My Ex Violated Their Restraining Order – What Are My Options?

ex violated their restraining orderWhile a restraining order (or Order of Protection) can offer some protection from those who have been physically and/or emotionally abusive, it’s not fool proof. Those who are restricted by a restraining order often violate the order, and there are few things more frustrating (or more frightening) than when that happens. But a restraining order is still legally binding, so there are ways you can take action in the event your ex violated their restraining order you filed against them.

First make sure you are familiar with the terms of the restraining order. This will give you a step up as soon as your ex violates the order so you can let them (and the authorities) know they are breaking the law.

Call the Police

The first thing you should do any time someone violates a restraining order is call the police. Don’t engage with your ex if you can avoid it, and don’t try to handle the situation yourself. You filed a restraining order for a reason: to get the law on your side, so use it.

Even if your ex does not attack you or get violent in any way, but rather tries to contact you or otherwise violates the “stay away” provision in your order, you should still call the police right away. It’s better than waiting until things do take a turn for the worse, by which time it might be too late to call anyone.

Tell Them about the Restraining Order

When you call the police, tell them you have an active restraining order against your ex and they are in violation of that order. It will help if you have the actual documentation of the order in your possession, since the police will need to verify its existence before they can go further with any proceedings against your ex.

Filing Charges

If you want to file criminal charges against your ex for violating their restraining order, you will need to speak with someone from the police department in the county or city in which the violation occurred. The authorities will then usually refer the case to the prosecutor’s office in your county for purposes of filing criminal charges. In some cases, you can also go to the Courthouse and officials there can help you file a violation petition to help enforce your restraining order, which is one way to take your ex to court.

Violators of an Order of Protection in Illinois can be charged with a misdemeanor, or even a felony, if it’s not their first time violating the order. Depending on the judge’s sentence, that means they can face a hefty fine, or even significant jail time, and it will go on their permanent record. Because orders of protection are issued by a judge in a court of law, judges who see offenders who violated such an order can also hold them in contempt of court, which is a serious offense in its own right.

Tell the Authorities Every Time

Because courts are especially hard on repeat offenders, it’s important to tell the police every single time your ex violates the restraining order. That way, even if you don’t file charges against them the first time, if/when you do decide to do so, there will be a record to prove it’s not the first time they violated the order.

Any time an Illinois judge grants an Order of Protection, it’s an indication that the law is on your side. That is a valuable asset you don’t want to waste, which is why it’s important to keep all documents related to the restraining order and to call the police as soon as your ex violates that order.

If you would like assistance with your Order of Protection, please contact the Law Office of Barbara Sherer. We provide you with expert legal advice while making sure that the outcomes will protect you and your family.

What Not to Do on Social Media During Divorce

Social Media During DivorceMost family law attorneys recommend avoiding social media during divorce altogether because anything you say online can and will be used against you in divorce court – even if it seems harmless at the time you posted it.

That said, if you do decide against a social media hiatus until the divorce is over, here are some things you should absolutely avoid posting on social media:

Announcing Your Divorce

While changing your relationship status on social media is exciting when starting a new relationship, the opposite can just make the break up process worse. Talk to your spouse before announcing the change in your relationship status on social media because no one likes to be blindsided. You may, however, discuss potential ways to announce it together.

In fact, that’s a good rule of thumb to maintain for the entire divorce process. Don’t announce your decision to get divorced. Don’t announce when the divorce has been finalized. And don’t announce your hearing/court dates for your divorce. You may continue talking to and about your friends on social media while you’re getting divorced, but don’t talk about your spouse or your divorce. Which brings us to our next piece of advice:

Badmouthing Your Spouse

The divorce process can be frustrating, and for many of us, our first instinct is to get online to complain about things that annoy us – including our significant other, but that’s a really bad idea when you’re getting divorced.

First of all, no one wants to see that. Many of your friends are probably also friends of your spouse, and seeing you complain about their friend creates some very awkward situations. Keep everyone else out of your divorce by refraining from talking about it on social media.

