

Illinois Supreme Court Holds Parental Notification Law Not Unconstitutional

Illinois has long had a statutory requirement for notification to parents of minors seeking an abortion.  While the statute was passed in 1995, it has not been enforced.  Until 2006, necessary court rules for a bypass procedure (to allow a minor to obtain an abortion without parental notification in certain cases) were not in place.  Once rules were passed, the law has been held up by court challenges.

Earlier this month the Illinois Supreme Court held the act was narrowly tailored to promote the best interests of minor children.  The Act did not violate the Illinois State Constitution’s right to privacy or due process clauses.  While the holding was similar to a holding from the Federal Appellate Court for the Seventh Circuit (which includes Illinois), the Court stated in its ruling that the precedent from the Seventh Circuit was persuasive, but not binding and therefore the Court could reach and consider the merits of the case.

Absent additional legal or legislative action, the Parental Notice of Abortion Act of 1995 will likely go into effect in approximately a month.

 

Handling Grief During A Divorce

Divorce is bound to produce many emotions for all parties involved. This is true even for the person filing the action. Often a Woodstock family lawyer will encounter a client who is still handling the grieving process of their divorce. It is not uncommon, and there are methods to getting through it.

Stages of Grief a Woodstock Family Lawyer Will Often See

Woodstock Family LawyerThere are numerous stages of grief that a Woodstock family attorney will see clients go through. They include:

1) Shock from the initial realization that a divorce is happening.

2) Denial that it is really something that the spouse wants.

3) Anger at the rejection and possibly threats of repercussions for the decision to divorce.

4) Bargaining for a possible reconciliation with promises to fix whatever it was that led to the divorce decision.

5) Acceptance that the marriage is ending and it’s time to move on.

A Woodstock Family Attorney Can Help a Client to Understand Grief

It is part of being human to experience grief. While a Woodstock family lawyer can explain the process and provide coping skills based on experience, it’s something a person will generally have to deal with in their own time. If a person who is divorcing chooses to make the process as difficult as possible, it is going to do little more than slow the resolution of the divorce.

Getting over the Grief from a Divorce with Help from a Woodstock Family Attorney

Even if a Woodstock family lawyer sees signs of the client getting over the grief from a divorce, there can be a return to the negative emotions after they seem to have passed. It can only take a small occurrence such as a special occasion that was once shared as a family to send the person back into a feeling of denial or any of the other stages of grief.

Contact an Experienced Woodstock Family Lawyer

If you are divorcing and are having trouble understanding or getting beyond the grieving process that accompanies this life-changing decision, a Woodstock family lawyer can help. Call the Stetler Law Group at (815) 529- 4554 today to discuss your case.

Bankruptcy After Divorce — You May Not Get What You Bargained For

Be careful in your divorce to pay attention to the possible effects of a bankruptcy.  Most of the time bankruptcy does not have a significant impact on the other spouse.  However, if there was a delay in the allocation of property, the non-bankrupt spouse could lose most of what they bargained for in the divorce.

The Court of Appeals for the Seventh Circuit (this includes Illinois) just considered a bankruptcy case where the former wife was a claimant.  The divorce court awarded the husband an annuity for $200 per month.  The court also ordered the husband to pay the wife $200 per month as part of the property division.   The effect was to award the annuity to the wife, but keep the property in the husband’s name.

The divorce was in Illinois and the bankruptcy was in Illinois.  The bankruptcy trustee agreed with the ex-wife that her claim against the bankruptcy estate was worth $158,000.  This included $12,000 the bankruptcy trustee received from the annuity while the bankruptcy was pending.  The court held the wife’s claim could not include these funds as they were part of the bankruptcy estate and she was an unsecured creditor.

Luckily for the ex-wife in the case, the bankruptcy estate contained enough assets to pay the only to creditors — her and the IRS.  As a result after the bankruptcy estate paid to her what she was owed, her claim for any payment thereafter remained in effect under the ruling by the Seventh Circuit.

This is not always the case.  If a part of a claim is considered a property distribution instead of a support obligation, it can be discharged in bankruptcy.  If it is discharged, then it is not enforceable by other means, including through the divorce court.

Illinois Law on Child Custody and Visitation May Change

Earlier this year, a package of modifications to Illinois divorce, child custody and visitation laws was proposed.  This bill was called a complete re-write of Illinois laws on divorce, child support, child custody and visitation.  While the bill is less than its initial ambitions, it does make some major changes to child custody and visitation law in Illinois.  I would say not all of the changes are positive.

The new bill creates a presumption that every parent should have at least 35% of the total parenting time.  The modifications would stop using the terms custody and visitation and instead allocate “parenting time.”  The problem with this is that it does not seem to go far enough in defining time.  What is parenting time and what constitutes 35%.  Are we talking about the hours a parent has custody?  What if the children are sleeping?  Do nights count?  Are we talking about 35% of overnights?

There are too many questions and not enough answers as a result of the proposed legislation.  Issues of child custody and visitation in Illinois will become more difficult to resolve instead of less so (the goal of the legislation).  People will argue about what does and does not count as parenting time.  If the 35% means overnights, then children will necessarily end up spending school nights with the typically non-custodial parent, which could cause considerable stress on the children and parents alike unless everybody lives very close by.

As I’ve stated regarding other aspects of this proposed bill, it seems poorly thought out and significantly less specific than it needs to be.  They need to go back to the drawing board to flesh out their ides.  House Bill 1452 simply isn’t ready.

If your involved in a divorce or have disputes about child custody or visitation in Illinois, please visit my website and contact me for a consultation.

 

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