Myth #1: “Your spouse will have to pay all of the attorney’s fees”
TRUTH: While the spouse in control of the finances during the divorce proceeding may be ordered to contribute toward the other spouse’s attorney’s fees and costs, the money that is being paid on an interim basis will be considered a pre-distribution of that party’s share of the marital estate, which may be subject to reallocation later in the proceeding. Clients beware! Even if your spouse is the one writing the check, the money being used to pay your attorney is actually your own money that is being spent and that might otherwise be yours to keep as part of a settlement, so be cautious in how you approach the costs of your litigation.
Myth #2: “The assets of the marriage are always divided 50%”
TRUTH: While assets in many typical divorce cases are divided equally with each party receiving 50% of the marital assets, Illinois is an equitable distribution state, which allows for a disproportionate allocation of assets in certain circumstances. It should also be noted that the division of marital assets can take into consideration one party’s non-marital assets and the value thereof, even if one spouse is not entitled to the non-marital assets of the other spouse.
Myth #3: “Your spouse will have to pay enough money for you to continue to live the standard of living enjoyed during the marriage”
TRUTH: It is true that the standard of living the parties enjoyed during the marriage is a factor that the court will consider in awarding maintenance, but it is just one of several factors. The reality is that very few people are financially able to enjoy the same standard of living enjoyed during the marriage, because of the inherent reduction of the assets during a divorce for attorneys and experts fees, as well as litigation costs. Furthermore, two people sharing combined assets creates a far greater lifestyle than individuals living two separate lives supported by that same pool of assets. Litigation Tip: get through your divorce as efficiently and quickly as possible and pick your battles, so that you do not incur unnecessary litigation expenses that will just diminish the assets available to you to try to utilize for your lifestyle after divorce.
Myth #4: “You will receive the percentage guideline for child support no matter what”
TRUTH: It is true that in most cases the percentage guidelines in Illinois will be applied toward the net income of the payor spouse. However, percentage guidelines for child support may not apply to unlimited income of the other spouse, and may not apply if the payor spouse has an extremely high income, in which case, the court will determine the reasonable needs of the children in setting the child support award. Additionally, the court may consider the parenting schedule plan between the two parties and in many instances, the court may consider a deviation below statutory child support guidelines where the parties have equal time, or close to equal time with both parents.
Myth #5: “The spouse who is earning more in a marriage automatically has to pay 30% to the other spouse for maintenance.”
TRUTH: On January 1, 2015, the legislature passed formulaic guidelines for maintenance awards in the state of Illinois. 30% is a significant component of the new maintenance statute, but is an overly simplistic view of the entire formula. First, just because one spouse earns more income than the other spouse in a marriage, does not mean there will be a maintenance award. The courts must decide whether or not maintenance is even appropriate under the facts and circumstances of each specific case. Second, the maintenance formula only applies to families whose house combined incomes is $250,000 or less. For families whose household incomes combined exceed $250,000, the guidelines do not apply and the court will apply the statutory factors that existed prior to the enactment of the new Act in determining an appropriate amount of maintenance.
Be careful what you hear from individuals or what you might read online or in other sources. It is extremely important that you speak directly with an experienced divorce attorney who has the experience in litigating financial issues in divorce cases and can provide you with honest and direct answers to questions you may have regarding your finances in divorce.
James M. Quigley, Family Law Partner