Frequently Asked Questions about Family Law in Illinois
How long do I have to live in Illinois before I can file for a Marital Dissolution?
You must be present or stationed by the military in the State of Illinois for 90 days. However, one can file for a legal separation without this time limitation and then convert the case to a Marital Dissolution upon the proper passage of time.
As a man, will I lose on the issue of custody because my children are young?
This concern was an issue when Illinois followed what was known as the "tender years" doctrine. The tender years doctrine is no longer the law of Illinois. The standard of decision is the best interests of the child. Factually, this means finding support for custody or joint custody under 750 ILCS 5/602 which includes at least the following issues: the wishes of the child's parents, the wishes of the child, the interaction and interrelationship of the child with the parents and siblings, the effect of others on the child, physical violence or the threat of physical violence, ongoing abuse, and the willingness and ability of each parent to facilitate the close and continuing relationship of the minor child with the other parent. Under this standard either parent can become the custodial parent. Unless there is a finding of abuse the court presume the maximum involvement and cooperation of both parents. There is no presumption either for or against joint custody. Before the Illinois Supreme Court and Legislature, as of September of 2004, are new laws for potential enactment to change the issues of custody in a sweeping manner to that similar to those now enacted in Colorado.
How much do I have to pay in child support?
In Illinois the Courts follow 750 ILCS 5/505 which provides as follows:
| Number of Children | Percent of Supporting Party's Net Income |
| 1 | 20% |
| 2 | 28% |
| 3 | 32% |
| 4 | 40% |
| 5 | 45% |
| 6 or more | 50% |
Net Income is based on all sources of income, as statutorily defined by the Illinois Marriage and Dissolution of Marriage Act, and it is not defined by the Internal Revenue Code. Nonetheless, there are planning opportunities here, even after being served.
I owned my own business, had a pension or other property before I was married. Will it be divided up in the Court?
This depends on your ability to document its worth and existence prior to marriage, the existence of any prenuptial agreements and the degree, if any, of commingling or converting your pre-marital property into marital property. At times this results in tracing assets. Tracing means tracking the source of payment, through accounts, for the asset's acquisition
Marital property is all property acquired from the date of marriage. If your pre-marital business is incorporated, and you have not used marital funds to augment the assets of the corporation, the ownership of the stock as being pre-marital should prove the nature of the property.
750 ILCS 5/503 controls the disposition of Marital Property and it provides as follows:
For purposes of this Act, "marital property" means all property acquired by either spouse subsequent to the marriage, except the following, which is known as "non-marital property":
- property acquired by gift, legacy or descent;
- property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent;
- property acquired by a spouse after a judgment of legal separation;
- property excluded by valid agreement of the parties;
- any judgment or property obtained by judgment awarded to a spouse from the other spouse;
- property acquired before the marriage;
- the increase in value of property acquired by a method listed in paragraphs (1) through (6) of this subsection, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and
- income from property acquired by a method listed in paragraphs (1) through (7) of this subsection if the income is not attributable to the personal effort of a spouse.
- (b) For purposes of distribution of property pursuant to this Section, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage, including non-marital property transferred into some form of co-ownership between the spouses, is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a) of this Section.
- For purposes of distribution of property pursuant to this Section, all pension benefits (including pension benefits under the Illinois Pension Code [40 ILCS 5/1-101 et seq.]) acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of the marriage are presumed to be marital property, regardless of which spouse participates in the pension plan. The presumption that these pension benefits are marital property is overcome by a showing that the pension benefits were acquired by a method listed in subsection (a) of this Section. The right to a division of pension benefits in just proportions under this Section is enforceable under Section 1-119 of the Illinois Pension Code [40 ILCS 5/1-119].
The value of pension benefits in a retirement system subject to the Illinois Pension Code [40 ILCS 5/1-101 et seq.] shall be determined in accordance with the valuation procedures established by the retirement system.
