Wheaton attorney for divorce living arrangementsOne of the most commonly asked questions during a divorce is if you are required to live in the marital home with your spouse during the pending divorce case. The short answer is that it depends on the circumstances, and particularly whether there are minor children involved and any issues of support. Another commonly asked question is, “If I move out of the marital home, is it considered abandonment?” The answer to that question is also no as Illinois is a no-fault state that does not have grounds for divorce such as abandonment. However, there are some things to know about cohabitating with your current spouse during your divorce proceedings, how it can affect your children, and what you can do if things start to become contentious.

Some couples going through a divorce are amicable and are able to live under the same roof during divorce proceedings. Often times, couples will stay together in the marital home because they cannot afford to support two households or because they want to present as least disruption in their children’s lives as possible.  The courts generally prefer that the status quo is maintained during the pendency of the divorce, meaning that parties continue to operate their day to day living as they did prior to the filing.

However, sometimes that is not possible and couples cannot live together during a divorce case because their situation is so volatile that it negatively impacts their own or the children’s health and wellbeing. If this is the case, it’s best if the parties can agree that the arrangement is not ideal and determine a plan for parenting time for the children and how finances will be handled.  If, however, one spouse moves out of the marital home without an agreement on these issues, it can lead to litigation. In that case, the party remaining in the marital home would want to file a petition asking the court for temporary relief as it relates to support or household expenses. If the children have been removed from the home, the issue becomes even more imminent and the spouse who remains would likely file a petition asking the court to order the return of the children or at minimum to set a parenting schedule. Given that the court greatly prefers the status quo be maintained, it is not looked up favorably if one party unilaterally leaves the home with the children.

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Wheaton attorney for divorce interest

Interest on Divorce Judgments

The question of whether interest applies within the context of a domestic relations proceedings depends on the nature of the obligation—whether it be child support, maintenance, or a property obligation. The Illinois Code of Civil Procedure provides that judgments recovered in any court shall draw interest at the rate of nine percent per annum from the date of the judgment until satisfied. But does this apply to your divorce decree?

Interest on Child Support and Maintenance

While it wasn’t always the case, in 2000, Illinois clarified its legislation by requiring mandatory statutory interest on all missed child support payments. Specifically, the law states that a support obligation, or any portion of a support obligation, which becomes due and remains unpaid at the end of each month, shall accrue simple interest. Later, in 2006, this same principle became the law  for maintenance as well. The law provides that any maintenance obligation including any unallocated maintenance and child support obligation, or any portion of any support obligation, that becomes due and remains unpaid shall accrue simple interest. In other words, 9% interest is mandatory for unpaid child support and/or maintenance obligations.

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Wheaton divorce lawyerWhen parties have a completely uncontested (agreed upon) divorce, our office McSwain Nagle & Giese, P.C. may handle those cases on a flat fee basis, where no hourly charges are incurred. Unfortunately, even in situations where spouses are somewhat amicable, it is often very difficult to reach an agreement without legal guidance and some negotiations or litigation, particularly if there are minor children involved or substantial assets. In those cases, it is necessary to hire an experienced divorce attorney who is going to get you the best possible outcome while being cognizant of the cost to you. 

Since every family’s circumstances are so different, it would be nearly impossible to predict the cost of a divorce, which is why most divorce attorneys bill at an hourly rate. Hourly rates can vary from firm to firm but typically are based upon the experience of the attorney and the reputation of the firm. Paralegals and law clerks bill at a lower hourly rate and therefore can be used as a cost-saving tool. In addition to paying an hourly rate, most reputable law firms will require a retainer fee, which is an upfront lump-sum payment in order to secure the attorney’s services for your case. The retainer is placed into the lawyer’s trust fund/IOLTA account (an account that holds money on behalf of clients) and when the lawyer generates an invoice, the retainer is applied to the amount owed prior to the client having to pay additional funds. Family law attorneys in Illinois are required to generate and tender fee statements at least every 90 days, however many law firms, including ours, issue them every month.  

