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Dividing real estate during a divorce
When Illinois couples seek a divorce, figuring out what to do with real estate may be difficult. Real estate is typically jointly owned. However, if the couple no longer wishes to manage the property together, one party might offer to buy out the other party's interest in the asset.
Debt obligations or a mortgage may be a reason to divest in a certain property. Because of an existing mortgage, the party that no longer lives in the family home may find it difficult to negotiate another loan on a new residence. The only ways to change this situation are through selling the house or refinancing the mortgage in a way that removes one party from liability. Using gift funds to buy out a former spouse is also a possible option.
For example, consider a case where both spouses put a certain amount of money toward the house. The spouse leaving the property may want to have that money reimbursed. The spouse staying in the property may refinance the mortgage, cash out that amount of money, and pay the party who is leaving the property. If the value of the property has gone up or down drastically between the joint purchase and the divorce, gift funds may be used to offset the difference.
How is property divided in Illinois?
Individuals who are going through a high-asset divorce in Illinois may be interested in learning about how marital property is divided in the state. In Illinois, the concept of community property is not recognized as it is in some of the other states. This means that property that has been acquired during a marriage will not necessarily be divided equally between the two divorcing spouses.
If there is a dispute over the division of marital property, a judge will make a ruling about property division that is considered equitable. The equitable division of marital property in a divorce settlement is not equal, but it is what a judge considers to be fair based on several different factors.
Some of the factors that a judge may consider while determining how to divide marital property equitably include the value of the property and the contribution of each spouse to the purchase of the property. When spouses are fighting over a house, a judge will often consider children in the marriage and which spouse has physical custody of the children. A judge may also consider the economic circumstances of each spouse, the length of the marriage and any tax consequences that could result from property division.
Ex-wife of oil tycoon appealing $1 billion settlement
Illinois residents who have been following the divorce of oil tycoon Harold Hamm may be interested to know that a court ruling has awarded his former wife, Sue Ann Hamm, nearly $1 billion. Mrs. Hamm, however, is not satisfied with amount and is appealing the decision. Her lawyers contend that she deserves a larger share of Mr. Hamm's $20 billion worth.
Mrs. Hamm, who held executive positions in her husband's company, was married to Mr. Hamm for 26 years. According to her lawyers, Mrs. Hamm's support as her ex-husband's longtime marital and business partner contributed to his wealth growing. However, Mr. Hamm's lawyers argue that his wealth was primarily the result of market conditions and largely out of his control. The oil company was owned by Mr. Hamm for 20 years before the two became a couple.
A third of the money ordered by the court ruling is to be paid out before the end of the year. The rest is to be paid in monthly installments of $7 million. Experts who followed the trial predicted a higher payout between $4 to $8 billion. Such a sum would have been the largest divorce settlement in history. The couple did not have a prenuptial agreement.
What are the visitation rights of a non-custodial parent?
In Illinois, when a court orders one person to have custody of a child, it will also normally award visitation to the non-custodial parent. Non-custodial parents are typically entitled to visitation with their child unless the court determines that visitation would pose a danger to the child's mental, emotional, physical or moral health.
Visitation includes in-person visits between the parent and child. A visitation order may also mandate electronic communication via telephone or email at specified and reasonable times.
If the court holds a hearing and determines that unsupervised visits with the parent would pose a danger to the child, the court may order the parties to come up with an alternative arrangement for visitation. Alternative arrangements include such things as supervised visitation by a third party, visits at public places or supervising agencies and other controlled visitation. Courts generally want to encourage the child's ability to develop and continue a good relationship with both parents. It is extremely rare for the court to prohibit one parent from having any visitation rights at all, but it can occur in egregious cases.
How does a DNA test work?
Determining a child's paternity may be necessary when matters of child support, child custody or adoption are involved, and DNA testing is used to examine DNA markers and look at the relationship between two people. When Illinois residents undergo DNA testing, samples from a mother, child and alleged father are taken. These tests have a 99 percent certainty rate or higher.
Upon conception, a child inherits unchanging genetic material from its mother and father. DNA testing compares the genetic characteristics of a child to a mother first and then a potential father, and a father must have the characteristics a child has that the mother does not. If a man and child share some of the same DNA, a laboratory calculates the likelihood that the man is a child's biological father.
Samples for DNA testing are usually collected with a mouth swab because a cheek swab is as accurate as blood testing but is painless and simple. When samples of a mother, father and child are involved, testing normally takes around three to four working days. The results of a DNA test are admissible in court, and laboratories that conduct DNA testing must be accredited by the American Association of Blood Banks. Scientists and lab technicians with experience in genetic testing conduct the tests, and labs must follow strict procedures when testing to ensure reliability, which makes the results admissible in court.
