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St. Charles divorce attorney division of assets

You may be surprised to find out that one in four divorces involve spouses who are over age 50. Increasingly, couples are getting divorced later in life. This so-called “gray divorce” often comes with unique challenges and complications. If you are considering divorce, one concern you may have is how the divorce will affect your retirement plans. You may question how much of the retirement account will be awarded to your spouse or worry about whether you will have the funds necessary to support yourself after you stop working.

Is My Spouse Entitled to a Portion of My Retirement Fund?

While some states divide marital property 50/50 during divorce, Illinois courts take a more nuanced approach to the division of assets. Illinois follows a legal doctrine called “equitable division,” which means that marital property is divided equitably based on each spouse’s financial circumstances, health, and needs. Only marital property, or all property acquired during the marriage, is divided during a divorce. The nonmarital property, or property accumulated before the marriage, is assigned to the original owner. Typically, the portion of a retirement account that was acquired during the marriage is subject to division while the portion of the retirement account that a spouse earned before getting married is not subject to division.

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Kane County family law attorneysThere is absolutely no question that domestic violence continues to be a major problem in today’s society. In fact, there are a number of studies that suggest that the issue may be even more serious than previously acknowledged, including many under-reported cases involving male domestic abuse victims. The physical, psychological, and emotional damage caused by violence against an intimate partner or family member can rise to tragic levels, often requiring years of recovery if and when a victim can escape an abusive situation. It is for exactly these reasons that intentionally false allegations of domestic violence are so disturbing, and such allegations can substantially affect the outcome of family-related legal concerns.

Impact to the Falsely Accused

Under Illinois law, an emergency order of protection can be issued by a judge based solely on the testimony of a victim. In a situation where there is actual violence or the threat of violence, this is entirely necessary. However, when a parent or spouse brings false allegations of violence before the court, an emergency order of protection can affect a completely innocent person. Depending upon the details included in the claim, the order can potentially prevent the accused from remaining in his or her home, seeing his or her children, or even going about the normal business of daily living. An emergency order of protection can remain in effect for up to 21 days, or until a re-hearing on the matter can be scheduled, whichever comes first.

Potentially Long-Lasting Effects

Sadly, many individuals who file false reports of domestic violence do so to gain a perceived advantage in a divorce or parental responsibilities proceeding. Virtually all child-related legal matters require the court to take into account the existence of violence or the threat of violence in the household and toward the children. An unscrupulous party may be tempted to create false allegations as “proof” that the other parent should not be granted specific rights or responsibilities related to the child. While the court should be able to determine the actual truth, the allegations can still create an unhealthy level of contentiousness that could negatively affect the child, regardless of the court’s decision.

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Kane County family law attorneysWhen most people think of divorce, they think about the end of a romantic relationship. However, a marriage is not only a romantic union, it is also a legal and financial union. Often, separating two spouses’ finances and property is one of the most complex parts of the divorce process. This is especially true if the couple has accumulated significant assets throughout their marriage.

One of the biggest concerns many divorcing couples have is what to do with the family home. Whether or not you choose to sell your home during your divorce is completely up to you and will depend upon your family’s unique circumstances and needs. If you are contemplating what to do with your home after divorce, there are a few things you should keep in mind.

Can Either Spouse Afford the Mortgage Payments?

It can be extremely difficult to give up a home that you have come to love. This is often especially true for parents with children. Many divorcing parents worry that subjecting their children to a relocation in the midst of the divorce will be too much change for the children to handle. You may also worry about moving out of your school district and forcing the children to change schools. For some couples, selling the family home simply does not make financial sense. If you or your spouse wish to keep the home, you will need to decide one spouse will manage the mortgage payments on his or her own. The spouse who takes ownership of the home may need to refinance the mortgage or it may make more financial sense to assume the existing mortgage without refinancing.

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Kane County family law attorneysIf you and your spouse are having serious problems in your marriage, one of you may decide to find another place to stay while you figure out what to do next. You might, for example, stay with a family member so that you can gather your thoughts about how to proceed. This practice is so commonplace that many couples would not even consider a divorce while still sharing a home.

Just because something is a common practice, however, does not mean that it is a legal requirement. In fact, it may come as surprise to learn that Illinois law does not require any period of physical separation in most divorce cases.

Knowing the Law

Prior to 2016, a couple seeking a divorce on the grounds of irreconcilable differences—colloquially known as a “no-fault divorce”—was required to live separate and apart for two years before the divorce could be finalized. By agreement of the parties, the separation period could be lessened to six months. While Illinois courts found that “living separate and apart” could theoretically occur under the same roof, most cases saw one spouse or the other move out the marital home for at least half a year prior to the divorce being finalized.

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St. Charles property division lawyersDividing marital property is one of the challenges for any couple going through a divorce. Simply identifying marital property can prove to be an arduous process, due to the complexities of the law in Illinois and the way in which many married couples maintain their household finances. A large number of couples may find themselves dealing with commingled property, without even realizing how they got to that point.

The Basics

Illinois law provides that any property acquired by either spouse during the marriage is considered part of the marital estate, except property that was acquired through gift, legacy, or descent. The law also creates exceptions for assets received in exchange for (e.g. proceeds from selling) non-marital property, whether the original property was a gift, inheritance, or acquired before the marriage. While the law attempts to be fairly straightforward, the realities of many marriages make things considerably more complicated.

What’s Mine Is Yours

Not every couple will do so, but many, if not most, people enter a marriage with the expectation of completely sharing a life together. They are not considering the possibility of the marriage ending at some point, and, thus, are perfectly willing to combine assets and property. This usually includes property that was owned prior to the marriage, which according to the laws governing divorce would be non-marital property.

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Wheaton, IL 60189
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We serve clients throughout Kane County, Illinois including St. Charles, Geneva, Batavia, North Aurora, Elgin, Algonquin, Aurora, Barrington Hills, Bartlett, Big Rock, Burlington, Campton Hills, Carpentersville, East Dundee, Elburn, Hampshire, Huntley, Kaneville, Maple Park, Sleepy Hollow, Wayne, West Dundee as well as throughout DuPage County.

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In honor of the passing of our founder, Joseph F. Mirabella, Jr., our offices are closed Friday, January 31, 2020.I Agree