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RobertJDFL
RobertJDFL, Lawyer
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Hello, This question is in relation to Illinois divorce

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Hello,

This question is in relation to Illinois divorce procedures. I am inquiring because my mother is looking to divorce her current husband, but is worried (as she was informed by prior consultants) that because she is still employed and now the primary income generator (her husband is now retired), that she will basically be forfeiting half of her property and will have to basically support him in addition. Is there a way out of this if accurate? Also, do other issues come into play such as infidelity, verbal abuse, etc.?
Submitted: 3 years ago.
Category: Family Law
Expert:  RobertJDFL replied 3 years ago.

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Illinois is an equitable distribution state, meaning that in a divorce, marital property shall be divided equitably, not necessarily equally. For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety,etc. Marital property shall be divided, without regard to marital misconduct, considering all relevant factors, including:

  • The contribution of each party to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including the contribution of a spouse as a homemaker or to the family unit.
  • The dissipation by each party of the marital or non-marital property.
  • The value of the property assigned to each spouse.
  • The duration of the marriage.
  • The relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children.
  • Any obligations and rights arising from a prior marriage of either party.
  • Any post-nuptial agreement of the parties.
  • The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties.
  • The custodial provisions for any children.
  • Whether the apportionment is in lieu of or in addition to maintenance.
  • The reasonable opportunity of each spouse for future acquisition of capital assets and income.
  • The tax consequences of the property division upon the respective economic circumstances of the parties.

Therefore, a blanket statement that she will "lose half her possessions" really isn't correct. Assuming the parties cannot come to their own agreement, marital property will be divided by the court, but it is not necessarily divided 50/50, especially if the disparity in incomes or the needs of one party are greater than the other. All of the above comes directly from the Illinois statutes; as you can see, marital fault, such as infidelity, is not considered when it comes to distribution of property. Non-marital property, that is, property/assets acquired before marriage and kept separate, or even property like an inheritance received during the marriage that was kept separate, would not be divided.

 

As to spousal support, again, the statutes provide guidance. Spousal support isn't mandatory in any marriage, and either spouse can get it, either temporarily, or on a permanent basis. The court will consider all relevant factors, without regard for marital misconduct, including: (1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance; (2) the needs of each party; (3) the present and future earning capacity of each party; (4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage; (5) the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment; (6) the standard of living established during the marriage; (7) the duration of the marriage; (8) the age and the physical and emotional condition of both parties; (9) the tax consequences of the property division upon the respective economic circumstances of the parties; (10) contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse; (11) any valid agreement of the parties; and (12) any other factor that the court expressly finds relevant.

 

To say that she will HAVE to pay spousal support is again too general a statement. The goal of the court, however, is to put both parties in a position where they are single, but can maintain a lifestyle that they have become accustomed to during marriage. In a shorter (<10 year) marriage, where there is gross disparity of income, it is possible that she may have to pay some support for a period of time until he gets onto his feet; if the marriage has been long term and the court finds she is in a better position to support him, it is possible they will award permanent alimony.

 

I simply don't know enough about her personal situation and the marriage to tell you more; this is definitely something she needs to discuss in a consultation with a local family law attorney who can review their financial documents and give a more in depth analysis.

 

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RobertJDFL, Lawyer
Category: Family Law
Satisfied Customers: 10272
Experience: Experienced in multiple areas of the law.
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