DIVORCE BASICS, FAQ, MAINTENANCE & SUPPORT

SHOULD I CONSULT A LAWYER IF I INTEND TO FILE FOR DIVORCE OR IF MY SPOUSE FILES FOR DIVORCE?  Yes, without exception.   It is not usually expensive to get a lawyer's opinion as to whether you should proceed on your own at an initial consultation. All lawyers fees for a consultation are not the same, so if one is too high, then contact another.  Consulting a lawyer is critical as the lawyer can explain your rights under the law at the initial consultation.  There are some instances when a lawyer will advise someone that in their specific case they should proceed on their own.  This is usually a short marriage (1 year or less), no assets, no debts, no retirement accounts, no health issues, no children, no real estate.  Most often a person who is divorcing should hire a lawyer to make sure that he or she gets his or her fair share of property, alimony or maintenance, child support, visitation rights, pensions, retirement accounts, and so on.
 

CAN MY SPOUSE AND I USE THE SAME LAWYER?  No.  A lawyer can only represent one of the parties to a divorce.  This is because there is an ethical conflict when a lawyer represents two people with competing interests.  In a divorce, the two parties have obvious competing interests and it is impossible for the lawyer to represent both parties fairly so the law will not permit the lawyer to represent both parties.  However, the judge cannot make a person get a lawyer if he or she wants to proceed pro se.  So when one party has a lawyer and the other proceeds on his or her own, do not be fooled, the lawyer represents his client, not both parties, and there is a good chance that the person who does not have the lawyer will be worse off then the one who has the lawyer.
 

WHAT PROPERTY AM I ENTITLED TO IN A DIVORCE?  In Illinois, property is divided into two classes.  Marital Property and Non-Marital Property.  Generally, assuming there is no prenuptial agreement or postnuptial agreement, the parties are entitled to keep thier non-marital property and are entitled to and equitable division of their marital property.  Equitable does not always mean 50/50 but often times it comes down to a 50/50 split.  An equitable division comes down to what is a fair division under the facts and circumstances of the case.  It is possible that an equitable division of marital property is 100% to one spouse and 0% to another, but this is rare.  Any division in between is likely and it is in the judge's discretion to determine what is an equitable division of marital property.  However, the judge does not have the power to award one person's non-marital property to the other spouse.
 

Marital Property:  Generally, marital property is considered all property acquired by either spouse subsequent to the marriage, except non-marital property. Marital property includes all wages, pensions and retirement accounts acquired during the marriage.  Even a business, dental practice, law practice, physician practice, if acquired or established after a marriage can be marital property subject to equitable division.  The way property is titled does not determine whether property is marital or non-marital property.  For example, if stock is owned in the name of one spouse, or a business or dental practice is owned in  one spouse's name, or vehicle or home is titled in one spouse's name, but the asset or property was acquired during the marriage (not by gift or inheritance, and no prenuptial or postnuptial agreement) that property is likely marital property subject to equitable division by the court regardless of how it is titled or owned.

Non-Marital Property:  Generally, non-marital property is:

1. Property acquired by gift, legacy or descent (i.e.,      gifts and inheritances).
2. Property excluded by a valid prenuptial or postnuptial      agreement.
3. Property acquired before the marriage.
4. Property acquired by a spouse after a judgment of legal      separation.
5. The increase in value of the  property in (1-4      above) or the exchange of the property in (1-4 above) for      different property.  For example, if you have $20,000 in a stock      account and it grows to $30,000 during the marriage, then the increase of      $10,000 is also non-marital property (see exception below).       Also, if you have $20,000 inheritance after marriage and you buy a $20,000      car during the marriage and you title it in your name, then the car      is non-marital property. (see exception below).  (See Illinois      Compiled Statute 750 ILCS 5 et seq).

Non-Marital Exception:  If non-marital property is commingled with marital property it can sometimes lose its non-marital character and be turned into marital property.  Also, if you put your spouse's name on your non-marital bank account, stock account or other non-marital property, a court could find that the property became marital property under a gift theory or some other legal theory.

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