Divorce Disputes: Know Your Rights
Divorce can be an extremely emotional time. On top of this, couples need to decide how to split their assets, including money, the marital home and the custody of the children.
The divorce process is stressful and can easily bring out the worst in people. Although divorce can get you out of an unhappy marriage, it can also leave you high and dry if you don’t know your rights.
Emotional vs Financial Decisions
Divorce professionals will tell you that it’s best to approach your settlement discussions as a business discussion; but how do you take your emotions out of your divorce negotiations?
Fear, anger, sadness, loss. While you should let yourself feel all of these emotions and seek out the support you need to get through the hurt, when it comes to the divorce process itself, controlling your emotions is key to getting the outcome that you are looking for.
Reasons why these discussions need to be more about business than emotions include:
- The legal system is not set up to resolve disagreements based on moral arguments, but bound by statutes and case law and these likely will not provide resolution for the wrongs you’ve experienced.
- Decisions based on emotions are not the best long term or even short term decisions. For example a fight over a home you can’t afford to upkeep will only harm your financial future.
- You could easily end up regretting your emotional decisions further down the line. For example you realize something you are fighting for is harming the welfare of the children.
Letting go of those feelings during the divorce process not only helps keep the focus on protecting your legal rights, but it also gets rid of those old hopes and dreams so you can start building new ones for the future.
If your marriage has any complicated issues to settle (see below), a family law attorney can be an invaluable resource.
Spousal Support/Alimony
While divorce may end a marriage, it doesn’t necessarily end the obligations of one spouse to another. Oftentimes, one spouse is able to receive spousal support, or alimony, to help them establish a new, post-divorce life.
The court will award financial assistance based on factors such as the duration of the marriage, each person’s earning capacity, contributions to the household and physical health of the recipient.
There are five different types of alimony that may be awarded:
- Rehabilitative Alimony: Granted for a specified time period. It provides the recipient with the funds to obtain the job skills and education needed for him or her to become self-sufficient.
- Lump-Sum Alimony: A one-time, fixed payment and is often granted in lieu of a property settlement. The amount awarded is equal to the total of future monthly payments.
- Permanent Alimony: Which continues until the recipient remarries or either payor or payee dies. The payments may be adjusted due to changes in financial circumstances.
- Reimbursement Alimony: The dutiful spouse who works full time to put her partner through school and is divorced shortly after is a candidate for reimbursement alimony. As the name implies, this support reimburses one spouse for expenses incurred in helping the other complete an education or training program.
- Temporary Alimony: Temporary alimony is sometimes paid when a couple separates but the divorce is not final. The parties execute a written marital separation agreement stipulating how much and when payment will be made.
Property Disputes
When the court grants a divorce, property will be divided equitably (not always equally) between the two spouses. This is decided under the Equitable Distribution Law. During the divorce both spouses have to tell the court about their income and any debts they owe. There are two different types of property for the purposes of a divorce. Property that the couple bought during the marriage is called “marital property”. Property that belonged to you before the marriage or was a gift to just you from someone other than your spouse is called “separate property”. Marital property can be divided between the two spouses. Rather than using an automatic 50/50 split, an Illinois judge will consider all relevant factors in deciding what kind of property division is fair.
There’s no hard and fast rule for who gets the house in an Illinois divorce. In cases where a couple can’t afford to keep the marital home, a judge will order the house to be listed and sold as soon as possible so that the couple could divide the proceeds.
Child Custody
Probably the most contentious and emotionally difficult aspect of a divorce is deciding on custody of the children.
In an Illinois divorce or custody case, either parent may request custody, or both parents may agree to joint custody.
You may also ask the court to determine custody in other situations, including:
- If you are not married to the other parent but need to determine custody of a child.
- If you want to be the legal guardian of a child.
- If you need to determine who the parent of your child is.
Parents may share legal custody, or legal custody may be vested in one parent (i.e. sole legal custody). While it is possible to share residential custody, such arrangements are oftentimes impractical or would impose too much stress on their children.
Child custody cases are intensely fact specific, and it is important to speak to an experienced family law attorney before letting emotions or fear dictate your decisions should you be faced with a custody battle.
Alternative Dispute Resolution (ADR) and Divorce
Despite what you hear and see on television, most legal disputes never make it to court and are usually resolved by a settlement outside of court proceedings.
Resolving divorce issues listed above can happen without lengthy and expensive litigation. More couples are now going with alternative dispute resolution (ADR) to end their marriages. The popularity of mediation has shifted the role of divorce attorneys from representing their clients in a legal battle to acting as divorce mediation lawyers to help clients achieve mediation success. In this new role attorneys can serve as a lawyer coaches, legal consultants, and legal advisers in the divorce mediation process.
ADR may prove to be a beneficial tool in resolving your divorce and related issues, depending on factors such as the degree to which you and your spouse are in dispute on key issues, and your willingness to work together to resolve those issues.
Get the help you need
Unfortunately, while it is always possible to represent yourself in a divorce case, it may not always be advisable.
Masters Law Group understands that divorce is a stressful situation and that our clients want to move on with their lives. As such, we move through settlement negotiations, mediation or litigation with our clients assurance and well-being in mind.
Whether you are facing a contested divorce, uncontested divorce, or civil union divorce, our firm’s attorneys are ready to skillfully advocate for your position and provide your voice when you need it most.
Divorce cases involving substantial assets or complex estates require specialized knowledge. Masters Law Group is skilled at identifying and valuing assets and wealth, including real estate, securities, business interests, retirement funds, pension plans, tax shelters (domestic and foreign), overseas accounts, stock options, trusts and other actual or potential sources of wealth.
Schedule a Consultation today to learn more about how we can assist as your Divorce Mediators and Attorneys.