The recognition of pension benefits as marital property and the division of those benefits pursuant to a Qualified Illinois Domestic Relations Order shall not be deemed to be a diminishment, alienation, or impairment of those benefits. The division of pension benefits is an allocation of property in which each spouse has a species of common ownership. - For purposes of distribution of property under this Section, all stock options granted to either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage, whether vested or non-vested or whether their value is ascertainable, are presumed to be marital property. This presumption of marital property is overcome by a showing that the stock options were acquired by a method listed in subsection (a) of this Section. The court shall allocate stock options between the parties at the time of the judgment of dissolution of marriage or declaration of invalidity of marriage recognizing that the value of the stock options may not be then determinable and that the actual division of the options may not occur until a future date. In making the allocation between the parties, the court shall consider, in addition to the factors set forth in subsection (d) of this Section, the following:
- All circumstances underlying the grant of the stock option including but not limited to whether the grant was for past, present, or future efforts, or any combination thereof.
- The length of time from the grant of the option to the time the option is exercisable.
- When marital and non-marital property are commingled by contributing one estate of property into another resulting in a loss of identity of the contributed property, the classification of the contributed property is transmuted to the estate receiving the contribution, subject to the provisions of paragraph (2) of this subsection; provided that if marital and non-marital property are commingled into newly acquired property resulting in a loss of identity of the contributing estates, the commingled property shall be deemed transmuted to marital property, subject to the provisions of paragraph (2) of this subsection.
- When one estate of property makes a contribution to another estate of property, or when a spouse contributes personal effort to non-marital property, the contributing estate shall be reimbursed from the estate receiving the contribution notwithstanding any transmutation; provided, that no such reimbursement shall be made with respect to a contribution which is not retraceable by clear and convincing evidence, or was a gift, or, in the case of a contribution of personal effort of a spouse to non-marital property, unless the effort is significant and results in substantial appreciation of the non-marital property. Personal effort of a spouse shall be deemed a contribution by the marital estate. The court may provide for reimbursement out of the marital property to be divided or by imposing a lien against the non-marital property which received the contribution.
I am in the Military, what will happen to my retirement benefits?
Your benefits are now controlled by the Uniformed Spouses Former Spouses Protection Act. This law was passed in order to overrule the US Supreme Court's decision in McCarty v. McCarty. As you will note the 750 ILCS 5/503 purports to be able to divide all pensions. However, it is not that simple.
From the standpoint of the service person, the issue of import is jurisdiction. Jurisdiction for the USFSPA, 10 U.S.C. 1048 (a)(1)(4) provides:
A court may not treat the disposable retired pay of a member in the manner described in paragraph (1) unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court.
The implications of the jurisdictional requirements are several. First, do not consent to any Court's jurisdiction. Second, make sure your domicile (ie home of record) is outside of your current place of stationed residence (and preferably offshore in a jurisdiction that does not recognize a U.S. marriage dissolution judgment). Finally, denote that your being stationed in a jurisdiction does not mean you are consenting to the jurisdiction. Moreover, if you, like many service people, were served with an out of State (or Country) service of process, there may be methods to strike the out of state court order as failing to have jurisdiction either or both of the subject matter or personally. Finally, as a service person your ability to be stationed around the world provides an excellent ability to look for a favorable jurisdiction in order to initiate divorce proceedings where that jurisdiction will issue a dispositive order on the issue of dividing your retirement benefit. Such an order may not work in the long run but it can go a long way toward negotiating a more favorable settlement. And, if non-service member consents to this favorable jurisdiction you may be able retain the effect of the dispositive order permanently.
I work for the Federal Government, how are my benefits handled in a divorce?
Initially, more information is needed because the federal government has several different federal statutes covering federal employees. For example, the rules for the Civil Service Retirement System (CSRS), the Federal Employees Retirement System (FERS) and Foreign Service Retirement and Disability System all differ. However, the jurisdictional tactic, as explored for the military person above should be explored.