Married couples have three legal de-coupling options: annulment, legal separation and divorce (or dissolution of marriage). Annulment, which treats the marriage like it never happened, is only available in limited circumstances. A couple that legally separates is still married but may maintain separate residences and invoke judicial means to determine each party’s financial rights and obligations.
Divorce is the most common of the three options. There are many issues to consider when a couple divorces, such as child custody (if the marriage produced children), division of marital assets and whether or not one party will make maintenance payments.
Grounds for Divorce
A party petitioning for divorce must first establish that one of the following grounds for dissolution exists:
- The respondent was impotent when the couple married;
- The respondent was legally married to someone else;
- The respondent committed adultery;
- The respondent has been habitually drunk for a two-year period;
- The respondent has abused drugs for a two-year period;
- The respondent willfully deserted the petitioner for a one-year period;
- The respondent has abused the petitioner, physically or emotionally;
- The respondent has tried to kill the petitioner;
- The respondent has been convicted of a felony; or
- The respondent has infected the petitioner with a sexually transmitted disease.
If none of these grounds exist then the petitioner may attempt to prove that the couple has irreconcilable differences.
Illinois law often requires one party to make maintenance (or alimony) payments to the other party. Courts use a specific calculation to determine the payment amount. First, the court considers both parties’ gross incomes, subtracting 20 percent of the receiving spouse’s gross income from 30 percent of the paying spouse’s income.
For example, if the paying spouse has an income of $150,000, and the receiving spouse has an income of $40,000, the court will subtract $8,000 (20 percent of the receiving spouse’s income) from $45,000 (30 percent of the paying spouse’s income). The maintenance payment will be $37,000. Note that the receiving spouse’s income plus maintenance cannot exceed 40 percent of the couple’s combined gross income.
Second, the court considers the duration of the marriage to determine how long a party will make or receive maintenance payments. This is based on the number of years married multiplied by a certain factor:
- 0 to 5 years of marriage multiplied by (0.20)
- 5 to 10 years of marriage multiplied by (0.40)
- 10 to 15 years of marriage multiplied by (0.60)
- 15 to 20 years of marriage multiplied by (0.80)
The court has discretion to order permanent maintenance or to order maintenance for a period equal to the number of years married if the marriage exceeded 20 years. The court also has discretion to vary this formula if certain factors are present, such as financial hardship.
With so many issues to consider, divorce can cause legal headaches for both parties. Contact one of our divorce attorneys at the Law Office of Elizabeth J. Chacko, P.C. today if you are involved in a divorce proceeding. We will guide you through the process and ensure that your interests are well represented. We can assist those in Wheaton, Naperville and Downers Grove.