What Are The Two Categories Of Divorce?
The two categories of divorce are divorce with minor child and divorce without minor children.
In a divorce with minor children, the first of the three areas that must be addressed is visitation or parenting time. Visitation is the allocation of parenting time between the two parties on a day-to-day basis. It’s also how the parties schedule holidays and vacation periods. It will require that the parties create a specific schedule for which parent has the majority of the parenting time. The number of nights per year that a child is with a particular parent substantially affects the amount of child support that is paid or received in Illinois
The second area of decision-making is allocation, which most people understand as custody. [It used to be joint custody or sole custody, meaning the parents would jointly make decisions about the kids, or one parent would make decisions about the kids.] There is also a hybrid arrangement, whereby one parent makes the decisions about one category (e.g., medical), and the other parent makes decisions about another category (e.g., education).
The major decisions according to Illinois statute are about who makes decisions regarding education, medicine, religion, and extracurricular activities. Each parent makes the day-to-day routine decisions for a child when they have possession of the child, but major decisions are decisions that are divvied up between the parties by the allocation judgment. This judgment includes visitation and allocation of decision-making, and it is something that the court enters in all cases involving minor children.
Most of the cases have some version of joint custody or shared allocation of decision-making. In some unusual cases, one parent makes all the decisions. Even less common is a situation where one parent makes all the decisions about education, and the other parent makes all the decisions about medicine.
The majority of the time, it is a joint decision. Some people will say that their spouse doesn’t make great decisions in a particular area, such as extracurricular activities, but that likely won’t affect the court’s tendency to lean toward joint decision-making. In order for us to tell the court why one parent shouldn’t get to make decisions about their children, we would have to have a substantial reason that usually involves endangerment to the children.
The next sub-issue under allocation of decision-making is that the court identifies one parent for the purposes of determining school district as the residential custodian or the residential parent. According to statute in Illinois, the parent who has the majority of the parenting time will be designated as the residential custodian. If the parents have 50/50 parenting time, then one person or the other will be designated as a residential custodian for purposes of determining school district. They can choose which one it is, depending on where they live and what their goal is for the children. This decision is made by agreement between the parties, not the judge.
If parties have minor children and they file the petition for dissolution of marriage between 90 and 120 days (depending on the judge) after the petition was filed, they still do not have an agreed-to allocation judgment, which is the judgment that sets out visitation, the allocation of decision-making, and which parent has the majority of the parenting time so they can be determined to be the residential custodian for the purposes of school district designation.
If the document setting those things forward has not been finalized, the judge in Illinois will send the parties to mediation with a court-approved mediator. In Lake County, there is a list of court-approved mediators; the parties can choose the mediator, or the judge will choose for them. Even in mediation, some people are not able to come up with an agreement regarding visitation and the allocation of decision-making. We encourage our clients to try, because we believe it’s better when parents (rather than a judge) make decisions together about their children. If the parties are unable to reach an agreement through medication, then the court will appoint a guardian ad litem, which is an attorney who represents the interests of the minor child, as well as a custody evaluator.
Pursuant to statute in Illinois, the custody evaluator is a psychological professional who might have a doctorate in social work or other degree that qualifies them as a custody evaluator. A custody evaluator has to be on the approved list for Lake County. Once the court appoints a custody evaluator to the case, they will interview both parties, do psychological testing of the parties and the children (if necessary), and write a report which states who they believe should have decision-making responsibilities for the children, and who should have what amount of visitation.
If we get to a point where the parties have not been able to make a decision about their visitation schedule and their allocation of decision-making, then the court will appoint professionals to make those decisions for the parties. The custody evaluator and the guardian ad litem would then testify at trial, with the custody evaluator being the court’s expert. The court is going to listen to that custody evaluator, and in most cases, follow their suggestions. In essence, this means that a judge who knows very little about the children is going to make decisions about what’s best for them based on a psychological professional’s recommendations (i.e., someone who has known the children for two or three months). We try to avoid this by encouraging the parties to agree on the issues involving the children, without having to resort to court-appointed experts and without having to go to trial.
The final issue in a case with a minor child is child support. Section 504 of the Illinois Marriage and Dissolution of Marriage Act sets forth a statutory formula based on both parties’ income, the number of children, and the number of overnights that each child is with each parent. Those numbers get plugged into the formula, along with other factors that determine the amount of money necessary to support the child. That amount of money is then divided between the parents based on their percentage of total income, and the number of overnights that each child spends with each party.
This statute is approximately three years old. On a regular basis, it gives child support amounts that are much less than those awarded prior to this statute. For people going through their first-time divorce, this new statute is not a shock to them, because they don’t know what amount they would have received in the past. For people who are coming back to have child support re-evaluated, it’s a big shock. The new statute does not give much child support on a per child basis. This means that for the parent who has the children most of the time, the amount of support they receive usually doesn’t seem adequate.
A child is entitled to child support until they turn 18 or graduate from high school, whichever is later. If the child is still in high school but has already turned 18, child support won’t end until they graduate from high school. Once one child graduates from high school, and assuming there are other minor children in the family, the court will recalculate child support based on the reduced number of children in that formula. As a result, a lower amount will be determined.
