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What Steps Should I Take Before Getting a Divorce in Illinois?

More people in Illinois are asking about what they should do before getting a divorce today than at any other time in history. Divorce’s moral acceptability rate recently hit an all-time high of 73%. That’s a high figure. But, it’s nowhere near a consensus. So, there is still a lot of moral ambiguity in this area. People simply don’t know what to expect when they get divorced. Going through some pre-divorce steps helps people know if marriage dissolution is the right move. This process also helps them readjust to single life. And make no mistake about it, there is some adjustment involved. Not all of it is good.

A partnership with a good Naperville divorce attorney also helps significantly. The marriage dissolution process is more streamlined today than it was before 2016 when the law changed. But, the process is still quite complex. An attorney gives you solid legal advice throughout this process, so you can make the best possible decisions in matters relating to your emotional and financial future.

Obtain a Premarital Agreement

Generally, when people buy houses, they also buy fire insurance. That way, they are prepared for the unwanted and unexpected. In much the same way, when people get married, they should at least consider a premarital agreement. That way, they are prepared for the unwanted and unexpected. A wise teacher once said that a sensible person anticipates trouble and avoids it, but a fool ignores the danger and suffers the consequences later.

Prenups resolve certain financial and emotional issues in advance. As outlined below, these same issues are usually the most expensive and time-consuming matters in an Illinois divorce. Another wise teacher once said that a stitch in time saves nine.

Statistically, many people are waiting longer to marry than they waited a few years ago. Moreover, since the divorce rate is still quite high, many people have been married before. Therefore, they usually bring some assets and some liabilities into a marriage. Prenuptial agreements clearly draw the line between marital and nonmarital property.

People also have philosophical differences in this area. Some people are spenders and some people are savers. That’s just the way we are wired. Prenuptial agreements don’t resolve these differences. But these pacts do make spouses more aware of their differences in this area.

The same statistical facts that create financial issues also create emotional issues. If a person has been divorced previously, the children of that marriage usually have no inheritance or succession rights. In many cases, that’s not the intended result, especially if the person has a family business s/he wants to pass down.

Prenups resolve these matters in advance as well. That way, when a person dies, there are fewer questions, and fewer hard feelings, in these areas.

No written contract is completely ironclad. Spouses may later invalidate one-sided premarital agreements if they were involuntary or unconscionable. If each spouse had an independent Naperville divorce attorney throughout the entire process, these arguments are difficult to win.

Know the Issues in a Divorce

As mentioned, prenups help responsible spouses anticipate trouble and avoid it. This next step also involves some future anticipation. If people are aware of the issues in a divorce, they are better able to count the cost of divorce, which is the next step in the process.

Financial Issues

We mentioned the property division above. Illinois is an equitable distribution state. Generally, “equitable” and “equal” are synonymous in this context. But that’s not always true. A judge could order a disproportionate division if any of the listed factors are clearly one-sided. Some of these factors include:

  • Relative Earning Capacity: Generally, birds of a feather flock together. So, most spouses are at about the same station in life, in terms of things like age and education. If one spouse is significantly older and/or less educated than the other one, that spouse has a lower future earning capacity and therefore may be entitled to a larger marital property share.
  • Nonmarital Property Division: The marital property division doesn’t happen in a vacuum. Many spouses bring significant assets, or significant debts, into a marriage. If that’s the case, the marital property division should probably address this imbalance. Under Illinois law, a divorce cannot be an unfair financial burden on either spouse.
  • Standard of Living During the Marriage: Generally, divorce lowers the standard of living for both spouses. Once again generally, this reduction is more pronounced for women. Since a divorce cannot be an unfair financial burden, some adjustments might be appropriate in this area. The length of the marriage, as well as contributions made to the marriage, both economic and noneconomic, also come into play in this area.

Agreements between the spouses, including the aforementioned premarital agreement, are perhaps even more important than the other listed factors. Typically, DuPage County judges approve almost all out-of-court settlement agreements, unless they are blatantly one-sided or do not adhere to the legal factors.

