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How Do You Know It’s Time for a Divorce?

All relationships, whether they are between spouses, family members, friends, or acquaintances, have costs. At some point, the cost of maintaining that relationship exceeds the cost of ending it. Only you can decide when the cost of remaining in a relationship exceeds the cost of divorce. At that point, it’s usually time to at least seriously consider marriage dissolution.

Bear in mind that the cost of getting a divorce, like the cost of getting married, is more than dollars and cents. There is a wide range of emotional costs to consider as well, especially if you have children. Stress is another possible factor. Divorce is stressful, but in many cases, marriage is even more stressful.

Much of this stress involves the areas listed below. Divorce is unlike other civil cases in that, especially if there are children involved, these cases do not “end” until the youngest child turns 18. A divorce lawyer in Naperville can help you through all of these areas and minimize financial and emotional costs along the way.

Marriage Dissolution

Absentee spouse divorces are usually the least costly marriage dissolutions, in terms of both the financial and emotional price. However, these matters only account for a handful of the divorces we handle.

These divorces are especially common if the marriage was brief and no children were involved. Frequently in these situations, by the time one spouse files legal paperwork, the other spouse has moved on both emotionally and physically. So, the merits of the divorce are often uncontested. As a result, the costs are minimal, as outlined below.

First, we should talk about some issues in an absentee spouse divorce. These issues normally involve giving official notice of the proceedings to the non-filing spouse. The rules in this area are quite strict. The notice must contain certain words and be published in a certain way. A failure in either area or regarding any other procedural element could allow the non-filing spouse to overturn the divorce later.

As for the financial cost, an absentee spouse’s divorce often involves little more than filing paperwork. The emotional costs are low as well, given the situation.

The average marriage which ends in divorce lasts a little more than seven years. As a result, most divorcing spouses have invested significantly, both financially and emotionally, into the marriage. So, the costs of divorce are high as well.

No-fault Divorce

Since Illinois is now a pure no-fault state, these marriage dissolution costs are not as high as they were before. In the past, spouses could obtain divorces based on adultery, abandonment, cruelty, and other marital misconduct matters. These proceedings, while necessary in some cases, were usually acrimonious, to say the least. Today, however, irreconcilable differences are basically the only possible ground for divorce in Illinois. If one spouse testifies that the marriage has broken down, the judge will grant a divorce.

The pure no-fault law also streamlined divorce procedure, at least to an extent. The two-year waiting period is now a maximum of six months, at least in most cases. Since marriage dissolution involves so many issues, most cases require more than six months to resolve. So, the waiting period normally is not an issue.

Parenting Time Division

In addition to a pure no-fault law, Illinois also now has a co-parenting law. This law presumes that children benefit from frequent and consistent contact with both parents. This presumption does not apply in all cases, as outlined below.

It is hard to be an effective co-parent if you only see your children on weekends. Therefore, although it’s still viable in many cases, the traditional every other weekend and every other holiday arrangement might not be appropriate in all cases. Some recognized alternatives include:

  • Extended Weekend: Frequently, the cumulative effects of small changes result in a big change. Save 1% of each paycheck and see what happens at the end of the year. Similarly, starting weekend visits on Thursday and ending them on Sunday results in a much more even parenting time split.
  • Block Scheduling: In this arrangement, the “residential parent” designation, which has replaced the “custodial parent” designation in Illinois, is basically just a name. The children spend a block of time, usually two weeks, with Parent A. Then, they spend the same amount of time with Parent B. Except for some deviations around major holidays, this pattern remains in place all year long, regardless of the school schedule.
  • Empty Nest: This model began in California and is increasingly popular nationwide. Normally, the children shuttle between the parents’ residences. In an empty nest model, the children stay in the same place, which is usually the family home, and the parents shuttle between residences. Many parents combine the empty nest with an extended weekend.

