Do you want a cheap divorce in Illinois? Probably. You might know that an uncontested divorce is the most affordable and quickest way to get divorce in Illinois. In fact, as an Illinois divorce lawyer, I handle many uncontested divorces for a flat fee. But sometimes people want an uncontested divorce and just can’t quite come to agreement. So in this article discussed some of the tough topics in coming to an agreement in an uncontested divorce.
I wrote this article because I get a lot of calls from people who tell me they want an uncontested divorce, but aren’t ready. They want to get started, but after I speak to them, I realize that they have not reached a sufficiently specific and detailed agreement with their spouses. In Illinois, an uncontested divorce is the fastest and most affordable way to get divorced with a lawyer. But that doesn’t mean that major topics can be ignored.
What about the house?
Many people call me up and simply state that the other spouse is getting the house, or “I’m keeping the house.” But that’s not nearly enough.
Here are just some of the issues that must be addressed when dealing with a house in a divorce.
- Refinancing: If both people are on the mortgage, will the person getting the house have to refinance? By what deadline?
- Selling the house: If a house will be sold, who will make the decisions? How will you decide what offer price to accept? Who chooses the broker? How will you split the proceeds from the sale?
- Financial liability: While both of you own the house, how will financial liability be shared? What about the escrow payment and property taxes? How about utilities, maintenance, and necessary repairs?
- Exclusive possession: When does one of you get exclusive possession of the house – meaning the other person cannot live there? Or will you both live there until the house sells, or some other time.
About 90% of the time, people have no considered what to do with the house in enough detail. That’s just one of the many reasons to use a lawyer for an uncontested divorce. Additionally, even if you know what you want to do with the house, it has to be put into a legally acceptable form for the marital settlement agreement.
If you use one of those online divorce scam websites, you will almost surely create a disaster with any real estate owned. See this article I wrote about online divorce websites and how dangerous they are.
How do we divide the property and debt in an Illinois divorce?
If you are like most people, you want as much of the assets you can get, and as little as the debt as possible.
In an Illinois divorce, marital property is divided, and non-marital property is not. Here are a few things you should konw about marital vs. non-marital property.
- Marital property: Everything acquired during the marriage, unless it is non-marital property. It doesn not matter whose name is on it, or who it is titled to. For example, if one person has a 401k that was acquired totally during the marriage, and only that one person’s name is on it, that 401k is still marital property. The same goes with cars – if a car is titled to one person, it is marital property even if only one person’s name is on the title.
- Non-marital property: Here is a list of types of property that are non-marital: 1) property acquired before the marriage that was not mixed with any marital property, 2) gifts or inheritances acquired during the marriage that was not mixed with any marital property, 3) property that a valid prenuptial agreement classifies as non-marital property, 4) the portion of retirement accounts such as a 401k and pension that are attributable to non-marital contributions.
When dividing property, specificity is necessary.
Do we need a parenting time and visitation schedule?
Do you have kids? If so, then yes, you most likely need a parenting time schedule. Parenting time used to be called “visitation.” I guess whoever drafted the law thought people would be less insulted if the time they have with their kids is labeled being for “parenting” rather than for “visitation.”
Whatever the case, one thing you cannot is have something like “The parents will have parenting time as they agree.” That’s ambiguous, and the court does not have to allow an agreement to be entered that it thinks is so ambiguous that it will cause problems in the future.
How much child support should be paid?
Child support can be a contentious subject. Here are some of the options for addressing child support.
- Statutory guideline child support: In Illinois, there is a guideline for child support; it’s in Section 505 of the Illinois Marriage and Dissolution of Marriage Act (the “IMDMA”). Judges like the guidelines to be followed. You can see some additional information below regarding guideline child support.
- Child support that deviates from statutory guidelines:
- Reserving on child support: The court can “reserve” on the issue of child support. That means that the court will not enter anything about child support at the time of the judgment for dissolution, but may do so in the future upon the motion or petition of either party.
- Barring child support forever: The court cannot enter an order barring child support – even if both parents agree to it. It is against “public policy” to bar child support, and therefore, a judge will not enter any order that does so.
An Illinois divorce lawyer can help you decide which option is best for you, and how to address child support in such a way that the judge finds acceptable. For instance, if the child support provision of an agreement is not properly drafted, you may not be able to get divorced.
The support guidelines are somewhat arbitrary, but they are useful in developing a starting point for child support discussion. According to the guidelines, child support is determined based upon one’s “net income” for child support purpose. That’s a figure which is after taxes, but also after various other expenses such as union dues, health insurance premiums, health care costs, previously ordered child support, previously ordered spousal maintenance, and some other expenses that don’t apply to most people.
- One child: 20% of net income
- Two children: 28% of net income
- Three children: 32% of net income
- Four children: 40% of net income
- Five children: 45% of net income
- Six or more children: 50% of net income
Child support can be a complex topic in terms of calculating net income for child support purposes, and dealing with deviations from child support guidelines. An Illinois child support attorney can help. And when a divorce involves children, child support is a major issue in any uncontested divorce in Illinois – it can’t just be ignored.
One way to totally avoid the issue of child support is no to have any kids.
How much spousal maintenance should be paid?
Spousal maintenance is now determined with a statutory guideline as a start. In other words, unless the spouses’ combined gross income is more than $250 thousand, the judge will likely use the statute to determine how much maintenance should be paid, if any.
In an uncontested divorce, sometimes a person who might be awarded maintenance at trial accepts a settlement that does not include any maintenance. After all, an uncontested divorce in Illinois involves bargaining, and trading one thing for another.
In Illinois, the maintenance statute is Section 504 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/504).
Here are some questions to ask when thinking about maintenance:
- Should there be maintenance? Not everyone is entitled to maintenance. Before applying the maintenance formula, the spouses should determine if any maintenance should be paid at all. Judges use many factors to determine whether or not maintenance should be paid, including but not limited to the following: the respective incomes of the parties, the earning potential of the parties, the health of the parties, the age of the parties.
- How much maintenance should be paid? If spouses have a combined gross income of more than $250 thousand, then judges have a wide breadth of discretion in how much maintenance to award. Most people, however, don’t have a combined gross if income of more than $250 thousand, so the judges will use the maintenance formula. It states the following: The amount of maintenance under this paragraph (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.