Second of all, as stated above, anything you say online can and will be used against you in divorce court. Badmouthing the other party looks really bad and can influence the judge against you, not to mention aggravate your spouse and make it less likely they’ll cooperate with you in the divorce process.

Incriminating Yourself

If you’re using your joint bank account to go on a shopping spree, don’t post your haul on social media. Even if you don’t specify where the funds came from, any signs of excessive spending can affect the court’s decision when it comes to any alimony and/or child support to which you’re entitled. Division of marital property and financial assets can also be affected by anything you post online about significant purchases.

Not to mention that social media is often widely accessible, even if you use your privacy settings to prevent anyone other than friends and family from seeing your posts. There are ways a court, an attorney, or a prospective employer can access your social media profile. Any signs of irresponsible spending have the potential to affect, not just your current personal life, but any job prospects or potential romantic relationships you might have in the future.

Speaking of romantic relationships, if you’ve been having any extramarital affairs, don’t ever post anything about them on social media. Even if your spouse already knows about the relationship, posting about it on social media looks really bad in court and has the potential to influence the court against you, especially when it comes to things like alimony, child support, and custody.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

What is a Divorce Mediator?

divorce mediatorWhile we’ve all heard horror stories of couples fighting over every single little item in their house when going through a divorce, and while that does happen, it’s not always the case. Many couples mutually agree to end their marriage, in which case they’re both more likely to cooperate in the divorce process (dividing marital property, determining custody and parenting time, etc.) For couples with an amicable divorce who don’t want to pay the fees associated with going to divorce court, there is a more affordable option: divorce mediation.

A divorce mediator is a neutral third party who helps facilitate the divorce and create an agreement that is amenable to both parties. Both spouses meet with the divorce mediator to determine the terms of the divorce agreement and make sure everyone can abide by those terms.

Representation

You don’t need an attorney if you’re using a divorce mediator, but you might still want a qualified family law attorney to help represent your interests in the divorce process. In that case, your attorney would be able to prepare you ahead of time, before you go into your first session with the mediator. This preparation would include explaining the legality of what some or all of your options are, and what those implications would be, if you decided to agree upon that term in the mediation. This is important to be informed on your legal options before entering mediation, as a mediator cannot give you specific legal advice. Rather, the mediator, in addressing you and your spouse together, can only explain in general terms what the law provides.

A common misconception is that a divorce mediator is a judge. This is not the case, as unlike a judge, a divorce mediator won’t make decisions for you and your spouse about who gets what in the divorce. Nor will a mediator examine “evidence” for you and tell you or your spouse who is “right” under the law. Instead, they’ll act as a facilitator to help you both agree on the terms of the divorce. For example, if there’s a piece of marital property or financial asset that you and your spouse both want, a divorce mediator can point out the fact that there might be something else of a similar value that you both want and each partner can get one of those things. Compromise is the name of the game in divorce, as well as in marriage, and a neutral third party can be invaluable in helping both you and your spouse recognize where you can find the potential for compromise.

You Decide Together

Because you and your spouse work together with the mediator to reach a mutually agreeable solution to the dissolution of your marriage, you’re both more likely to abide by the terms of the divorce and avoid conflicts in the future. While going to divorce court might provide an option that settles the matter relatively quickly and efficiently, all decisions are ultimately made for you by the judge. You both have a chance to say your piece, but the final decision is up to the judge, which usually leaves both of you feeling unsatisfied with the result .When that happens, you’re both less likely to abide by the terms of the divorce settlement, and this could end both of you back in divorce court if one spouse sues the other for failing to comply with the terms of the agreement.

