Illinois Lawyer Referrals and Legal Guidance

Family law issues that don’t really matter (to the judge)

Family law cases – especially divorce and child custody – are emotional, to say the least. So when two people are in the midst of one of these disputes, it’s easy to get confused about what matters and what doesn’t, legally speaking. Here are five common issues.

1. I cheated on my spouse and now they want a divorce. They say that because it’s my fault they will get everything.

When it comes to dividing property in a divorce, the court does not care who is at fault or why the marriage ended. The law says that marital property is to be divided equitably. Focus instead on compiling a complete list of assets and property, including real estate, retirement plans and anything acquired during the marriage.

2. The court will divide things evenly.

Unfortunately, it’s not automatic. If you don’t provide a complete list of assets and property, the court won’t be able to deal with them. If you don’t have an attorney and your spouse does, you might not get as much as they do (sad, but true).

3. I am getting remarried and my ex-spouse says that they will take me to court and increase my child support payments based on my new spouse’s income.

They can’t do that.

4. My ex agreed years ago to pay part of our child’s college tuition, and now they refuse.

The court can’t help you with a verbal agreement. In Illinois, support for college can be ordered by the court. It’s more discretionary than child support for a child under 18, but it happens. The key is getting the court order. Verbal agreements don’t matter because they can’t be enforced.

5. I don’t want my ex-wife’s new boyfriend around my kids. Can I prevent it?

No. Unless the safety of the kids is a concern, there’s nothing you can do. We know it might drive you crazy and seem wrong, but there’s no law against it.

In Illinois, you can look at the law and know – within a general range – how much child support you will be ordered to pay. There are minimum “guideline” amounts, set by law, and they are generally followed. That said, the judge does have some discretion and can order that you pay a different amount.

The guideline amounts are percentages of your net income and based on the number of children. Here are the current Illinois child support guideline amounts:

1 child              20%

2 children          28%

3 children          32%

4 children          40%

5 children          45%

6 or more          50%

Your net income is your gross pay minus taxes and other deductions, such as social security, mandatory retirement contributions, union dues, prior child support or maintenance payments, some medical payments, some debt payments and some expenses for the benefit of the child and other parent.

If you have a previous child support order in place, that is deducted from your income. This means that if you are paying 20% of your net income for a child from an earlier relationship (or an earlier court order), the payment for the more recent child support order would be 20% of what is left.

In addition to the income percentage, the parent owing support usually is responsible for half of unpaid medical bills and half of childcare expenses.

If you make a significant amount of money, you might pay more than the guideline amount. But complaining to the judge about not being left with enough money is not going to result in you paying less.

A forensic accountant may be appropriate in your divorce case if you have a lot of assets, a valuable business or if you suspect your spouse is hiding money. A forensic accountant investigates these issues, with the ultimate goal of locating and putting a value on all relevant assets. Forensic accountants can testify in court about what something is worth, and they do their work with the legal issues in mind.

In a divorce, the law states that marital property (property belonging to the spouses together) should be divided equitably, or fairly. Marital property includes anything acquired during the divorce. So a business started by one spouse, or a professional partnership entered by the other (attorney, doctor), is considered marital property. Retirement plans are another example – the portion of the plan earned or saved during the marriage is marital property.

Even if all marital property is known, and no one is trying to hide anything, it can be difficult to know what it’s worth. For example, if one spouse is part owner of a business, you need to find out what it’s worth to determine the other spouse’s share. It’s unlikely that the other spouse will actually take part of the business, but they would need to be bought out by the spouse who has the business. Another example is a rare type of asset, like an art collection. Valuation can be important, and contested, in these situations.

Another example is child support. A party’s income and assets can determine the amount owed each month. A forensic accountant can help determine income and what an appropriate child support payment would be.

Forensic accountants are costly to hire, and generally only used in cases where the assets are worth a lot of money. There are attorneys throughout Illinois who work with forensic accountants in these cases. Hiring one of these attorneys, who has had success in similar cases and has relationships with experienced forensic accountants, is your best bet. Once a martial settlement agreement or judgment becomes final, it’s not easy to go back and revise things like child support. And property division in divorce is generally considered final.