Technically, the judge may approve any timeshare division which is in the best interests of the child, so the sky’s the limit. However, a judge is much more likely to approve one of these four arrangements, as they are widely accepted and there is considerable evidence in their favor.

In many cases, the parenting time allotment is the only real child custody issue. However, the best interests factors sometimes come into play as well. Since the co-parenting presumption is so strong, judges usually allow a roughly equal timeshare division, along with generous or unlimited electronic contact, unless the factors clearly indicate that such an arrangement is not in the children’s best interests. Some of these factors include:

  • Status Quo: Whether they admit it or not, all children need predictability in their lives. So, if the parents have been separated for more than a few months, and the current informal division is at least serviceable, many judges are prone to leave it in place.
  • Parental Fitness: Mostly due to a physical or other disability, some parents do not have the tools required to be full-time caregivers. In fact, if the disability is severe enough, a judge might limit that party’s parenting time.
  • Domestic Abuse: If there are verified physical abuse allegations against a child, many judges prohibit parent-child contact, at least until the parent jumps through some legal hoops. Lesser sanctions and restrictions are available in other cases.

Other factors include the child’s preference and the parent’s preference. The party seeking to restrict contact usually has the burden of proof in these situations. This parent must prove that the co-parenting presumption is inapplicable.

Evidence on this point often includes a social services investigation. Judges usually order these things in contested cases. The social worker’s recommendation, though not binding, carries great weight with most judges.

Financial Support

Usually, there’s not much discussion in this area. Generally, mathematical formulas determine both the amount of child support and the amount and duration of alimony payments.

Child support is automatic in most cases. The formula accounts for the number of children, the proportional parental income, and the parenting time division. Child support is designed to give children the same standard of living they would have had if their parents were married.

Spousal support is available if the obligee, the person receiving support, has a demonstrated economic need. The formula usually accounts for the length of the marriage and the relative income of each party.

Judges may deviate from the guideline amounts in some situations. Furthermore, the guidelines only apply up to a certain joint income level.

Property Division

If circumstances change, financial support and parenting time are subject to future modification. However, whether the case went to trial or settled out of court, a divorce property division is usually set in stone.

If there was an irregularity at trial, to reopen the property division, the requesting party must prove that a serious error affected the trial’s outcome. To reopen a property settlement, the challenging party must usually establish that the other party withheld vital information, and that action affected the outcome. Both these grounds are very difficult to prove in court.

So, it’s very important to get things right the first time in this area. That goes for property classification as well as property division.

In Illinois, property acquired before the marriage or by gift is non-marital property. Everything else is marital property which is subject to an equitable division. That rule sounds simple, doesn’t it?

But not so fast. Over time, the property becomes commingled. For example, the wife might use funds from her paycheck, marital property, to make student loan payments. This is considered non-marital debt. If something like that happens, the marital estate might be entitled to financial reimbursement.

“Equitable” and “equal” normally mean the same thing in this context. But that’s not always true. A disproportionate division might be appropriate, depending on the applicability of certain factors, such as:

  • Award of nonmarital property.
  • Length of the marriage.
  • Relative earning capacity of the spouses.
  • Non-economic contributions to the marriage.
  • Custody of a disabled child.

There are often practical issues as well. A house is a good example. Largely depending on market conditions, a sell-the-house-and-divide-the-proceeds approach isn’t always best. Furthermore, it’s usually in the children’s best interest for them to keep living in the family home.

An owelty partition lien might be an option in these cases. For example, the wife could stay in the house with the children and the husband could get a lien for his share of the equity. Later, when the wife sells the house, the lien must be paid.

Apropos of nothing, divorce orders usually affect the deed, but not the note. The wife legally owns the home in this example, but to remove the husband’s name from the note, she must normally refinance the house.

Contact a Hard-Working DuPage County Divorce Attorney

The same custody rules apply to married and unmarried parents. For a free consultation with an experienced divorce lawyer in Naperville, contact Keller Legal Services at 630-505-1515. Home, virtual, and after-hours visits are available.