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Legal Separation or Divorce? Know Your Options
Even if you believe that your marriage is over and irreparable, leaving your spouse and pursuing a divorce can be difficult to do. However, divorce is not your only option: legal separation is an alternative.
What Is Legal Separation?
Unlike a divorce–which completely and legally dissolves a marriage–a legal separation does not legally end a marriage. When spouses enter a legal separation, they will still be married in the eyes of the law until a divorce takes place. This means that those who are legally separated cannot remarry.
Legal Separation vs. Living Apart
There is also a difference between a legal separation and simply living apart. While you and your spouse may be living apart physically, the separation will not be a legal separation unless you turn to the court and ask it to make decisions about things like child support, child custody, and spousal maintenance. For many couples, having the court issue a determination in regards to these issues is critical; some couples may have such a contentious marriage that negotiating these issues outside of court is impossible.
Asset Division in a Divorce
While there are many reasons why a divorce can be contentious, one of the most disputed issues when parties are parting ways is that of asset division. In many cases, both parties feel as though they’re entitled to certain assets, leading to fighting over who gets what. If you’re getting a divorce in Naperville or surrounding areas of Illinois, understanding the law regarding division of property, and the methods available of navigating it, is critical. Here’s a look into what you need to know:
Asset Division in Divorce: What Does the Law Say?
In Illinois, the court requires that a divorcing couple divide their assets in a manner that is equitable. Equitable means fair but does not necessarily mean equal; couples are not asked to split their property 50/50.
The only property that is subject to equitable division in Illinois is marital property; separate property may be kept separate. Per 750 ILCS 5/503, marital property means all property, including debts, acquired by either spouse during the course of the marriage. Separate property is that property which was acquired prior to the marriage or was acquired by gift or legacy, property exchanged, or property acquired during the marriage, or property that is exempted due to the terms of a premarital agreement.
How Does a DCFS Investigation Affect Parenting Time?
The Illinois Department of Children and Family Services (DCFS) is the agency that is responsible for the investigation of any allegations of child abuse or neglect. While DCFS does not typically get involved in a standard child custody case during a divorce or separation, DCFS will open an investigation if child abuse or neglect has been alleged by any party. If a DCFS investigation is conducted, the results of this investigation could have a large effect on each parent’s parenting time and parental responsibilities. Here’s a look into what you should know–
What Is a DCFS Investigation?
If there is any report made to the DCFS that a child is being abused or neglected, the agency often has an obligation to investigate that allegation. If a formal investigation is opened, DCFS agents, often working with police, will look for any evidence that:
- The child was abused or neglected;
- The child is at risk of abuse or neglect within the home; or
Religious Beliefs for Children after Divorce
Religion is an extremely sensitive topic, and to some people, their religion is close to their heart. When parents divorce with children, the decision of which parent is able to decide the child’s religion can be a very touchy–and often divisive and contentious–topic. If you are getting divorced in Illinois or have recently divorced, here is a look into what you need to know about which parent will be able to make decisions regarding religious upbringing.
Allocating Decision-Making Responsibilities in Illinois Divorce
Choosing a child’s religion falls into the category of “significant decision-making responsibilities.” This is not the same as having physical custody of a child; parents may share physical custody and decision-making responsibilities, or share physical custody and but only one parent has decision-making responsibilities. Decision-making responsibilities include the power to make decisions about a number of aspects of a child’s life, including:
Can I Refuse Parenting Time if My Child is Sick?
All parents will inevitably be tasked with caring for a sick child, probably dozens of times throughout the child’s life. While most illnesses are common and fairly easy to remedy with rest and basic care, taking care of a sick child can be complicated when parents share custody. Here’s a look into what you need to know about sharing parenting time when your child is sick–
Stick to Your Parenting Plan as Much as Possible
It can be tempting to deny the other parent their afternoon or weekend with your child as it is, but even more so when your child is sick – you surely want to nurture your child back to health yourself. However, refusing visitation or parenting time for minor illnesses is inappropriate; your child’s other parent has just as much of a right to care for your sick child as you do. What’s more, assuming that your child is suffering from a minor illness, such as a cold, they can receive just as much care at their other parent’s home as they would at yours. If parenting time is missed due to an illness, the parent should have the opportunity to make up that time at a later date.
