When a couple chooses to end their marriage, they will need to address a variety of issues during the divorce process. Foremost among these is the division of marital property. All assets and debts that a couple owns together must be divided fairly and equitably. In addition to marital property, each spouse will likely have certain assets that are considered separate property, including items they owned before getting married, assets received through inheritances, and property excluded from the marital estate by a prenuptial or postnuptial agreement. Separate property will not be divided between spouses, and each party will be able to retain ownership of the assets they originally possessed. However, there are many situations where marital and separate property may become mixed together or “commingled.” By understanding how to identify marital and separate property and determine how ownership of commingled property will be handled, spouses can ensure that property division will be addressed correctly during their divorce.

Examples of Commingled Property

It is not always easy to determine which assets may be considered separate property vs. marital property, especially when a couple has combined their finances during the years that they were married. When assets become commingled, it may sometimes be possible to trace them back to their source, but if this is not possible, separate property may be “transmuted” into marital property, and it will need to be included during the property division process. Some cases where commingling of assets may occur include:

• Real estate property - A home or other property that one spouse owned before getting married will be considered separate property. However, some of this asset may be considered marital property if the other spouse made contributions toward its increase in value. For example, if payments on a home’s mortgage were made using income earned by both spouses, the increase in equity in the home may be considered to be a marital asset. Similarly, if a spouse helped make improvements to a home owned by the other spouse, such as by performing work or helping make payments to a contractor, they may be able to claim partial ownership of the home. To ensure that they can maintain full ownership of the property, the spouse who originally owned the home may reimburse the other spouse for the contributions they have made.

When a child’s parents are married, there is usually no question about the identity of the child’s father, and both parents will have the legal rights and obligations that come with parenthood. However, when a child is born to unmarried parents, additional steps will need to be taken to legally establish paternity. In many cases, this is done by signing a Voluntary Acknowledgment of Paternity (VAP) form. When doing so, parents will need to understand their rights and requirements, and they may also need to address other related legal issues.

Issues That May Affect a Voluntary Acknowledgment of Paternity

Until paternity is established, a father may not be recognized as a child’s legal parent. If the parents are in agreement that a man is the child’s biological father, they can sign and submit a VAP form together. This form may be provided at the hospital where a child is born, but it is also available from other state and local government offices, such as a county clerk, and it may be signed at any time after a child is born. After a father is recognized as a legal parent, he will have the right to share in child custody and parenting time, and he will have an obligation to provide child support. 

A VAP form will usually state that a child does not have a presumed parent. A presumed parent may include the mother’s spouse or an ex-spouse who terminated their marriage with the mother within 300 days before the child was born. If a child has a presumed parent, a VAP must state the name of that person, and the presumed parent will need to sign and submit a denial of parentage.

For many married couples, a prenuptial agreement can provide a sense of security, ensuring that they will be able to avoid uncertainty and minimize conflict in the case of a divorce. By using a prenup to make decisions about issues such as property division and spousal maintenance ahead of time, spouses can protect their financial interests and make sure they will each be able to move forward successfully following the end of their relationship. However, there are some cases where a prenuptial agreement may be challenged by one party. While these challenges may be based on a variety of factors, one common reason a spouse may believe that a prenup should not be enforced is that it is unfair. By understanding when this type of challenge may be made, spouses can determine the best ways to approach these situations.

Unconscionability of Prenuptial Agreements

A prenuptial agreement may favor either party in certain ways, such as by granting one spouse a majority of the couple’s marital assets. Unfairness on its own is usually not a sufficient reason to challenge an agreement. A prenup will generally be enforceable unless it is “unconscionable,” or grossly unfair to one party. For example, if an agreement states that one spouse will maintain ownership of 95 percent of the assets the couple owns, it may be considered unconscionable because it would create a situation where the other spouse would most likely struggle to support themselves.

To successfully challenge a prenuptial agreement based on unconscionability, a person will also need to show that they did not have adequate knowledge of the other spouse’s financial resources before signing the agreement. Most of the time, when creating a prenup, a couple will provide each other with a full disclosure of their finances, including all sources of income, information about the assets they own, and any other issues that affect their financial resources. The parties may also waive their right to receive this type of disclosure. In general, a spouse cannot challenge a prenup based on unconscionability if they received a fair and reasonable disclosure from the other spouse or waived their right to a disclosure in writing. However, a prenup may be challenged if some of a spouse’s assets were not fully disclosed or if the other spouse did not have adequate knowledge of their partner’s income and assets.

Parents have the obligation to provide financial support for their children. To ensure that children will have the resources that will fully address their ongoing needs, child support will usually be ordered in cases where married parents choose to divorce or when unmarried parents are separated. In many of these cases, one parent will have primary physical custody, meaning that children will live with them the majority of the time, and this parent will usually receive child support payments from the other parent. However, there are some situations where parents may have equal or 50/50 custody, and determining the parents’ child support obligations in these cases can be more complex.

Child Support and Shared Physical Care

In Illinois, child support obligations are calculated by taking the income earned by both parents into account. These obligations are determined by considering the amount that married parents would usually be expected to spend on child-related expenses. The state of Illinois uses tables that detail the appropriate amount of support based on parents’ combined income and their number of children.

In most cases, the amount of child support determined using these tables will be divided between parents, with each parent being responsible for a percentage of the amount of child support based on the income they earn. That is, if a parent earns 30 percent of the couple’s combined income, they will be responsible for 30 percent of the child support obligation, and the other parent will be responsible for 70 percent of the obligation. When one parent is the custodial parent, the other parent will make child support payments to them.

A divorce will affect spouses in multiple ways, and they will need to address a wide variety of issues as they make sure they will be able to move forward successfully and establish new lives separate from each other. However, a person who relies on their spouse to provide for their family’s financial needs may be concerned about their ability to provide for themselves following their divorce. This can be a significant concern for stay-at-home parents, since a person who does not work outside the home may worry that they will need to seek employment and make arrangements for childcare. In some cases, these issues may be addressed through spousal maintenance (also known as alimony) in which one spouse will pay financial support to the other following the couple’s divorce.

Eligibility for Spousal Maintenance

Following a divorce, both spouses should be able to maintain their standard of living. While spouses will need to make some adjustments, they should each be able to continue living in a way that they were used to while they were married. Divorcing parents will want to avoid upending their children’s lives and making major changes that could affect children’s emotional health and their ability to succeed in school or live comfortably at home. To avoid these types of disruptions, a stay-at-home parent should be able to continue serving in this role after ending their marriage.

If a parent has chosen to forego employment in order to provide care for children and attend to household duties, they may receive spousal maintenance from their former spouse to ensure that they will be able to cover household expenses. However, maintenance will not be automatically awarded. A couple may agree that spousal support will be paid in a settlement created during an uncontested divorce. If a couple cannot reach an agreement, the spouse who is seeking maintenance may ask a family court judge to require the other spouse to pay them support.