Privacy

The other bonus of mediation is that it is completely confidential. Anything that happens in court goes on the record, which is then made publicly available. That can lead to some awkward conversations if a future spouse or potential employer gets their hands on a record of you and your spouse sniping at each other in court. But what happens in mediation stays in mediation. You’re not prohibited from telling your attorney about what happens in mediation, but the attorneys cannot give the Judge any details about what was negotiated, agreed to, or not agreed to with the mediator. Further, the mediator cannot be called to testify in your case about what was discussed in mediation, so this helps to ensure that discussions in mediation are honest, forthright, and productive.

If you’re going through a divorce, and you have children, more likely than not, you will have to attend sessions with a mediator during the process if you and your spouse are not otherwise able to agreed to a Parenting Plan on your own. In Illinois, parents are required to attend mediation for up to four (4) hours in any divorce or contested litigation involving children.   If used properly, mediation can save the parties thousands of dollars in litigation fees, so it is a smart thing to discuss with your spouse if you know divorce is coming.

At Sherer Law Offices, all of our attorneys in the firm are certified mediators in Illinois. So, we have several options for qualified mediators if you’re looking to pursue a more amicable and cost-friendly way to resolve your divorce. Contact us today to set up a time to discuss it.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

How to Handle Bad Neighbors

bad neighborsThere are a variety of ways people can be bad neighbors, so let’s look at some of the most common types of bad neighbors before we start talking about what to do about them.

Noisy neighbors: these are the ones who make a lot of noise that might disturb you when you’re at home, especially in the middle of the night. Whether they have young kids, noisy pets, or are prone to mowing their lawn at midnight, there are a variety of ways for them to make your home uncomfortable for you without being aware they’re doing it.

Irresponsible pet owners: these are the ones with dogs they don’t control. They may let their dog(s) bark a lot, run around off the leash, or they just don’t bother picking up after their dogs.

The property line fanatics: Most properties share some responsibilities – whether it’s bushes planted on the border between properties, or a tree on one property that has branches hanging over another property, there are always opportunities for neighbors to disagree about who is responsible for what.

The disorderlies: whether they’re drunk, selling drugs out of their house, and/or leaving trash and litter on and around their property, these people can be the worst neighbors – even to the point of being dangerous.

What to Do About It

If your neighbors are breaking the law, you do have the option of calling the cops or filing a complaint in court, but those should both be last resorts.

First, remember that kindness and manners can get you a long way. If your neighbor is doing something that’s bothering you, ask them nicely to stop. Don’t accuse them, just point out how what they’re doing is disruptive and offer solutions you can both work on together. If you have their phone number, call them ahead of time and schedule a time to talk, otherwise you can meet them on the property line or sidewalk (neutral territory) to discuss the issues.

If they don’t respond to common decency, then you can look up your local noise and disturbance ordinances and write them a personal letter. Keep a copy for yourself so you have a record of your correspondence (email will also work, because then there’s a record of when you sent the correspondence).

If your home is part of a homeowner’s association or you live in a condominium, you can ask your homeowner’s/condominium association to send your neighbor a standard letter citing the ordinance or by-law. Many of these associations also have their own rules inhabitants are required to live by, so even if your neighbors aren’t breaking the law, they might be in violation of the building’s rules, in which case you can get assistance from your condo association in getting your neighbors to cooperate.

If you’re still unsuccessful, then you can call your local precinct. Be sure to maintain your own record of your complaint.

Your local police precinct can also help you find a professional mediator who can help you and your neighbor reach a mutually agreeable solution.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, civil cases, as well as all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

When Your Spouse Refuses to Participate in the Divorce Process

Spouse Refuses to Participate in the Divorce ProcessThe best-case scenario for a divorce is an uncontested divorce, in which both parties agree to the dissolution of the marriage and cooperate in the dividing of marital property and determining things like alimony and custody (if necessary). But sometimes one spouse refuses to participate in the divorce process, making it difficult to complete the divorce process.

