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This is a family law question. My wife has filed for divorce…

This is a family law...
This is a family law question. My wife has filed for divorce and we have been married for more than 20 years. However, for the last 7 years, she has forced me to live in the basement and alienated my children from me. When it comes to determining the length of marriage can these 7 years be used as a separation and hence reduce the number of years we are married for support considerations?
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Answered in 7 hours by:
11/28/2017
LegalGems
LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 12,940
Experience: Experienced Family Law Attorney
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Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

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I am sorry to hear this;

living separate and apart typically means that the parties either have physically separated, or they live in the same house (usually due to finances) but are not living together as husband and wife; so if the parties are not living as a married couple the date of separation can be the date they no longer shared the marital bed for example.

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Customer reply replied 5 months ago
Thanks but what evidence of this do I need and is it just sharing the marital bed? Are there other factors in addition to not sharing the marital bed that would also be considered the start of the separation?

The court will look at the totality of circumstances; if they are living in separate quarters that is a big factor; as is whether they hold themselves out as married to the community.

It is very fact specific and often they will hold a trial to determine the date of separation.

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Hello again; just checking in to see how things worked out;

If you have no further questions a positive rating is most appreciated (at no additional cost to you) and allows the site to credit my account for the time spent assisting you!

if you have further questions please don't hesitate to reach out to me here on Just Answerand I will do my best to get you the requested information.
Thanks!

The above information is for educational purposes only. A consultation with a private attorney is recommended so they can apply the law to your specific facts, and suggest the best course of action. An attorney can be located here:
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Customer reply replied 5 months ago
I spoke with my lawyer based on your suggestion, but he said that Illinois law does not allow any consideration of other factors. He said that the marriage length is defined only by the marriage certificate as the start and the filing of divorce papers as the end. How can I get this other information admitted and is there something I can point my lawyer to?

This case references

"separated as husband and wife" -Rank case

Please also see the Karman case:
When she refused to cohabit with her husband in a reasonable manner and ordered him to leave, appellee became the deserter, and in order to correct this desertion it became incumbent upon her to make efforts to resume the marital relationship. She made no attempt to do so. Appellant did not consent to the separation and may not be prevented from prosecuting this action on that basis. The fixed intention of appellee to live apart negates her husband's obligation to establish a new home as the marital domicile. His failure to do so may not be interpreted as such consent to the continuance of the separation as would bar his right of action. (note the "reasonable manner" language so presumably that would indicate the traditional marital relationship)

The Smith case discusses standard of living prior to separation - not after separation:

As we have noted, on the basis of his $50,000 per year salary at CIPRA, and considering the wife's standard of living prior to the parties' separation, the $100 per week awarded by the trial court is insufficient and should be substantially raised.

The statutes states:

(B) The duration of an award under this

paragraph (1) shall be calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: 5 years or less (.20); more than 5 years but less than 10 years (.40); 10 years or more but less than 15 years (.60); or 15 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order either permanent maintenance or maintenance for a period equal to the length of the marriage.

(2) Maintenance award not in accordance with

guidelines. Any non-guidelines award of maintenance shall be made after the court's consideration of all relevant factors set forth in subsection (a) of this Section.

-based on the statute the length of marriage would be date of marriage, to the date the divorce petition was filed; for guideline purposes, but allows the court to deviate this based on the factors set forth in the statute:

specifically: (Please note #14)

(1) the income and property of each party, including

marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage;

(2) the needs of each party;
(3) the realistic 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) any impairment of the realistic present or future

earning capacity of the party against whom maintenance is sought;

(6) 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 any parental responsibility arrangements and its effect on the party seeking employment;

(7) the standard of living established during the

marriage;

(8) the duration of the marriage;
(9) the age, health, station, occupation, amount and

sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties;

(10) all sources of public and private income

including, without limitation, disability and retirement income;

(11) the tax consequences of the property division

upon the respective economic circumstances of the parties;

(12) contributions and services by the party seeking

maintenance to the education, training, career or career potential, or license of the other spouse;

(13) any valid agreement of the parties; and
(14) any other factor that the court expressly finds

to be just and equitable.

So #14 allows the court to take into any consideration they deem just and the above cases can help with that.

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Thank you!

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