Divorce, legally referred to as Dissolution of Marriage, can be obtained in Illinois by proving specific grounds.
Grounds for a divorce include irreconcilable differences, mental cruelty, physical cruelty, adultery, habitual drunkenness for the span of two years, gross and confirmed habits of excessive use of addictive drugs for two years, conviction of a felony, willful desertion for one year, natural impotence, transmission of a sexually transmitted disease, and an attempt on the life of the other by poison or other means showing malice.
To establish the grounds of Irreconcilable Differences, the following requirements must be met:
- You and your spouse have been living separate and apart for a period of 2 years.
- Living separate and apart does not necessarily mean living in separate residences. Parties may still be residing at the same home but are not living as husband and wife.
- 2 year requirement may be waived: you and your spouse can agree to divorce after only 6 months of separation.
- Irreconcilable differences have caused an irretrievable breakdown of the marriage.
- All attempts to fix the marriage failed and all future attempts to reconcile would be impracticable and not in the best interests of the family.
Illinois is “No-Fault” State:
- This means that the grounds for the divorce have no bearing on how the Court may eventually divide property.
Division of Property
During divorce and cases of annulment of marriage, property deemed to be marital property is subject to division. Courts will divide the marital property and debts based on what the Courts deem fair. Fair does not always mean equal.
The general presumption is that Marital Property is all property and debt that the couple acquires during the marriage. There are some exceptions, such as property gifts for one spouse, inheritances and exchange of non-marital property for new property.
“Property” means more than just tangible things like a house or a bank account. Retirement accounts and pensions can be classified as marital property; same goes for a party’s interest in a personal injury lawsuit or a workers’ compensation claim.
Many factors contribute to the Court’s decision. One factor not to be considered is marital misconduct (i.e. adultery).
Call Michalski & Gubernat, P.C., experienced family law attorneys to discuss the valuation and division of your marital estate.
A parent who has sole custody of the children may make major decisions affecting them. Major decisions include those concerning medical treatment, religion and education. The minor decisions, also referred to as day-to-day decisions, are made by the parent who is in possession of their children at the time such a decision must be made.
Joint custody relates to the major decision making with regard to the minor children; both parents make decisions regarding health, education and religion. Also, this may apply to decisions concerning extra-curricular activities. It does not have to do with where the children will physically live or when they will see each parent. This theory is premised on parents being able to set aside personal conflicts, and agreeing to major decisions.
Where it appears that joint custody may not work, then one of the parents will be awarded sole custody.
The custodial parent (sometimes named physical custody) is the one with whom the kid(s) reside. The non-custodial parent is generally entitled to visitation rights/parenting time.
New “income shares” model of child support has been adopted in Illinois for the calculation of child support. These changes are effective as of July 1, 2017 and take into account the net incomes of both parents as well as the amount of parenting time that the parents spend with the minor child or children. Generally, if the parent obligated to pay child support (obligor) has less than 146 overnights per year, child support is calculated using the following method:
– gross income of each parent is converted into net income using a chart promulgated by the Illinois Department of Healthcare and Family Services or, in some cases, a special, individualized formula can be utaliyed to determine obligor’s net income;
– the net incomes of both parents are combined and a different chart is used to determine the total cost to support the child or children;
– finally, the total cost of support of the child or children is shared by the parties in proportion to their net incomes.
The new way the child support is calculated may result in the obligor having to pay more or less child support than under the “old law.”
As a general rule, child support is modifiable. However, one cannot invoke the change in the law as the sole reason for child support modification and, instead, a substantial change of circumstances has to be shown and proven in Court. Also, if modification if ordered by Court, it is retroactive, but only to the time of filing of the Motion to Modify Child Support. That is why it is so important to file the Motion to Modify Child Support as soon as the substantial change in circumstances occurs.
Please contact Michalski & Gubernat, P.C. if you have any questions regarding child support.
Maintenance, formerly known as alimony, is money paid by one spouse to the other. In divorce, legal separation and declaration of invalidity of marriage cases, the court may award maintenance to one of the spouses.
There are several types of maintenance:
- Permanent Maintenance;
- If the Court orders this type of maintenance, then one spouse must make payments to the other for the rest of the payee’s life.
- Rehabilitative Maintenance;
- In this scenario, the Court orders that the payee must make efforts to rehabilitate themselves so that they become financially independent.Maintenance is paid until this independence.
- Reviewable Maintenance;
- This type of maintenance is awarded for a specific period of time. After passage the set time period, the issue is reevaluated by the Court and the maintenance may be terminated.
Except in rare cases, Maintenance must terminate if:
- Your ex-spouse re-marries;
- Ex-spouse’s cohabitation with another person on a resident, continuing conjugal basis;
- Death of your ex-spouse;
The process of determining what type of maintenance and whether the court will award maintenance is complex. A Court will look at numerous fact-sensitive factors to determine if one spouse should receive maintenance from the other. Such factors include: income of the parties; needs of each party; present and future earning capacity of each spouse; duration of the marriage; standard of living established during the marriage; fairness.
Contact Michalski & Gubernat, P.C., to see if you are entitled to maintenance from your spouse or if you are defending yourself from having to pay maintenance.
Call Michalski & Gubernat, P.C., experienced family law attorneys.
Normally, the non-custodial parent is granted a visitation (parenting time). If the spouses cannot agree on a visitation schedule, the Court will set a visitation schedule for them. Such a visitation schedule includes holiday schedules, special occasions and extended periods throughout the calendar year such as summers and spring vacations.
Visitation is cannot be made contingent on child-support. This means that one parent cannot withhold visitation from the other just because the other is not making child-support payments. The opposite side of that rule is that one parent must pay child-support even if the other is withholding visitation with parties’ kid(s).
We believe that each parent’s rights should be established and placed into a Court Order which can then be enforced by a Judge.
We make sure that our clients have the ability to spend as much time as possible with their kids. Call Michalski &apm; Gubernat, P.C., experienced family law attorneys.
Orders of Protection
An Order of Protection is a court order that is signed by a judge. Orders of Protection may be available to people who are being abused by a dating partner, spouse, or family member. An Order of Protection is a tool that may help you to increase your safety.
If you are a victim of domestic violence, or have been accused of domestic violence, contact Michalski & Gubernat, P.C. to understand your rights and the law.
Pre-Nuptial (Premarital) Agreements
Premarital agreements—sometimes called prenuptial agreements (“prenups”) or antenuptial agreements—are written contracts between two people what are about to be married.
The Prenuptial agreement typically lists all of the property that each per owns, the debts that each party incurred before the marriage, and states what each party’s rights will be in the event of divorce or death. Such agreements can also define each party’s rights to receive spousal support from the other.
A full financial disclosure on the part of both prospective spouses is necessary while each spouse should be represented by his or her own lawyer.
The absence of either of these may jeopardize the legality of any agreement. We help our clients through negotiating and drafting of an effective prenuptial agreement.
Call Michalski & Gubernat, P.C., experienced family law attorneys.