What You Want To Know About Divorce
At Kirsh & Associates, we understand the difficulties surrounding a potential divorce or separation. Below are some of the most common questions we hear, and some general information.
What is the difference between sole and joint custody?
The terms “sole custody” and “joint custody” are no longer included in the Illinois Marriage and Dissolution of Marriage Act (the “IMDMA”) and are therefore no longer part of the family law lexicon. What was previously known as visitation and custody, have since been consolidated into what is now referred to as “Parental Responsibility.” Under the IMDMA, Parental Responsibility is divided into two categories: Decision Making Responsibility and Parenting Time. Generally speaking, the concept of “visitation” is included in the Parenting Time category (discussed in greater detail below) and the concept of “custody” is included in the Decision Making Responsibility category.
Although the term “custody” has been disposed of, the current version of the statute has retained most of the principals of “custody,” while at the same time clarifying each parent’s duties to their children. Previously, if a parent was awarded “sole custody,” that parent would have full decision making authority on all major issues related to the child or children. Conversely, if joint custody was awarded the parents would share decision making authority on all major issues related to the child or children. In a joint custody scenario, if the parties could not reach an agreement regarding a major issue, the parties would be required to attempt to settle the issue through mediation before either parent had a right to go back to court.
Under the current statute, Decision Making Responsibility is divided into four distinct categories:
- Extracurricular Activities; and
Unlike the previous, all-or-nothing, sole custody/joint custody model, the new statute provides for a more refined allocation of each parent’s decision making responsibilities. Under the new statute, each of the above categories is looked at individually and decision making responsibility can be allocated differently for each one. For example one parent may be awarded sole decision making responsibility for all decisions related to religion, while sharing decision making authority of the remaining 3 categories. Of course there can be situations where the allocation of parental decision making responsibility mirrors an award of sole custody or joint custody. For example, the parents could share decision making responsibility of all four categories (similar to an award of joint custody). Conversely, one parent could be awarded sole decision making responsibility of all four categories (similar to an award of sole custody).
Allocating parental decision making responsibility, as opposed to awarding sole or joint custody, provides the flexibility needed to create realistic and workable parenting plans for every kind of family and every kind of situation.
How much visitation does each parent get?
As mentioned above, due to changes in the Illinois Marriage and Dissolution of Marriage Act (the “IMDMA”) the term visitation is no longer used in the field of family law. Under the current statute, visitation is included underneath the umbrella of Parental Responsibilities. Parental Responsibilities is comprised of 2 separate categories: Decision Making Responsibility (discussed in greater detail above) and Parenting Time. Parenting Time has replaced the concept of parental visitation.
Because awards of custody are no longer made (discussed in greater detail above), there is no longer a distinction between a custodial parent and a non-custodial parent. Under the current statute, the frequency and duration of each parent’s parenting time is governed by the best interests of the child or children, not by the decision making responsibility allocated to each parent.
Parenting time schedules can vary widely from family to family, but a common parenting time schedule will involve the parents alternating parenting time every other weekend, with additional parenting time for each parent during the week. Additional weekday parenting time can range from an evening beginning after school through dinner to several overnights each week. In addition to regular weekly parenting time, a parenting plan will likely include provisions for parenting time on holidays, parenting time during a child’s breaks from school, and additional vacation parenting time for each parent.
It is important to remember that every case is different, and there is no “one-size-fits-all” parenting time schedule; However, with the assistance of an experienced and creative attorney, a satisfactory parenting time schedule can be crafted which will not only provide each parent with an appropriate amount parenting time but will also, and most importantly, serve your child’s needs.
Am I entitled to child support?
Several factors are considered in a child support calculation including, each parents income, the number of children, and the amount of parenting time each parent has with the child or children. Based on these factors each parent will be allocated a certain percentage of a predetermined basic child support obligation, as calculated by The Department of Healthcare and Family Services (“HFS”).
In short, HFS calculates the basic child support obligation by looking at the parent’s combined income and the number of children who will be receiving support. HFS has compiled a schedule of what the average Illinois household at each level of combined income ordinarily spends on their children.
Once the basic child support obligation is determined, responsibility for contributing to the obligation is allocated to each parent based on the percentage of each parent’s income relative to total income and the amount of overnight parenting time each parent has with the child or children. The allocation of each parent’s responsibility towards the basic child support obligation is determined by a formula contained in 750 ILCS 5/505.
Additionally, a court will often require the parents to contribute to the cost of medical and dental expenses not covered by insurance, extracurricular activity expenses and day care expenses. Depending on the facts of the case, a court can require a parent to contribute to the cost of parochial or private school. Child support is not tax-deductible to the parent paying the support.
Am I entitled to alimony?
Alimony is called “maintenance” in Illinois. Whether a spouse is entitled to maintenance depends on several factors, including the ability of the spouse to pay maintenance and still meet his or her own needs, the length of the marriage, the ability of the spouse seeking maintenance to be self-supporting and the martial property awarded to the spouse seeking maintenance. The amount and duration of the maintenance depends on many of the factors listed above, but an additional factor is the standard of living enjoyed by the parties during the marriage. In cases where the combined family income is less than $500,000.00, maintenance is determined by a formula contained in 750 ILCS 5/504.
Currently, maintenance is tax-deductible to the spouse paying the maintenance and must be declared as income by the maintenance recipient. However, maintenance awards pursuant to any judgment entered after January 1, 2019 will no longer be tax-deductible to the spouse paying maintenance, which means that the person paying maintenance will be required to pay taxes on any payments made to their ex-spouse. Maintenance paid pursuant to judgments entered prior to January 1, 2019 will continue to be deductible to the payor and taxable to the receipt.
How are assets divided in a divorce?
In Illinois, division of property is without regard to fault. This means that the court will not consider your spouse’s deficiencies (or yours) when deciding how the marital assets and debts are divided. Even if your spouse was physically or emotionally abusive, an absentee parent or unfaithful, the court cannot consider such matters when deciding the issue of division of property.
When dividing property the court first determines which property is “marital” and which property is “non-marital”. Marital property consists of any property acquired during the marriage, including pensions, 401(k) accounts or other retirement accounts. However, property acquired by gift or inheritance (and various other means) is not considered marital property.
Each spouse keeps their own non-marital property. Marital property is divided on an equitable basis. “Equitable” does not mean 50/50, although 50/50 is generally considered the starting point for any analysis of division of marital property. Factors the court considers when dividing marital property include: the length of the marriage, the education of each spouse, the ability of each spouse to acquire property in the future through earnings or other means and the non-marital property of each spouse.