1. MYTH: You have to prove some fault by one spouse as grounds for divorce.
It is actually more common these days to have a divorce based on “irreconcilable differences” or “no-fault” divorce. The way it works in Illinois, is that even though you do not have to show one spouse did something wrong, you do have to show that the ending of the marriage is not taken lightly. The petition for divorce will let the court know that you have differences that cannot be resolved, and these differences have essentially broken the marriage already. Further, it will have to state that you have tried to fix the problems in your marriage, and that it just will not work now or in the future. There is also a period of living apart that is required by Illinois law, even if you are still technically in the same house, but not interacting as a married couple would. Both spouses can agree in writing to waive this separation period.
2. MYTH: You can get more property in the divorce if your spouse was unfaithful.
Though it may not feel fair, a cheating spouse will not be penalized in an Illinois divorce when property is divided. The decisions about who is responsible for the marital debts, and who gets what share of the assets, are made basically without any regard to whether you were cheated on by your spouse. There would have to be more involved in the adultery for there to be any impact. For example, if the cheater put the children at risk while in the act of cheating, this could likely be a factor in the custody determination. Also, if money that belongs to your marriage has been spent on the “other” man or woman, then the cheater should have to account for it and pay it back.
3. MYTH: Fathers have less rights in divorce than mothers do.
It has become a popular notion that fathers start out at a disadvantage in divorce court, and do not have the same rights as their wives. This idea can often create a fearful situation for fathers as they are going through divorce. In fact, good, experienced divorce attorneys can and do properly represent clients of both genders with equal success. And the fear that is created by pumping up the idea of bias against men in family law courts, only servers to drive up attorneys fees.
4. MYTH: A civil union can be ended by agreement of the couple.
Illinois’ civil union law basically says that all state laws that involve spouses, also apply to a couple that is in a civil union. This would include all of the rights and obligations that are afforded to spouses in marriage. Because of this, ending a civil union follows much of the process as ending a marriage. A civil union is a legal relationship that is created, and the couple must go through the legal formalities of ending it as well.
5. MYTH: Alimony is awarded in all divorce cases.
Alimony, or spousal maintenance, is only awarded in those case where the financial situation of the spouses warrants it. There is no automatic right for the party who is earning less to receive support from the party who is earning more. In fact, the court will look at many factors relating to the each spouse’s financial picture, including: not only what they presently earn, but what their future earning capacity is; what other assets each has; the time it would likely take for a spouse to be educated or trained for other employment possibilities; the standard of living of the couple during marriage; what each has contributed to or sacrificed for the other’s success; the length of the marriage; and other appropriate factors.
6. MYTH: You and your spouse can share an attorney.
It may sound like a good deal financially to have one attorney representing both of you, but beware of a deal that looks too good. In fact, you cannot really “share” an attorney in the true sense of the word. Even where you both seem to agree on everything, you still have individual interests, and an attorney cannot actually represent each of you at the same time. In the end, any money that you think you have saved could only cost you later if you find that you are responsible for more debt than you thought, and/or do not have the right to the assets you thought you did.
7. MYTH: If you are paying support and you remarry, you can decrease the amount you are paying.
Usually there is no connection between the obligations of a new family, and the financial responsibility to the old family. This may be a harsh reality, but a second marriage likely will result in the continued and ongoing obligation to two families. A detailed examination of the parties’ financial picture takes place at the time of divorce, and the circumstances of spouse and/or children needing the support at that time does not change just because the circumstances changed for the one paying. In fact, sometimes the financial picture of the supporting spouse can actually increase after remarriage, and this could cause an increase in support payments.
8. MYTH: You can make your husband’s paramour “pay” by suing for alienation of affection.
While alienation of affection exists in Illinois as a cause of action to hold your husband’s paramour responsible for breaking up your marriage, it is by no means an easy road to travel. Illinois law has narrowed the reach of this type of case to try to eliminate revenge actions. Instead, it should be used only where it can actually be shown that there was love and affection in the marriage that the paramour intentionally and willfully destroyed, and that you suffered actual damage as a result. The stringent requirements for these lawsuits basically filter out the cases where one spouse is trying to punish or retaliate against the cheating husband’s paramour.
9. MYTH: If it was your property before your marriage it should be your property after divorce.
Sometimes one spouse has a bank account or investment from before the marriage that he or she wants to keep separate from the spouse. Perhaps it was money from an inheritance, or some other personal money that the spouse does not want to contribute to the marriage, and wants it to be considered non-marital property in divorce. If it is non-marital property, then it will not be divided. This can be arranged, but it takes care. The property is not automatically yours after marriage, just because it started out as yours before. It has to be kept separate and apart from the marital assets, and not combined in any way. If the money is used for marital debts, or other money was comingled with it, there is an argument for its character changing to marital property, and having it split between the couple.
10. MYTH: You are entitled to support because you have a “common law marriage.”
Illinois does not recognize common law marriages, though some states still do. In those states, if you have been living together with your significant other for a certain number of years and you meet other specified criteria, then you are considered as though you are married. Illinois requires a lawful marriage or civil union in order to have the rights and obligations of a marriage. No matter how long you have been living together in Illinois as though you were husband and wife, your status does not change unless you make it legal and official. There would be no right to a divorce then, and therefore no right to spousal support.
2/17/12
