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UPDATE: Do We Need to Separate Before Filing for Divorce?
Originally published: July 6, 2016 -- Updated: September 10, 2021
UPDATE: As described below, Illinois law no longer requires a couple to separate before they can complete their divorce. However, many couples choose to separate before or during the divorce process. In some cases, spouses may use a “trial separation” to help them decide whether they should move forward with the dissolution of their marriage. In other cases, one spouse may decide to move out of the family home after filing for divorce.
Divorcing spouses or those who are pursuing a legal separation should be aware of how a separation may affect their rights and the decisions in their case. A pre-divorce separation may result in complications involving:
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Property division - While all assets owned by a couple must be divided fairly and equitably, a separation may affect decisions related to ownership of property. If one spouse moves out of the family home, the other spouse may be awarded exclusive possession of the home during the divorce, and they may also claim that they should maintain ownership of the home or household items such as furniture.
How Should Ownership of the Family Home Be Handled During Divorce?
During the divorce process, spouses will need to make many different decisions about how to handle financial issues. Many of these issues will involve the division of marital property, and spouses may be required to make sacrifices or adjustments as they determine how to ensure that they will have the financial resources needed to support themselves after their divorce is complete. Ownership of a couple’s marital home is one issue that can sometimes be difficult to resolve, especially when both spouses have an emotional connection to the home or when parents want their children to continue living in the same community. By understanding their options, spouses can make decisions that will benefit them moving forward and ensure that they will be able to maintain financial success.
Options When Addressing Real Estate Ownership
In many cases, selling the marital home during the divorce process is the best option for a couple. This will avoid any disputes about who will get to live in the home that a couple once shared, and the profits earned from the sale of the home can be divided between the spouses, providing them with financial resources that will help them establish their own individual living arrangements. However, when selling a home, spouses will want to be aware of any capital gains taxes that may apply, as well as any other issues that may result in financial losses.
When Must a Parenting Plan Be Modified Due to Parental Relocation?
Parents and children are likely to experience changes in their lives in the years after the completion of a divorce. Some of the most significant of these changes involve a parent moving to a new home. When a parent plans to move, they may be unsure about whether this will require changes to the parenting plan that details how they share child custody and parenting time with the other parent. They will also need to understand the legal requirements that they will need to meet to ensure that they are in compliance with the court’s orders. By working with a family law attorney, a parent can make sure they follow the correct procedures, and they can request modifications to their parenting plan to address the changes in their lives.
How Does the Divorce Mediation Process Work?
Even though divorce is common, there are a lot of misconceptions about the process. Movies and TV shows can make the breakup of marriage seem very dramatic, with couples and their attorneys fighting legal battles in courtroom trials. In reality, most divorces are handled outside of the courtroom, and while spouses may be represented by attorneys, they usually work to reach a settlement, and they may only attend court to finalize the divorce process. In many cases, the best way to complete the divorce process quickly, efficiently, and effectively is through mediation.
Understanding the Mediation Process
When a couple uses mediation, they will agree to work together to create a divorce settlement that they can both agree on. They will do so with the help of a mediator, and while the mediator may be an attorney, they will not represent either party. Instead, the mediator is a neutral advisor who helps facilitate discussions while suggesting possible solutions and making sure the spouses address all outstanding issues.
Who Gets the Pets in a Divorce?
If you are a pet owner who is getting divorced, you probably love your pet just as you would a human family member. Understandably, you may be worried about who will keep the pet after your divorce. As with other property division concerns, you and your spouse have the option of reaching your own agreement about the ownership of pets. However, if you cannot reach a decision, the court may step in and make a decision for you. A skilled divorce lawyer can help you understand your rights regarding pet ownership in a divorce.
When a Pet Could Be Considered Marital or Nonmarital Property
In Illinois courts, pets are treated differently than homes and other property in a divorce. A law established in 2018 requires pets to be treated similarly to children during divorce. The court can award sole or joint custody based on the best interests of the animal.
What Happens to Credit Card Debt in an Illinois Divorce?
