In my forty years of practicing divorce law in Illinois, I have repeatedly encountered common misconceptions about the divorce process. This article aims to dispel many of these widespread myths so that people who are thinking about or going through a divorce can make better decisions for themselves and their families. Below is an overview of some of the most frequent misconceptions about divorce.
Misconception #1: If I move out of my house, I risk forfeiting my interest in it
This is the most common misconception that I hear. You won’t lose your house if you move out before the case ends. But there may be other consequences from your decision to move from the house, including:
- Compromising your potential custody case.
- If there’s a dispute over who gets to keep the house, moving out could enhance your spouse’s claims to physical possession at the end of the case.
- Financial hardship due to more family expenses.
- You may also be denied access to the marital home after you move out.
But you won’t compromise your ownership nor your share of the equity. Your stake is determined based upon various factors, none of which have to do with your physical address.
While there may be some question about who receives the house at the end of the case, that issue usually doesn’t relate to your equitable share. You will either keep the house and buy out your spouse’s share, your spouse will buy out your share, or the house will be sold, with both of you sharing the net proceeds from the sale. But, regardless, moving out won’t affect your share of the equity.
Misconception #2: My spouse’s poor conduct will result in a better financial settlement for me
Nope. The law prohibits the judge from considering such issues as “good husband, bad wife,” or vice versa. Your spouse’s infidelity or emotional abuse is irrelevant when dividing property or determining support and maintenance. Certainly, character issues come into play when deciding issues of custody or parental responsibility, but as it relates to finances, it can’t be considered by the judge.
However, there is one exception to this rule. If your spouse engages in financial mayhem while the marriage is undergoing an “irretrievable breakdown” (up to five years from the time the case is filed), the judge can take this conduct into account.
This situation is known as “dissipation of marital assets.” If your spouse engages in such behavior, the judge has the authority to take into account the amounts spent when dividing the assets. For example, the judge may consider the amount spent on a new relationship or other questionable activities and reimburse you your share of the misspent money. But otherwise, the judge won’t punish your spouse for their unscrupulous activities.
Misconception #3: It matters who files the case first
Many feel there are advantages to winning the race to the courthouse. They feel that the judge will consider them the wronged party and be more sympathetic. But that’s just not the case. Human behavior is just too complicated to draw any conclusions from somebody initiating a divorce (or any other lawsuit, for that matter). The judge won’t pay any attention to whose name is first in the case caption.
In rare instances, being the first to file is important. The case may be heard in either spouse’s home county under Illinois law. For example, if you and your spouse live in different counties, the first to file is ordinarily allowed to file in the county of their choice. By filing first, you can decide which county you prefer for the case to go forward.
Ultimately, however, being the first to file is irrelevant except as mentioned above.
Misconception #4: I can deprive my spouse of his or her share by giving away property or quitting my job
Years ago, I represented a woman whose husband sold his profitable business to his brother for $10.00. By doing so, he thought he could outwit the system. Nice try…but no. The law has remedies for this type of conduct, including setting a fair market value for the “sold” business and awarding the wronged spouse’s share based upon that value. In my case, the judge bent over backwards to reimburse my client for her husband’s mischief.
The same applies to voluntary income reductions. I remember hearing a story about a neurosurgeon who quit his job and went to work at McDonald’s. Just like the genius who sold his business for $10.00, the hapless doctor believed he could evade maintenance by reducing his income. As the story goes, the judge declared, “While I appreciate your passion for flipping burgers, Dr., I’m going to set your maintenance based upon your former annual income of $500,000.
While this story is probably fictional, the principle remains: if one voluntarily reduces his or her income to obtain a strategic advantage, the law will set maintenance and support based upon earning capacity.
Misconception #5: My husband told me that because he made all of the money, he’ll receive most of the property in the divorce
Don’t panic; it doesn’t work this way. Typically, a spouse’s financial contributions do not significantly influence the division of the assets.
Illinois utilizes a partnership model as a basis for dissolving marriages. Under a partnership theory, both partners contribute to the marriage in some capacity. When the partnership dissolves, both partners are compensated based on their respective contributions. Both economic and non-economic contributions are considered. Similarly, in a marital dissolution, a homemaker’s contributions weigh as heavily as the other spouse’s economic contributions.
