Divorce is unique in that it is both a seismic life event and one that comes with few reference points. Many people do not personally know someone who has been divorced and never expected to be in the situation they now find themselves in. The internet and popular culture are riddled with horror stories, conflicting advice, and professionals looking to market themselves. It’s hard to cut through the noise.
The intention of this post is not to provide an exhaustive list of ways to prepare for divorce. That would be impossible. Instead, I want to discuss the broad goals of divorce preparation and provide some concrete steps individuals can take. As all divorces are different, so too is divorce preparation. Ideally, some of this post will be applicable to everyone. None of this should be taken as legal advice.
Talk To Your Children
As a child of divorced parents, I am particularly concerned about the wellbeing and safety of children in a divorce. However, I do not believe that every divorce is bad or that every divorce equally harms children.
Divorce affects children differently, largely because each divorce is different. The truth is that some children are relieved when their parents divorce. If children have been living in a high conflict environment, the cessation of that conflict can be a huge relief. This is particularly true in households suffering from domestic violence, substance abuse, or verbal harassment. This is not to say that the divorce will not upset or negatively affect those children, but that divorce is not often an entirely good or bad thing.
As a general rule, do not involve the children in the divorce unless absolutely necessary, meaning there is an unresolvable child-related issue and a judge has appointed a guardian ad litem or child representative. Absent a legal necessity, do not involve the children in the case, apprise them of any of the issues, or otherwise add to their sense of stress. The complexity of divorce litigation will overwhelm them and their lack of agency in the process will surely be a source of stress.
Children need consistency and they need to know their parents have a plan and that their lives will be stable. Stability, consistency, and predictability are essential. Inform them of the divorce with your spouse, tell them it is not their fault, that they didn’t cause this or do anything to lead to the divorce, that you and your spouse still love them, that they will only have two parents, and that you will always be a family, even after the divorce. Let them know that you will answer any questions they have and that they can talk to you or your spouse at any time. Be clear in your communication.
Talk to your children and give them notice before the occurrence of any major milestone, be it separating from your spouse, moving to a new home, or otherwise changing their daily lives. The children should never be shocked or surprised.
When developing a new parenting schedule, be sure to relay the days and times each parent will see the children. They should be aware of when they will be seeing each parent and deserve to have that structure.
In sum, keep your children informed about major decisions, like moving or a parenting schedule, but otherwise out of the conflict and any legal proceeding. Be honest, transparent, and loving.
Review Your Finances
The two big things to know about property division in Illinois is (1) that Illinois uses the concept of the “marital estate” to identify property for division and (2) that Illinois is an equitable division state.
Marital Property: Marital property is essentially all property acquired during the marriage except for: (1) gifts to an individual spouse; (2) the inheritance of an individual spouse; and (3) pre-marital property. Property acquired during the marriage through use of gifts, inheritance, or pre-marital property is also presumptively non-marital. Typically, if the money is non-marital, so is the asset acquired with the money. There are exceptions, of course, and several ways in which non-marital assets can be converted (legally called transmuted) to marital property. That is outside the scope of this post, though.
Aside from the exceptions above, if it was acquired during the marriage, it is presumed to be marital property. This includes everything, including assets in only one spouse’s name, property that has indeterminate or speculative value, intellectual property interests, expectancy interests, business interests, etc.
Equitable Division: Illinois uses an equitable division standard in apportioning property in a divorce. Equitable does not mean equal, although 50/50 property splits are common. In making an equitable division of property, the court considers a host of factors to determine how, and what, property should be assigned to each spouse.
These two concepts are important because marital property is not limited to property known by a spouse. Hidden property, property in one spouse’s name, or even property that has been fraudulently transferred outside of the marital estate, is subject to division, possibly a disproportionate division in which one spouse receives a greater share. As such, it’s important to understand as much about your finances as possible.
When preparing for divorce, it isn’t necessary to become a forensic accountant. Instead, do your best to take stock of what you and your spouse own and owe. You can prepare a spreadsheet, download statements, scan in tax returns, or otherwise keep a record. You do not need to know everything, but the more information you can share with your lawyer, the better. Your attorney can, in turn, issue discovery or otherwise review financial records for purposes of discovering other accounts or assets. You will have opportunities to ask questions about your marital estate as the case progresses.
Remember, the marital estate applies to all assets and debts that are not otherwise excluded by the statute. That includes assets and debts unknown to a spouse. If you think or know other assets exist, but you don’t have access to them, tell your attorney. You do not need to uncover everything before retaining counsel. You only need to have a sense of what may or may not be an issue.
Prepare A Budget And Think About Separation
Separation has a lot of legal implications. If you have kids, separation is difficult unless a parenting schedule has been hammered out. In most instances, no one parent should control access to the children. Likewise, issues of distance between you and your spouse’s home, the condition and size of the respective homes, and each spouse’s living expenses should be addressed prior to separation. If finances are still intertwined, there should be a plan for who is paying for what expense.
I would always suggest working with a lawyer before separating. However, that doesn’t mean that you can’t plan. It is helpful to know your fixed costs of living, what to expect for rent or a mortgage, whether the move will affect school registration, and what daily commutes will look like. The more research you do, the faster you will be able to act when the time comes.
As with all matters, it is best to work with a professional to handle your case. Do not rely on blog posts (even this one). Each case is unique and it’s important to work with a lawyer who knows your unique circumstances. We are always happy to help.