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Choosing Where to File Your Divorce Petition
So, you have made the decision to pursue a divorce. After months of talking, counseling, and family therapy, you and your spouse have realized it is time end your marriage and go your separate ways. You have made basic arrangements for your property and your children, and you have reached an agreement on spousal support. All that is left to do is to file your petition with the appropriate court. But which court is the right one? You may be surprised to learn that most couples have at least a couple of options.
The Letter of the Law
The Illinois Marriage and Dissolution of Marriage Act states that proceedings for divorce “shall be had in the county where the plaintiff or defendant resides.” The plaintiff is the spouse who files the divorce petition, making the other spouse the defendant. This means that law presumes that your divorce will be heard in the circuit court of the county where either you or your spouse live at the time the petition is filed.
Is Your Marriage in Trouble?
No reasonable person gets married with the expectation that the marriage will end in divorce. While most people realize that divorce is a possibility—given that between 30 and 40 percent of marriages ultimately end that way—a marriage consists of two people building a life together. Unfortunately, relationships sometimes fall apart, even those that were formalized by marriage. When a marriage starts to fail, there are often warning signs that may be evident, and if you know what to look for, you may be able to save your marriage before it is too late.
Common Warning Signs
No two marriages are exactly alike, but relationship experts suggest that the red flags associated with failing relationships are often similar. It is important to remember that one or two such warning signs may not spell the end of your marriage, but the more there are, the worse off you may be. The most common signs include:
The Basics of Divorce in Illinois
Over the last few years, there have been many dramatic changes made to the laws that govern divorce in the state of Illinois. Thus, it is hardly surprising that a person who may be considering ending his or her marriage would have questions about how to begin the process and what he or she should know in advance. While it may not be possible to answer all of them quickly and easily, a review of the basics may provide some guidance.
Residency, Venue, and Grounds
A person may seek a divorce in an Illinois court if at least one half of the couple has lived in Illinois for at least 90 days prior to filing the petition for divorce. The petition should be filed in the county where at least one of the spouses resides unless there is a good reason to hold the proceedings in a different county.
Illinois is a pure no-fault divorce state, which means that all divorces are granted on the basis that irreconcilable differences have caused an irreparable breakdown of the marriage. Behaviors such as infidelity, abuse, or abandonment are not considered in the divorce proceedings—except possibly during discussions about parental responsibilities and parenting time.
Moving Your Children Out of Illinois
People move around much more often they once did. As transportation and communication continue to improve over time, it opens up a new host of questions for families, especially divorced families with children. There are rules about how and when you may take your children out of state, especially if your child is a minor. Lest you run afoul of the law, it is absolutely imperative to understand what the rules are in these cases, especially regarding questions of parental responsibilities.
Decision-Making Authority
Many people assume that if they been given sole authority to make all major decisions about their child’s welfare, they do not need to seek the other parent’s approval when planning a move. This, however, is not the case. In almost every situation, your child’s other parent has the right to object to your intended move out of state or beyond a certain distance within Illinois if he or she believes it is not in the best interest of your children. The court has the final say, of course, and can refuse to grant permission to move with your child if it finds that the child’s physical, mental, or emotional health will be compromised by the move.
Terminating a Parent’s Rights
While many parents would like to be able to simply end their ex’s right to be in their children’s lives, it is not possible in Illinois to do so unilaterally. Terminating a parent’s rights in Illinois is a process that requires the involvement of both parents in most cases, and in some situations, it can get extraordinarily complex. It is imperative, for the sake of your children, to ensure you understand the process before trying to assert your parental rights over those of their current caregivers.
When Can Rights Be Terminated?
In Illinois, there are very limited occasions on which a parent’s rights may be terminated. According to current law, there are only two: either in a case under the Adoption Act or in a juvenile court case. This may seem extreme, but Illinois legislators and courts have been firm in asserting that children benefit more from having both parents in their lives, unless the parent has been convicted of offenses that would signify their posing a danger to the child in question.
The Abolition of “Heart Balm” Torts in Illinois
In the late 19th century, U.S. states began to see a series of causes of action referred to as “heart balm torts.” These torts, such as seduction and alienation of affection, hinged around the idea that one spouse could hold the other spouse’s lover liable for the breakup of their marriage. Nowadays, such causes of action have been abolished in most states, as they have been in Illinois since the beginning of 2016.
