When you are at your wit’s end in your relationship, the temptation to leave can be overwhelming. Getting divorced might seem like a panacea that will solve all your problems - you no longer would have to live with the sloppy, selfish jerk who does not mind asking you to make dinner but otherwise scarcely notices you. But the negative consequences of an Illinois divorce can be real and lasting, and surprisingly, many couples who are unhappy at significant points in their marriage often end up being quite happy many years later. However, others remain stubbornly miserable. Therefore, deciding whether or not to get divorced is a major crossroads with the potential to significantly affect the outcome of your future. Knowing what research on the topic says may help you reach a decision. 

Will I Be Happier if I Get Divorced? 

It is easy to fantasize about how the future will be different when you feel like you cannot stand one more night listening to your partner’s snoring. However, nearly 70 percent of couples who were very unhappy when they had their first child reported being happy ten years later. Other studies suggest similar results; that about two-thirds of adults in unhappy marriages were happy five years later if they stayed together. Studies also suggest that, on average, people who get divorced are not happier than those who stay married. 

When Does Divorce Make Sense? 

Happiness is a subjective measurement and may not accurately reflect the health or well-being of a person in a relationship. For example, parents may decide to stay together for their children and put simmering resentments away until the children are older. However, children of parents who are distant and unhappy can often tell that something is wrong. Later on, parents may end up getting divorced anyway when the children are out of the home. 

Developing a small business and making it successful is no easy feat, especially after the Covid pandemic caused so many small businesses to shutter permanently. After years of sleepless nights, endless work, and countless stresses, many small business owners are therefore rightly nervous about the prospect of dividing their marital property in an Illinois divorce. Unfortunately, handling a small business in a divorce can be nearly as complex as getting it up and running. If you own a company and are considering separating from your spouse, here are some things you should know. 

Is My Small Business Marital Property? 

As with most issues in the law, the answer is, “It depends.” Usually, however, if a business was created or developed over the course of a marriage, at least part of it is probably marital property. Well-written prenuptial and postnuptial agreements can protect a business from becoming marital property, but without such a written agreement, a business’s income, assets, and overall value that accrued during a marriage are likely not personal property, even if the business is in only one spouse’s name. 

How Can We Divide Our Share of the Business? 

Every couple’s situation is a little different, but there are some common patterns in how couples divide their share of a small business that is marital property: 

Couples who get divorced in Illinois have sometimes been separated and have lived in different homes for a long time before finally filing for divorce. Once it becomes clear that the relationship has irreparably fallen apart, it becomes natural to want to move on and begin establishing a life separate from one’s spouse, including finding a new home to live in or purchase. But because marital property must be assessed and divided during divorce, purchasing a home or making any other major financial decisions can impact the marital asset division process. If you are getting divorced or know that eventually you will get divorced, seek advice from an Illinois divorce attorney before you buy a home. 

If We Break Up, Is Any Money I Make My Personal Property? 

While you may feel as though your relationship ended long before you even filed for divorce, under Illinois law, as long as you are married your income is considered marital property. This includes income from employment, rental properties, investments, and more. So, even if you and your spouse have lived in separate homes for years, as long as you were still married, your income is almost certainly still marital property. 

This means that anything you buy with that income is also marital property. While Illinois law requires courts to divide marital property fairly, rather than using an equal split, living separately does not automatically make property belong exclusively to you - even if the asset is only in your name. 

The rising cost of home and rental prices has made it difficult or impossible for many couples whose relationship has broken down to separate and live in different residences. If neither you nor your spouse has the option of moving out, you are likely wondering if you can still get divorced in Illinois. If you have small children, you may also wonder if you can continue living in the same house as your spouse for the sake of your children while formally ending the relationship.  Fortunately, the answer is yes - as long as certain requirements are met. 

Is There a Mandatory Separation Period for Divorce in Illinois? 

Until recent changes in Illinois divorce law, couples had to give a reason for divorce, such as abandonment or adultery. They had to wait for at least six months, even if they agreed to the divorce and did not allege either spouse as at fault. 

Now, however, Illinois is considered a “pure no-fault” divorce state and couples can only list irreconcilable differences as a reason for divorce. If both spouses agree to get divorced, there is no mandatory waiting period, but if one spouse does not want to get divorced, couples must still live separate and apart for at least six months to prove that the marriage has irreconcilably broken down. 

