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PREPARATION FOR DIVORCE |
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Before a divorce can I prepare so I will be at an advantage? |
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What sort of financial information should I be gathering before the divorce? |
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My spouse owns a business. How can I learn about it? |
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Is it important that I investigate about my spouse's "social" activities? |
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Before the divorce should I tidy up our affairs by paying off debts? |
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Because the divorce proceedings will cause extraordinary expenses, is it a good idea for me to grab all the overtime I can, try to earn commissions, bonuses etc.? |
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I have been a stay-at-home parent for the past 20 years, with children at home who are 12 and 15 years old. I have been told that I should not now look for work because it will have a negative impact on a maintenance award for me. Should I seek work? |
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I anticipate the possibility my spouse and I will not be able to agree who should be the primary residential custodian of the children. Can I prepare for the anticipated custody litigation? |
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If I move out, am I abandoning the house? |
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Should I retain a lawyer ahead of time? |
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| Q: |
Before a divorce can I prepare so I will be at an advantage? |
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Yes. Preparation is the key to a better result in almost every venture, including a divorce |
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| Q: |
What sort of financial information should I be gathering before the divorce? |
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In most marriages one of the parties handles the finances and the other partner is less knowledgeable, or almost totally in the dark about the family finances. Start learning how the family finances work! In preparation for the divorce you should copy bank registers for the past year, the past three years 'income tax returns, several of your spouse's current paycheck stubs, the past year's reports for stock purchases, the last printout relating to employee benefits (including retirement type plans), and in general any fairly current documents with numbers and dollar signs. |
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| Q: |
My spouse owns a business. How can I learn about it? |
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Of course if you have access to the office, you should copy as many (at least for the past year) business records as you can, which would include the check registers, the monthly or quarterly financial statements and tax returns for the past three years. If the business recently made a loan, a copy of the financial statement given to the lender will be revealing. Before the divorce starts and before suspicions are raised, you may be able to obtain valuable knowledge and copies of documents from the company's bookkeeper. More and more business (as well as personal) data are computer stored. This is the place to look if you have the ability. |
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| Q: |
Is it important that I investigate about my spouse's "social" activities? |
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Probably not. Illinois is a "no fault" divorce state. The Illinois Divorce Act specifically states that the financial awards, such as maintenance, property distribution, and child support are to be made "without regard to marital misconduct." Thus even a spouse's adultery will not result in a financial advantage to the other spouse. If, however, the "social activities" occur when the marriage is in trouble, and money is spent on these activities, the money has to be paid back, so an investigation may be appropriate. The easiest place to find this evidence is in credit card and telephone (especially cell) charges. The hiring of a private investigator is very seldom cost effective and my advice is it should only be done under the supervision of your lawyer. |
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| Q: |
Before the divorce should I tidy up our affairs by paying off debts? |
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No. When it comes to distribution of assets you will seldom receive a "kiss" (credit) for paying the debts, but instead the division of assets is likely to be made without regard to your having paid the debts. If you are the primary earner in the family, the likelihood is that the divorce judgment will require you to pay most of the debts.
If you are the primary earner, you can anticipate you may be stuck with the debts. "better scenario for you is to sell the house, or some other valuable asset, pay the debts from the top of the sale proceeds and divide the rest of the proceeds with your spouse. Under this scenario you and your spouse will, in fact, be sharing the debt payment in ratio to the division of the asset which is sold. |
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| Q: |
Because the divorce proceedings will cause extraordinary expenses, is it a good idea for me to grab all the overtime I can, try to earn commissions, bonuses etc.? |
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No. You should not purposefully inflate your income before the divorce because your obligation for child support and maintenance (alimony) will be based on your current income. |
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| Q: |
I have been a stay-at-home parent for the past 20 years, with children at home who are 12 and 15 years old. I have been told that I should not now look for work because it will have a negative impact on a maintenance award for me. Should I seek work? |
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Yes, in most instances. Look at your situation realistically. Most likely the best you will be able to do is to receive 28 percent of your spouse's net income for child support, and if you are lucky, about 20 percent for maintenance. If you and the children cannot (as is usually the case) get along on 48 percent of your spouse's net income, the reality is you will have to be employed outside the home. Where, however, the non-child custodian parent has a high income, and the asset distribution to the child custodian will be high, there may not be a need for employment. Obtaining employment in anticipation of a divorce, or during a divorce, is a critical move, and one on which you should follow your lawyer's advice. |
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| Q: |
I anticipate the possibility my spouse and I will not be able to agree who should be the primary residential custodian of the children. Can I prepare for the anticipated custody litigation? |
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Yes. First, keep a journal with dates, times, places and names of what of significance happens to the children. Custody is usually decided on the basis of who, historically, has been the primary care giver to the children. Caretaking items should therefore be entered in the journal. Residential custody is not given to the primary care giver if she or he is a bad parent. Bad parenting should be noted in the journal. The journal should also contain special outings with the children, taking the children to physicians, parent-teacher conferences, buying clothes for the children, activities with the children's friends, involvement with the children's extracurricular activities, such as lessons, sports, etc. |
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| Q: |
If I move out, am I abandoning the house? |
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No. If the level of discomfort of living together is so high, or there is an actual concern for your physical or mental welfare, you should move out. If, however, there are children involved and custody may be an issue, and you move out without the children this will be a big strike against you in the custody proceedings. You must also consider the affordability of maintaining two households. |
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| Q: |
Should I retain a lawyer ahead of time? |
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Probably. If you anticipate a divorce, but not an immediate divorce, you will put your ducks in a row much better with the aid of a lawyer, keeping in mind that your dealings with the lawyers are strictly confidential. Also, some lawyers are more sought after than others, so you may want to retain a certain lawyer before your spouse does. |
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