Monthly Archives: May 2011

Protecting Your Lifestyle During and After Divorce

Divorce can be an emotionally stressful and challenging time.  Unfortunately, the divorce process can be made even more difficult when one spouse acts punitively to hurt their former partner by engaging in tactics that manipulate one party’s financial resources in order to injure the other spouse’s means of support.  While the goal of all divorce cases should be to try to reach an amicable resolution by minimizing the conflict, time, and money spent, one party’s ability to support his or her lifestyle should not be compromised.

Maintenance, which was formerly known as alimony, is the payment of spousal support from one party to another during and after a divorce.  Illinois law provides that a spouse is entitled to receive maintenance in an amount necessary to maintain the marital standard of living as long as the other party can maintain that lifestyle and still meet his or her own needs.  Further, a spouse seeking maintenance is not required to sell assets in order to maintain the standard of living enjoyed during the marriage.

Many contested divorce cases involve the payor spouse attempting to minimize the amount of maintenance to be paid.  The spouse seeking maintenance then must be able to prove his or her reasonable needs, historical expenses, and any anticipated or projected costs.  To do this, it is important to maintain records to demonstrate and establish one’s historical lifestyle.

Because Illinois law views marriage as a partnership, courts consider spouses as co-equals, recognizing that homemaker services are as significant as financial contributions. While the amount of maintenance paid may depend upon various factors, including the party’s income, earning capacity, and standard of living, the court looks to the same factors in assessing the length of the maintenance to be paid, including contributions to the career of the other spouse and time absent from the workplace due to children or domestic responsibilities.
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Can There Be Such a Thing As a Civil Divorce?

Can couples part in a way that is respectful and does not add to a distressing situation?  Yes they can, by following a few guidelines. By its nature, divorce is fraught with emotional issues, especially when there has been marital misconduct. But many of these issues— however real and upsetting have little relevance to the divorce process itself.  If couples can set hurt aside and instead look to the future and the life they want to create for themselves, a more dignified divorce is possible. Here are some hints to keep in mind:

If you can’t say anything nice…

While difficult to accept, believing in the truth of this old adage makes a great deal of difference. Often, a messy divorce becomes a competition as to who can act the worst. The process becomes further distorted and painful when emotions drive the case. If the case goes to trial, the spouse who conducts himself or herself appropriately and rises above the fray caused by the other spouse may be seen sympathetically by the person who will be making monumental decisions affecting the rest of the parties’ lives; namely, the Judge.

Focus on what’s really important

The most important concern should be the emotional well being of the children and the financial well being of both spouses and the children. Unfortunately, parties often become fixated on proving the other spouse is morally wrong. Illinois does not allow marital misconduct to be used in any way to gain a financial result. Occasionally, such misconduct may be relevant to the extent affects a parent’s relationship with the children. But peripheral issues should rarely be the primary focus when their resolution will make very little difference in the long run. Concentrate on crucial areas to keep the divorce from becoming an emotional battleground.

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IRA Transfers and Withdrawls

Let’s talk Individual Retirement Accounts (IRAs).  Nationally, the amount accumulated in IRAs is approximately 25% of all retirement wealth. It is very likely that IRAs will be divided in a divorce action.  One or more IRAs may need to be divided in whole or part and transferred from one party to another.

A transfer of an IRA in the event of a divorce generally is done by either 1) changing the name on the IRA or 2) making a direct transfer of IRA assets to the ex-spouse’s new or existing IRA. As long as the assets are kept within an IRA, such a transfer tax free is made pursuant to a divorce settlement under Section 408(d)(6) of the Internal Revenue Code. Once the IRA transfer or name change is completed, the funds in the IRA belong to the ex-spouse.  However, a direct transfer of IRA funds to your spouse prior to the entry of a divorce judgment cannot be done because the IRS exception for spousal transfers applies only at divorce.

An individual who takes a distribution from an IRA before age 59½ will pay both income tax on the funds and an excise tax penalty of 10%. After age 59½ only income tax must be paid on the distribution.  An individual who reaches age 70½, must start taking “required minimum distributions” from an IRA.

So what if you need funds from your IRA before age 59½? What if something unanticipated occurs after the divorce is final?

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Electronic Visitation in Illinois

In Illinois, as in most states, a non-custodial parent is entitled to reasonable visitation with his or her child absent some compelling evidence showing that visitation would endanger that child’s physical, mental or emotional well being.  Historically, visitation has been face-to-face or telephone contact between parent and child at agreed upon times.  However, with technology constantly advancing in our society, the form that visitation takes has evolved to include what is being now being referred to as “virtual visitation,” the use of electronic mail, instant messaging, video conferencing and other wireless technology to allow non-custodial parents to maintain more frequent contact with their children.

In 2010, the Illinois Marriage and Dissolution of Marriage Act was amended so that visitation included not only “in-person time spent between a child and the child’s parent,” but “[i]n appropriate circumstances, it may include electronic communication under conditions and at times determined by the court.”  750 ILCS 5/607(a)(1).  The revised Illinois statute defines electronic communication as time spent between a parent and a child outside of that child’s physical presence which is facilitated through communication media such as cellular telephones, electronic mail, instant messaging, video conferencing, or other wired or wireless technologies via the internet. or the catch-all,  “another medium of communication”.  750 ILCS 5/607(a)(2).  The Illinois statute is a newly implemented mechanism that mirrors the enactment of similar laws in other states allowing for electronic communication between a non-custodial parent and child.

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