Can Mediation Help?

Mediation can be an effective and inexpensive method of resolving divorce and child custody disputes. Matthew Kaplan is a certified mediator, trained in dispute resolution. Mediation is a process during which each party’s goals will be defined and, through productive interaction and discussion, a settlement may be reached. Although divorce is usually a highly-charged and emotional event, a qualified mediator can assist the parties to recognize areas of common interest and reach settlement far more efficiently, quickly, and economically than by litigation.

Not all cases are appropriate for mediation. In matters involving substance abuse, domestic violence, profound psychiatric issues, and other circumstances that may block even-handed and productive discussion, mediation may not work. Nonetheless, parties in highly conflictual situations are often pleasantly surprised at the effectiveness of a qualified mediator in assisting them to reach settlement.

Do I have to go to court to get divorced?

In Illinois, at least one party (the petitioner) must appear in court at least one time to testify as to the grounds for the divorce and the other necessary items of settlement.  In a simple and entirely uncontested case, the final and only hearing can be a brief appearance before a judge, and after you answer the necessary questions, the judge will grant your divorce immediately.  Of course, the more issues there are in a divorce, such as allocation of parental authority, allocation of debts and assets, child support, and maintenance, the greater the likelihood that the number and length of court hearings will increase.  As the number and complexity of issues increases, the greater the likelihood that you should have an attorney to advise and represent you.

Should I buy a house after I separated from my spouse, but before the final divorce?

Generally, no.  Any property acquired during the marriage, whether or not the parties were living together at the time of the purchase, is considered marital property.  That means that the value of the new residence and any appreciation in that value after the purchase will be subject to division by the divorce court.Nonetheless, it is sometimes practical for divorcing spouses to begin living separately before the final judgment.  In that instance, as long as the person buying the house is properly represented by an attorney and an agreement is reached as to the non-marital nature of the house to be acquired, the newly acquired property can be protected.

I bought my house before I got married. Is my spouse entitled to a part of it?

As long as it can be clearly proven (such as by a copy of the deed) that the house was purchased before the marriage, and you have not transferred it into your joint names, the court is not allowed to divide the house and give her a portion of it.  However, under the principal of “contribution”, the court does have the power to compensate her for a portion of the amount by which the house mortgage principal balance has been reduced by payments made during the marriage.

Does my spouse get a part of my 401-k or pension?

Generally, yes.  The court has the power and obligation to allocate “marital property”, which includes any retirement assets accrued during the marriage. If a person was employed and accruing a retirement assets both before and during the marriage, then the court will divide those assets based on the proportion that are proved to be pre-marital and marital. Keep in mind, however, that the law requires the court to presume that every asset is marital unless it is clearly and convincingly shown to be non-marital.  Because of that presumption, it is wise to keep records of retirement accounts from the time of the marriage and before.The starting point for any division of marital assets, including retirement assets, is 50/50.  However, the courts can, and often do, deviate from that proportion if one person has far greater income than the other, has a greater likelihood of gaining further retirement assets after the divorce, or has greater needs.

How do the assets get divided in a divorce?

Illinois law provides that marital assets and debts get divided “equitably” between the parties.  Generally, the starting point for the court is an equal division of assets and debts, but, because so often a husband and wife will not have equal incomes, and for other reasons, the court has the power (called “discretion”) to deviate from the 50/50 division.  As is often the case, the husband has been pursuing a career while the wife has been at home raising children; in that case, the husband will have greater projected income and earning ability, and will be allocated more of the debts and less of the assets.Each case is unique.  Whether resolved by settlement or trial, the outcome in each case should be tailored to the parties’ (and their children’s) specific resources and needs.

My spouse cheated on me; do I have to prove it to the court and does it matter?

Many years ago, the law allowed the court to take marital misconduct, such as adultery, into account in deciding custody, alimony, property division, and other issues.  This led to an unhealthy tendency on each party’s part to prove that the other party had done wrong. In 1975, the Illinois legislature changed the divorce statutes to exclude marital misconduct from consideration by the court in determining almost all issues.  The result was a decrease in litigation and acrimony.The only current area where the court can consider marital misconduct is “dissipation.”  Dissipation is defined as the use or waste of marital assets or incurring debt for a non-marital purpose (like taking your lover to Mexico for a weekend) after the marriage has commenced its final breakdown.  Currently, the courts cannot count as dissipation any expenditure or debt incurred more than three years prior to the filing of the divorce petition.