Illinois Agreed Divorce: An Overview
Your marriage is over, you’re ready for the next chapter, and you just want to get the paperwork done. How simple or complicated could it be?
Nobody wants a contested divorce. Nobody wants to spend five figures plus on their lawyer just to end their marriage. Well not every divorce is cut from the same cloth.
Today I’m going to talk about what it takes to truly have an agreed divorce - that’s a divorce where both parties are on the same page and it’s just a matter of ironing out the details, putting it all on paper, and signing.
I’m going to talk about what makes a divorce simple and what it makes it complicated, and then I’ll break down a hypothetical divorce so that you can see some of the decisions you might have to make.
My hope this will leave you better prepared to think through your divorce and help you to start processing what it’s going to take to make your divorce happen.
Let’s talk about the simplest divorce of all first.
It all comes down to finances and kids during your marriage.
The simplest divorce usually comes from a marriage that is relatively short, there are no kids involved, little to no property, little to no debt, and the parties don’t live together.
If there is any property or debt it’s not jointly held meaning all property or debt is either in your name or your spouse’s name.
I call this the "you take yours I’ll take mine" divorce.
If I have a client with a scenario like this - and their spouse is cooperative, I can have them divorced within a couple weeks.
On the other end of the spectrum you have your more typically complicated divorces.
There are kids, a business, an income disparity, a good deal of wealth or debt, a power imbalance in the relationship, maybe a history of domestic violence, and both parents want the kids to live with them while they go to school.
A divorce case like this rarely offers any easy ways out and a lot work needs to be done on finding an amicable solution. It can be done but it can take well over a year to get there. Two or three years wouldn’t be out of the ordinary.
Most people fall in between these two extremes.
Let’s say you have two kids with your spouse, about 100 thousand dollars in your 401k, your spouse has 50k in theirs, you have about 10,000 dollars in credit card debt, you both make about the same amount per year, and you’re still living in the same house, which you own, and you have about $5,000 between your checking and savings accounts.
Whether your divorce lasts two weeks or two years is going to come down to one question: Can you and your spouse work together to find a compromise you can both live with. This is about personalities.
So what specifically are you going to have to an agreement on?
First things first: the kids.
There are two major things to decide: what’s the parenting time going to be, and who is going to make the major decisions for the children.
There’s a third things as well - child support - but that is determined after you decide on the parenting schedule.
If you’re of the mindset that child support is the most important thing and the schedule is secondary, you’re doing it wrong - I’ll just leave it at that for now.
Alright so let’s talk parenting time.
That’s your nuts and bolts schedule for when you’ll have the kids and your spouse will have the kids.
The first question I get a lot here is “do we need a schedule?” “We get along and can just work it.” That’s great! But the answer is yes, you need a schedule. The laws says you do, so you do.
The judge won’t approve your parenting plan without one.
That doesn’t mean you have to stick with the schedule though - most agreements have language in them that says that if the parties agree to a schedule different than the court schedule that’s fine. Life happens. Maybe you have a work thing. Maybe the kids want to be with the other spouse for whatever reason. You two are flexible and reasonable and that’s great, and your court agreement shouldn’t get in the way of good co-parenting.
Ok so what are the major things you need to keep in mind when thinking about a parenting schedule?
First, you and your spouse are going to need to work out, who the kids will be living with when while they are going to school?
Is the schedule closer to 80% with one parent and 20% with the other parent, which possibly offers more stability for the kids, or is the schedule going to be closer to 50-50, which gives the kids a chance to spend a good amount of time with both parents?
How are you going to split school breaks like spring break?
Are you going to alternate who gets it or are you going to split it down the middle?
What about Christmas break? When is the split point for Christmas break?Christmas eve night or Christmas day?
Thanksgiving? Who gets it and when?
The kids birthdays? Your birthday?
Teacher-conference days off school?
How about summer? Does each parent get a block of time with the kids to go on vacation? How do you decide when this block of time will be and how long it will be? If you can work these things out with your spouse before you see a lawyer, you will drastically simplify the process.
The next issue is going to be decision making - that’s major decisions - specifically, decisions related education, extracurricular activities, health, and religion.
If you and your spouse are amicable enough to have an agreed divorce from the get go, this one shouldn’t be difficult.
It’s either going to be the parent that is already making these decisions - or it’s going to be both of you.
Chances are if you get stuck on this one, you’re going to see a fair amount of disagreement in other areas.
Alright, let’s talk child support.
The amount of child support, in 9 out of 10 cases, is based on the child support guidelines. In fact, most judges are pretty reluctant to not follow the guidelines and actually, by law, they have to follow them unless there is a good reason not to.
So how is child support calculated in Illinois?
Basically, in its simplest form, each parent pays an amount based on their percentage of the total income between the parties.
The total child support amount is a predetermined amount set by the Department of Healthcare and Family Services.
One major thing to keep in mind is that the calculation is drastically different if each parent as at least 146 overnights with the children per year.
So if you’re schedule is 156 of the overnights with one parent and 200 with the other parent, the child support obligation is going to be much different than if you had a 300 overnights with one and 65 with the other type schedule.
Alright, so you got the schedule and child support figured out.
The next big issue is the division of the marital assets.
The first question to tackle here is who, if any one, is going to stay in the house, and how you are going to divide the equity.
Let’s say that there is 100 thousand dollars in equity in the house and you want to stay in it after the divorce. The most common approach is that you’ll buy your spouse out of their portion of the equity. Let’s say that’s 50k. You don’t have 50k on hand. One option, and again a very common one, is a cash out refinance. You refinance the property and at the closing table your spouse signs the deed over to you, and she is cut a check for 50k.
Another option would be sell the house and divide the proceeds at the closing.
Next in the asset line up are the retirement accounts.
The three go-to approaches here are:
- equalize the retirement accounts, so if you have 100k and your spouse has 50k, you would be giving 25k to your spouse.
- equalize just the marital portions of the accounts. So let’s say that since marrying your 401k has gone from 50k to 100k and your spouse’s has gone from 30k to 50k. That means that your marital portions are 50k and 20k respectively. So there would need to be a 15k transfer from you to your spouse to equalize the marital portions.
- The final common approach here is that you take yours and your spouse takes theirs.
Which approach you take is going to come down to the personality of the parties. What a judge might do if the case went to court is going to depend on some other factors that I’ll dive into in a later video.
Finally, you and your spouse need to decide what happens with your debt and savings.
The easiest solution is going to be a 50-50 split of both, but you may need to decide based on the nature of the credit card debt who is going to be responsible for what percent. You may also decide that one person gets more the savings because of whatever reasons you have. My suggestion would be to not overcomplicate this decision, and to not overcomplicate any of your decisions.
Your goal is an amicable divorce - to make that happen - you might have to concede on some issues and just give in.
That, of course, is up to you. Good luck!