Category Archives: Property
Out With the Old & In With the New: Big Changes to the Illinois Marriage & Dissolution of Marriage Act
On January 1, 2016, many changes took effect with regard to the Illinois Marriage and Dissolution of Marriage Act (“IMDMA” or “Act”). The revised statute looks very different from the law Illinois family law attorneys and their clients have come to know. Detailed below are some noteworthy areas where the law concerning divorce, parenting, and property division has changed.
Changes to Grounds for Divorce:
The revised IMDMA has eliminated all fault-based grounds for divorce. Since 1977, Illinois has had both “no-fault” and “fault-based” grounds for divorce. Now, couples in Illinois are left with a single ground for divorce, “irreconcilable differences”. Additionally, the revised statute eliminates the two (2) year separation period previously required to dissolve a marriage. The aforementioned provision was replaced with a six (6) month separation period which provides, “If the parties live separate and apart for a continuous period of not less than 6 months immediately preceding the entry of the judgment dissolving the marriage, there is an irrebuttable presumption that the requirement of irreconcilable differences has been met.” 750 ILCS 5/401(a-5). Thus, an individual seeking a divorce in Illinois now only needs to assert that irreconcilable differences have led to an irretrievable breakdown of the marriage and the parties have lived separate and apart for six (6) consecutive months by the time a judgment of divorce is entered. Litigants should be aware that living separate and apart does not mean an actual physical separation of the divorcing spouses. The parties merely must cease living together as a husband and wife would for at least six (6) months; however, effectuating this requirement can take place while living under the same roof.
Types of Post-Decree Litigation
Think you’re done with your ex once your divorce is finalized?
While that is surely the goal, not everyone is so lucky. Many former spouses find themselves back in court years after the entry of their divorce judgments seeking to either a modify or enforce their divorce decrees.
Post-decree includes all litigation that occurs after a decree of divorce, dissolution of marriage, legal separation, or judgment of paternity is entered. Post-decree lawyers will often receive inquiries from former or new clients requesting one or more of the following:
Dissipation in Illinois.
Dissipation in a legal context refers to one spouse’s use of marital funds for their sole purpose or gain and not to the benefit of the marriage. Dissipation is limited to the timeframe in which the marriage began to experience irretrievable breakdown resulting inevitably in divorce. Dissipation is commonly linked to extramarital affairs but is not inextricably associated with it. Any type of money transfer, purchase or spending spree that devalues the marital property can be constituted as dissipation if found to be done without consent or deliberately hidden from one’s spouse.
One of the major issues often arising during divorce is determining what to do with the marital home. In many cases, parties to a divorce are faced with the dilemma of deciding how to address the home where they resided during the marriage. In most cases, there are two options:
1. Sell the house – In many instances, the parties want a fresh start upon their divorce and will simply decide to sell the marital home and divide the sale proceeds as they agree or as the court decides. This solution is typically the simplest way to address the martial home as the parties will not be required to value or appraise the property (for purposes of the divorce), as the value (and proceeds resulting therefrom) will be determined by the sale price. The decision to sell the marital home can become complicated if the house is “under water” (i.e. the debt or mortgage on the property exceeds the value of the property). In situations such as this, the parties may want to consider a short sale of the property to free them from the debt associated with the property, but a short sale can become a complicated and long process.
While every divorce is different based on the parties, in general divorce law can be boiled down to 5 main areas:
Visitation or Parenting Time
Maintenance or Alimony
What many people tend to misunderstanding about child custody is that it actually is NOT the time spent with your children. Rather custody involves having the decision making authority to be able to decide the so-called “big decisions” that involve the upbringing of your children. The three decision-making areas that the law focuses on are religion, medical care, and education. Parents must be able to agree on these three areas in order to be eligible for joint custody. Elsewise sole custody is generally sought and a custody battle ensues.
Unlike other states where property between divorcing spouses is divided equally (community property states), Illinois is an “equitable division” state, meaning that property is divided “equitably,” opposed to equally. The disposition of property is governed by Section 503 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Under Illinois law, all property acquired by either spouse during a marriage is presumed to be marital proprty. This is true regardless of whose name the property is titled in or whose money was used to purchase the property. Non-marital property is any property acquired before the marriage or property acquired during the marriage by one spouse by way of gift, legacy, or descent. Under Section 503, the court will consider the following relevant factors when dividing marital property: