Am I Allowed to Date During My Divorce?

dating, Wheaton family law attorneyDuring a divorce, the general advice from friends and experts is to avoid dating, especially if you have children. It can present a distraction from proceedings, and in some cases, can actually wind up affecting the asset distribution of your marital estate or your ability to receive spousal support. Even after your divorce is final, it is a good idea to tread carefully in terms of getting back on the proverbial horse.

Dating During Can Be Messy

There is no legal prohibition of dating during divorce proceedings. However, it is frowned upon, especially if there are children involved, because it can provoke strong feelings, especially if you are the one who instituted proceedings. To a hurting ex-spouse, dating so soon can seem like flaunting a new relationship in their face, and they may look to make you pay for it, so to speak. It is not uncommon to hear of soon-to-be ex-husbands and ex-wives deliberately drawing out proceedings or complicating asset division solely to inconvenience their spouse, even if it means they might pay more in attorney’s fees.

Dating while going through divorce proceedings can also be frightening and intimidating to your children. In some cases, it may adversely affect the issue of parenting time. Illinois courts will always rule in the best interests of the child with regard to apportioning parenting time. Among the factors that the court will consider in determining your child’s best interest is the company that each parent keeps. The interaction between the child and “any other person who may significantly impact the child’s best interests” may affect the court’s decision if the problems with a new boyfriend or girlfriend are severe enough.

Spousal Support and Cohabitation Issues

One very tangible way that dating during your divorce proceedings can harm your future is if you are already at the point where you are living together—which occurs fairly regularly when one spouse has had an affair. The Illinois Marriage and Dissolution of Marriage Act provides that if either party remarries or “cohabits with another person on a resident, continuing, conjugal basis,” spousal support will be discontinued. If you are already planning to cohabit with someone at the time of your divorce, and the court finds out, you may receive no support at all. You may also have your portion of your marital assets reduced to reflect this new reality.

The key phrase in defining cohabitation is “resident, continuing, conjugal.” Under Illinois law, a cohabiting relationship does not necessarily need to be sexual; rather, it must be a relationship in which decisions are made and which items are shared as a couple. For example, if two people share a bank account, take holiday trips together, or have provided for each other in wills or retirement accounts, they are likely to be found as cohabiting as defined in the law.  If your relationship is deemed to be resident, continuing, and conjugal, you will not receive spousal support of any kind, because you are presumed to have the other person’s income to rely upon as well as your own.

Have Questions About Dating During Divorce?

Despite the potential pitfalls, some people do choose to date while their divorce is pending. Regardless of which path you decide to take, consulting an attorney is generally a good idea beforehand. Our dedicated DuPage County divorce lawyers are ready, willing and able to help answer your questions. Call us today to set up an initial appointment.



The Potential Impact of Divorce on Social Security

social security, Wheaton divorce attorneyMore and more people are pursuing a divorce at relatively later stages of life for a variety of reasons. However, even if you are young, it is, nonetheless, a good idea to take steps to understand retirement accounts and Social Security payments, because one day, you may need to use them, divide them with your spouse or ex-spouse, or both. You can also ask an experienced attorney for assistance.

How Social Security Works

During one’s working lifetime, taxes are withheld from each paycheck, some of which are used to pay into Social Security. When that person reaches the appropriate age, that money is used to help support him or her, as a way of giving back what a person has put into the system. Because of this, a person’s eligibility for Social Security is based, among other factors, on how many “work units” they have worked over their lifetime. If one has accumulated 40 units—roughly 10 years’ worth of work, which does not have to be continuous—and he or she is over 62 years old, they are generally eligible to receive Social Security payments.

A person’s family may also be eligible to receive benefits with both a person’s spouse and children being able to collect partial or full benefits depending on the situation. If you and your spouse are able to receive your benefits around the same time, it may actually improve your family’s financial situation. Children may receive your Social Security benefits only if they are a minor or are disabled (from a disability incurred before age 22), but their eligibility will cease upon their 18th birthday in most cases.

After a Divorce

Social Security is a retirement instrument, but because it is a federally administered benefit, it cannot be divided in a divorce decree as most assets can. Essentially, in lieu of splitting the monetary benefits, an ex-spouse is permitted to receive benefits on your record (or you on theirs), without the other person’s benefits decreasing. However, there are certain criteria that have to be fulfilled by the person applying for benefits, and it depends on whether the spouse with the work record in question is living or deceased.

In order to claim benefits on a spouse’s work record when they are living, you must be divorced or otherwise not married any longer and 62 years of age or older. Your marriage also had to last at least 10 years. The rationale is that if you remarry, you will have that person’s income in addition to your own, so it is no longer necessary to lean on your ex-spouse’s work record. If your ex-spouse is deceased and you would like to claim on their work record, the requirements are the same, but with two extra: (1) you must be age 60 or older, not 62; and (2) you must not be able to make more on your own work record than you could on your ex-spouse’s.

Need Help Understanding Social Security Benefits?

Dividing property in a divorce can be a time-consuming endeavor, but dealing with Social Security can add a great deal of complexity.  To ensure that you and your spouse both receive what you are entitled to, consulting an attorney is a logical step. Our passionate DuPage County asset division attorneys are happy to sit down and discuss your situation. Contact us today to set up a free initial consultation.



Modifying Child Support or Maintenance Orders

child support, Wheaton family law attorneyIf you get a divorce in Illinois, and you have children, you will almost certainly be required to pay child support if you are the parent with less parenting time. It is the policy of the state that children are owed support from both of their parents if at all possible, so that right is not vested in either you or your spouse. You may or may not be asked to pay spousal support, also called maintenance, depending on the specifics of your case. Whether you are required to pay one or both, however, it is possible to request a modification to both of these payments if it is deemed appropriate.

Child Support Changes

Child support may be modified every three years without any other cause, or it may be modified when there is a “substantial change in circumstances,” most often due to a change in the supporting parent’s income. While every judge will define “substantial”’ differently, the law does stipulate a minimum standard—specifically, a deviation of at least 20 percent (but no less than $10 per month) from the existing order. Judges are not required to order child support strictly according to statutory guidelines, but if they do not, they must enter a finding regarding why the guidelines were not appropriate.

Another reason parents may request a child support modification is because something in the child or children’s lives has changed significantly. For example, if a child becomes disabled, or if he or she marries or joins the armed forces, the amount of child support will necessarily require adjusting. Because changes such as these are significant, to say the least, the old amount may simply not be enough.

Spousal Maintenance Modifications

Unlike child support, spousal support or maintenance is not presumed to be appropriate in every divorce case. The court will weigh a list of factors, applying a balancing test that seeks to be fair to both spouses. There is a fairly exhaustive list of issues that a family court will consider before deciding to award maintenance and in what amounts, or to deny it entirely. Some of them include each spouse’s earning potential or lack thereof, whether there is any need for retraining or further education upon reentering the workforce, and any previous agreement made by the parties, such as a prenuptial agreement. A prenuptial or postnuptial agreement will usually be honored by a court unless the agreement is manifestly unconscionable.

In terms of petitions for modification of maintenance orders, the requirements are very similar to those for child support modification requests. There must be a “substantial change in circumstances” that would warrant an increase or decrease. The most common situation is when the obligor loses a job, but there are many situations in which a modification might be appropriate.

Need Clarification on Your Obligations?

It is very easy to misunderstand or misinterpret issues surrounding maintenance and child support because they are quite complex even in a relatively amicable divorce. If you have questions or concerns, our dedicated DuPage County family lawyers may be able to assist. Contact our office today to set up an initial appointment.