As a divorce specialist in the Chicago area, I am exposed to many misconceptions about divorce law. For example:
People often mistakenly think that they are “legally separated” if they live in separate residences. In actuality, a legal separation is a marital status, just as is divorced or married. (Section 402 of the Illinois Marriage and Dissolution of Marriage Act). In order to be legally separated in Illinois, a court must approve the legal separation and enter a court order to that effect.
If a spouse desires a trial separation and not a divorce, a legal separation is a vehicle to provide that spouse with support during the separation. However, it should be noted that while providing a legal support obligation, that same section, Section 402 of the Illinois Marriage and Dissolution of Marriage Act, also states that a legal separation does not bar the other spouse from obtaining a divorce if the requirements for a divorce are met.
Today, a legal separation is rarely used instead of a divorce. The primary reasons are:
As a Chicago divorce lawyer I see that, often times, one spouse alone manages the parties’ finances. Or, one party knows that an asset exists, such as a retirement account, but does not know where it is held or the value. The Illinois Supreme Court has given divorce lawyers tools with which to discover assets so that one party is not unjustly enriched to the detriment of the other. By way of example, the rules provide for the mandatory production of documents, accompanied by a signed affidavit stating that the spouse has produced all of the documents within his or her possession and control. In the vast majority of cases, there is usually a “paper trail”, which an experienced attorney can follow, to verify whether the disclosure of information is complete. If the other spouse withholds or hides information, a court has the authority to impose severe sanctions against that spouse.
An attorney is also permitted to take the deposition of a party, to obtain information. A deposition consists of the attorney asking the other spouse or a witness questions. The answers are sworn to, under oath, with a court reporter present to record the answers. Again, there are safe guards in the event that the party being asked the questions is not being truthful.
Also, an attorney has been granted the power to subpoena documents from third parties and to obtain testimony from third parties. Since most people are paid by check or their salaries are direct deposited into… Continue reading
As a Chicago divorce attorney I am frequently asked questions regarding child support issues. The Chicago family law governing divorce cases, the Illinois Marriage and Dissolution of Marriage Act, provides that a parent must pay child support from “all income from all sources”. Income is generally thought of as salary, other compensation from employment, interest, dividends, monies from partnership entities, perquisites, and the like.
In In Re the Marriage of McGrath, a case decided in 2011, a Court used the regular withdrawals from an unemployed father’s IRA account as “income” for purposes of child support. In the McGrath case, the father was unemployed at the time of the divorce and the issue of child support was reserved. Nearly one year after the divorce, the father was still unemployed. He had been withdrawing $8,500.00 each month since the divorce to pay his own living expenses. When the mother petitioned the divorce court for child support, the court considered the $8,500.00 per month as income to the unemployed father, and awarded child support based upon the IRA withdrawals. The father argued that the IRA account did not constitute income because the money in the account was no different than a savings account, i.e. the money was already there. Also, the father had been awarded his IRA account as part of his property settlement in the divorce.
The Appellate Court affirmed the trial Court’s decision, saying that a trial court has the discretion in the appropriate case to order child support based on… Continue reading