Determining spousal support in Illinois divorce cases
The state of Illinois has specific factors it takes into account when determining spousal support. These guidelines include the income and property of each party, the needs of each party and the realistic earning capacity of each party. When making a ruling, a judge will generally consider the amount of support needed to help the petitioning party maintain the same lifestyle enjoyed during the marriage.
A judge will take into account the age, physical condition and emotional condition of any party requesting support. For example, a higher level of support may be ordered for an older person or someone who is unable to work. Other factors that may be taken into consideration include whether there are any children that need to be cared for. In a divorce case, the needs of a child are usually considered paramount to those of the parents.
The court may also take into account any other factors it deems relevant. In an effort to help both parties adequately partake in the divorce process, one party may be required to pay some or all of the legal fees for the other party. Many of the same factors used to determine spousal support will be used to determine whether or not such a request is granted.
The child support modification process in Illinois
Some Illinois parents may be interested in information about requesting a modification to an existing child support order. These modifications could result in lower support payments when a non-custodial parent's financial circumstances change.
After child support is ordered by an administrative official or a judge, there is an opportunity to have that order reviewed under certain circumstances. These include a substantial change in the income of the person charged with paying the support, the elapsing of at least three years since the order was given or last modified, or if the original order did not address the child's health care coverage. The review can be requested by the custodial or non-custodial parent, a caretaker, the Division of Child Support Services or an equivalent agency in another state.
Once the modification request is made, both parents will be notified by the DCSS as to whether or not a review of the child support order is appropriate. If so, both parents will need to send proof of income, which the DCSS will use to recalculate the child support payments. The decision will then be mailed to both parents. If either parent objects, they may request either an administrative or judicial hearing or a reconsideration of the request. This request must be filed earlier than 30 days after the date on the notice sent by the DCSS.
What happens if a spouse refuses to pay child support?
In Illinois, the law provides potentially serious penalties and repercussions for failing to pay court-ordered child support. A child support order must be followed or else the person violating it may be subjected to a contempt proceeding. In addition to other penalties for contempt, people who fail to pay child support face other consequences.
The Illinois Marriage and Dissolution of Marriage Act makes a number of consequences available to a judge when a parent refuses to pay child support. A person who is found to be in contempt can be incarcerated for up to six months, although the court may grant jail leave during the day to go to work or to operate a self-employed business.
The court may order the delinquent parent's employer to pay the parent's earnings towards child support during the parent's imprisonment until further order of the court. Self-employed parents can be ordered to provide monthly financial statements to the court as well, and may possibly be ordered to search for other employment if the business's income is not sufficient. When a parentis more than 90 days delinquent, the court can also suspend the his or her driver's license. Finally, the parent may be criminally prosecuted for failing to pay child support in addition to the consequences of contempt.
Requirements to petition for child custody
Under Illinois law, a stepparent, grandparent or another person unrelated to the child can petition the court for custody of a child under certain conditions. The law requires that all conditions be met in order for a person who is not a biological parent to petition for custody. In all matters of child custody, the court examines what is in the best interests of the child.
Stepparents commonly petition for custody of their stepchildren if the biological parent dies, becomes disabled or is otherwise unable to care for the child. In order for a stepparent to be eligible for custody, they must have been married to the biological parent for at least five years while the child was alive. The stepparent must also have been part of the child's care for at least a portion of time before filing the petition.
Grandparents also commonly petition for custody of their grandchildren if a biological parent is deceased or incapacitated. A grandparent is anyone who is a parent or a stepparent of either of the biological parents. A grandparent's right to custody do not supersede that of the surviving biological parent, so certain conditions related to the surviving parent must be met.
Determining the issue of child custody
Illinois couples considering the idea of dissolving their marriage must think in a critical way about the vital issues that accompany divorce. These issues include property distribution, spousal support and, in the event that the couple produced offspring, child custody. Spouses and their respective advocates may try to negotiate these issues and come to a settlement that suits both parties' interests on their own. However, if and whenever divorcing couples cannot come to an agreement regarding vital issues such as child custody, a family court will make binding determinations for them.
When determining the parent with whom a child will reside, the courts are not to discriminate against either gender. Fathers and mothers alike can qualify for primary custody provided that there are no issues of abuse of child endangerment attributed to them. The court is to make determinations regarding child custody with the best interest of the child in mind.
Children live with parents who have physical custody. When one parent has primary physical custody, the other parent may have visitation rights as dictated in the divorce settlement. It is also possible for divorcing spouses to arrive at a joint custody arrangement, wherein each parent lives with the child for an equal amount of time. Because many joint custody arrangements are worked out through mediation, it is important for individual spouses to retain the counsel and representation of family law lawyer, who may ensure that the parent's rights and interests are advocated during negotiations.
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