Contrary to popular belief, you do not need both parties to sign the papers in order to finalize a divorce. All you need is to file a petition for divorce and make sure you can prove your spouse is aware of the petition. Further, you have to be able to show you gave them a chance to respond, and each state has their own time requirements before the Court will find someone in “default.” In Illinois, all contested divorce cases start by serving your spouse with divorce papers. If he or she does not respond within 30 days of receiving your petition for divorce, or otherwise file any motions with the Court, you can ask the Court to find your spouse in default and to set the case for hearing on a default Judgement. If your spouse does not show up to court on the appointed date, the court may decide to grant you a default divorce. By failing to respond or show up to court, your spouse forfeits their right to have a say in the divorce process or judgment.

However, there are some instances in which the spouse cannot be located. So long as you can attest to the Court that you have made all reasonable attempts to locate your spouse, you can get what is known as a publication by divorce, in which you publish notice of you your petition for divorce in the local media outlets of the last known whereabouts of your spouse. Your notice has to run a certain number of times before the Court will accept service by publication, so it’s important to check your local Court Rules or consult with an experienced attorney for the required procedure. If your spouse still doesn’t do not respond within 30 days, most courts will grant a default judgment.

If your spouse did file a response to your petition for divorce, but refuses to participate further in the process, the judge may proceed as though it is an uncontested divorce, but you might have to wait to be assigned a court date. If you get a court date and your spouse fails to appear in court on the appointed day, the judge may enter orders based on the divorce petition and response.

As always, a competent family law attorney can help with this process, as even seeking a default divorce can be stressful since there are specific rules you must follow. If your spouse thinks they can avoid divorce by simply refusing to sign the papers, a letter from your attorney can set them straight. When they see that the divorce can proceed with or without their cooperation, most people will choose to cooperate in the divorce. There are many reasons one might refuse to sign divorce papers, but an experienced family law attorney can usually ensure that the divorce proceeds according to your wishes.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

Dos and Don’ts for Appearing in Court

appearing in court

Madison County Courthouse – one of the counties we serve.

Many of you have seen our entertaining videos about what NOT to wear when you are appearing in court. (If you missed them you can catch them here.) However, we would like to expand on that thought and cover more than just your wardrobe here.

DO:

Dress Professionally

This does not mean business casual necessarily, but it does mean dressing your best and making sure you look like a productive member of society. It’s a first impression, and it matters as much as all the other first impressions in your life. Tattoos should be covered and piercing should be removed. Women may wear jewelry, but men should not, outside of a ring. Women should wear clothing that covers arms and cleavage, and skirts should be at least knee length. Jeans, if worn, should be “dress jeans,” meaning they fit properly, don’t sag, and don’t have any holes or distressed features.

Be on Time

Judges and attorneys have full days. Depending on your case, they might spend all day trying your case, or if it’s quick, they’ll have other cases scheduled for later in the day. You don’t want to hold them all up with your tardiness. If your court appointment is towards the end of the day, remember that everyone wants to get the matter settled as quickly and efficiently as possible so the Courthouse can close on time.

Be Polite and Respectful

Failing to show the proper respect to the judge and the court comes with consequences. Not only can a disrespectful attitude influence the judge against you, but also you can end up in jail for contempt of court.

Follow instructions

There’s nothing more frustrating than telling someone what to do and having them do the opposite. Instructions will be given at the beginning of the court’s proceedings. Again, be on time to make sure you receive all the proper instructions, and you must listen carefully so you can do what’s expected of you, thus helping the case move along as quickly as possible.

Be prepared

Know your case inside and out. Know the strengths and weaknesses of the case, as well as the best way to present them. Know exactly what you’re going to say to the judge, especially your opening statement, which is another first impression and one you cannot afford to waste.

Get an attorney

Ideally, you should hire an attorney to represent you in court. They know how the court system works and the best way to get you what you need. They worked long and hard to get and maintain their law degree, so don’t take it for granted.

Watch Your Language

Avoid slang, curse words, sarcasm, accusations, etc. It’s unprofessional and disrespectful and is not likely to incline the judge in your favor.

