Divorce Terms

Divorce Glossary of Terms

1. 1. Adversarial divorce—In an adversarial divorce, the parties are locked in what can seem like never-ending arguments regarding the terms of the divorce. The most common areas of disagreement include child custody, grounds for the divorce, visitation rights for the non-custodial parent, division of assets, spousal support, healthcare responsibility, debt allocation, and child support. An adversarial divorce is often referred to as a contested divorce. Many divorces that start out as non-adversarial (or uncontested) can quickly escalate into an adversarial process. Adversarial divorces generally culminate in a divorce trial, with the judge making decisions on issues where there is no agreement.
   2. High net worth individual—Although it is a fairly arbitrary number, a high net worth individual is generally someone with at least $1 million in cash (or assets that could easily be converted into cash). In addition to savings and checking accounts and a primary home, the high net worth individual may also have money market accounts, stocks, bonds, mutual funds, vacation homes, and rental properties.
   3. High net worth divorce—A high net worth divorce is one in which one or both spouses are considered high net worth individuals. In the past, a high net worth divorce was defined as any divorce involving more than $1 million in net liquid assets.That number has significantly increased today, as more and more divorce cases involve many millions of dollars in assets. A high net worth divorce usually involves unique challenges, typically related to identifying, valuing, and distributing the assets of the couple. Those involved in a high net worth divorce simply have more at risk than those in a “typical” divorce, therefore require an attorney with experience handling high net worth divorces.
   4. Discovery—Discovery usually occurs fairly early in the divorce process when each side obtains information and evidence from the other side. This information and evidence is usually related to financial information, although it can be on any issue at all. The goal of discovery is to ensure each side has the same information when it comes to negotiating an agreement. Many people dread the discovery phase, simply because it can be labor-intensive and tedious. Discovery is definitely impacted by the level of cooperation between the spouses, as well as how much access each spouse has to information. Discovery typically includes requests for admissions, interrogatories, requests for production of documents, and, sometimes, depositions and subpoenas.
   5. Spousal maintenance—Spousal maintenance can often become a contentious part of a divorce. Spousal maintenance is money paid by one spouse to the other, usually on a monthly basis, and usually for a defined period of time—although, in certain instances, spousal maintenance can be permanent. Rehabilitative spousal maintenance allows the lesser-earning spouse to become self-sufficient, whether by obtaining higher education or certain job skills and often lasts from one to three years. There is a guideline formula that helps courts determine spousal support.
   6. Asset valuation—In order to properly divide marital assets, they must first be valued. Certain assets are valued in different ways. If you and your spouse do not wish to sell the marital home, you can use fair market value, purchase price, or the amount it would take to pay off the mortgage, so long as you both agree the amount is fair. If one or both spouses own a business, it maybe valued via the income approach or the market approach, with financial statements for the business being carefully reviewed, as well as the health of the industry of the business to determine overall business health. Antiques, art collections ,and jewelry can be valuable assets and must be valued by an expert appraiser in the specific field. Vehicles are generally valued based on fair market value, and typically incorporates numbers from the Kelly Blue Book or Edmonds.
   7. Non-marital property—Non-marital property is that which either spouse owned prior to the marriage. Non-marital property only remains separate when it is not commingled with marital property during the marriage. As an example, if one spouse brings a $50,000 inheritance into the marriage but places the money in a joint bank account with his or her spouse, then the inheritance is no longer considered separate property. A gift or inheritance received during the marriage and meant for one spouse only is also considered non-marital property but is subject to the rules of commingling as well. Non-marital property that appreciates considerably during the marriage could have the portion that has appreciated considered marital property and divided as such.
   8. Marital property—Marital property is property acquired by one or both spouses during the marriage. Marital property typically includes a marital home, vehicles, bank accounts, and any other assets acquired after the marriage. When one spouse brings a pension plan into the marriage, then only the portion he or she gains after the marriage is considered marital property.
   9. Forensic accounting—Among couples with complex financial portfolios, a forensic accountant could be necessary. Even if the divorce is amicable, there are some assets that can be difficult to divide, such as stock options, restricted stocks, deferred compensations, closely-held businesses, professional practices, complex partnerships, retirement and insurance plans, assets held in trusts, and properties in different states or countries. In particular, when it is believed one spouse is hiding assets, forensic accounting could be warranted.
   10. Alimony—Alimony is the same as spousal support and determined in the same manner. Alimony typically ends upon the death of one spouse or when the receiving spouse remarries. In some instances, the paying or receiving spouse can ask the court to revisit the issue of alimony when there has been a significant change in circumstances for either party. As an example, if the husband is paying alimony and loses his job, he could ask that alimony be reduced or stopped altogether based on his new inability to pay.
