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trust fund, Illinois divorce attorney, division of property upon divorceThe division of marital assets is one of the most important and complex steps in the divorce process. Parties must first determine what the marital assets are and the value of them. Under certain circumstances, property that is part of a trust may be protected from inclusion as marital property. Therefore, it is important for both grantors and beneficiaries of trusts to understand when property in a trust may or may not become part of the division of marital property.

Trust Property 

Under Illinois law, property acquired as a gift or inheritance and kept separate is generally protected from being classified as a marital asset and thus is not part of the division of the marital estate. In such a case, if a beneficiary of a trust divorces, his or her ex-spouse will usually not be given any rights to that non-marital property—a beneficiary of a revocable trust has no legal right to the trust principal or income due to a grantor's right to cancel a trust at any time. Hence, forming a revocable trust is one way in which a grantor can provide for a beneficiary and also protect his or her assets from a beneficiary's ex-spouse at the same time. However, if the funds from a trust are distributed and a beneficiary commingles those funds with marital property, the funds may be considered marital property. Commingling can occur if funds of one spouse are placed into a joint account of both spouses.

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post-divorce modification, Illinois Divorce AttorneyUpon completing the divorce process, it is very likely that one's circumstances will change at some point in the future. This is particularly true if a couple divorces at an earlier stage in life. If the changes are significant, upon notice and motion, it is likely that a court will order a modification of maintenance and/or child support awards.

Changes that May Result in Modification

In order for a petitioner (the person requesting modification) to obtain a modification of maintenance or support, he or she must prove that a substantial change in circumstances has occurred. Examples of changes that may give rise to modification include, but are not limited to, the following:

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collaborative divorce, Illinois Divorce AttorneyDivorce is often considered to be an adversarial battle. However, this does not have to be the case. While it is not appropriate for everyone, the process of collaborative divorce can work very well for certain couples. If the parties in a divorce can set aside their differences and cooperate with one another, a collaborative divorce may be a more efficient and less contentious alternative to the traditional divorce process.

What is Collaborative Divorce?

During a divorce, issues such as property distribution and child custody must be resolved. Under a collaborative divorce, a couple cooperates to make these important determinations. Both parties retain their own attorneys who are specially trained in collaborative divorce. All four people come together regularly in an attempt to arrive at an agreement. The focus of a collaborative divorce is to resolve the issues in a civil manner, without placing blame on anyone.

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child custody, domestic violence, Illinois divorce attorneysEnding a marriage through divorce is a difficult process, and is filled with many mixed emotions. The process is made more complicated when children are involved, particularly when one parent has been accused or previously convicted of domestic violence. The existence of domestic violence raises several issues that the court may have to address.

What is Domestic Violence?

Under the Illinois Domestic Violence Act (IDVA), domestic violence is defined as physical abuse, harassment, forcing a dependent to witness physical abuse of another person, interference with personal liberty, or willfully depriving a person of necessary items, such as medication, medical care, shelter, or food. Physical abuse includes sexual abuse as well as any of the following:

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illinois alimony modificaionIn a divorce proceeding, a court can sometimes award one spouse maintenance. This is a monetary award usually paid monthly by one divorcing spouse, which is supposed to help support the other divorcing spouse. Spousal support can be awarded to either spouse, and is based on the facts of a case and a judge's consideration of certain factors provided by the law. Divorcing parties can also come together and agree to the amount of support to be paid based on negotiations, or on a prior document such as a prenuptial agreement. Spousal maintenance is not awarded based on which spouse was at fault for the demise of the marriage.

Modification May Be Necessary

Sometimes, the spouse ordered to pay support may find that for one reason or another, they are not able to keep up with the maintenance payments. According to Illinois law, 750 ILCS 5/502(f), whether or not a spousal maintenance order is modifiable depends on whether or not the order was stated to be non-modifiable. For example, if the award was as a result of an agreement between the spouses, they could have agreed to have spousal maintenance in place for a specific period of time, and made the award non-modifiable.

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From our law office in Wheaton, IL the family law and civil litigation law attorneys of Mirabella, Kincaid, Frederick and Mirabella, represent businesses and individual clients throughout the western suburbs of Chicago, Illinois including Wheaton, Naperville, Oak Brook, Glen Ellyn, Carol Stream, Lombard, Downers Grove, Burr Ridge, Lisle, Elmhurst, Oakbrook Terrace, Winfield, Woodridge, Warrenville and throughout DuPage, Kane and Kendall Counties.

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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