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DuPage County divorce attorneysIf you and your spouse are considering calling it quits, you probably have a thousand questions. One of these questions may be, “How will we divide our property during the divorce?” When two people marry, they not only combine their lives but also their material possessions and wealth. Sometimes untangling marital assets can be a challenging and time-consuming endeavor. However, being educated about what the property division process entails can help you be better prepared and eliminate some of the stress associated with the divorce process.

Separate Property Versus Marital Property

If divorcing couples can, they may decide how to divide their property on their own without court intervention. However, when couples cannot agree on how to divide assets, the court must step in. Illinois divides property based on a system called “equitable distribution.” First, it is determined what property is marital (shared) and what property is non-marital or separate. Generally, marital property includes any assets or funds acquired during the marriage. Non-marital property includes property which a spouse acquired before getting married, as well as certain gifts and inheritances. The court will only divide marital property or those assets which have been commingled.

It is important to note that separate property can become marital property in certain situations. For example, if a husband receives a cash inheritance, it is considered separate property. However, if he deposits the inheritance into a joint bank account with his spouse or uses it for family expenses, the property may be considered to be transmuted into marital property.

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child support, family law, Illinois family lawyer, DuPage County family law attorneyIt is generally expected that the parent who has residential, primary or sole custody of the children in a divorce will receive child support from the other parent. However, what is not often realized or applied is that the parent who has custody of the children may have to pay the other parent child support. Recently, the Illinois Supreme Court decided a case in which the Court held that nothing in Illinois' law on child support restricts a court from ordering a custodial parent to pay child support to a non-custodial parent.

Recent Case in Illinois

The case, In re Marriage of Iris Turk, highlights the Illinois legislature's paramount goal of protecting the child's best interest in child custody and support cases. In Turk, the mother had originally been awarded custody of the children, and the father ordered to pay unallocated maintenance and child support. After the parents kept going back to court for modifications on the original order, the father ended up being awarded temporary custody. The court eventually awarded the father custody and the mother weekly visits with the children. On holidays, spring breaks, and summer vacations, the parents were to have equal time with the children. Nevertheless, the Court also ordered the father to continue paying child support to the mother for the upkeep of the children.

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property division, marital property, separate property, nonmarital property, Illinois divorce lawyer

According to survey information, over two million people in the United States get married every year. As two households are merged into one, spouses often share a home, automobiles, income, and other property. Illinois law characterizes property as either non-marital property or marital property. Although the question of whether someone's property is considered marital property or not is usually only pertinent when the property is divided—such as upon death or divorce—individuals and couples may benefit from understanding how courts are likely to characterize their possessions.

Non-Marital Property

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child support, child support lawyer, Illinois child support law, Full Faith and Credit Clause

Enforcing child support is often difficult, even when the person paying support resides in the same state as the child. Enforcing child support becomes increasingly more difficult, however, when the parties reside in different states. Not only is it often difficult to find the person who is supposed to pay, but the process of enforcing the support order is also no easy feat in itself and requires the assistance of a skilled attorney to ensure that the order is issued to the proper court.

Historically, when a non-custodial parent moved out of state, the custodial parent had very limited means by which they could recover or maintain the child support payments. In 1920, the United States Supreme Court even determined that support orders were not enforceable under the United States Constitution's Full Faith and Credit Clause. At that time, to enforce an existing custody order, the custodial parent had to establish a new custody order in the new state, requiring him or her to travel to that state and initiate proceedings there. This was a time-consuming, costly, and inefficient endeavor.

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collaborative divorce, mediation, collaborative law, marriage, divorce, Illinois, DuPage County divorce lawyerMediation is a useful tool for all divorcing couples to help resolve issues related to the divorce outside of the courtroom. Mediation may have some added benefit, however, for Jewish women who are able to obtain a divorce in civil court, but who may be denied (by their husbands) a Jewish religious divorce , known as a “get.” According to the Huffington Post, this problem is becoming a crisis for Jewish women whose husbands refuse to allow a get. By utilizing mediation, however, women may be able to obtain both a civil and religious termination of their marriage. There are several reasons why the use of mediation may be a better alternative for women potentially facing this issue.

To start with, mediation can remove the potential for courtroom drama, which could cause an Orthodox religious man to feel embarrassed or that he is being treated unfairly (which could be reasons for denying a get). Additionally, instead of focusing on the civil litigation aspect of ending a marriage (which can cause anger, frustration, and resentment), mediation allows for the possibility of more creative solutions, tailored for the parties and created by them rather than by strangers. Having more control over life post-divorce through creative mediation settlements can also reduce some of the tension between a divorcing couple, allowing them to find more common ground. All of this could lead to a husband being more open to the idea of a get than by simply pursuing civil litigation alone.

Further, mediation puts women on a more even playing field with their husbands, as it is a neutral forum where each party has an equal voice. In cases with serious contentions over property or custody issues, refusing a get might be used as leverage by a husband. In mediation, however, because women have an equal voice and equal access to the neutral mediator, women may have a better chance of obtaining a fair outcome on those contested issues. Instead of each side strategizing against the other, couples are encouraged to work together and consider opportunities for compromise. And so, rather than inflaming the situation and having a husband dangle kids or money as leverage over a wife, mediation can help Jewish parties to minimize disputes and potentially work towards mutually agreed-upon provisions for a civil divorce as well as a religious get.

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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