Stick to the Facts

The judge’s job is to rule on the facts of the case, so stick to the facts. Don’t use weak words or phrases like, “I thought they were” or “they seemed to be.” Just tell the judge what happened in a matter-of-fact way, with as little emotion as possible. If you have trouble speaking about the topic without emotion, consider hiring an attorney to speak for you in court.

DON’T:

Argue

Don’t argue with the other litigants, with the opposing counsel, with your own attorney, and most importantly, never argue with the judge. Their job is to measure the strengths and weaknesses of each side based on the facts of the case and reach a conclusion accordingly. You will have your turn to present your side of the story. Use it wisely and don’t ever speak out of turn.

Approach the Judge’s Bench Without Permission

Unless asked to do so. If you have papers or exhibits to give to the judge, give them to the bailiff or the court officer, who will then give them to the judge. If providing papers, make sure you have a copy for yourself and a copy for the other side.

Make Faces

A calm, unemotional demeanor is essential in court. Things like rolling your eyes and shaking your head will be viewed as disrespectful and may negatively impact your credibility.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

Understanding the Basics of Real Estate Evictions

real estate evictionsMoney and personal property are both sources of contention in all sorts of relationships, so it’s no wonder why it can sometimes be difficult to find a landlord/tenant relationship that isn’t fraught with tension. It can be easy for each party to get frustrated with the other, but no matter how strong the temptation for retaliation might be, it’s important to remember that there are laws in place for real estate evictions to protect everyone involved.

Landlord Disclosures

Landlords are required by Illinois law to disclose specific information to tenants, such as how utilities will be billed if tenants are made to pay a portion of a master metered utility for the building. One common example is the water meter. This information would usually be included in the lease or rental agreement.

Security Deposit Restrictions

Most states don’t have laws that limit the amount landlords can charge for security deposits, but there is a limit on how long after the tenant moves out the landlord can wait before returning the security deposit. In some states, the limit might be 30-45 days after the tenant has vacated the premises. The range is to account for delays landlords might experience if they include an itemized statement and receipts, or if the tenant disputes any deductions made from the security deposit.

Tenants can take their landlord to small claims court for failure to return a security deposit. The law allows tenants to sue for up to $10,000. So, if you’re a tenant looking to sue for a missing security deposit, or a landlord looking to defend yourself against a suit for a missing security deposit, talk to an experienced real estate attorney in your area.

Rent

There are several state laws regulating rent, including the amount of notice landlords must provide their tenants before raising the rent, and how many days a tenant must be given to pay rent or move before the landlord can file for eviction.

Eviction

Despite the Hollywood image of landlords dumping tenants’ belongings on the side of the street, the law is very specific about how and when landlords can evict their tenants. First, a landlord must be able to prove that the tenant failed to abide by one of the terms of the rental agreement. Then the landlord must give the tenant a specified time period to move out before they can file for eviction. These laws vary from State to State, so it is important to consult an attorney if you need help with this issue.

Personal Property

The law lays out specific procedures landlords must follow when renters leave property behind after moving out. If you’re a landlord with this problem, be sure to check all the relevant state and local laws for your area before touching your tenant’s personal property.

Tenant Protections

Federal and state rental laws are also careful to protect the rights of tenants. In addition to fair housing laws that prohibit discrimination, special protections are usually granted to victims of domestic violence. The law also forbids landlords from retaliating against a tenant for exercising any right granted them under the law, for example, complaining about unsafe living conditions.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, as well as all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

What Can Be Included in A Prenuptial Agreement?

prenuptial agreementNot only is the divorce rate going up these days, but the rate at which couples are signing a prenuptial agreement has also been on the rise.

Although it has long been perceived as a measure to protect the wealthy from gold diggers, spouses of a wider range of incomes are now signing prenuptial agreements as a way to determine how their property will be divided in the event of a divorce. It essentially provides a blueprint for how debts, assets, and other financial matters will be handled within the marital estate if the marriage ends.