Financial disagreements are one of the most common reasons people seek an Illinois divorce. While all couples must navigate their financial behavior patterns and some disagreement is likely, when one spouse’s behavior puts a family’s financial future at risk, divorce may be inevitable. However, this naturally raises a concern: If a spouse is spending an excessive amount of money and putting him or herself into debt, and if debt accumulated during a marriage is generally considered marital debt, who pays for this debt when a couple gets divorced? Answering this question may seem deeply unfair and unappealing, but dividing marital property and debt is an essential part of divorce that must be done before the final order can be handed down. 

What is an “Equitable” Division of Debt? 

Fortunately perhaps for the spouse who did not take on the debt, Illinois law requires marital assets and debt to be divided equitably. This means that debts will not be simply split in half, but rather that spouses will be assigned debt according to what would be the most fair. Spouses are encouraged to use mediation or other conflict-resolution services to reach an agreement about how to handle their marital debt. However, when this is unsuccessful, a judge may need to allocate the debt. Judges can use many factors when deciding how to split debt, including: 

• How the debt was accumulated, and whether the spouse who did not spend the money knew about the actions of the spouse who did spend it

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Raising children can be one of the most rewarding, joyful things a person ever does. However, any honest parent will also tell you that raising children can be a never-ending, thankless task. Children are always hungry, they break things they know they are not allowed to touch, and they have a knack for putting holes in new shoes and clothing - in other words, kids are expensive. If you are divorced or are co-parenting with someone you were never married to, child support payments are often a crucial source of income for your children’s ongoing needs. An ex’s failure to pay child support may not only be frustrating, but terrifying - if you cannot make rent, what will you do? Desperation can lead many parents to wonder if they can withhold parenting time from a parent who refuses to pay child support.

Child Support and Parenting Time Are Not Conditional Upon Each Other

Perhaps unfortunately for those trying to recover lost support money, parenting time may never be withheld as a consequence for unpaid child support. These are two separate issues under Illinois law, and one cannot be used as an incentive for the other. Courts will not prevent a parent from seeing their child because they have not paid child support, because to do so would punish the children for something they have no responsibility for or control over. In fact, trying to withhold parenting time can result in court sanctions against the parent who does this.

How Can I Get Unpaid Child Support? 

Just as Illinois courts view parenting time as essential to a child’s wellbeing, they also view child support in the same way - and there are ways to recover child support that do not harm a child’s relationship with their parent or put you at risk of court sanctions. The first step is to file a petition with a court to enforce child support obligations. A court can then ask the paying parent why he or she stopped making payments and use various tools - including fines, driver’s license suspension, and even jail time - to punish continued non-payment. Illinois also has a Division of Child Support Services that exists to help parents get the child support they need. An attorney can help you pursue whichever option is likely to result in the fastest, most effective recovery for your case. 

Popular wisdom holds that once a child turns 18, a divorced parent no longer has to pay child support. Although in many cases this is true, in Illinois children of divorced parents may lay claim to child support that continues for several years after a child reaches legal adulthood.

Divorced parents can be required by Illinois family courts to contribute to their child’s college expenses. Illinois is something of an outlier in this regard, but the courts have consistently upheld this responsibility, even when parents have challenged it. Considering that the cost of college can be significantly more than a down payment on a home, the prospect of paying for a child’s college involuntarily can be concerning. If you are divorced or plan on getting divorced in Illinois, it is essential to understand your future financial obligations for non-minor child support. 

Sometimes situations arise in which an individual in Illinois needs help taking care of themselves. A parentless child, an aging loved one with dementia, and a terminally ill parent are just a few examples of when legal guardianship may become necessary. In situations like these, an experienced Illinois legal guardianship attorney can facilitate careful planning and loving conversations to help ensure that people get the help and care they need. Here are some situations in which it may be necessary to appoint a legal guardian. 

Common Situations Requiring Legal Guardianship in Illinois 

• The death or incapacitation of a parent of a minor - When one or both parents pass away or are otherwise incapacitated, children need legal guardians until they reach the age of 18. Many parents choose a godparent or place explicit instructions designating an intended guardian in their will. Other times, a parent only names a guardian after learning they have a terminal illness. While a guardian must still be appointed to the court according to a child’s best interests, the court’s presumption is that the person the parent chose to be the child’s guardian is likely the best fit. 

