Category Archives: Spousal Support
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:
New spousal support guidelines are coming to Illinois January 1, 2015. This blog post overviews the potential pros and cons of this new legislation.
To see how the new spousal support formula will work: Click here
The current law essentially awards spousal support, or maintenance as its also referred to, at the judge’s discretion after consideration of numerous factors. This has led maintenance awards to vary widely from case to case and the inconsistency made it difficult for family law attorneys to give clients a concrete answer to the question: “how much spousal support will I pay or receive and for how long?” Therefore, rather than settling their cases, many parties instead would choose to “gamble” and go to trial hoping to receive a better maintenance determination from the judge than they could negotiate out of court.
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.
A prenuptial agreement is designed to safeguard spouses (or oftentimes one spouse) in the unexpected event of a divorce. Preunps are primarily implemented to protect business interests, financial assets, and often to establish the terms and conditions for spousal support in the event of a divorce. A key element in creating a valid and legally-binding prenuptial agreement is to ensure that the agreement was reached with full disclosure of the respective financial circumstances of the parties involved. Courts will often nullify a prenuptial agreement that was reached without a complete exchange of financial information by both parties.
Recent changes to Illinois legislation regarding spousal support will be making a huge impact on the finances of divorcing couples. Previously, the laws were relatively vague offering major discretion to judges on the “if’s and when’s” and how much spousal support should be paid and for how long.
Effective January 2015, more formal guidelines will allocate spousal support. The two main changes are as follows:
1. The amount of spousal support (1) shall be calculated by taking 30% of the payor’s gross income minus 20% of the payee’s gross income. The amount calculated as maintenance, however, when added to the gross income of the payee, may not result in the payee receiving an amount that is in excess of 40% of the combined gross income of the parties.
Major changes are on the horizon in 2015 in terms of spousal support. Unlike child support, where the statute sets clear guideline amounts based on the number of children, the amount and duration of spousal support payments had not been clearly defined. However, all of that just changed with the passing of Public Act 98-0961. Previously, courts were given substantial discretion when determining amounts and the duration of spousal support based on a list of factors for judges to consider, including, but not limited to, the length of the parties’ marriage, the present and future earning capacity of each party, and the duration of the marriage.