Uncontested Divorce – The Basics

First we will start with what’s not an uncontested divorce.  If you don’t know how to contact your spouse, you cannot get an uncontested divorce.  You will be able to get a divorce by default, but even still, that it not as easy as it sounds.  I will address a divorce by default in another article.

An uncontested divorce is one where the parties have agreed on how they will divide their assets and liability, who the children will live with, who will make decisions for the children, and how much support and/or maintenance will be paid.

What Are the Advantages of an Uncontested Divorce?

The main advantages to an uncontested divorce are:

  • Cost – It’s usual done for a flat fee.  You know up front how much the entire divorce of going be.  If you are looking for a cheap divorce, it’s your best option.
  • Control – You determine the outcome.  When people fight, usually no one is happy with the outcome.
  • Efficiency – You can be divorced much faster if it’s by agreement…usually within 30 days from the date of filing.

Assets and Liabilities

Under Illinois law, everything that is purchased after the date of marriage, and every debt that is accrued after the date of marriage, is marital in nature.  People are frequently surprised to learn that even though they purchased cars, property, and accrued credit card debt in their separate names, in the eyes of the law, these are marital assets or liability.  The only way to make property non-marital after the date of the marriage is to draft a post-nuptial agreement.  Of course, the agreement must comport with Illinois law.  Attempting to such a document on your own, or via something you found on the internet, could leave you in a much worse position.

On the other hand, if you owned property prior to the marriage, that property may be non-marital in nature.  I use the caveat that it may be non-marital because non-marital property can become marital property depending on how it’s handled during the marriage.

Other assets include retirement benefits.  Since all income earned during the marriage is marital money, it follows that all retirement benefits accrued during the marriage are a marital assets.  In the context of an uncontested divorce, you must decide how these benefits will be divided.  You should also keep in mind that a separate order called a Qualified Domestic Relations Order or QDRO is needed to divest the benefits from the retirement plan.  This would not be included in the cost for an uncontested divorce.

In the context of an uncontested divorce, the parties should have discussed all these issues and reached a resolution as to what party will be taking what assets and what party will be taking what liabilities.  They should also make note of any property that they consider to be non-marital in nature.

Allocation of Parental Responsibility

Illinois no longer has custody.  As of January of 2016, the new statutory framework is allocation of parental responsibility.  The four areas are healthcare, education, religion and extracurricular activity.  Both parents can be responsible for making decisions in all four areas, or there can be some combination of the above.

The parents also have to decide on parenting time for the children and which address will be the primary address.  The purpose of the primary address is mainly for registering the children for school.  It does not give one parent any superior rights over the other parent.  The rights are governed by the terms of the allocation agreement.

Next Steps

If you think that you might be a candidate for an uncontested divorce, please give me a call.  My office is conveniently located in Skokie, and I can be reached at (708) 466-6912.  I handle uncontested cases in Cook, Lake, Dupage and Kane counties.

 

New Changes to Illinois Child Custody Laws Coming in 2016

Forget everything you thought you knew about custody in Illinois, or what your divorced friends have told you about custody in Illinois.   Come January 1, 2016, custody in Illinois ends as we know it.

Bye-bye Sole Custody, Joint Custody and Visitation

Are you seeking sole custody or joint custody with visitation?  After January 1, 2016, those terms will no longer exist.  The new framework is allocation of parental responsibilities with parenting time.  Parental responsibility is broken down into categories, such as health, education, religion, extra-curricular activities, etc.  One or both parents is given sole or joint responsibility for these categories.  No one knows how the new law will play out in court, but the purpose was to level the playing field.  Under the current scheme, to defeat joint custody, the parent seeking sole custody usually argued that the parties don’t get along and that joint custody would be burdensome.  Under the new framework, both parents are equal stakeholders with the purpose of the law being to maximize the time the child spends with both parents and to encourage cooperation, rather than adversity, in child rearing.

Child’s Best Interest for Allocation of Parenting Time

The current statutory framework is amended as follows: In determining the child’s best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:

  1.  the wishes of each parent seeking parenting time;
  2. the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time;
  3. the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child’s birth;
  4. any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child;
  5. the interaction and interrelationship of the child with his or her parents and siblings and with any other person who may significantly affect the child’s best interests;
  6. the child’s adjustment to his or her home, school,and community;
  7.  the mental and physical health of all individual involved;
  8.  the child’s needs;
  9.  the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement;
  10.  whether a restriction on parenting time is appropriate;
  11.  the physical violence or threat of physical violence by the child’s parent directed against the child or other member of the child’s household;
  12. the willingness and ability of each parent to place the needs of the child ahead of his or her own needs;
  13. the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
  14.  the occurrence of abuse against the child or other member of the child’s household;
  15.  whether one of the parents is a convicted sex offender or lives with a convicted sex offender and, if so, the exact nature of the offense and what if any treatment the offender has successfully participated in; the parties are entitled to a hearing on the issues raised in this paragraph
  16.  the terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed; and
  17.  any other factor that the court expressly finds to be relevant.

What Does this Mean for Divorces with Children?

It means that parenting agreements will necessarily be much more complex, making it imperative that you hire a competent attorney who is well versed in the new law.  Many of my cases are complicated custody cases, and child representatives have already started implementing the changes, as have the judges that I’ve been before in anticipation of the new law.  This means that come January 1, 2016, I will be ahead of the curve.

What do I do next?

To schedule an appointment, please call Rhonda Stuart at (708) 466-6912.