Spousal Support and Remarriage
Spousal support, also called spousal maintenance or alimony, is a common part of an Illinois divorce settlement. An order for spousal support is issued in the event that one party is not able to support themselves otherwise and had been dependent on the other party throughout the course of a marriage.
Spousal support awards can be issued for various amounts, can be made in various ways (i.e. lump sum vs. monthly payments), and can last for various amounts of time. That being said, even awards that are considered to be permanent can be terminated if certain events occur: remarriage (or cohabitation) or death.
Will Getting Remarried Mean I Lose Spousal Support?
If you are a recipient of spousal support payments, you can count on those payments being terminated in the event that you remarry. As such, if you are in a romantic relationship and are thinking about remarrying, the fact that your spousal support will be terminated may make you reconsider.
However, do not make the mistake of thinking that remarriage is the only way that spousal support can end; cohabitation may also result in a termination too. Cohabitation means that you and another party are living together and maintaining a relationship similar to that of a husband and wife.
Do I Have to Sell My House in a Divorce?
One of the biggest concerns with getting a divorce in Illinois is the fear that a party will be forced to sell their house. Indeed, dividing real estate in a divorce can be one of the most complicated parts of the divorce settlement, and individuals are often confused about their rights. If you are getting a divorce and are worried about whether or not you’ll have to sell, here’s a look into what you need to know–
How is Property Divided in a Divorce?
Illinois is what is known as an “equitable distribution” state. In an equitable distribution state, all marital property is subject to equitable–but not necessarily equal–division between the parties. Marital property means all assets and debts that were acquired during the course of the marriage. This means that if you and your spouse both own your house or if one of you purchased the house after you were married, your home must be counted as marital property, and will be subject to division as such.
Can I Ask My Ex to Sign Over His or Her Parental Rights?
Being a parent is hard work, and sometimes, the job is made even more difficult by the inappropriate actions of the other parent. Whether as a result of a divorce case, an abuse case, or a case involving domestic violence or other improper or illegal act, there may be a situation in which you wish to ask your ex to sign over their parental rights. Consider the following about the termination of parental rights in Illinois, and call our law firm for information specific to your case–
Voluntary vs. Involuntary Termination
A parent can terminate their rights in Illinois either voluntarily or involuntarily.
Involuntary termination of parental rights. A court may terminate a parent’s rights in the event that the parent is found to be “unfit,” as defined in 750 ILCS 50 as, “Any person whom the court shall find to be unfit to have a child…” In determining whether or not a parent is unfit, the court will consider:
Do I Have to Pay Child Support if I Am Deployed?
Understanding Illinois family laws, divorce laws, and child support laws while you are serving in the military and are deployed can feel overwhelming. Indeed, if you are abroad or plan to be abroad, knowing whether or not you need to pay child support, how that decision will be made, and how to modify your child support arrangement may feel burdensome and confusing. Our family law attorneys at the offices of Fay, Farrow & Associates, P.C. can help you to understand your child support obligations if you are deployed.
Do I Still Have to Pay Child Support?
Regardless of your station in the military and whether or not you are deployed, you must pay child support. All parents in Illinois have a duty to support their children financially. While you are obligated to pay support, precisely how that support is calculated and when you can request modification of a support order may vary if you are deployed or plan to be deployed in the future.
How Is Child Support Calculated?
Do I Need Permission to Take My Kids on Vacation?
Taking your child on an out-of-state vacation seems very reasonable. From road trips to family reunions to European getaways, traveling can be a fun way to bond with family. However, if you and your spouse are divorced and share custody or parental responsibilities of a child, are you legally allowed to take your child out of the state without the other parent’s permission? Here’s a look at what you need to know–
Refer to Your Parenting Plan
At the time of divorce, parents must create a parenting plan that specifies how parenting time with a child will be shared, how decisions about a child will be made, etc. In some cases, the parenting plan may even talk specifically about vacations and out-of-state vacation. For example, if one parent typically travels out of state for a week during the summer for a family reunion, the child’s attendance may be noted in the parenting plan.
Results listed are not a guarantee or indication of future case results.
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