• A disabled minor turning 18 - When children with long-term development or intellectual disabilities become adults, they are often unable to manage their own affairs. They may require help ranging from full-time care to part-time residential services. Whatever their needs are, a legal guardian can manage paying for them, applying for federal or local financial assistance, and making decisions about where the disabled adult lives or receives healthcare.

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 Prenuptial and postnuptial agreements are beneficial during a divorce. Many couples will choose to create a prenuptial or postnuptial agreement to protect their assets if the marriage does not work out. Prenuptial agreements and postnuptial agreements can address the division of assets, spousal support, and other financial matters. Despite the usefulness of many prenuptial agreements, there are still instances that a prenuptial agreement may not be upheld in court during your divorce. 

How Can a Prenuptial Agreement Be Invalidated?

Courts usually uphold the agreements described in a prenuptial agreement or postnuptial agreement. However, there are still ways that a spouse can justifiably contest their prenup. There are a few core reasons the court could invalidate a prenuptial agreement:

• Hidden Assets — A prenuptial agreement may be invalidated if one spouse has hidden assets. Hiding assets is deceptive and can change how other assets should be divided. If one spouse did not disclose all of their property or debt, the agreements in the prenuptial agreement will be based on incorrect information. 
• Coercion — If a partner coerced a spouse to sign the prenuptial agreement, the document might be invalid. A legal agreement is intended to be signed by both parties of sound mind and body. If one spouse was forced into agreeing through threats or coercion, that spouse could contest the prenup in court. 
• Lack of Proper Counsel — Another reason for invalidating a prenuptial or postnuptial agreement is if the original legal counsel that approved the document made a mistake. 
• Unconscionability - Part of all of a prenuptial agreement may be nullified due to the inclusion of unconscionable terms. Unconscionable terms are terms that are extremely unfair or would leave one spouse in such financial hardship that he or she would be eligible to receive public financial assistance.

 Speak With a DuPage County Family and Divorce Attorney 

Prenuptial agreements are useful legal tools for a wide range of situations. However, prenuptial agreements must meet certain criteria to be enforceable. If a prenup is deemed invalid, some or all of the agreements the spouses made could be thrown out. This is why it is so important to work with an experienced family law attorney when drafting a prenup.

Divorces can be extremely difficult for all family members emotionally, physically, and mentally. However, divorcing a partner with a mental illness presents an entirely new hurdle for many spouses. When choosing to pursue a divorce with a mentally ill partner, there are many factors to consider, including how to approach the divorce, making custody decisions, and ensuring the safety of everyone involved. Couples in this complicated situation may hire legal counsel to help them through the divorce process . There are also other tips that individuals can follow when divorcing a partner with mental health issues. 

Most Common Mental Health Issues 

According to the National Institute for Health and Care Excellence, prevalent mental health disorders today include:

• Depression 

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 In Illinois, the state focuses on ensuring that both parents of a child have protected legal rights. It is often assumed that mothers have most parenting rights over their children, but this is not always the case. The state assumes that both parents are adequately caring for their child, and so there are legal protections in place to ensure both parents have equal rights when it comes to parenting. If a couple decides to divorce during a marriage, both the mother and father have legal rights to custody, visitation, and parental decisions. In exceptional circumstances, parents can have their legal rights taken from them. 

What Type of Parenting Rights are Protected?

Suppose custody is established, and that parent has not expressed an inability or disinterest in caring for that child. In that case, the parent has legal parenting rights. Typically, these rights are exercised during a divorce, separation, or a significant life-changing decision. The parental rights that are protected in the state of Illinois include:

• The right to visitation with your child 

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When creating an initial parenting plan, parents prepare for the future. It can be hard to tell what life will look like just a few months or years following a divorce. Parents may decide to relocate to a new city, remarry, develop new relationships, or extend visitation time with their kids. If you find yourself in a situation where you would like more quality parenting time with your children, you will have to modify your standing parenting agreement within your divorce decree. Knowing how to navigate the process of changing a divorce decree and how to utilize the resources available to you can help you succeed in your effort to increase visitation, or parenting time, with your family. 

