Monthly Archives: May 2016

What Could Put Me at Risk in an Illinois Divorce Case?

 

 

What Could Put Me at Risk in an Illinois Divorce Case?

Divorce Lawyers

As divorce attorneys, we are often approached with questions from married and unmarried people alike.  Some are contemplating divorce, while others are simply curious as to what risks they could face if they were married and later went through a divorce.  Below are some commonly asked questions family law attorneys receive relating to divorce cases.

 

Why Would I Have to Pay Alimony?

The purpose of spousal maintenance, commonly referred to as “alimony,” is to allow for a spouse to be able to support him or herself after a divorce.  Whether spousal maintenance will be granted in an Illinois divorce case may largely depend whether there is a significant difference in incomes between the two spouses.  A common scenario for when spousal maintenance might be granted is when one spouse earns significantly more than the other, and the other spouse not only earns less income, but has less job skills, and a lower earning capacity. 

Several factors could determine how long maintenance payments will last.  Generally, the longer the marriage, the longer the paying spouse might have to pay maintenance.  In some cases, maintenance payments can even last for the rest of the paying spouse’s life.  One example of when such “permanent maintenance” might be granted is when one spouse earns substantial income, the other spouse is disabled, and the marriage has lasted over 20 years. 

Maintenance is not granted in every case.  Examples of when maintenance might be denied is if the marriage is very short, or if the spouses make the same or close to the same level of income.

The following are common scenarios that could possibly add to the risk that a spouse may have to pay maintenance after a divorce:

  • Being married to a spouse who makes substantially less income, has less marketable job skills, and a lower earning capacity
  • Being married to such a spouse for a long period of time

 

Why Would I Lose My Property in a Divorce?

How property is divided in a divorce can depend on several factors.  It is important to understand that there are two types of property: marital and non-marital.  Marital property is generally property that is bought or acquired during the marriage (with some exceptions).  Marital property can be divided in a divorce.  Non-marital property is typically property that was bought or acquired before the divorce, or acquired by gift, inheritance, or a few other methods.  Non-marital property generally will not be divided during a divorce (with some exceptions).  However, each party’s non-marital property can still be considered when it comes time to divide the total marital property.

Sometimes non-marital property can be converted to marital property if it is not kept separate during the marriage.  If you own property before a marriage, and add your spouse’s name onto the property after the marriage, this property may become marital property, even though it started off as non-marital.  Keeping non-marital, pre-marriage property solely in your name might help it maintain the “non-marital” status throughout the marriage.

The following are some common scenarios that could possibly add to the risk that a spouse will lose or have to divide property as part of a divorce:

  • Failing to keep non-marital property separate throughout the marriage
  • Adding the other spouse’s name to non-marital or pre-marital property
  • Mixing the other spouse’s money into a non-marital account
  • Buying property during the marriage using marital funds, marital property, or money acquired during the marriage that cannot be classified as non-marital
  • Accumulating retirement or investment account funds during the marriage

 

Why Would I have to Pay for My Spouse’s Debts After a Divorce?

Generally, debts accrued during a marriage are considered marital debt.  This means that the responsibility for paying off these debts might be split regardless of who incurred the debt during the marriage, and regardless of whose name is on the debt.  For example, if Husband accumulated massive credit card debt throughout the marriage, and Wife has no debts whatsoever in her name, it is possible that Wife may be responsible for paying off some of the debt after the divorce.  Even though Wife’s name is not on the debt, the final divorce Judgment will be a court order which could require her to contribute to the debts. 

Courts may look at each party’s income and ability to pay off the debt, as well as other factors, in deciding how debt is divided.  Each case will have different facts, which could create a unique result.  In practice, some judges simply divide responsibility for all marital debt 50-50 between the parties.  To settle a case, spouses often simply agree to just be responsible for all debts in their name, or debts which they incurred.

 

Every case has different facts, and will be decided based on their unique circumstances.  The examples above illustrate common occurrences, but will not necessarily bring about a particular ruling or result in an Illinois divorce case.  Be sure to consult with an experienced divorce attorney before taking action relating to your particular case.

