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Divorce and Property Division in Illinois

The decision to divorce is a difficult one, and conversations focused on division of property can often be the most contentious. Emotions can easily tangle with finances when attempting to have discussions regarding who can keep the family home and how savings that were carefully set aside are split.

Preparing for these conversations with a basic understanding of state law can ease the confusion associated with who gets what.

State Law: Marital v. Nonmarital Property

Illinois law views property as either marital or nonmarital. Marital property is split during the divorce, and nonmarital property remains solely with the party who owns it. Generally, property that is acquired during the marriage is considered marital property. However, there are some exceptions. Some common exceptions include:

  • Any property that is given as a gift or inheritance
  • Property acquired in exchange for premarital property
  • Property excluded in a prenuptial or other agreement

Although an inheritance is seen as separate property, confusion often results when it is intermingled with marital property in a joint account. In such cases the court may presume the property was intended to be used as marital. The easiest way to avoid confusion is to keep inheritance and other nonmarital property in a separate account.

It is also wise to begin an individual account at the time of separation. State law requires a two-year period of separation before granting a divorce. Keeping income earned during this period in a separate account can ease the court's determination that such earnings are nonmarital in nature.

Deferred compensation can also be considered an exception to the marital property rules. Deferred compensation refers to stock options, pensions and retirement benefits that are promised at an early point in one's career but not actually granted until a later date. If the work required to receive these benefits was completed prior to the marriage, the benefits are often considered nonmarital property.

Factors Considered in Division of Marital Property

Once property is categorized as either marital or nonmarital, Illinois law states that the rules of equitable division govern. Essentially, the court attempts to divide all marital property without regard to marital misconduct. This is required by state law, as the Illinois Marriage and Dissolution of Marriage Act specifically notes that fault not be considered in decisions of property distribution.

However, there is an exception. When considering the contribution of each spouse to marital property, the court may take marital misconduct into consideration. This can occur if one party's infidelity or other form of misconduct led to a dissipation of the marital property. Common examples include gambling, excessive travel or excessive use of credit cards. The court will review any use of marital property in a manner that is unrelated to the marriage at a time when the union is undergoing an "irreconcilable breakdown" to make this determination.

An accused party can fight this accusation by defending the use of funds. If able to prove the money was used for a marital purpose, the court will not consider dissipation charges. If, however, the spouse cannot defend against these allegations and the charge is found to be accurate, the court will favor the innocent spouse when dividing the remaining property.

There are many additional factors the court considers when attempting to equitably divide marital property, including:

  • Value of nonmarital property assigned to each party
  • Length of marriage
  • Any economic circumstances that the court finds relevant
  • Presence and terms of a premarital agreement
  • Age, health, occupation, employability and needs of each party
  • Custody of children

A court may also favor the party who retains custody of the children when awarding the family home.

It is important to note that equitable division does not necessarily mean even. Instead the court is looking to ensure that the property is divided in a "just" matter. As a result, an economically disadvantaged spouse may receive a greater share of the property.

This can be the case in situations where one spouse assumed the role of homemaker and raised the children while the other pursued a lucrative career. This is particularly true if the divorce occurs after a long marriage and finds it unlikely that the disadvantaged spouse will find employment in the future.

Navigating the intricate laws of divorce and best presenting your circumstances to ensure equitable distribution of property can be difficult. Every situation is unique, and it is wise to seek the counsel of an experienced division of marital assets lawyer to better ensure that your rights are protected.

Co-Parenting Helps Keep Both Spouses Involved with Their Children

For years, parenting techniques after divorce were fairly limited. The custodial parent, almost always the mother, had sole responsibility for raising her children. Now, both parents can contribute to the upbringing of their children through co-parenting.

Co-parenting occurs when spouses divide parenting roles equally or nearly equally. This means that the noncustodial parent is responsible for more overnights with their children and more everyday tasks like shopping, involvement in extracurricular activities and homework.

Co-parenting sounds like a dream to most parents, but can be difficult after a split, especially as if there is acrimony between spouses. Co-parenting will only work when there is open communication and cooperation between spouses.

