Legally Speaking – 630 Naperville on NCTV

Deciding to get a divorce is never an easy choice. It can get complicated as Neil Sadaka’s song say’s “Breaking Up is Hard to Do”. In the August 2022 installment of Legally Speaking on 630 Naperville on NCTV , Bernicky Law Firm attorneys  discussed some of the questions they get from clients to help us demystify divorce.

If a couple mutually agrees to divorce — Is there such a thing as a “simple divorce”

That depends on if the divorcing couple agrees 100% on everything. If so, it might be, but this is rare. In most instances, each party should get their own attorney to represent them. In divorces, there is an inherent conflict of interest when parties “share” an attorney.

Sometimes Spouses opt to represent themselves; however, a spouse representing themselves are held to the same standard as if they were a licensed attorney and more than likely will not have the experience to know how to draft the required pleadings, motions, responses, or know how to follow what’s required with court procedures, etc. The court and court clerks are barred by law to help them with any legal advice, and many spouses who start off self-representing need to hire an attorney at some point to get the case back on track.

What happens to the house and other property in a divorce?

The house is a marital asset and as such both parties must agree what happens to the house. If they can’t agree, most likely the judge will order the house sold with the proceeds split. Marriage is not 50%/50%, it is 100%/100%. All assets and debts acquired during the marriage are considered by law to be marital assets. There is no “this is mine” in a marriage. It does not matter if an asset or account is in one spouse’s name only. If it was acquired during the marriage, it is a marital asset; and each spouse is entitled to their marital share. The only exceptions are if there is a valid prenuptial agreement or the asset was acquired by gift or inheritance (and if it was the gift or inheritance, it must not be co-mingled in any way or it immediately becomes a marital asset, and it cannot ever again become a non-marital asset).

What are some key things to know when getting divorced if the couple has children?

Children are not property. The court goes by the best interests of the children to determine what happens with them. A judge may appoint a Guardian Ad Litem, who is an attorney, to act in the best interests of the children. Many people don’t know that Illinois Family Laws were recently changed in 2016 and 2017. In the past, the parent with custody made all the decisions for the child, like education and healthcare. Under Joint Custody, both parents jointly made those decisions. The newer law states that child support is the responsibility of both parents, and only one amount of child support is calculated; the non-residential parent only pays their share of the child support amount, which makes child support payments much fairer. A big caveat to this is if you have a child support order under the old law. The new law specifically states that the new law does not apply to child support orders entered under the old law unless there has been a substantial change in circumstances. The new law is not a substantial change of circumstance.

When should the couple update their estate plan if they have one in place?

A couple’s estate plan should be updated whenever there is a change in circumstances, like a separation. When there is a separation, each party should have an experienced attorney review their estate plan to ensure that the correct beneficiaries are named and that the person’s written plan is in line with their wishes. A change of circumstances that would necessitate an estate plan review could be a separation, births, deaths, adoptions, subsequent marriages and step-family, opening or closing of businesses, changes in property (buying/selling homes) or location, or wishing to change the currently named beneficiaries, executors, administrators, or guardians.

With all the changes that can come from a divorce or separation, a team of experienced attorneys can help people navigate through this life change.