[김진구 변호사의 법률 포커스] Divorce Requirements in Illinois

In the last column, we looked at changes in the Illinois divorce law system, but today we will take the time to look at more practical details.

First of all, according to Illinois divorce laws revised in 2016, Illinois is now a no-fault divorce state, and the only reason for divorce is Irreconcilable Difference, known as personality differences. Therefore, the existing fault based divorce ground, that is, the other party’s moral fault, economic incompetence, running away from home, drug or alcohol addiction, mental and physical abuse, and the spouse’s physical defects that seriously interfere with the maintenance of marriage, can be added. I think you can see that there is no need to discuss this further.

In the end, since you only need to prove Irreconcilable Difference, which corresponds to personality differences, you do not waste time proving the other party’s fault in a divorce lawsuit, and you do not waste time proving the other party’s fault, and the essential issues required for a divorce judgment are custody of minor children (and child support), division of property, and alimony. We can now focus only on practical issues such as maintenance.

The court recognizes the divorce agreement (Marital Settlement Agreement) that reflects the parties’ agreement on these issues as part of the court decision and makes a divorce judgment. Therefore, from a practical perspective, divorce can be either an uncontested divorce, in which both parties amicably negotiate the terms of the divorce, sign a divorce agreement, and then submit it to the court, or a divorce in which the two parties are unable to reach an agreement on their own and proceed with the court’s judgment. It can be divided into Contested Divorce.

As you may have already guessed, if both parties cannot reach an agreement, a lengthy legal battle through lawyers will ensue, which inevitably results in a high-cost divorce lawsuit. Because of this situation, the court also recommends that, if possible, both parties find an amicable compromise and reach a divorce by agreement to avoid high-cost litigation.

Now, let’s take a closer look at the practical requirements for divorce explained above.

First of all, property division is the concept of dividing assets and debts formed during marriage fairly (rather than equally) taking into account legal standards and facts. Unless there are special circumstances that may make an exception, 50:50 is the standard. Even if one spouse takes full responsibility for economic activities and the other takes charge of housework and childrearing during the marriage, a fair division of property can be achieved by taking into account the contributions of both spouses (especially the spouse who takes full charge of housework and childcare). I think you can think of it as making it possible. However, property that one spouse already owned before marriage or received as a gift from parents during the marriage may not be included in the couple’s joint property.

Regarding custody, if a couple has a minor child under the age of 18, custody will be granted to a parent who has the conditions and qualifications to ensure the child’s welfare as much as possible. However, recently, there has been a trend to grant joint custody, believing that it is best for the child’s welfare to encourage both parents to actively participate and contribute to the child’s upbringing. Nevertheless, if the parent lives with the child, he or she becomes the primary custodian and receives support for child support from the non-resident parent. Unless there are special exceptional circumstances, the method of calculating child support is a certain method prescribed by Illinois law (mainly based on the income of both parents, eg, dividing the adjusted net income by the combined net income of both parties to determine each contribution ratio). You are supposed to follow it. Child support is required to be paid on a set date each month, but if this is not done, the court can be requested to allow the person responsible for child support to have it deducted from the salary of the person responsible for paying child support.

A spouse who has financial ability has an obligation to provide financial support to a spouse who has no or relatively limited financial ability. The period and amount of support are mainly determined based on the standard of living during the marriage, the economic capabilities of both spouses, and the length of the marriage. The calculation of this amount follows the calculation method established by Illinois law, and unless there are special exceptions, it is determined according to a fairly standardized calculation method.

However, if we summarize once again, there is still a blind spot in that if both spouses do not reach an amicable agreement on the issues explained above, a legal dispute that can cost a considerable amount of money may ensue. In other words, the reason for divorce was summarized as Irreconcilable Difference, which corresponds to personality differences between spouses, but Uncontested Divorce depends on whether the issues of property division, custody (and child support), and economic support, which must be resolved in the divorce process, can be resolved amicably. / It is divided into Contested Divorce.

In the case of Uncontested Divorce, it refers to a case where both parties agree to a divorce agreement (Marital Settlement Agreement) after amicably discussing the issues related to property division, custody (child support), and financial support necessary for a divorce judgment. There is an advantage to being able to avoid it. On the other hand, if both parties cannot agree on the requirements for divorce mentioned above, a fierce legal battle is bound to occur to enforce mutually advantageous conditions. People often say, “Aren’t we getting divorced because we are in a relationship where an amicable agreement like this is impossible?” There are many cases where it is inevitable to say this. Due to the nature of these divorce lawsuits, they often have no choice but to spend 2 to 3 years in litigation and huge amounts of attorney fees, but at the end of the day, both sides say, ‘Didn’t the lawyers do a good job?’ There are many cases of empty self-deprecation like this.

In the end, we accept the reality that divorce is inevitable if one of the two spouses does not intend to continue the marriage, and the law guarantees property division, custody (child support), and financial support for the spouse who does not have the financial ability. I think it would be necessary for both parties to calmly discuss the practical issues arising from the same divorce and reach an agreement at a reasonable level, if possible.

We have looked at the practical approach in response to changes in the Illinois divorce legal system. We hope that you can minimize unnecessary emotional or financial costs through reasonable advice from a lawyer.
We have looked at the practical approach in response to changes in the Illinois divorce legal system. We hope that you can minimize unnecessary emotional or financial costs through reasonable advice from a lawyer.

Jingu Kim, attorney at Koryo Law Firm
Contact: jgkim@coryolaw.com | 847-472-9221