Family Law

Paul Wharton has decades of experience litigating family law matters. Whether the divorce is contested or not, or whether one spouse is at fault or not, Paul Wharton has the experience that will ensure that you get the result that you want or need. If you plan to file for divorce, or your spouse has already filed for divorce, in Kenilworth, Lake Bluff, Glenview, Gurnee, Barrington Hills, or elsewhere in Chicagoland, Lake or northern Cook Counties, Paul Wharton is here for you. Let him be there for you in this difficult time. Paul knows that divorces can be complicated, especially when children are involved. Sometimes parties want a divorce achieved quickly. Other times patience is a virtue. Regardless of the situation, he has the requisite experience and genuine compassion to get you the best possible result for you and your family. Before you can properly file to dissolve a marriage in Illinois, the Illinois court must have jurisdiction over you. This means that one of the parties to the divorce must reside in the state at the beginning of the divorce process.

Below is a list of topic areas that you may want to become familiar with before consulting with Paul Wharton or any attorney. The information will not make you an expert and should not take the place of consulting with Paul or another attorney. In such complicated, emotional matters, it is always better to have representation.

Divorce

In Illinois, there are two types of divorces, fault and no fault. Paul Wharton has extensive experience representing clients going through either process. If you are getting a divorce, in Lake Zurich, Mundelein, Northfield, or elsewhere in Northern Illinois, know that Paul is one of the most experienced litigators around practicing divorce law and can guide you through either process.

There can be benefits to both a fault and no-fault divorce. Learn them here.

Before diving into the minutiae of either process, you first need to understand how each process differs. A no-fault divorce is essentially that. Neither party admits fault for the failure of the marriage. Neither party will have to prove or be subjected to claims of marital misconduct.

A fault divorce, on the other hand, is one where the conduct of one of the divorcing spouses caused the divorce. The filing party will have to prove that his or her spouse acted in a way that meets the statutory requirements for a fault divorce. Given that no-fault divorces are a much easier process to go through, you may be wondering why anyone in Illinois would elect to go through a messier fault divorce. There are two answers to this question.

 

First, no-fault divorces require a statutory separation period before a divorce can be granted. Fault divorces, on the other hand, can be granted at any time. Thus, fault divorces, especially if the divorce is contested, can be much faster than no-fault divorces.

Second, although fault divorces do not generally affect how property will be distributed to each spouse or the level of spousal support owed, they may be considered when the court makes decisions about child custody and visitation.

 

The requirements of a fault divorce in Illinois

The fault grounds for divorce are as follow,

 

Impotence

Your spouse was already married at the time of your marriage

Adultery subsequent to the marriage

Abandonment for a period of time exceeding a year

Alcohol abuse or drug use for at least two years

Repeated acts of physical or mental cruelty

Attempted murder against the other spouse

Felony conviction or conviction for an infamous crime

Infection of the other spouse with an STD

 

As outlined above, the presence of these factors will not greatly affect the outcome of your divorce, although the court can and will take what facts you prove into account when deciding how to apportion child custody and visitation. Remember that you can file for and receive a fault divorce at any time in Illinois.

 

The process of a no-fault divorce in Illinois

Things have simply not worked out. There has been no abuse, no substance abuse problems, and nothing else occurred during the marriage that will allow you to get a fault-based divorce. In this case, you must rely on a no-fault divorce to end your marriage.

 

There are two distinct processes for no-fault divorces in Illinois. If both parties agree to the divorce, then the court can grant the divorce after you and your spouse have lived separately for six months. To ensure that this occurs, both parties must file written stipulations with the court assenting to the termination of the marriage.

If your spouse will not assent to the divorce, the no-fault divorce process becomes more drawn out. In this situation, you must live separately from your spouse for a continuous period of two years. The court must also determine that efforts at reconciliation have failed or are impractical and not in the best interest of the family.

 

As you can see, if you need a speedy divorce but your spouse resists, a fault-based divorce may be your best option. Regardless of the situation, however, the complexities of these legal situations demand the attention of an attorney experienced with dealing with this difficult process. If you are struggling to decide on how to proceed with your divorce, do not hesitate to contact seasoned attorney Paul Wharton.

Spousal Support - When It is Awarded and How Long It May Last

Spousal support, or alimony, can be a contentious subject. Unlike some other states, spousal support in Illinois does not depend on fault or marital misconduct. Rather, the court may use statutory guidelines that became effective January 1, 2015 to determine the amount of support you owe to your spouse.

If you are going through a divorce in Glenview, Gurnee, Lake Forest, Zion, Grayslake, Libertyville, or elsewhere in Northern Illinois, Paul Wharton can help you through this difficult process. To ensure the court has all of the information required to determine the appropriateness of spousal support, hire an experienced attorney like Paul.

The judge presiding over your divorce has discretion in deciding whether or not to order spousal support. In deciding whether or not to award it, the judge will take into account the length of the marriage, your standard of living during the marriage, and the income of you and your spouse. The court may also consider what opportunities each spouse gave up for the marriage and the amount of time a spouse may need to get the training or education they need to become financially independent.

After deciding that spousal support is required for you or your spouse, the judge will then determine its amount. If the combined income of both parties is under $250,000, the judge must follow the new statutory guidelines to determine the level of support and its duration. If the combined income exceeds that figure, the court has greater discretion in awarding support. The court may also award temporary support during the proceedings, which will cease when the divorce is finalized.

 

Statutory Support

If the combined income of both parties is under $250,000 and there are no multiple family situations, the court will apply the statutory guidelines for spousal support. The statute does not clearly define a multiple family situation, but it is likely that our state legislature referred to situations where a divorcing spouse already owed support to a previous family.

The first calculation in determining spousal support takes 30% of the paying spouse's gross income and subtracts 20% of the receiving spouse's income. This amount will be the amount of the annual payments to spouse in need of support. It cannot exceed 40% of combined income of both parties, and will be reduced if it does.

Once the level of support is determined by the above calculation, the court will then determine its length. This is done by multiplying the number of years the spouses were married by the applicable statutory factor, which depends on the length of the marriage.

 

The factors are:

.20 for marriages of 0 to 5 years

.40 for marriages of 5 to 10 years

.60 for marriages of 10 to 15 years

.80 for marriages of 15 to 20 years

1 for marriages exceeding 20 years, or permanent support

 

Thus, if you are married to your spouse for six years, the duration of support will be determined by multiplying six and the statutory factor of .4. In this example, you will be on the hook for 2.4 years of spousal support at the rate determined by the statutory scheme.

 

Discretionary Support

If the parties combined income exceeds $250,000 a year, the court has the discretion to award support outside of the statutory scheme.

In deciding this type of spousal support, the court may consider:

 

Both spouses' income and property, including their property after the marital property is distributed.

Financial needs of each spouse

Each spouse's present and future earning capacity

Any detriment to either spouse's earning capacity due to domestic duties or the marriage. This can include giving up on education or employment during the marriage

Time necessary for spouse seeking support to obtain the training or employment necessary to become self-supporting. If this spouse is caring for children, this may not be required of them.

Standard of living during marriage

Duration of marriage

Age and physical and emotional condition of each spouse

Tax consequences of the property division

Contributions by spouse seeking support to the other spouse's education, training, or career

Valid agreements of the parties

Other factors court believes are fair and equitable.

 

As you can see, the determination of spousal support can be a difficult and lengthy process. Although the new statutory scheme for spousal support is designed to lessen the angst that accompanies these situations, disagreements between divorcing spouses are virtually inevitable.

 

A veteran attorney like Paul Wharton will make this process easier on you by acting as a levelheaded advocate for your rights. If you are going through a divorce in Northern Illinois, including in the communities of Barrington Hills, Highland Park, Lake Zurich, Lake Forest, Deerfield, or Northfield, do not hesitate to contact him for a free consultation.

Child Support - A Simple Formula

When considering child support, know that any agreement you may come to with your spouse will not have the weight that other agreements you make during your divorce proceeding. Child support is designed to help your child, not your spouse. Thus, Illinois has taken steps to ensure that your child will receive what it thinks your child needs, rather than what your spouse may think he or she needs. Although payments are determined by a simple formula, that payment may be altered depending on your circumstances.

An effective attorney like Paul Wharton can ensure that your needs are presented in the best light when child support is determined. If you are going through a divorce in Chicagoland like Lake or northern Cook Counties, including in Vernon Hills, Kenilworth, Lake Bluff, Glencoe, or Barrington Hills, do not hesitate to contact him.

 

How much do you owe at the outset?

The amount the noncustodial parent owes to the custodial parent depends on how many children he or she is supporting. Depending on the number of children, the noncustodial will owe the following percentages of their net income,

 

20% for one child

28% for two children

32% for three children

40% for four children

45% for five children

50% for six or more children

 

How can we adjust the formula?

The court can, within its discretion, modify these payments. In doing so, the court will consider the custody agreement itself. If your custody agreement essentially splits the time that each parent will have the children, it is likely that payments will be decreased. If your visitation is limited to every other weekend and a couple of weeks per summer, it probably will not be changed.

 

In addition to the custodial arrangements, the court will also consider:

 

The child's standard of living if the parents had stayed together

The child's physical and emotional condition

The child's educational needs

The financial resources and needs of the child and both parents

 

How can I terminate or modify child support?

To change your child support obligations, you must be able to show a change in material circumstances. Support generally only terminates when the child turns 18. If the child still attends high school at this time, then payments will be extended until they turn 19 or graduate from high school. In some circumstances, you may be required to continue supporting the child while they attend college.

Child Custody - The Best Interests of the Child

If there is no agreement by the parents to child custody, every state nationwide decides child custody by considering the best interests of the child. As with many other aspects of marriage dissolution, this can be a highly contentious. An attorney comfortable with such proceedings, like Paul Wharton, can ensure that you put your best foot forward when fighting for custody of your children. If you are in Chicagoland, i.e. Highland Park, Kenilworth, Lake Bluff, or elsewhere in in Northern Illinois, they can ensure the best possible result.