Definitions and History
Heart balm torts originated in the 19th century in the United States. While they began to fall out of favor as states passed their respective Married Women’s Property Acts, heart balm torts came about due to the general belief that a wife was her husband’s property. Thus—as was the belief—he alone enjoyed the exclusive right to her company and to sexual congress within the confines of marriage. Illinois passed its version of a heart balm act into law in 1901, somewhat later than many other states.
Filing Your Taxes During Divorce Proceedings
There are many different options for filing your taxes after a divorce, all of which depend on your specific situation and financial picture. However, things can quickly become confused if you are unlucky enough to have tax day fall during your divorce proceedings. It may be a good idea to consult an experienced family law attorney, to have an outside opinion regarding specific tax issues that may appear during a divorce.
Filing Jointly
In all but the rarest of situations, couples remain legally married while their divorce proceedings are going on, and as such, still technically may file their taxes jointly. Most of the time, middle-class couples will benefit from filing jointly, given that approximately 45 percent receive a significant tax break. If you and your spouse are still legally married as of December 31, you may file jointly for that tax year.
The one important negative involved in filing jointly as still married spouses is that married couples are jointly and severally liable for each other’s tax debts. This means that even if a couple owes tax due to the misdeeds of one spouse, both spouses may be liable for the entire amount. However, the IRS does offer certain forms of relief if you are able to prove that the error was due to your spouse and that you are now divorced. Either way, it is generally a good idea to have your divorce agreement specifically dispose of any debt or asset gained (in other words, a tax refund) so as not to create potential problems. This kind of situation can pose a problem if your divorce is particularly nasty. For example, if your spouse hides or dissipates assets, but does not adequately inform you, their tax return may wind up being erroneous and you may be stuck with the consequences.
Subsidies for Certain Types of Adoption
When families decide to adopt a child, many will find reasons not to adopt those who are disabled or have other challenges, including the high cost of care that may be required for those with specific conditions. However, the state of Illinois, along with many other states, may offer some assistance. Not every case will qualify, but it is possible, especially with a good attorney, to be approved for adoption subsidies.
Federal and State Programs
Both the federal government and the individual states offer subsidies when adopting children with what the North American Council on Adoptable Children (NACAC) refers to as “special needs” (not to be confused with the alternate term for “disabled”). In order to qualify for either state or federal programs, a child must have at least one of the following characteristics:
- Is one year or older;
- Is a member of a sibling group (being adopted together) where a sibling meets one of the other characteristics. For example, if a child has a disabled sibling and the two are adopted together, the adoptive parent may be eligible for subsidies for both children;
International Divorce and Child Custody Issues
It is much more common nowadays for couples to spend time apart while married, or even take their entire family abroad. However, if the marriage breaks up, however, there can be some difficult and unique issues, especially if one spouse is in the military. It is advisable to enlist a professional to help negotiate complex questions in this situation.
Divorce Complexities
International divorces can be extremely drawn out, even if there are no children involved. Most of the common questions involve jurisdiction: if I am divorced in another country, will it be recognized at home? Whose law applies? What if my spouse is not an American citizen?
In terms of having your divorce recognized, it can be reasonably assumed that it will be. While the U.S. is not a party to the Hague Convention on the Recognition of Divorces and Legal Separations (HCRD), which governs these issues in many other countries, the principle of comity (considerate behavior toward other nations) exists in U.S. law. Thus, most divorces are recognized unless it can be proven that the judgment of the foreign court was somehow in error or fraudulent, or if that country’s residency requirements were not met. If you do encounter resistance, the Attorney General of your home state may get involved.
The Rights of Surrogates
Many couples who want children are unfortunately unable to have them naturally, due to health issues, infertility or other possible factors. More and more couples are turning to surrogates as an answer. Once thought of as a solution mostly for same-sex couples, heterosexual couples are using surrogates to help ease their fertility problems. However, if you are not careful, some complex legal tangles can crop up over a surrogate’s maternal rights.
The Gestational Surrogacy Act
Illinois’ laws about surrogate parents are actually some of the most well-defined and specific in the nation. The Illinois Gestational Surrogacy Act (IGSA) was passed in 2005 to specifically clarify the rights of both the intended parents and the surrogate mother.
The single most important thing to understand about the IGSA, however, is that it only applies to gestational surrogacy agreements—in other words, agreements where the surrogate mother is not also the egg donor. Traditional surrogacy agreements, where the surrogate’s egg is used, are not covered, and the law is significantly murkier when discussing the rights of all those involved. To avoid even more complications, it is usually best to have an egg donor if you or your partner cannot provide one.