What is Divorce Decree Modification

Parenting plans outlining the allocation of parental responsibilities and parenting time are part of the comprehensive divorce agreement. Like all legal documents, parents are required to comply with the parenting plan. If there are changes that a parent would like to make, including increasing parenting time with their children, they must follow the modification process. As modifications are made to arrangements such as visitation or parenting time, other aspects of the divorce agreement may shift as a result, including spousal support or child support. 

What is the Modification Process

If there is a change that you would like to make to your parenting plan or divorce agreement, you must follow the Illinois modification guidelines. The parent must first show a reason for deciding to modify the plan. Do you miss your children and want to spend more time with them? Are you in a better living situation where you can now take care of your children for more extended periods? Did your financial situation increase, leading you to have more resources to take care of your children? Any of these reasons may be valid in court. The parent requesting the change must file the correct paperwork to request a modification called a motion to modify. It must be notarized and include all relevant reasons and evidence that led the parent to request more visitation time. Then, the parent will submit the modification request to the court that issued the divorce decree and wait for a decision to be rendered. 

All divorces can be complex. After being married for a certain amount of time, couples wind up having joint assets, which can be complicated to divide during a separation or divorce. Some divorces become increasingly complex as the assets divided between partners grow in value. If the quantity of assets needed to be divided is more significant than average or if the value of the joint assets is very high, individuals looking to divorce may need the help of an attorney with experience with high-value asset division. 

What are Examples of High-Value Assets?

When dividing you and your spouse's joint assets during a divorce, it is essential to understand what constitutes regular and high-value assets. An asset in the context of divorce is defined as anything that has real value to the individuals. Typical assets that may be divided between spouses include:

• A shared home

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Each marriage has its own individual needs and unique dynamic, so there is no “one size fits all” solution to marital problems. While some couples decide legal separation is the right approach for their family, others believe divorce is the best decision. By understanding the difference between separation and divorce, couples can make an educated decision on what is best for them.

What is Legal Separation?

Separation refers to couples who are still married but choose to separate either geographically or financially from one another. Separation and legal separation are not the same things. When couples are legally separated, they make legally-binding agreements about child custody, property division, and other divorce matters but remain married. 

Usually, couples that are separated live in separate homes. However, this is not required. Some couples will file for legal separation but choose to remain living together to help take care of the children or other familial responsibilities.

Depending on the nature of a divorce, there are many different ways that lawyers and spouses can proceed with dissolving the marriage. Typically, an amicable divorce will stay out of the courthouse — lawyers can help manage the paperwork to file for divorce and divide each of the shared assets between partners. However, when a divorce is contested, lawyers may move to litigation in court. Despite preconceived notions on what divorce litigation may look like from television shows and movies, there are a variety of ways to litigate, or fight for a case, in court. By speaking to an experienced attorney, spouses can determine what type of divorce litigation is right for them.

Choosing to Litigate

Before diving into the types of litigation that are typical during a divorce hearing, it is important to understand why litigation is necessary for many spouses. There are two types of divorces in Illinois: uncontested and contested. An uncontested divorce includes spouses who are amicable and agree upon the division of shared assets, child custody, and other divorce issues during the dissolution. This would mean that the spouses can work together and sign all of the necessary paperwork without having to defend their decisions through the help of an attorney. 

A contested divorce is when the spouses do not agree on all the elements of the divorce decree. Usually, this includes spouses who do not agree upon the amount of spousal support, child support, or child custody agreements. Contested divorces can be handled in a few ways including mediation or other alternative options that can lead to a mutual agreement. However, when the spouses are completely unable to come to a consensus, litigation may become necessary to move forward. 

Adults over the age of 18 enjoy the privilege of making their own legal decisions. Whether this is the ability to consent, begin a line of credit or make medical and financial decisions, adult independence can feel freeing. However, there may also be a time in an adult’s life when making independent decisions is not in that person’s best interest. This can be due to illness, mental incapacity or disability. When an adult is no longer able to make significant decisions on their own, the state can appoint guardianship to a selected family member.

What is Legal Guardian?