In practice, most judges are inclined to divide the net marital estate 50/50, even though the judge is supposed to consider the relative contributions of both spouses to the marriage. However, in real-world practice, judges are generally reluctant to conduct a week-long trial to hear evidence of the spouses’ relative contributions. 50/50 is the general rule, not the exception.
So when your spouse suggests that his or her financial contributions carry more weight in dividing the assets, ignore the gaslighting; his or her claim is untrue.
Misconception #6: I have no retirement benefits in my name. Am I screwed?
Nope. Under Illinois divorce law, title or formal ownership rarely determines how an asset is divided. The general rule is that all property acquired during the marriage is considered “marital property” subject to division in a divorce. While there are some exceptions, including properly segregated inheritance and gifts, retirement benefits that accumulate during the marriage are considered marital property, regardless of who earns them, and, as such, are divided in a divorce.
The topic of asset classifications is complicated. To better understand it, consult a qualified lawyer and check out my book, “Divorce in Illinois.”
Misconception #7: A buddy of mine told me that I should play “hide and seek” with my financial information to get a leg up in a divorce. Is this accurate?
Tell your buddy to stay in his or her lane. Legal advice is not their forte. This type of conduct is rarely profitable and often catastrophic. Let me explain.
Illinois court rules demand that divorcing parties must be transparent with their finances. This means disclosing all of their income, property, debts, and other relevant financial information. The law has harsh penalties for those who don’t comply.
But just as importantly, playing games with the financial information increases costs, will raise the case’s emotional pitch, and alienate your judge. Plus, the quality of your legal representation will suffer because most competent lawyers won’t stay in the case if they discover their clients are hiding information. In any event, most aren’t savvy enough to successfully conceal information, and if your spouse finds out about it, he or she can potentially reopen the case years after its conclusion.
Few profit by this conduct. Ignore your friend.
Misconception #8: Our marriage is breaking up because I had an affair. Does that mean I’m ineligible to receive maintenance?
No, our statute is very clear: fault or conduct is not taken into account when deciding the question of maintenance or spousal support. That being said, if your new relationship is considered a “cohabitation,” you are ineligible for maintenance. Cohabitation is defined as a marriage-like relationship, and numerous factors go into determining whether you’re cohabiting.
Even if you are not living with your new partner, cohabitation may be determined if the relationship rises to the level of being a “continuing, conjugal relationship.” But if you had a short-term fling, while not laudable, it won’t impair your maintenance.
Misconception #9: A 50/50 custody arrangement guarantees zero support payments
Child support is based on your parenting schedule and your and your spouse’s income. So, if you are earning significantly more money than your ex, you’ll probably be obligated to contribute some child support to him or her. Additionally, you both will likely need to contribute to medical, educational, and extracurricular activity costs for the children on top of any child support that’s paid.
Misconception #10: Your family, friends, or AI are authorities on your case
We live in an era where much information is available online. This firehose of information misleads people into making decisions based upon the “expert” advice they find there. But while fun to consult, it’s an unreliable resource in which to chart your course and make decisions affecting your children and finances.
Much of the information on the internet and AI is based on laws from other states or is downright inaccurate. You must get your information from a qualified authority: an Illinois lawyer.
This rule also applies to well-meaning family members or friends. When cases go off the rails, it’s often due to the interference of well-intentioned family and friends. The reason you need to listen to the advice of a trusted lawyer is because of their knowledge, experience, and insight into the totality of the circumstances.
In addition, that lawyer has the objectivity necessary to look clear-eyed at the issues and help you make decisions dispassionately. Your family and friends, who love you, don’t have that same objectivity. Thank them for their concern, but listen to your lawyer.
The Upshot
As the old saying goes, “knowledge is power.” But the inverse is also true: incorrect knowledge is debilitating. Don’t be lured into the false belief that common knowledge is always accurate or that inexpert resources are reliable. Consult a qualified attorney and make decisions based upon correct information. That’s where your real power lies.
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