Rather than a sign that trust is lacking in the relationship, one could think of a prenuptial agreement as a way to speed up the divorce process and even improve marital happiness by helping spouses avoid disputes over money and property.

Reasons for Getting A Prenuptial Agreement

Spouses generally want to consider signing a prenuptial agreement if they have any personal or otherwise pre-marital property they want to protect from the possibility of getting touched during divorce. This includes any property the person owns, including real estate, a retirement account, and/or their business(es) if they’re a business owner. These agreements can, and often do, involve property the spouses expect they will receive after the date of the marriage, but that both parties agree will remain, for all intents and purposes, that spouse’s sole property.

Children from a prior relationship are also a big motivator for many people to get a prenuptial agreement, as many parents will want to protect any assets or funds the children might inherit. A prenuptial agreement can define what property will belong solely to that spouse and his or her specified beneficiaries.

What Cannot Be Included In A Prenuptial Agreement

While a prenuptial agreement can avoid many of the “classic” disputes people think of during a divorce, a prenuptial agreement cannot determine a party’s obligation for child support. Child support belongs to the child, and the child alone, and as such, public policy in Illinois indicates that it cannot be contracted in advance or given away by a parent. Because children’s financial needs change depending on their age and circumstances, it is impossible to determine ahead of time how much (if any) child support they may need by the time the couple gets divorced, which could be any number of years in the future, if it happens at all. This is the same rationale behind the policy prohibiting spouses in a divorce from entering into an Agreement that no child support will ever be owed to the other parent and/or that a child support amount cannot be modified in the future.

The same goes for custody of children. If a couple does get divorced, a judge will determine what is best for the child at that point in time.

Dividing Marital Property

Any property a person owns prior to getting married is generally considered their personal property, and it will most often be returned to them by a divorce judge even without a prenuptial agreement. To the contrary, property and assets acquired during marriage are presumed to be marital property regardless of how they are titled, and that’s where divorces can get contentious. In order to avoid such a mess, a prenuptial agreement can decide ahead of time how marital property will be divided in the event of a divorce.

Things That Are Commonly Included In Prenuptial Agreements

In addition to protecting personal property, assets, and debts, prenuptial agreements can determine the following:

  • A spouse’s right to use, manage, transfer, sell, or dispose of property during marriage
  • Alimony that will be paid by a spouse after divorce, including the amount and duration of payments
  • A spouse’s right to ownership of death benefits from their partner’s life insurance policy
  • A spouse’s requirement to create a will that will carry out the terms of the agreement; and
  • Which state laws can be applied to the contract in the event of divorce.

Enforceability

A prenuptial agreement is there to give both parties peace of mind, but there are certain requirements the contracts must meet in order to be enforceable in each state. Whichever state’s marriage law you decide will apply to your prenuptial agreement, make sure the contract abides by all of that state’s requirements for prenuptial agreements. The timing and execution of a premarital agreement is also an important consideration, as an agreement made under coercion or duress will be held unenforceable by the Court.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases, as well as all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

How Does Divorce Affect Your Credit Rating?

Credit RatingDivorce does not directly affect your credit rating. There’s no factor for divorce or marital status when calculating credit, but divorce does cause a lot of upheaval, specifically to your finances.

As if the stress of ending a marriage wasn’t bad enough, the impact of the financial strain that tends to result can hurt your credit score. Going from two incomes to one can make it hard to pay all your bills on time, and if you fall behind, that will hurt your credit.

The first thing you need to do when separating from your spouse is to come up with a new budget that takes into account your reduced income. If you’re expecting any child support or alimony as part of the divorce settlement, do not include it in your budget. Many spouses avoid making these payments as a form of revenge against their ex-spouse, regardless of what the court order says, while others are simply unable to make the payments due to their own financial circumstances. Either way, you’re better off not depending on that income.