Property division is usually a one-time affair. Other financial issues, such as child and spousal support, could be readdressed later. Typically, statutory formulas determine the amount and duration of payments in these cases. A Naperville divorce lawyer can fill you in on the details and probably also predict your rights and obligations in these areas.

Emotional Issues

Most divorces involve minor children. That means the divorce decree must include custody and visitation provisions.

“Custody” usually refers to legal custody. That’s the right to make important decisions for the children, such as where they will live, where they go to school, what doctor they see, and so on. Technically, both parents have input in these areas. But in the event of a 1-1 tie, the residential parent (the modern term for the custodial parent) usually has the final say.

Visitation, or timesharing, often follows every other weekend and every other holiday pattern. But this model, which first came into use in the 1970s, isn’t always consistent with the needs of a modern family, especially since Illinois has a co-parenting law.

Some alternatives are available. For example, many visitation plans can have weekends start on Thursdays and end on Mondays. That simple change brings the parenting time balance much closer to 50-50.

Count the Cost

This step doesn’t just involve the financial cost of divorce. The average marriage that ends in divorce lasts a little over seven years. If your marriage lasted about that long, or longer, there will most definitely be some emotional costs as well.

In all but the most basic divorces, the financial cost is almost impossible to calculate. Any lawyer who gives you a cost estimate is either inexperienced or telling you what s/he thinks you want to hear. Either way, that’s not the kind of Naperville divorce attorney you want in your corner. The best answer to “how much will my divorce cost” is usually “more money than you think it will cost.” Admittedly, that’s an evasive answer. But it’s also an honest answer.

Emotionally, divorce involves loss. Mourning is common and necessary as well. Even if the marriage had serious problems and a spouse is glad to be out of it, that spouse usually mourns the loss of what might have been.

There is a lot of misinformation about the emotional cost of divorce. Some sources imply that divorce is tantamount to a declaration of independence, and the post-divorce life is akin to the “swinging single” life that preceded marriage. Other sources imply that divorce ruins life forever. Neither extreme is true, at least in most cases.

Declare Bankruptcy?

We spent a lot of time discussing property division in a divorce. That’s because this portion of a divorce is usually the most complex part of the case. Declaring bankruptcy before a divorce could make property division a lot simpler, and therefore a lot less expensive.

Simply stated, bankruptcy eliminates debts. Most pre-divorce bankruptcies are Chapter 7 bankruptcies. These cases could be over in as little as six or nine months. When the judge closes the case, the judge discharges most unsecured debts, such as medical bills and credit card bills. If the debt no longer legally exists, it doesn’t have to be divided into a divorce decree.

Obviously, this pre-divorce step is not for everyone. As a rule of thumb, if your unsecured debts exceed 10% of your income, there is no realistic way to easily pay off this debt. These couples should at least consider filing bankruptcy. Credit card interest rates average more than 18%. So, if you have debt problems, they usually get worse.

If you declare bankruptcy, you must file before you file for divorce. Bankruptcy’s Automatic Stay prohibits any finance-related lawsuits, including divorce, from going forward.

Set Goals

Finally, before you start any journey, it’s important to know your destination. No Naperville divorce lawyer can obtain everything on a divorcing spouse’s wish list. But an attorney should focus on the goals that mean most to you. The goals often match the issues.

Some people have financial goals. These objectives usually involve divorcing with as many assets or as little debt as possible. The property division factors are rather subjective. So, the division often depends on an attorney’s skills. These skills should include negotiation skills. For example, Sam might be willing to give up some of his retirement accounts if Sally accepts less alimony.

Other people have emotional goals. For example, some spouses are bound and determined to be full-time parents. The residential and non-residential parent designation process is much like the property division process. Advocacy and negotiation skills are key.

Rely on an Experienced DuPage County Divorce Lawyer

Dances are a lot easier if you know the right steps. For a free consultation with an experienced Naperville divorce lawyer, contact Keller Legal Services by calling 630-505-1515. We routinely handle matters throughout Chicagoland.