In a divorce case that does not involve minor children, there are only two issues that have to be decided: maintenance (i.e., the support of one spouse) and the division of marital assets and debts. Section 505 of the Marriage and Dissolution of Marriage Act addresses maintenance in a family with up to $500,000 of gross income for both parties.
There’s a statutory formula based on the parties’ income, as well as the number of months or years that the parties have been married. The annual amount of maintenance owed is determined by taking 33 percent of the net income of the primary wage-earner, minus 25 percent of the other party’s net income. This number is compared to 40 percent of the total net income; it can’t be more than 40 percent of the total net income when the maintenance and incomes are added.
Next, the number of years that the parties have been married will be considered. For the first five years, it’s approximately 20 percent of the years that the parties have been married that maintenance would be awarded, and for the next seven to eight years, it’s another 40 percent of the number of years. For any marriage over 20 years, there is indefinite maintenance, meaning there is no end date to the award of maintenance.
Both maintenance and child support can be modified after it’s set based on a substantial change in circumstances; as long as the change is not defined as a change in income by one of the parties of more than 10 percent up or down, then the amount of maintenance will remain the same.
In Illinois, if there is more than $500,000 of gross income between the parties, the statute says that the decision regarding maintenance will be based on the statutory formula as well as the lifestyle of the parties. In Lake County, most of our judges do not go strictly by that $500,000 cap; they use the statutory formula well above $500,000 of gross income, and if they do decide to modify for income over $500,000, they do it based on their discretion. It seems that what’s happened in past practice is that for the next $250,000, instead of 33 percent, it’s only 28 percent of the income, and for the next $250,000 up to a million, it’s only 25 percent. If this issue were to go to trial, the parties would have to prove how the lifestyle during the marriage entitled them to more or less maintenance.
Prior to the introduction of this new statute three years ago, all decisions regarding maintenance were based on the lifestyle of the parties during the marriage. As a result, going to trial on this issue required showing proof of the standard of living during the marriage, which was both expensive and time-consuming. Parties had to show how much money the family spent, how many homes the family had, how many vacations they went on, whether they had multiple residences, whether they had horses, etc. Showing proof of everything a family spent money on over the course of 20 years is very difficult and expensive.
Separately, the court found that it wasn’t realistic to believe that the standard of living during a marriage could be continued after divorce, when the family unit would be divided and there would be two living environments rather than one. The statute now allows the court to easily determine what maintenance is up to $500,000 of income per household; only after $500,000 of income do they take into account the lifestyle of the parties. In reality, however, judges seem to have a graduated percentage of what they believe should be paid given an income over $500,000. Unless the issue goes to trial, most people are not proving lifestyle in order to calculate maintenance.
The second issue that comes up in divorces without minor children is the division of marital assets and debts. If a party has non-marital money, it’s not divided as part of the divorce. It is considered in the percentage each person gets of the marital assets or the marital debts. It is also considered in the calculation of maintenance, in theory. There are statutory factors listed in the statute which affect the equitable division of assets and debts in a divorce, and some of those statutory factors include whether one party has non-marital assets, and the contribution by each party to the assets or debts.
Most courts lean toward a 50/50 division of assets and debts in a marriage, but there are reasons one party might have a higher percentage than the other. One reason for an unequal division is that the party waives maintenance in order to get a greater amount of the assets. A second reason is that one party contributed a large sum of non-marital money to the marital estate, such as rolling a non-marital house into the marital house. A third reason, which is quite common, is that the spouses do not have an equal earning potential. For example, if the husband makes $100,000 and the wife makes $400,000, then even though the husband is getting maintenance, they may give the husband a higher distribution of the assets since the wife has a higher earning potential. One possible reason for this difference in earning potential is that the husband stayed home to care for the children.
An equal distribution of both assets and debts is fairly usual, but if one party is taking an asset with the debt, they usually take the debt that’s attached to it. For example, if one party is getting the house, they also get the debt that goes with the house; if one party is taking the car, they also get the debt that goes with the car. In other words, if a party takes an asset, then they also take the debt that’s attached to it.
If it’s a school loan in the name of only one party, then it belongs to that party. If it is a school loan for the children, then it would be considered a marital debt that is divided on the balance sheet with the other debts. A balance sheet containing all assets and debts is set up in all divorce cases. Based on the judge’s recommendation or the agreement between the parties, we make sure that we are giving out assets and debts in an approximately 50 percent ratio, being careful to treat the qualified assets (e.g., the pension accounts) differently than the non-qualified assets (e.g., bank accounts, investment accounts).
Since retirement and pension accounts have different tax consequences than the cash accounts or investment accounts, we divide the investment cash accounts 50/50, and divide the retirement accounts 50/50 (or whatever proportion the parties have decided). We also consider the debt in that division of assets so that if one party is taking an asset that includes a debt, they only have the net equity in that asset on their side of the spreadsheet, not the full amount.
For more information on Two Categories Of Divorce In Illinois, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling Strategic Divorce at (847) 234-4445 today.