In addition to attorney’s fees, there are also costs associated with the divorce that are not paid to the attorney. Basic examples include filing fees, service fees, subpoena fees, and costs associated with a deposition (court reporter and transcript). Other larger costs include the cost of mediation, a guardian ad litem, evaluator, or business valuation/accounting services. Since these fees are often also based upon hourly billing, they can be unpredictable and sometimes substantial.

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Wheaton divorce lawyerStarting on January 1, 2015, the Illinois maintenance statute changed to provide a formula that calculates a party’s maintenance obligation to the other party in a divorce.  The change was meant to provide more certainty with respect to how much maintenance someone will be paying and for how long. However, one thing that did not change the fact that maintenance will not be awarded and can be terminated if the party receiving maintenance “cohabits with another person on a resident, continuing conjugal basis.” 750 ILCS 5/510. What does that mean you ask? The answer is not as straightforward as you might imagine and can lead to uncertain results.

Assume John married Annie in 2008 and recently decided that he wants to get a divorce because he believes that Annie has taken up with a lover in the past couple of months. On November 1, 2014, she moved out of the marital residence and into the home of her long-time friend, Al. However, before she left, she asked John if he would help her get her own apartment to live in while the divorce was pending. John refused to give her a dime and she has nowhere else to go.  John believes that Annie may be having an affair with Al because he saw a picture of him kissing her on the cheek on Facebook and he’s always suspected that she had feelings for him. Annie, however, denies that she is in a romantic relationship with Al, has only lived in his house for about a month, spends a few nights each week with Al, sleeps in a separate room than Al, does not contribute to bills, and does not have any joint accounts with him.  Annie has, however, gone on a weekend trip to Lake Geneva with Al, and has spent Thanksgiving with him. With these set of facts, would Annie be entitled to maintenance from John?

Under Illinois law, before awarding a party maintenance in divorce proceedings, the court must consider factors listed in Section 504 Illinois Marriage and Dissolution Act providing for initial maintenance awards in addition to those listed in Section 510, providing for modification and termination of maintenance awards. This means that even if you are still married if you believe your spouse may have moved in with a significant other, you should tell your attorney so that they can determine whether a basis to negate any maintenance award exists.  After an initial maintenance award is made, however, the court will then consider only the factors listed in Section 510 to determine whether the award should terminate.

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b2ap3_thumbnail_shutterstock_1134923861_20200909-194446_1.jpgDoes your Judgment of Dissolution of Marriage reference an annual or quarterly true up calculation for support? Are you unclear on what that means and confused on how it is calculated? It is common for you to feel overwhelmed and uncertain about your obligations or what you are entitled to from your ex-spouse when these clauses are incorporated into your Judgment.

In many cases, temporary or permanent support orders for both maintenance (formerly known as alimony) and child support, include provisions for what’s known as a “true-up.” This includes final divorce decrees, either after the court’s ruling or more commonly via a Marital Settlement Agreement. A true-up is designed to capture income for support purposes that was not factored into the monthly support obligation. It also ensures that all income for statutory purposes is considered and equitable support amounts are being paid. 

A true-up is often appropriate in situations where the payor’s income is more complicated than standard base pay. If both parties have only a base salary or base hourly wage and set hours (their incomes do not vary week to week or month to month), a true-up is not necessary, as the amount of support paid should be consistent from month to month and match up with the year-end numbers. However, if a payor receives a varying bonus or bonuses throughout the year, is entitled to commission pay, receives other incentive compensation, has overtime or fluctuating hours, or has a side job earning other income, then a true-up is often beneficial to both parties. For example, if support were set on a prior year’s total income where a payor had many commissions, and there was no true-up, the payee would have been substantially underpaid and vice versa. True ups solve this problem by ensuring the correct amount of support is paid.

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