When an adult is no longer able to make independent decisions, a family member or loved one can be appointed as a guardian to that person. Typically, guardians help make financial and medical decisions for another person. There are a few different types of guardianships in Illinois:

• Guardian of the Person— A personal guardianship is appointed by the court when an adult is no longer able to make decisions for their own care. This guardian will be able to make medical decisions including treatment, residential placements, or any medical or social services needed. For example, the guardian can decide when to place a loved one in assisted living or  secure an at-home medical aid.. 

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Many changes occur during a divorce, including the relationships between all family members. The most common family dynamic change that is considered during a divorce is between the the spouses and children. However, divorce can also affect extended family relationships. In an effort to preserve the important bonds between children and extended family members, the state of Illinois allows visitation rights for some non-parental family members. 

Who Can Get Visitation With the Children After a Divorce?

Certain non-parents are family members that are legally recognized in Illinois as having visitation rights with children after a divorce. The state understands that other family members may spend a significant amount of time with the involved children. This can include taking care of them while the parents are at work, picking them up from school, or providing for the children's needs. If a parent is denying visitation with a non-parental figure in the child’s life, that person may be able to get visitation rights through the court. 

Individuals who may be able to seek visitation rights include:

To finalize a divorce, the court will set a decree that firmly outlines the terms of the divorce. These things can include who stays in the home, who gets the family heirlooms, and who gets the majority of parenting time with the children. It is illegal for a spouse to choose not to take part in their responsibilities outlined by the divorce order. If a partner decided they no longer wanted to pay child support, they would face legal consequences such as contempt charges. Similarly, it is illegal to prevent a spouse from being able to complete their responsibilities by preventing visitation with a child.

Visitation Rights and Your Illinois Parenting Plan 

Each parent is entitled to parenting time (previously called visitation) and parental responsibilities as outlined in the divorce order. Typically, parents can come to a mutual understanding regarding a schedule that works for both of the spouses. However, if one of the spouses is deliberately sabotaging visitation time, they can be held legally responsible for violating a court order. 

Preventing visitation time for another spouse may be different for everyone. Some common ways this can occur include:

It is often normal for parents to be unsure of their child’s choice in a romantic partner. However, in the state of Illinois, it may be possible to get your child’s marriage annulled if the circumstances of the marriage were illegal. A few factors can lead to marriage invalidation in Illinois. If a marriage occurred when one or both of the parties were under the age of consent or unable to consent, a parent can file for an annulment or “Judgement of Invalidation of Marriage.” 

My Underage Child Got Married Without My Consent

One reason to have a marriage annulled in Illinois is if a child ages 16 or 17 got married without parental consent. The age of consent in Illinois is 17 years old, however, to obtain a legally legitimate marriage, a 17-year-old must also have parental consent documented. Lacking parental or judicial consent to marry at 17 leaves the marriage prohibited. 

My Child Was Under the Age of Consent 

Another reason that a parent can file to annul their child’s marriage would be if the child was not of the age of consent. As mentioned, the age of consent in Illinois is 17 years of age. A person must be able to legally consent to engage in sexual relations to consummate the marriage for the union to be deemed legitimate. If one or both of the parties who got married were under the age of sexual consent, a parent can move to annul the union. If your child was under the legal age to sexually consent, you have exactly one year to move to annul the union. 

Establishing parentage of a child has many benefits. In the case of paternity, determining parentage can be difficult depending on the marital status between the parents and paternity allegations. Often, the best way to determine the biological father of a child is by taking a paternity DNA test. These are the four main reasons to take a paternity test in Illinois.

You Want the Alleged Father to Pay Child Support 

Even if a father is not interested in being a part of the child’s life, he is still accountable for financially supporting the child. A mother who is interested in obtaining child support from the father of her child may need to request a DNA paternity test. By requesting the alleged father take a DNA test and prove paternity, you can ensure that he is held to his legal responsibilities. 

The Father Wants Custody Rights 

Courts will allow for custody rights including parenting time based on the best interests of the child in question. Typically, this encourages both the mother and father to be an active part of their child’s life. If the paternity of a child is undetermined, a parent or the court may request a paternity DNA test to be conducted. A father-child relationship can be an important bond for both the dad and the child. By establishing paternity, a father can secure custody rights to encourage involvement in the child’s life.