Credit card debt is quite prevalent in the United States. In fact, Americans owe $807 billion in credit card debt. If a single person incurs credit card debt, he or she is solely responsible for paying for it. However, what happens if that debt is incurred during a marriage? If you are getting a divorce in Illinois, you may be held responsible for this debt even if your spouse was the only one who used the credit card.
How Credit Card Debt Is Split in an Illinois Divorce
If you are planning to divorce your spouse, you may wonder how your credit card debt will be handled. If the debt was incurred during the course of your marriage, the creditor may hold both you and your spouse responsible for it. On the other hand, any debt either spouse incurred before they were married is considered personal debt and is the sole responsibility of the person who made the purchases.
Can a Criminal History Affect Child Custody in Illinois?
A criminal record can make it more difficult to get a job, rent an apartment, and legally own firearms. It can also affect your chances of getting custody of your children. Family law judges consider the children’s best interests in custody cases and may be reluctant to award custody to a parent with a criminal history. However, having a criminal record does not automatically mean that you cannot be awarded parenting time with your children.
How a Criminal Record Can Jeopardize Your Child Custody Case
If you have a criminal record and are in the middle of a child custody dispute, you may worry that your past will negatively influence the outcome of the case. Although it may be more challenging to gain the parental responsibilities and parenting time outcome you are hoping for, it is not impossible. A judge will consider several factors regarding your criminal history before coming to a decision.
What Is the Difference Between Divorce and Legal Separation?
Many married couples experience relationship issues at some point, and while many disagreements can be resolved, others may cause one or both spouses to consider ending their marriage. For some couples, divorce is the best solution, while others may be able to repair their relationship and stay married. However, some people fall somewhere in the middle, where they may be considering getting divorced but do not yet know whether ending their marriage is the right choice. In these cases, a couple may pursue a trial separation while they determine whether to get divorced, or they may make plans to live separately on a more permanent basis without legally ending their marriage. When doing so, it can be beneficial to pursue a legal separation.
What Is Legal Separation?
A temporary or permanent separation will often leave spouses uncertain about their rights, and arguments or disputes may arise over how various issues will be handled, especially if the couple has children. By pursuing a legal separation, a couple can put an agreement in place that will address these issues. In essence, a legal separation can cover most of the issues that would be addressed during a divorce, but the couple will continue to be legally married.
What Are the Benefits of Establishing Paternity for a Child?
According to Illinois law, if a child’s parents are married at the time of birth, the mother’s spouse will be presumed to be the child’s legal parent. However, there are many situations where a child’s parents may be unmarried, and in these cases, paternity will need to be legally established before a man will be recognized as the child’s legal father. This can often be done fairly easily, but some cases may involve complex legal issues, and either or both parents may need to work with a family law attorney to ensure that their rights and their child’s best interests will be protected.
Benefits of Paternity for Children and Parents
If a child’s parents are unmarried, but they agree that a man is the child’s biological father, the parents can fill out and sign a form known as a Voluntary Acknowledgment of Paternity (VAP). This form can usually be obtained from the hospital where a child was born, but it may also be available at a county clerk’s office or the Illinois Department of Human Services, and a VAP can be completed and signed at any time during the child’s life.
Should the Right of First Refusal Be Included in My Parenting Plan?
During the divorce process, married couples who have children will need to address multiple types of legal issues related to child custody. The decisions made will be set down in a document known as a “parenting plan,” which will be part of the couple’s divorce decree. A parenting plan will state how parents will share the responsibility of making decisions about their children’s upbringing, and it will also include a schedule for the parenting time that children will spend with each parent. It can also address any other issues related to the couple’s children and the ways the parties will work together as co-parents. One issue that parents may want to address is the right of first refusal.
What Is the Right of First Refusal?
Following a divorce or separation, situations may arise in which a parent will not be available to care for their children during their scheduled parenting time. This may occur because of work-related responsibilities, health issues, or other scheduling conflicts. In these cases, the other parent may want to be able to take care of their children rather than having someone else provide care, such as a babysitter or another family member.
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Will County Divorce Attorney, Plainfield Residential Real Estate Lawyer
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