 

A court determines the best interest of the child by looking at various factors. They include:

 

The wishes of the parents

The wishes of the child

The interaction and relationship of the child to his or her parents, siblings and others who may affect his or her best interests

The child's adjustment to his or her home, school, and community

The mental and physical health of all parties involved

Any physical violence or threats of violence directed at the child or another person by custodial parents

Abuse by the custodial parent towards the child or another person

Willingness and ability of each parent to encourage a close relationship between the child and other parent

 

In some circumstances, the court may determine that a joint custody arrangement is in the best interests of the child. The court will make this determination based on the following factors:

 

The wishes of the parents

The wishes of the child as to his or her choice of custodian

The child's interaction and relationship with his or her parents, siblings, or other persons who influence the child's best interest

The child's adjustment to his or her home, school, and community

The mental and physical health of all parties involved

Any physical violence or threats of violence directed at the child or another person by custodial parents

Abuse by the custodial parent to the child or another person

Willingness and ability of each parent to encourage a close relationship between the child and other parent

Whether either parent is a sex offender

 

Again, the court will only consider these factors if you and your spouse cannot come to an equitable agreement on your own. This difficult process will go more smoothly if you have an experienced attorney like Paul Wharton.

Property Distribution - Whose is Whose?

As a starting place, you and your spouse may come to a property settlement, also known as divorce, agreement to resolve all or some of the issues presented by your divorce. Attorney Paul Wharton has decades of experience ensuring that these agreements are fair to his clients and will be approved by the court. If you are getting a divorce in Lake Forest, Wilmette, Winnetka, or elsewhere in Chicagoland, Lake or northern Cook counties, and are worried about how your property may be distributed, contact Paul Wharton.

 

If you and your spouse come to an agreement, the court will not approve it if the court believes it to be unfair to one or both of the parties.

If you and your spouse cannot come to an agreement, then the court will apportion equitably the marital property for you. In this circumstance, equitable does not mean equal. Rather, it means that the court will divide the property fairly. To ensure that this fair distribution is fair to you, make sure that you are represented by an experienced attorney and litigator who can highlight who you are and what you need.

 

Know that marital property is not all of the property that you and your spouse own. The following list outlines what property is excluded from marital property, also called non-marital property.

 

Non-Marital Property

Property acquired by either spouse by gift or inheritance

Property acquired in exchange for property acquired before the marriage or in exchange for property received by gift or descent

Property acquired after a judgment of legal separation

Property excluded by agreement of the parties

Any property or judgment obtained by one spouse from the other

Property acquired pre-marriage

Increase in value of property acquired before the marriage

Income from property acquired before the marriage

 

How the Court will Distribute the Property

The court will consider many factors when deciding how to distribute the property. Because this can be a difficult process, it is advisable to have an attorney represent you through your divorce.

The court will consider the following factors:

 

The contribution of each party to marital or non-marital property. This can include the contribution of a spouse as a homemaker

The dissipation by each party of the marital or non-marital property

Value of each property assigned to each spouse

Duration of the marriage

Relevant economic circumstances of each spouse when the property division becomes effective

Any obligations and rights arising from a prior marriage

A prenuptial agreement

Spousal maintenance

The needs and status of each party, including their age, health, education level, occupation, skills, etc.

Reasonable opportunity for each spouse for future acquisition of assets

Tax consequences of the property division

 

As you can see from the above, a court making distributions of the marital property has many factors to consider. To ensure that they consider the factors favorable to your desired distribution, hire a seasoned attorney like Paul Wharton. He has decades of experience ensuring that property divisions are as favorable to his clients as possible.

Legal Separation - Should You Consider This If Your Spouse Leaves?

Legal separations are seldom used in Illinois, but can be helpful if you are trying to protect your assets, as property gained during the separation does not qualify as marital property.

A legal separation does not end the marriage and does not prohibit a later filing for divorce.

To be eligible for a legal separation, the parties must live apart, the person seeking the separation must not be the reason for the separation, and one of the parties must be a resident of Illinois.

 

The separating couple may have an agreement regarding the conditions of the separation, including child custody, child support, spousal support and division of assets. The court will determine if it is fair and reasonable. If it is not, the court will come to an equitable decision regarding child custody, visitation, and support, along with spousal maintenance and you will be obligated to follow it.

 

Again, obtaining a legal separation can be useful in protecting your assets while you are separated. To ensure that you get the best result from your separation, be sure to entrust your case to an attorney familiar with these matters. If you are in Chicagoland, i.e. Barrington Hills, Kenilworth, Winnetka, or elsewhere in Northern Illinois, Paul Wharton can help to protect your rights during this stressful time.

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Disclaimer

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Paul invites you to contact him and welcomes your calls, letters and electronic mail. Contacting Paul does not create an attorney-client relationship. Please do not send any confidential information to him until such time as an attorney-client relationship has been established.

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