Joint accounts that have both your name and your ex-spouse’s name can also be problematic, as can shared debt. Judges generally assign one spouse to be responsible for handling the account/debt, but your credit score doesn’t know that, nor does it care. As long as your name is on that account, your credit score will be affected by it. In some cases, when divorces get nasty, people will intentionally avoid paying off debt in order to hurt their ex-spouse’s credit rating. Of course, doing so also hurts their own credit rating, but people rarely act rationally when they’re hurt and angry.

For this reason, you will want to keep track of all accounts that bear your name, even if you’re not the primary account holder. It’s a good idea to at least make the minimum payments, then ask the court to order your ex-spouse to reimburse you for those payments.

Remember that joint accounts aren’t the only accounts that can affect your credit score. Any accounts on which you are listed as a cosigner or authorized user can also be used to hurt your credit score. Make sure all your accounts are in order when going through a divorce, and leave no stone unturned when making sure your name is only associated with the accounts for which you are directly responsible.

For this reason, when dividing up assets and responsibilities in the course of a divorce, it’s best to get one name completely removed from any joint accounts you held with your spouse during the marriage. Whether that means getting your name removed from accounts for which they are now responsible or vice versa.

Alternatively, you can simply close those accounts (both over the phone and in writing, and make sure you have a copy) and ask them not to reopen the account. The best way to regain total control of your finances after a divorce is to make sure your name is only associated with the accounts for which you are responsible, and that the accounts for which you are responsible bear only your name.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases, as well as all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

Dividing Property That Is in A Trust During Divorce

Dividing PropertyAny property acquired during the marriage is generally considered marital property – meaning both parties have an equal claim on the property – but that’s not always the case with trusts. A trust is a piece of property that is managed by a trustee for a beneficiary. The piece of property funding the trust can be anything from cash to real estate.

There are a variety of reasons someone might want to create a trust. In some cases, they may just want to avoid paying taxes on the property, or they may want to pass it along as an inheritance while avoiding going through probate court. Protecting certain assets from spouses in case the marriage doesn’t last may be the reason behind creating a trust, or it may just be a benefit if that sad day comes.

Trusts received as a gift or part of an inheritance are generally considered separate (non-marital) property, rather than marital property, under Illinois law.

Trusts acquired before marriage are generally not considered marital property unless the funds have been distributed and commingled with marital property. For example, if any funds from a trust had been deposited into a joint bank account shared by both partners, then it would be considered to have commingled with marital property, in which case a judge may consider the trust marital property when dividing assets.

Any property or assets acquired during divorce is generally considered marital property, regardless of whose name is on the title or listed as the beneficiary. This can be true of trusts as well, but there are some exceptions, namely the revocable trust.

Trusts can be revocable, which is when the grantor (creator of the trust) reserves the right to cancel the trust at any time. Beneficiaries of revocable trusts cannot access funds from the trust, which is one way for the grantors of trusts to help provide for a loved one while keeping the funds safe from that loved one’s spouse or ex-spouse.

Sometimes a spouse will create a trust and name the other spouse as the beneficiary as a way to leave something to the beneficiary if something were to happen to the grantor first. Such a trust can be created out of either marital or non-marital property, but either way, once divorce proceedings have begun, the trust is usually revoked and the property reverts to its previous status as either marital or non-marital property.

But most revocable trusts are not automatically revoked in the event of a divorce under Illinois law. If the property used to fund the trust was marital property, then the trust can be revoked in order to finish dividing the marital assets, but any trust assets that were not already set to go to an ex-spouse will automatically be revoked.

If the grantor is the one getting divorced, then all provisions of that trust pertaining to the grantor’s spouse, and which are revocable by the grantor, do get revoked. This includes any gifts or interests in property.

Although the beneficiary of a divorce may succeed in keeping all their rights to that trust secure, if there are children involved, the value of that trust will be included when calculating child support and/or spousal maintenance (alimony).

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases, as well as all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests.