Mental Illness And Divorce in Illinois

The family law and divorce system in Illinois was written and promulgated imagining reasonable, rational parties unwinding their lives in a logical manner. We all get emotional during a breakup and the family law system is set up to be slow but fair. This way our emotions don’t get the better of us. But, there is a big difference between being emotional and being mentally ill.  When someone is mentally ill and they are getting divorced, the other spouse should be aware of the precautionary measures that Illinois divorce law makes available. So, what do you need to know about mental illness and divorce in Illinois? Is Mental Illness Or “Acting Crazy” A Reason To Get A Divorce In Illinois? Clients always tell me about their unstable spouse while using words like “crazy” and “sick”. These stories of a spouse’s mentally erratic behavior can affect ancillary issues such as child custody, capacity to earn income and other final items in the divorce judgment. But, a spouse’s mental illness, in itself is not a cause for divorce. Illinois has only one cause for divorce, irreconcilable differences. So, you don’t need to identify your spouse’s exact personality disorder. An Illinois divorce court will believe you don’t get along anymore. After all, you filed for divorce. That’s proof enough in itself. Protecting Yourself From A Mentally Ill Spouse During An Illinois Divorce If your spouse has hurt you, you need to file a motion for a petition for an order of protection. If your spouse’s behavior is so erratic that you believe they could be violent and hurt you, you should file a petition for an order of protection. “A petition for an order of protection shall be in writing and verified or accompanied by affidavit and shall allege that petitioner has been abused by respondent, who is a family or household member.” 750 ILCS 60/203(a) “Abuse” sounds pretty broad and the Illinois statute defines it really broadly. “Abuse” means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1) Realistically, a mentally ill person’s behavior could fall into one of these descriptions several times a day. The history of mental illness and those abusive effects can also be presented to the court. “the nature, frequency, severity, pattern and consequences of the respondent’s past abuse, neglect or exploitation of the petitioner or any family or household […]

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An Increase In Income After An Illinois Divorce

Whether the economy is booming, inflation is increasing or either former partner has devoted themselves to their job after their divorce…people’s incomes go up. Income is the determinator for both child support and maintenance in an Illinois divorce. When income goes down, parties to a divorce either need more support or they cannot afford to pay the current child support and/or maintenance amount. However, what happens if a party to a divorce income goes up? Does child support and/or maintenance go up if a party’s income increases? How Do You Know If Your Spouse’s Income Has Increased After An Illinois Divorce? Typically, a Marital Settlement Agreement will require the parties to exchange tax information to verify their current incomes. If not, a party can allege an increase in income in a motion to modify support based on a presumed increase in income. At that point, the other party must disclose their income by tendering a fresh financial affidavit. “In all post-judgment proceedings in which a party is seeking to establish, modify or enforce an order of maintenance, child support, support for educational expenses pursuant to Section 513 of the Illinois Marriage and Dissolution of Marriage Act,  support for a non-minor child with a disability pursuant to Section 513.5 of the Illinois Marriage and Dissolution of Marriage Act, or attorney’s fees or costs, the parties shall exchange a completed  “Financial Affidavit” unless either party files a written objection with the court and shows good cause why such exchange should not be required.” Cook County Rule 13.3.1(b) The financial affidavit must include supporting documents such as tax returns, W2s, paychecks and bank statements to verify the other party’s income. Modifying Maintenance After An Increase in Income After An Illinois Divorce Maintenance (formerly known as alimony) will have been set in the final Marital Settlement Agreement. That maintenance amount can only be modified after a court finds a substantial change in circumstances. “[M]aintenance may be modified or terminated only upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a-5) A substantial change in circumstances for the purposes of support “means that either the needs of the spouse receiving maintenance or the ability of the other spouse to pay that maintenance has changed.” In re Marriage of Anderson, 951 NE 2d 524 – Ill: Appellate Court, 1st Dist., 5th Div. 2011 The party requesting the modification must prove the substantial change in […]

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Choice Of Law In Illinois Prenuptial Agreements

Nothing pours cold water on the hopes and dreams of an upcoming wedding ceremony like a prenuptial agreement. Prenuptial agreements are not fun to think or talk about. A prenuptial agreement literally anticipates a divorce…which is awful. Still, a prenuptial agreement may save both you and your soon-to-be-spouse headaches and heartaches. A prenuptial agreement that specifies that Illinois law will be applied in any enforcement action can virtually guarantee the result in any possible divorce. If You Get Divorced In Illinois Without A Prenuptial Agreement Whether you know it or not, if you live in Illinois you already have a prenuptial agreement. If you don’t have a prenuptial agreement and you get divorced in Illinois, you have a default prenuptial agreement in the Illinois Marriage and Dissolution of Marriage Act(IMDMA). The IMDMA gets modified all the time by the Illinois legislature and by Illinois case law decisions which determine the IMDMA’s interpretation. You will never know what the IMDMA will contain on the day of your divorce filing…until it is too late.   Even if you divorce without a prenuptial agreement, Illinois law allows individual judges enormous leeway to make decisions about you and your spouse’s life. “[T]he trial court possesses the inherent authority to control…the course of litigation” J.S.A. v. M.H., 863 N.E.2d 236, 244-45 (Ill. 2007) In Illinois, marital assets are NOT divided 50/50. In Illinois, marital assets are divided equitably. “The Act does not require an equal division of marital property, but an equitable division” In re Marriage of Jones, 543 NE 2d 119 – Ill: Appellate Court, 1st Dist. 1989 “Equitable” means “Just, fair, and right, in consideration of the facts and circumstances of the individual case.” Black’s Law Dictionary (10th ed. 2014) Maintenance, formerly known as alimony, is determined by a formula under the IMDMA: 33% of the big earner’s gross income less 25% of the small earner’s gross income, not to exceed 40% of the gross total incomes of both parties. The IMDMA does not require Illinois divorce judges to apply those guidelines if the judge does not find the guidelines to be fair in the case at hand. “Only if the court finds that a maintenance award is appropriate, the court shall order guideline maintenance in accordance with paragraph (1) or non-guideline maintenance in accordance with paragraph (2)” 750 ILCS 5/504(b-1) Paragraph 2 then specifies that the court need only have a reason, any reason, […]

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My Spouse Refuses To Work In My Illinois Divorce

Every marriage has roles and responsibilities.   Often, one party to a marriage ends up being the breadwinner or sole earner in the house while the other party takes care of the home and possibly the children.  So much of an Illinois divorce’s mechanics are based on the incomes of the parties that a non-working spouse becomes the most salient issue to a case.  So, what can you do if your spouse doesn’t work and you want a divorce in Illinois? Maintenance/Alimony in Illinois With A Non-working Spouse The biggest income related issue in an Illinois divorce is maintenance (formerly known as alimony) In Illinois, when making a temporary or permanent maintenance award, the court must first make initial considerations to determine that the non-working spouse is even entitled to maintenance. “The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including:” 750 ILCS 5/504(a) The income and property of each party The realistic present and future earning capacity of each party Any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having foregone or delayed education, training, employment or career opportunities due to the marriage Any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought The time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether the party is able to support himself or herself through appropriate employment or any parental responsibility arrangements and its effect on the party seeking employment The standard of living established during the marriage The duration of the marriage. The age, health, station occupation, amount and sources of income, and sources of income, vocational skills, employability, estate liabilities, and the needs of each party All sources of public and private income including, without limitation, disability and retirement income Contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse Any valid agreement of the parties Any other factor that the court expressly finds to be just and equitable These are just the factors to consider if the court is going to award maintenance. The court can consider one or all of them when deciding “is this a maintenance case?” After a quick count, a non-working spouse could be fit into 9 of […]

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Drugs, Alcohol and Divorce in Illinois

Whether it’s the stress of the divorce or a long simmering issue, drugs and alcohol are frequent issues in Illinois divorces. Many other issues in divorce are black and white issues; he hit you or he didn’t, she made the money or she didn’t, his schedule allows for time with the kids or it does not.  Drugs and alcohol, however, seem to be a big “gray area” in our society…and it’s getting grayer. Almost everyone drinks.  The divorce judge probably drinks.  So how much alcohol is too much? And who even keeps track of that? Marijuana was illegal until just a few months ago and now marijuana is legal in Illinois…if you buy it legally. So, does it matter if someone smokes marijuana in the eyes of an Illinois divorce judge?  Does it matter where the marijuana came from? How do you even quantify the amount smoked? Prescription drugs should be okay, as long as they’re taken as prescribed. But even if they are, a prescription is a doctor’s official opinion that something is wrong.  Can prescription drugs affect an Illinois divorce?  The real issue is addiction.  If drugs and alcohol weren’t addictive, people would stop using them for the sake of their marriage and their children.  So, if you’re divorcing an alcoholic or divorcing a drug addict, you need to know what Illinois divorce laws are available to protect you and your children. These same Illinois divorce laws are very powerful, and if you’re accused of being an addict, you need to protect yourself appropriately.  How Drugs And Alcohol Do Not Affect An Illinois Divorce Drugs, alcohol and personality disorders go hand in hand with divorce.  Neither the judge nor the legal system will, in the end, label one party an “alcoholic” or a “drug addict” and make some final conclusion that one party was the “good person” and the other party was the “bad person.” Any attempt at character assassination in a divorce court will usually be met with an eye roll from the judge.  No description of binge drinking, bong smoking, or hard drugs will shock an experienced Illinois divorce judge.  The question is “how do drugs and alcohol effect the issues in a divorce?” If the marriage had no children…drugs and alcohol probably have zero impact on an Illinois divorce.  But in extreme cases of addiction, the issue of drugs and/or alcohol may hang over […]

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Nondisclosure Agreements and Divorce In Illinois

If knowledge is power then giving away knowledge is equivalent to giving away power…which people never want to do. In order to preserve control after revealing a business secret, employers and business partners often require their employees or coworkers to enter into nondisclosure agreements (NDAs). A nondisclosure agreement is “a contract or contractual provision containing a person’s promise not to disclose any information shared by or discovered from a holder of confidential information, including all internal or proprietary matters.” Black’s Law Dictionary (11th ed. 2019) Nondisclosure agreements are everywhere now. The signers to a nondisclosure agreement are bound by that agreement to not disclose to third-parties whatever particular information is covered by that agreement. Sometimes, those signers get divorced and their spouses want to exactly what those valuable secrets are…because they might be entitled to half of them. Nondisclosure Agreements And Discovery In An Illinois Divorce In an Illinois divorce, those spouses are entitled to ask for anything in the divorce litigation process. “[A] party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action… including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts” Ill. S. Ct. R. 201(b) “The purposes of litigation are best served when each party knows as much about the controversy as is reasonably practicable.” Mistler v. Mancini, 111 Ill. App. 3d 228, 231 (Ill. App. Ct. 1982) The production of any information covered by the nondisclosure agreement will likely violate the nondisclosure agreement. Hopefully, the nondisclosure agreement includes a clause that governs what happens if non-disclosable information is revealed to a third party through litigation. If so, the party disclosing the information should follow that clause’s instructions. Usually, a clause in an nondisclosure agreement that addresses litigation asks the parties to request a protective order from the court. Protective Orders And Nondisclosure Agreements In An Illinois Divorce “Protective Orders. The court may at any time on its own initiative, or on motion of any party or witness, make a protective order as justice requires, denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression.” Ill. S. Ct. R. 201(c)(1) A protective order issued by a court will read “all information supplied during discovery in the lawsuit that shall be designated by the party or person producing it […]

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Disclosure In An Illinois Prenuptial Agreement