Tips to Successful Co-Parenting

Spouses interested in co-parenting after divorce can follow a few simple tips to help the process go more smoothly. First, co-parenting works best for ex-spouses that live relatively close to each other. This helps the non-custodial parent participate in the everyday activities of his or her children. It can be difficult for a parent that lives at great distance away from his or her children to be responsible for extracurricular activities during the week.

Efficient, effective scheduling is also important to successful co-parenting. Visitation schedules should account for the distance between the two spouses' homes and balance parents' time with their children with adult time. It may be wise to plan how weekends and weekdays will be divided between the parents.

A rather sensitive topic that is also important to co-parenting is the difference between the economic situations of the two spouses. It is easier for parents-and children-if the living situations of both spouses are similar. If there is a dramatic difference in economic situation, children will easily pick up on it and be sensitive to it. Noncustodial parent should remember that child support guidelines are the bare minimum for supporting the child economically.

Co-Parenting Teens

As children enter adolescence, it is important for co-parenting spouses to discuss certain sensitive topics. As teenagers gain more independence, issues about driver's licenses, cars, cell phones, dating and even body piercings become a priority. Parents need to communicate with each other to determine what each is comfortable with for their children and the approach that each parent will take when addressing these concerns. Cooperation and communication between ex-spouses is especially important during the teen years to establish boundaries and consequences.

Co-parenting is hard work and requires communication between ex-spouses, but can be rewarding for parents and beneficial to children. To help facilitate co-parenting with your ex-spouse, please contact an experienced family law attorney.

Breath test devices required if you want to drive following an Illinois DUI

It is no secret that police forces throughout the country have been stepping-up DUI enforcement in recent years. As part of this enforcement, Illinois lawmakers have enacted some of the strictest laws in the nation when it comes to DUI offenders. For instance, even first-time DUI offenders in Illinois must install a Breath Alcohol Ignition Interlock Device (BAIID) on their vehicles if they want to preserve their ability to drive during their suspension period.

Basically, a BAIID is a device that, when installed in a vehicle, requires drivers to blow into the machine and prove they have not been drinking alcohol before the engine will start. While several states require BAIID installation after multiple DUI arrests, Illinois requires DUI offenders to have one installed after their very first offense if they want to drive.

Illinois Statutory Suspension & BAIID requirements

Under Illinois law, a motorist will have his or her driver's license suspended after a DUI arrest - otherwise known as a Statutory Summary Suspension. This particular punishment is administrative in nature and is overseen by the Illinois Secretary of State. It is important to note that this suspension is automatic - effective on the 46 th day following a suspension notice - and completely separate from any criminal prosecution for DUI charges.

According to the Illinois Secretary of State, a motorist's license will be suspended for six months for first-time DUI offenders if the motorist had a blood-alcohol-content (BAC) of 0.08 percent or higher when arrested - this increases to 12 months if the motorist refuses to submit to a breath test.

However, first-time DUI offenders aged 18 or above are eligible for driving relief during this suspension period if they apply for a Monitoring Device Driving Permit (MDDP). To be eligible for a MDDP a first-time DUI offender must agree to have a BAIID installed on his or her vehicle, which will be monitored for impaired driving by the Secretary of State. Offenders are responsible for all costs related to the installation and monitoring of BAIIDs in their vehicles.

While first-time DUI offenders are free to decline participation in the MDDP program - and thus not have a BAIID installed on their vehicles - if they are caught driving during their suspension period after electing not to obtain a MDDP they can be charged with a Class 4 felony, according to the Secretary of State. Conversely, if first-time offenders elect to install a BAIID and then are caught operating a motor vehicle that does not have a BAIID installed, they will also likely be charged with a Class 4 felony.

As this article demonstrates, the consequences associated with a DUI arrest in Illinois can be quite severe, even for first-time offenders. Accordingly, if you have been arrested for a DUI it is important to speak with an experience DUI defense attorney in order to ensure your rights are protected.