   11. Annulment—An annulment makes it as though the marriage never occurred. Each state has its own grounds for annulment; in the state of Illinois, there are four grounds: illegality of the marriage, lack of consent, inability to consummate the marriage, or under the age of 18, without parental consent. If one of the spouses was mentally impaired or forced into the marriage by fraud, duress, or force, it is considered illegal. An annulment in the state of Illinois must be sought within 90 days of discovering the issue.
   12. Complainant—The complainant in a divorce is the person who files for divorce. The complainant is also known as the petitioner, with the other spouse being the respondent.
   13. Contested divorce—A contested divorce is one in which the parties cannot agree on one or more terms of the divorce. A contested divorce is the same as an adversarial divorce. A contested divorce is much more common than an uncontested divorce simply because emotions tend to run high during a divorce, and the issues at hand can lead to arguments.
   14. Lump-sum alimony—Lump-sum alimony is alimony or spousal maintenance that is paid in one lump sum rather than monthly payments.
   15. No-fault divorce—Each state has its own rules regarding no-fault and fault divorces, although many states have gone exclusively to no-fault divorces, meaning neither party can claim the other caused the divorce through a “fault” such as adultery. The state of Illinois has gone exclusively to no-fault divorce that essentially states you and your spouse have irreconcilable differences, however, neither spouse is at fault for the divorce. To qualify for a no-fault divorce in Illinois, the spouses must have lived separately and continuously apart for six months, that any effort at reconciliation has failed, and that any further attempts at reconciliation would not be in the best interests of the family.
   16. Collaborative divorce—In a collaborative law divorce, each party hires his or her own attorney, meeting one-on-one with that attorney to discuss what he or she wishes to accomplish, along with minimum acceptable results. Both spouses and both attorneys then sign a Participation Agreement in which all parties commit to the collaborative divorce process. Information is freely exchanged between the parties, and issues are negotiated until a mutually acceptable agreement is reached.
   17. Prenuptial agreement—A prenuptial agreement is an agreement entered into by each party prior to marriage, regarding the rights and obligations of each party during the marriage. The agreement deals with the disposition of property in the event of the death of a spouse or in the event of a divorce. Premarital agreements are most often seen among those with significant wealth and assets. An Illinois prenuptial agreement must be written and signed by both parties voluntarily. If the provisions in the prenuptial agreement are “unconscionable,” the court can void the agreement.
   18. Allocation of parenting time, decision making, and parenting time—Parents in Illinois should negotiate in good faith to come to an agreement regarding how parenting time and responsibility for parenting decision making will be allocated between them. If the parents can come to mutually agreeable decisions, the agreement will be memorialized in writing in the form of a Parenting Plan, which will include days of the year each parent will be responsible for physical custody of the children, and which parent(s) will have responsibility for each type of major decisions made for the child, including education, religion, and healthcare decisions.
   19. Equitable distribution—While a few states operate under community property laws (a true 50-50 split of assets), most states now operate under equitable distribution law. This means that the split of assets must be fair, but not necessarily split equally.
   20. Legal separation—In the state of Illinois, legal separation is permitted as a court-approved regime under which separated spouses agree to live independently from one another, both physically and financially. A legal separation does not terminate the marriage, and a legal separation allows the spouse without fault to receive reasonable support and maintenance while the parties live apart—this is not the case with a divorce. The couple must physically live apart from one another, the petitioner must prove he or she is not the reason for the separation, and at least one spouse must be a resident of the state of Illinois.
   21. Temporary spousal support—Temporary spousal support is a temporary financial support arrangement from one spouse to the other, which could be court-ordered. Temporary spousal support provides the spouse with more limited financial resources with the necessary money to ease the financial burdens brought on by the divorce.
   22. Uncontested divorce—An uncontested divorce in the state of Illinois is one in which the parties are in total agreement on all key terms of the divorce, including asset and debt division, alimony, and any other issues of the divorce. In the state of Illinois, there is an expedited form of uncontested divorce known as a “joint simplified dissolution” that can greatly speed up the process. The spouses must fill out all forms together, must attend the final hearing together, must have been married for eight years or less, must have no children together, must be separated and have lived apart for at least six years, must not own a house, and must have less than $10,000 in joint marital property. Each spouse can only earn $20,000 in individual gross income, or no more than $35,000 as a couple to qualify for a joint simplified dissolution and must agree to give up the right to spousal maintenance. One of you must have lived in the state for at least 90 days, and you both must agree that your marriage is irretrievably broken.

Whether you are going through a “normal” divorce, a high net worth divorce, or have complex issues associated with your divorce in Barrington, the Vaclavek Hartman Vaclavek attorneys can help you through this difficult time. We are both accessible and available, priding ourselves on our responsive communication with our clients. Contact Vaclavek Hartman Vaclavek today for the experienced representation you need for all your family law matters.