Putting Off Divorce? Long Term Separations May Have a Harder Financial Impact than Divorce
Family law practitioners often encounter couples who have been living separately for quite some time without either party having started the process of filing for divorce. These long-term informal separations can last for years, but not only do they have no legal basis (only a formal legal separation is recognized in Illinois), they can also have serious financial implications for the parties. While living separately without going through the formal divorce process may seem like a good idea at the time, and may be the “easiest” route for a couple and their family, these long-term separations can have disastrous financial effects. In determining whether to take the plunge and begin the divorce process, it is important to keep in mind the following:
1) Control over marital assets.
If you are living apart from your spouse, you may not have control over some of the marital assets or debt. For example, you may not know what your spouse is earning, how money is being spent or invested, or what debts are being incurred by that spouse. Furthermore, Illinois is an equitable distribution state. This means that the marital assets and debts are equitably (i.e. “fairly”) distributed between the parties, without regard to marital misconduct. Courts consider a wide range of factors when distributing debt. Hence, if you have any joint debt with your spouse, you could potentially be held liable for any additional debt accumulated during your separation. You also may not have any control over the use of marital assets and any decrease in value of these assets, which may affect your property distribution when you finally do divorce.
2) A change in circumstances can affect the divorce settlement terms.
If your spouse is the primary income earner, your settlement during a divorce will be based substantially on his or her current financial circumstances. This is important to keep in mind in light of the weak employment market; if your spouse is fired, downsized, or otherwise terminates his or her current employment, the amount of support you might receive, the property distribution, and liability for debts in a divorce could be affected. To avoid this possibility, it is better to seize the moment and divorce while your spouse's employment is secure.
3) Your spouse could be planning for a divorce, even if you are not.
Long-term separations provide the perfect opportunity for your separated spouse to plan for a divorce that benefits him or her to the fullest extent possible or to manipulate things to his or her advantage. Your spouse, for instance, could hide certain marital assets and ensure that they are unavailable when it comes time to negotiate a divorce settlement. While seasoned family law practitioners have ways of locating and identifying marital assets that a spouse has attempted to hide or otherwise manipulate, this takes a significant amount of time and money to investigate, and is not always one hundred percent successful. In addition to hiding or manipulating marital assets, prolonged separations can also allow your spouse time to move to another state where there may be limitations on the amount and duration of maintenance that the court can award or less favorable methods for allocating marital assets and debts. Most states only require one year of living in-state to establish residency (and in fact, in Illinois, courts have jurisdiction for divorce if a party has been living here for only 90 days).
For all of the above reasons, it is often best to begin the divorce process sooner rather than later. While it may be emotionally difficult to do so, the financial ramifications of living separately and prolonging a divorce can be significant. If you are currently debating your options or have been separated from your spouse for a long period of time, contact Mirabella, Kincaid, Frederick & Mirabella, LLC today. We have over 50 years of experience serving clients throughout the western suburbs of Chicago and understand the different affects a separation or divorce might have on a family. Call us today for a free consultation, and let us walk you through the benefits a properly-structured divorce can provide for you.