This is one of the most helpful articles I have read in a long, long time, and touches on so many things people don’t know about Illinois Divorce Laws. I think it is helpful for everyone (not just in Illinois) because it addresses many misconceptions.
It is actually a speech that was given by Divorce Attorney, Burton Hochberg, a Senior Partner at Schiller DuCanto & Fleck. It is a valuable article for those who are newly separated, those going through a divorce, or those already divorced.
TOP 10 MYTHS IN ILLINOIS DIVORCE LAW by Burton Hochberg
Myth 1 – Is there an advantage to being the first one to file?
The answer is: No. The first person to file is called a Petitioner and the second person against them in the case is called a Respondent. There is no advantage to being the Petitioner, nor is there an advantage to being the Respondent. In Illinois both parties have equal rights and responsibilities. The Judge does not view the Petitioner as the good guy or the Respondent as a bad guy.
Myth 2 – Probably the most common asked questions is; Is Illinois a 50/50 property division state?
The answer is: It can be, but not necessarily. 50/50 Division States are known as “community property states”. Illinois is not a community property state such as California. Illinois is what is called an “equitable distribution state”. What that means is that the court will allocate assets and liabilities equitably not necessarily 50/50. Although in many cases it turns out to be 50/50. What’s important to keep in mind is not just the percentage division but the dollar value that is allocated to the asset or liability. A 50/50 division with over valued assets really isn’t a 50/50 division and certainly attention should be given to the dollar values of the asset and liability.
Myth 3 – Frequently asked; Is marital misconduct or bad behavior something that will help me in my case? My husband has had a girlfriend or my wife spends money without any budget or regard to our finances. Are those factors things that a court would consider in the division of property?
Generally not. Our statute specifically says that marital misconduct is not to be considered in either division of property, the setting of support, the setting of support, the setting of child support, or indeed in custody determinations. The exception to that general rule is dissipation. Dissipation is defined as the expenditure of funds after a time that the marriage has gone through an irretrievable breakdown not related to the marriage. A simple example is Gambling. If one spouse gambles the court can consider that dissipation and add the amount dissipated to that party’s balance sheet as though it still exited.
Myth 4 – If I don’t pay attorneys’ fees to or on behalf of my spouse, will that freeze him/her out and give me a leg up, is that a good strategy?
In Illinois the answer is- No. We have a statute that allows for temporary fees to be awarded from the spouse who’s financially advantaged in favor of the spouse who does not have the financial resources. It is called “leveling of the playing field”, and the court does not hesitate to award temporary attorneys’ fees once, twice, or a half dozen times during the pendency of the case. Most judges will not allow the inability one spouse to access money to pay for his/her attorneys’ fees to be outcome determinative. The amount of fees that are advanced are considered a credit toward that spouse’s share of marital property.
Myth 5 – Joint Legal Custody means that the children spend half of their time with Mom and half of their time with Dad?
It is not true. Joint Legal Custody is a legal term and it means that major decisions concerning education, medical care, and religious upbringing are made jointly. It has nothing to do with where the children live. Where the children live is referred to as visitation arrangement, the parenting schedule and under a joint legal custody arrangement, the children could live with each party equally but more often than not live with the residential parent and then a visiting parent, typically alternating weekends, shared holidays, and some weekday visits.
Myth 6 – If I have joint legal custody and shared visitation schedule, I won’t have to pay any child support? Not true. Courts look to award child support to the primary residential parent. Even when the parenting schedule is equal or close to equal, often the less financially well-to-do-parent will receive child support.
Myth 7 – If I have no income, I can’t be ordered to pay child support or maintenance? Not true. Illinois Courts and most state courts will go out of their way to protect children as it relates to child support payments. If a party does not have employment, the court can take assets from that person, set them aside in what is known as a 503(g) Trust and utilize the proceeds from that Trust for child support. Courts will routinely require an unemployed spouse to keep a job diary. So the fact that somebody may be between jobs doesn’t mean they don’t have an obligation to look for an obtain employment. In some cases, parties are underemployed; somebody who can make $300-$400,000 a year will be required to pay child support at that level and will not be allowed to pay child support at let’s say $50,000 or $75,000 unless the lower paying job is a good faith employment, so courts will impute income to somebody who is not working and earning a traditional and reasonable levels.
Myth 8 – Most people think that all support payments are tax deductible.
It is not correct. Maintenance payments, if there is language in the agreement that requires that the payments abate upon the death of the payee are generally tax deductible to the payor and tax includable to the payee, child support payment are not deductible by the payor and are not tax includable by the payee.
Myth 9 – Clients often ask: If I don’t like the outcome of my divorce trial, I can always modify it, right?
The answer is: Generally not. Once a judgment is entered as a result of a contested trial, it is not modifiable unless there is a substantial change in circumstances as it relates to either child support or maintenance. If there is a substantial change in circumstances relating to support, a court, after an evidentiary hearing, may modify child support or maintenance. Property terms on the other hand really are in stone in absence of fraud, duress, or unconscionability. So, once you have your trial you’re pretty much stuck with it unless somebody loses a job, gets sick or is a large increase in the expenses of the receiving support spouse.
Myth 10 – Permanent maintenance is forever.
Not true. Permanent Maintenance is also known as “Indefinite Maintenance” and is modifiable based upon a substantial change in circumstances. Permanent Maintenance abates under Illinois Law upon the remarriage, co-habitation, or death of the recipient. It is modifiable based upon a change in circumstances that is involuntary. A person who loses his/her job for circumstances beyond their control can petition the court and will get relief. A person gets ill and can’t work, he/she can petition the court and get relief. The more difficult case is where somebody wishes to retire, the court will look at the economics of the industry and determine whether it’s a good faith retirement or not.
Burton Hochberg has been a divorce attorney for 39 years, and is currently a Senior Partner at Schiller DuCanto & Fleck. Hochberg has significant expertise in helping high net worth clients in the areas of property valuation, child support, child custody and maintenance. Although he attempts to keep a case out of court when possible, Hochberg is also a skilled litigator and is regarded as a force to be reckoned with in the courtroom. He has been designated as one of the nation’s top matrimonial lawyers by Best Lawyers in America, and is a member of the American Academy of Matrimonial Lawyers. He has served as a member of the Hearing Board and Inquiry Board of the Illinois Registration and Disciplinary Commission of the Supreme Court of Illinois.