 

If you or someone you know is considering filing for divorce in a Will County, Dupage County, or Kendall County matter, contact our divorce attorneys for an initial consultation at (815) 207-9570 or (815) 409-8858.

 

Related articles:

How is property divided in an Illinois divorce?

How does the Illinois divorce process work?

Essential tips in a divorce, child custody, or other family law case

The information on this site is not legal advice.  Retain an attorney licensed in the state which has jurisdiction over your matter before taking any action which affects your legal issues, legal marital status or custody arrangements, and follow the advice of your retained lawyer.

Is Visitation Allowed With Pets in an Illinois Divorce?

 

 

Is Visitation Allowed With Pets in an Illinois Divorce?

pet visitation in Illinois Divorce

A divorce in Illinois can involve disputes over financial matters, property, and custody of children.  What happens when the dispute is over pets?

One way to summarize how a court may view pets in a divorce is that they are not merely pieces of property, but are not given the same full considerations as children.  The result of this is that one spouse may be awarded possession of the pets, but, unlike cases involving children, the other parent will not be granted visitation rights with the pets after the divorce.

 

Pet Visitation – Enders v. Baker

Enders v. Baker was a 2015 divorce case where the Illinois Appellate Court ruled for the first time on the issue of pet visitation.  It ruled that Illinois courts cannot grant pet visitation rights to a spouse.

In Enders v. Baker, the parties had two dogs during the course of their marriage.  The Wife later filed for divorce.  During the divorce, the Husband filed a Motion requesting visitation rights with the dogs.  The Husband alleged that he and his Wife agreed they would have “joint custody” over the dogs.  His Wife, however, had been denying him visitation with them for several months.  The court granted the Husband’s Motion requesting visitation, and ordered that he be given temporary visitation rights with the dogs.  This was a temporary order, and the case later proceeded to trial. 

At the conclusion of the trial, the court ruled in the Wife’s favor, and awarded the dogs solely to her.  The trial court also denied the Husband any visitation rights with the dogs. The Husband filed an appeal, arguing that Illinois courts can order pet visitation rights, and that his visitation with the dogs would be in the best interests of the parties.  The case then proceeded to the Illinois Appellate Court.

Since there were no past Illinois cases relating to pet visitation rights, the Illinois Appellate Court reviewed a 2013 New York decision, Travis v. Murray.  Courts in different states may use a  “best interests of the child” standard when deciding how to rule on a child custody or visitation issue.  In Travis v. Murray, the New York court decided not to apply a similar “best interests of the dogs” standard when ruling on the issue of pet visitation.  Instead, it applied a “best for all concerned” standard.  While the court reasoned that household pets were more than just mere pieces of personal property, it also reasoned that dogs do not rise to the same level of importance as children.  Finally, the court reasoned that allowing pet visitation rights would increase the likelihood of more litigation between the parties after the divorce.   Thus, the court in Travis v. Murray refused to grant pet visitation rights as part of  divorce.

The Illinois Appellate Court in Enders v. Baker also noted that the Animal Control Act defines a pet owner as “any person having a right of property in an animal, or who keeps or harbors an animal, or who has it in his care, or acts as its custodian.” Here, the court found that the Wife was the “owner” of the dogs because when the Husband moved out of the marital home, he left the dogs with her.  Accordingly, the Wife was the person who “keeps or harbors” the dogs, had them “in her care,” and acted as their regular “custodian.”

Relying upon the reasoning of the New York court in Travis v. Murray,  and the definition of a “dog owner” under Illinois law, the Appellate court in Enders v. Baker concluded that Illinois law does not authorize the court to order pet visitation rights in a divorce.

Although this was the first Illinois case where the issue of pet visitation was ruled upon, there is no doubt that there will be more cases where such issues will be litigated.  For now, however, it is clear that Illinois courts have no authority to enter an order requiring that one of the parties’ have visitation rights with pets.

 

 

 

The information on this site is not legal advice.  Retain an attorney licensed in the state which has jurisdiction over your matter before taking any action which affects your legal issues, legal marital status or custody arrangements, and follow the advice of your retained lawyer.