Illinois Father's Rights | Kane County Divorce Lawyer | St. Charles Law Firm

Divorce Tips for Dads

Kane County Family Law Firm

June is the month when we celebrate Father's Day, a day devoted to the men in our lives who raised us and shaped us into who we are today. For those of us who are fathers, it is also a day to celebrate our role in our children's lives. If you are a father going through a divorce, you might be concerned about how that role will change after the divorce is finalized. The thought of not seeing your children every day can be very stressful and when this is combined with the difficulties of conflict with your spouse and the financial demands of the divorce process, it can be easy to become overwhelmed and fail to live up to the standard you set for yourself as a parent. Falling short this way can cause many of us to become even more stressed, which can have a negative impact on our relationships with our children. If you are currently going through a divorce, do not forget to give yourself the self-care that you need to remain emotionally and physically healthy throughout the process. In our culture, men are often under pressure to suppress their feelings. As you go through the divorce process and enter the months and years that follow, make an active effort not to ignore your feelings. Keep this and the following divorce tips in mind for your own benefit as well as your children's.

Be Willing to Communicate

When you go through the divorce process, you meet a lot of people. In addition to your attorney, with whom you must be willing to discuss the details of your marriage and goals for the divorce, you will likely need to discuss your personal and financial life with others, such as:

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Does More Parenting Time Justify Less Child Support?

Please note: The Illinois Marriage and Dissolution of Marriage Act (IDMA) was revised as of January 1, 2016. For more information about how this affected child custody and visitation, click here. In July 2017, the law was revised again, changing how child support is calculated in Illinois. For more information about how child support calculations were affected, click here.

Child support, in Illinois, is decided with a calculator. The non-custodial parent is deemed the obligor, his (gender neutral) net income is determined pursuant to Section 505, and the percentage guideline is applied. Although the statute provides for deviations from the minimum statutory guidelines, there is significant judicial resistance to doing so. As one judge stated candidly several years ago: "if I don't deviate, I won't get overruled; if I do deviate, I might." This does not necessarily reflect the sentiments of every judge, and the case law reflects circumstances under which trial courts properly deviated from the guidelines.

For our purposes we will omit the main cases wherein the deviation was based upon substantial earnings, and we will omit editorial on the child support add-ons (e.g. medical, extracurricular, et cetera). Our focus is on circumstances where substantial parenting time is argued as a basis for deviation below the minimum statutory guidelines.

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Are Vacation Days Marital Property?

The first property issue in dissolution of marriage cases is the identification and classification of property. 750 ILCS 5/503(a) provides that "marital property" means all property acquired by either spouse subsequent to the marriage, except the following, which is known as "non-marital property". The statute then provides definitions and examples of non-marital property. As to marital property, we generally state that it includes everything that has accrued during the marriage. While this is somewhat overbroad, it truly does include some unusual and interesting arguments as to what constitutes "property".

Personal injury awards and worker's compensation awards are subject to classification as marital property depending on when they accrued and depending on which components of compensation are being considered. IRMO: DeRossett, 173 Ill.2d 416, 219 Ill.Dec. 487, 671N.E.2nd 654 (1996). Stock options are includable as marital property pursuant to 750 ILCS 5/503(b)(3). In the case of IRMO: Edwards, 369 Ill.App.3d 1035, 308 Ill.Dec.455, 861 N.E.2nd 1020(5th Dist. 2006), the appellate court held that the wife's judgment for attorneys' fees against her former husband, stemming from an action to enforce child support, was marital property belonging to whose marital property. The child support arrearage itself was non-marital property. Even intangible assets such as goodwill of a business have value and are considered marital property under certain circumstances. IRMO: Zells, 143 Ill.2d 251, 157 Ill.Dec.480, 572 N.E.2nd 944 (1991).

Recently the Illinois Supreme Court decided a case of first impression involving the issue of whether accumulated vacation and sick days are marital or nonmarital property. IRMO: Abrell, --- N.E.2d ----, 2010 WL 376398 (Ill.S.Ct. 2010).

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Dissipation: When Does It Begin to Begin?

Dissipation: When Does it Begin to Begin?

In 1990, the Illinois Supreme Court defined dissipation of assets as arising when property is improperly used for the sole benefit of one spouse, for a purpose unrelated to the marriage, at a time when the marriage is undergoing an irreconcilable breakdown." See IRMO: O'Neill, 138 Ill.2d 487, 150 Ill.Dec. 607, 563 N.E.2d 494, (Il.S.Ct 1990). The first element, the expenditure of funds, was typically more ascertainable than the second element, the date of marital breakdown (the phrase we commonly use to express this language). The latter question of fact usually hinged on testimony of event-related dates such as, when the couple began sleeping in separate bedrooms, when someone had an affair, or when the dissolution case was filed. The party alleging dissipation seeks to establish a date of marital breakdown, and the defending party argues for a later date of marital breakdown, such as the filing date. But that is not always the way of marriage and marital breakdowns. So when is the marriage undergoing an irreconcilable breakdown?

In IRMO: Holthaus, 387 Ill.App.3d 367, 326 Ill.Dec. 138, 899 N.E.2d 355, (2ndDist. 2008), the husband alleged that the wife's gambling constituted dissipation. In October 2001 he alleged that he discovered sizeable ATM withdrawals and confronted his wife about her gambling. As to the date of marital breakdown, he alleged that the parties ceased having a "romantic relationship" in 1997 (the wife said this occurred sometime in the late 1990's), ceased sharing a bedroom in 1998, and ceased sharing meals in 2001. At a deposition the wife testified that she believed that the marriage was irreconcilably broken down in 1999, but later testified that she had not understood that question. Moreover, in 2001 the parties actually started residing in separate parts of the house. In 2003 the husband testified that he worked on the wife's mother's house, and the wife testified that they worked together on the house. The husband left the house permanently in February 2005. The wife filed for dissolution of marriage in March 2005.

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