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Four Steps for Dividing Retirement Assets in DivorceRetirement assets grow in importance as marital property the longer you are married. If you divorce after several years of marriage, they could be one of the most valuable properties you own. As with all marital properties, you must include your retirement benefits as part of your division of property, and figuring out how to do so will be one of the most complicated parts of the divorce process. In general, there are four steps to determining how you will divide your retirement benefits as part of your divorce agreement:

  1. Valuing Your Benefits: To start, you need to know the current value of your retirement benefits. Retirement accounts are classified as defined contribution plans and defined benefit plans. It is easier to determine the value of a defined contribution plan because it is an individual account that you are paying into. With a defined benefit plan, your retirement benefits are part of a group account that will pay you based on a formula, and estimating its value is based on your life expectancy and the account's interest rates.
  2. Identifying the Marital Portion: Once you know the value of your retirement benefits, you must determine how much of it counts as marital property. The amount that your retirement benefits increased in value during your marriage is the amount that is marital property. Increases can come from your contributions to the plan, interest accrued on your holdings, and investments made with the money. The cut-off date determines when you stop counting increases in value towards your marital property. In Illinois, the date that a couple separates is usually the cut-off date.
  3. Dividing the Benefits: Because Illinois is an equitable division state, you do not have to divide your marital retirement benefits evenly between each other. When a divorce court determines whether the division of retirement benefits is equitable, they will consider the duration of the marriage and the economic resources of each spouse. You may be able to keep all of your retirement benefits in exchange for other marital properties, such as your home.
  4. Transferring Benefits: With many retirement plans, people are entitled to benefits based on being an employee or member of an organization. In order to receive benefits that you would not otherwise be entitled to, you will need a court order to transfer a portion of these benefits. A Qualified Domestic Relations Order is for private retirement benefits, such as a business’ retirement plan. A Qualified Illinois Domestic Relations Order is for retirement benefits provided by the Illinois state government. A Military Retired Benefit Division Order is for anyone who receives retirement pay because of their military service.

Contact a Kane County Divorce Lawyer

Dividing retirement benefits as part of your divorce may take the combined efforts of your divorce lawyer and a financial professional, such as an actuary. A St. Charles, Illinois, divorce attorney at Goostree Law Group will determine how to include your retirement benefits as part of your divorce while still protecting them. Schedule a free consultation by calling 630-584-4800.

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Attacking Your Co-Parent’s Character Rarely Has the Intended EffectDivorcing or separated parents in a dispute over their parenting time are often looking for something that will give them an advantage over their co-parent. Pointing out flaws in your co-parent’s character feels like a strong argument for giving you a greater share of parental responsibilities. However, character attacks are not always effective in a parenting case and may instead backfire on the accuser. You will be best served during your parenting case by demonstrating the strengths of your own character and only bringing up your co-parent’s lack of character if you can explain actual ways that it is harmful to your children.

Importance of Character

Someone’s character is relevant when a court rules on the allocation of parental responsibilities if it concerns their morality and judgment. Illinois law states that providing moral and ethical guidance is one of the roles of a parent. An immoral parent may fail in that role by demonstrating a lack of morality or not teaching their children the difference between right and wrong. Other parents show a lack of good judgment that puts their children in danger or neglects their upbringing. You can express your concerns about your co-parent’s character to the court, but the court will find your claims more credible if you present third-party evidence, such as:

  • Character witnesses testifying in court
  • Character letters submitted to the court
  • Child services professionals testifying on their observations of the children

If you are the one whose character is under attack, you can present witnesses that testify to your good character as a parent.

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Posted on in Divorce

Do You Need More Time Before Starting Your Divorce?When you and your spouse have decided that your marriage is over, it feels like there is little reason to delay getting a divorce. You may be eager to complete your divorce and move into the next stage of your life. Prolonging your marriage can be just as stressful for your children as your divorce will be because they can tell that you are unhappy and your relationship is strained. However, a short delay in starting your divorce could ultimately pay off if you need time to prepare yourself.

Financial Security

In the rush to complete a divorce, some people do not spend enough time considering how they will support themselves – in both the short term and long term. As a newly single adult, you will be paying for all of your living expenses without the benefit of your spouse’s income. As a result, you will need to figure out:

  • A new budget for yourself
  • Ways that you can cut down on your expenses
  • How you can increase your individual income

The surest way to increase your income is by finding a new job, which may require you to go back to school to improve your qualifications. Some of your marital expenses may follow you into divorce, such as paying off marital debt and expenses related to keeping your home. You will also need to build up your own source of savings, such as opening an individual bank account. All of these issues are easier to handle and less costly to you if you start on them before you begin your divorce.