Child relocation laws in Illinois

Divorces and separations are emotionally turbulent times, particularly when a child is involved. Because of this, disputes regarding child custody, child support or even where the child will live can easily arise between parents. And, even if these specific issues have been resolved by an Illinois court order, other subsequent problems can quickly surface.

For instance, given today's tumultuous economy many parents are discovering that they need to move great distances in order to find work - sometimes across state lines. However, before a parent can remove a child from Illinois they must seek approval from the court, even if they are the primary custodial parent.

Illinois child removal

Child removal/relocation is governed by Party VI of Illinois' Marriage and Dissolution of Marriage Act. Specifically, that law states that before a parent can move from Illinois with a child they must seek leave (approval) of the court. The basic idea is that just because a court originally designated one parent as the custodial parent, the other noncustodial parent should not be deprived of their parental privileges or rights.

Ultimately, before a child can be removed the question revolves around what is considered to be in the best interests of the child, and the burden of proving the best interests of the child rests with the parent attempting to move out of Illinois.

When deciding what is in the best interests of the child, Illinois courts will often consider a variety of factors, including:

  • The likelihood that the proposed move will enhance the quality of life for the child and the custodial parent
  • The motives of the custodial parent seeking the move/relocation
  • The motives of the noncustodial parent in challenging the move
  • The visitation rights of the noncustodial parent
  • Whether a reasonable visitation schedule can be reached if the move is allowed - which is often interpreted to mean a schedule that will preserve and foster a child's relationship with the noncustodial parent

It is important to note that these factors - otherwise known as the Eckert factors - are not exclusive. No single factor is controlling over the others, and the weight given to each factor by the court varies based on the circumstances. But, ultimately the court is free to consider all evidence relevant to making its decision.

Given the emotional nature of child visitation and relocation disputes, it is often advisable to seek help in addressing any issues you may have. As such, if you are currently involved in a child relocation dispute, contact an experienced child relocation lawyer in your area to be advised of your rights and options.

Breath Alcohol Ignition Interlock Devices and Other DUI Consequences

Illinois is one of only 14 states that require first-time DUI offenders to install a Breath Alcohol Ignition Interlock Device (BAIID) on their vehicles. A BAIID requires a driver to provide a breath sample before allowing a vehicle's engine to start. If the alcohol content is above a certain threshold, the engine is disabled and locked out for a certain period of time. The lock out period typically increases in length with each subsequent, failed attempt to start the vehicle.

BAIIDs prevent many would-be drunk drivers from hitting the bottle and then hitting the road. Research shows that BAIIDs reduce subsequent DUIs by 50 to 90 percent, which prevents fatal accidents. In addition to their life-saving benefits, BAIIDs help people retain the ability to drive. That helps restore functionality to a person's life by allowing them to drive to and from work or school or to simply run errands. While a BAIID may seem like a burden, it pales in comparison to the other DUI penalties.

Illinois DUI Consequences

In Illinois, first time DUI convictions carry at least a one-year loss of full driving privileges (BAIID required), up to one year of imprisonment and a fine as high as $2,500. On a second conviction, the court can impose either five days in jail or 240 community service hours. The court can also sentence the person to up to one year in jail and a maximum fine of $2,500. A second DUI conviction in a 20-year period will result in the loss of full driving privileges for at least five years.

A third DUI conviction in Illinois is a class 2 felony that carries a mandatory 18 to 30 month prison term, with a possible prison sentence of up to seven years. The person will lose their full driving privileges for at least 10 years and will be assessed a fine of up to $25,000.

An Aggravated DUI (an accident causing great bodily harm or permanent disfigurement) is a class 4 felony. It carries a maximum fine of $25,000 and at least a one-year loss of full driving privileges. The court can impose 10 days of jail or 480 hours of community service and has the option of sentencing the offender to up to 12 years in prison.

A DUI conviction can carry severe penalties. If you or a loved one has been charged with a DUI offense, contact an experienced defense attorney to discuss your situation and your rights.

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