In the movie, “Intolerable Cruelty,” George Clooney play Miles Massey, a divorce lawyer who had crafted “the Massey pre-nup” a prenuptial agreement template that had never been successfully challenged. While such an agreement may sound mystical, unchallengeable prenuptial agreements get written every day…so long as they have the right clauses. One of the most important clauses in a prenuptial agreement is a “waiver of disclosure.” What Is A Waiver Of Disclosure In An Illinois Prenuptial Agreement A waiver of disclosure typically reads as follows: “Waiver of additional financial information. The parties hereto each voluntarily and expressly waive any right to disclosure of the property, financial position or obligations of the other beyond the disclosures provided herein and by the attachments hereto.” The reason that a waiver of disclosure must be included is that failure to properly disclose financial assets can render a prenuptial agreement void in Illinois. “(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that: (1) that party did not execute the agreement voluntarily; or (2) the agreement was unconscionable when it was executed and, before execution of the agreement, that party: (i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party” 750 ILCS 10/7(a)(2)(i) It makes sense that a person getting married should at least know what assets they are agreeing to NEVER have a claim to by signing a prenuptial agreement. The disclosure is usually a referenced exhibit on the prenuptial agreement. The exhibit is simply a list of the parties assets with associated estimated values of each asset. Waiving The Disclosure Of Assets In An Illinois Prenuptial Agreement The right to be “provided a fair and reasonable disclosure of the property or financial obligations of the other party” can be waived by agreement. An Illinois prenuptial agreement without property disclosure is only void if it “did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided” 750 ILCS 10/7(a)(2)(iii) “Under the Illinois Premarital Agreement Act, the only way that [the petitioner] could have been relieved of his statutory obligation of providing a fair and reasonable disclosure was by [the respondent] voluntarily and expressly waiv[ing], in writing, any right to disclosure of the property or financial obligations of [the respondent] beyond the disclosure provided…[E]ach party to a premarital […]

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Imputing Income In An Illinois Divorce

There are three quantifiable inputs in an Illinois divorce: 1) Time the children currently spend with each parent, 2) Marital assets and debts of the couple, and 3) The income of each party. Everything else that determines the results of an Illinois divorce can be described qualitatively in words but not quantitatively in numbers. This means the few solid numbers that a divorce litigant has available to them must be the bedrock of their divorce case. Unfortunately, divorcing couples 1) play games with parenting time before court orders are established, 2) hide assets while revealing secret debts and 3) stop making as much money as they should. Original parenting schedules always get revealed through a Guardian Ad Litem’s investigation. The true marital assets are revealed through forensic accounting. But, how do you prove that someone is not really earning the income that they’re supposed to? Why Do You Need To Know Both Parties’ Incomes In An Illinois Divorce? Both parties’ incomes determine the amount of child support, maintenance (formerly known as “alimony”) and children’s expenses. In Illinois, “[t]he court shall compute the basic child support obligation by…determin[ing] each parent’s monthly net income” 750 ILCS 5/505(A)(1.5) In Illinois, “[t]he court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including:(1) the income and property of each party” 750 ILCS 5/503(a) In Illinois, children’s “expenses shall be prorated in proportion to each parent’s percentage share of combined net income” 750 ILCS 5/505(a)(3.7)(B) Therefore, it is imperative that each party to a divorce know for certain what their soon-to-be-ex-spouse’s income actually is. Failing an accurate determination of a soon-to-be-ex-spouse’s income, a party can request that an Illinois divorce court “impute” income to the soon-to-be-ex-spouse. The process by which an Illinois divorce court determines what a divorce litigant should make is called “imputing income.” There are two reasons to impute income: 1) You don’t know what the person is really making or 2) The person is making less than they could BY CHOICE. Imputing Income In An Illinois Divorce In Order To Determine What A Person Currently Makes Some people’s finances are a mess. Or they only get paid in cash…and then they spend that cash before it gets counted. “If present income is uncertain, a court may impute income to the payor.” In re Marriage of Gosney, 394 Ill. App. 3d 1073, 1077 (Ill. App. […]

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