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Posted on in Annulments

What It Takes to Annul Your Marriage in IllinoisIn most situations, the only way to end a marriage is to divorce your spouse. However, you may be able to annul the marriage if you can prove that it was never valid. The advantage of an annulment is that you will not have to divide your properties or pay spousal maintenance because the marriage never legally existed. The disadvantage is that there is a deadline to request an annulment and you will have to put more work into arguing why your marriage should be annulled. With a divorce, you only need to prove irreconcilable differences between you and your spouse. With an annulment, you must prove one of the following conditions:

  1. Lack of Consent: A marriage is invalid if one of the parties was unable to legally consent to the marriage. This could be because you were intoxicated or mentally incapacitated when agreeing to the marriage or if you were married under duress or fraudulent circumstances. Once you realize that your marriage lacked your consent, you have 90 days to get your marriage annulled.
  2. Underage: A person cannot legally marry in Illinois if they are younger than 16. People age 16 and 17 must receive permission from their parents before they can marry. Either the underage person or their parent can request an annulment, as long as it is before the person’s 18th birthday.
  3. Incapable of Sex: A spouse can request an annulment if they learn after they were married that their spouse is incapable of having sexual intercourse. The keys to this type of annulment are filing within a year of learning and proving that you did not know before your marriage that your spouse could not have sex.
  4. Already Married: You cannot legally marry someone if they are already married and have not yet dissolved that marriage. There is no time limit to annulling an illegal marriage such as this. If you can prove that you did not know that your spouse was already married, the court may name you as a putative spouse, which would give you rights to property and maintenance.
  5. Incest: It is illegal to marry your ancestor, descendant, sibling, aunt, uncle, niece, or nephew. You can legally marry your first cousin, but only if you are both at least 50 years old or you can prove that one of you is sexually sterile.

Contact a St. Charles, Illinois, Divorce Attorney

An annulment is more difficult to receive than a dissolution of marriage, but the process after receiving an annulment is simpler than a divorce. Talk to a Kane County divorce lawyer at Goostree Law Group about whether you may be able to annul your marriage. To schedule a free consultation, call 630-584-4800.

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Are Student Loans a Marital Debt During Divorce?Student loans are among the largest debts that many Americans have and can be difficult to get rid of. Even bankruptcy is unlikely to discharge your student loans. When you are married, your spouse can help you keep up with your bills or even cosign on your student loan agreement. However, what happens to your student loan debts during your divorce? In Illinois, divorcing spouses equitably divide their marital debts. There are five important questions that determine whether student loan debts qualify as marital debts and how they will be divided during your divorce:

  1. When Were the Student Loan Debts Created?: The primary difference between marital and nonmarital debts is whether you entered the debt while you were married. If you took out a student loan while you were married, you will likely classify it as a marital debt. If your student loans originated before your marriage, they are likely a nonmarital debt that you are solely responsible for. 
  2. Whose Name Is on the Contract?: From the creditor’s perspective, the people responsible for your student loans are the ones whose names are on the student loan agreement. The creditor may require your spouse to cosign on the agreement if you take out a student loan or refinance a premarital student loan agreement while married. If your spouse’s name is not on the agreement, you can negotiate for them to help repay your student loans as part of your divorce, but the creditor will hold you responsible if your spouse does not follow through.
  3. What Does Your Prenup Say?: A prenuptial or postnuptial agreement can decide how you will divide debts during divorce, including your student loans. If you have a prenuptial agreement, it may state that you will be solely responsible for your own student loan debts or that your spouse will help pay your nonmarital student loans.
  4. Do You Both Have Student Loans?: An equitable division of debt means it must be fair given the circumstances and not necessarily equal. If you both incurred student loan debts of similar value during your marriage, you can agree to each be responsible for your own student loans.
  5. How Was the Money Used?: It may also be equitable for a spouse to be responsible for their own student loans if all of the money went towards paying for their education and benefiting their career. However, spouses sometimes use student loan money to pay for marital expenses, which may mean it is fair for both spouses to share the debt.

Contact a Kane County Divorce Attorney

Your marital debts are part of a larger financial picture in your divorce, including how you will divide your marital properties. A St. Charles, Illinois, divorce lawyer at Goostree Law Group can help you create a strategy for financial success in your divorce. Schedule a free consultation by calling 630-584-4800.

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