Illinois Dissolution and Property Division
Going through a dissolution of marriage can be a stressful and emotional process. Even a seemingly amicable separation can soon turn into an intense battle with name-calling, finger-pointing, and fighting over assets, pets, and even children. Most people don't even think about the possibility of dissolution at the time they get married; however, as time goes on, one or both individuals may find they need to separate. An uncontested separation is the simplest way to go through a dissolution, but most dissolutions are not so simple.
Cause for Dissolution
In order to file for a dissolution, one or both parties must be a resident of the state of Illinois. One party must file a Petition for Dissolution of Marriage. The petition does not need to go into detail about why the petitioner is seeking a dissolution. The petition only needs to cite “irreconcilable differences that have caused the irretrievable breakdown of the marriage." A Judgment of Dissolution of Marriage cannot be entered until a party is a resident of Illinois for 90 days.
Before the Court enters a dissolution judgment, the separating parties should decide how they want to handle parenting time, parental responsibilities and property division. If the parties can reach an agreeable plan, the Court will likely approve the parties' preferences as long as they are deemed fair; however, if the parties cannot agree on all the terms, the Court will make the decisions on those issues upon which the parties do not agree.
In the ideal situation, the separating parties will be able to agree on how to divide property after the marriage is dissolved. This is the preferred method of property division because the individuals will be able to decide what property goes to which individual and which assets can be divided. The alternative is to have the Court decide. If the parties cannot agree on property distribution, the property will be divided according to a dissolution judgment by the Court.
After-marriage property is generally classified as marital property or separate property. Marital property includes all property, including debts and obligations, acquired by either spouse or by the couple together, after marriage. Some exceptions include property which was given to one spouse alone, such as gifts or family inheritance. Property acquired by a spouse before marriage can be treated as separate property, owned by one spouse alone.
Illinois is known as an “equitable distribution” state when it comes to property division after a dissolution. A judge will distribute the property and assets based on what the judge considers to be fair; however, what the judge considers fair may not seem fair to either or both of the separating individuals. If you are having trouble negotiating a property distribution and do not want to leave it up to the judge, consider talking to an Illinois family law attorney. Your lawyer can help you come to an agreement without leaving it up to the judge.
When contemplating a dissolution, the parties may focus on major assets. However, once the individuals start going through a list of "who gets what," the picture can become much more complicated. Property division may include decision-making for distribution of the parties':
- Primary Residence;
- Vacation Homes;
- Children's' Property;
- Business Assets;
- Bank Accounts;
- Stock Options;
- Pension Benefits;
- Retirement Assets;
- Life Insurance;
- Debts; and/or
- Taxes; and other forms of property.
Generally, separate property remains the property of the individual spouse after dissolution as long as the original owning spouse did not make a gift of some or all of the property to the other spouse during the marriage, and marital property is divided equitably. The judge will look at a number of factors in determining how the assets are divided between the spouses, including each party's contribution to the acquisition of the property and contributions of a spouse to the family unit. The judge does not take marital misconduct into account when dividing marital property.
Parental Responsibility and Parenting Time After Dissolution
The most complex issues in a dissolution often involve questions of how to divide time and responsibilities for the parties' children. The ideal situation has both parents coming to a mutually agreeable decision on parental responsibilities and parenting time for the children. This allows parents to be flexible in how to raise and care for their children. If the parents cannot agree on a parenting plan, the judge may make a determination on the issues of parental responsibilities, parenting time and child support.
When discussing parenting duties after a dissolution, it is important for the spouses to consider issues of child support and the division of parental responsibilities and parenting time. If you and your spouse are having a hard time coming up with an agreeable parenting plan, consider talking to an Illinois family law attorney. Your lawyer can help you agree on a plan without having to leave it to the courts.
If the parents cannot come to an agreement on raising their children, the Court may enter a judgment it determines to be in the best interest of the children. Factors for the Court's decision include the wishes of the child, the wishes of the parents, the parents' living and employment situations, the child's school and social network, and the mental and physical well-being of the parents and children.
The Court takes a number of factors into account when determining child support; however, child support is generally determined based on the supporting parent's net income and the number of children involved. For one child, child support is calculated at 20 percent of the supporting parent's net income. For two children the percentage increases to 28% and for three children the percentage increases to 32%. This method of determining child support is scheduled to change on July 1, 2017, when a new child support law becomes effective. If you have any questions about paying or receiving child support, and what your rights and obligations are regarding your children, talk to an experienced Illinois family law attorney.
Illinois Family Law Attorneys
If you are going through a dissolution or considering property division after separation, an attorney can help you through the process, avoid conflict, and resolve your disputes. Our attorneys are here to help you through the difficult dissolution and separation process. We will advise you of all your options, including property division, division of parental responsibilities, and parenting time. At Benassi & Benassi we are committed to getting the best for our clients and their families.