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Stella Divorce & Family Law

Making Illinois Divorce Law Make Sense

Why Did Jennifer Garner Let Ben Affleck Live in the Guesthouse After Filing for Divorce?

Divorce and separation is a hot topic in the news recently. Some big-time couples have called it quits this Summer: Gwen Stefani and Gavin Rossdale, Blake Shelton and Miranda Lambert, Reba McEntire and Narvel Blackstock; just to name the few who made the announcement in the past couple of months. So, what does this have to do with you? Maybe more than you think. Generally speaking celebrity divorces are riddled with allegations of cheating, drugs, alcoholism, and just plain bad-mouthing of the other person. I wouldn’t suggest taking away from celebrity divorces any negative items like these. I would however say that so far, it seems some of them are doing some things right. Maybe it’s for the sake of their children or maybe they are just genuinely good people, but whatever the reason, conducting a divorce in a respectful and classy manner will make a difficult process all that much easier (and cheaper) for everyone involved.

My first piece of advice is to keep your divorce private, particularly if you have children. Remember when you were in high school and you stopped dating that one person and couldn’t help but lambaste them to your friends? Then, as chance would have it, you started dating them again and vividly remember what your friends said about that person when you and the ex were on the “outs”? Well, this is pretty similar. If you have children, remember that more than likely your family and friends will have to interact with your spouse at one time or another. If you have told your family and friends every gritty, foul detail about your divorce, what is to say that they won’t confront the person outside of your presence or worse yet, around your children? The process is grueling as it is. Why give everybody around you a reason to feel that too? By blabbing about the details, you may be able to put this behind you after the divorce is final, but the people who you told about it will probably not. It is likely they will continue to bring it up to you, bringing up bad memories. Nobody ever said, “Wow, I am so glad they told me everything about their divorce.”

Secondly, be civil. It’s that simple. I understand, emotions get the best of you during a divorce. It happens because you are human but sending degrading texts, emails, or making snide comments in your soon to be ex’s presence, is counterproductive. It is counterproductive to the relationship the two of you will need to maintain if you have children, counterproductive to your emotional health, and counterproductive to the legal process if your goal is to eventually settle your case and not go to trial. As badly as the other person may have hurt you, I guarantee you that being the bigger person is what will be remembered by them once the process is over. Somebody once told me that, “Holding onto anger is like holding onto a hot coal, the only one who gets hurt is you.”

Third, (and this applies only to those with children), unless the other parent is an actual danger to your children, let them see the kids. To answer the question in the title, “Why did Jen let Ben stay in the guesthouse?” In Illinois, when the courts determine custody of the children, there are a list of twelve factors, mandated by statute, which the court considers. (I will write about these in a separate blog.) One of the factors is the willingness to facilitate a relationship with the other parent. By Jen letting Ben stay in the guest house, she has put one of those custody factors in her column. She has shown the court that she wants Ben to be a part of their children’s lives. So, I always advise my clients that unless there is a safety issue, work with your spouse on a schedule with the children that allows them to spend time with the kids. Not only is this good for your case, but it is good for your children. Remember your children love you both equally. Just because somebody may be a lousy spouse, does not mean they are a bad parent. The two need to be viewed separately.

Lindsay C. Stella, Esq.

Lindsay@mkfmlaw.com

Mirabella, Kincaid, Frederick, & Mirabella, LLC

1737 S. Naperville Road, Suite 100

Wheaton, Illinois 60189

(630) 665-7300

http://www.matrimoniallawdupagecounty.com

568-Lindsay

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Three Things to Ask Yourself Before Keeping the Marital Home in a Divorce

“I’m an excellent housekeeper. Every time I get divorced I keep the house.” -Zsa Zsa Gabor

In many divorces, the parties’ marital home is their most valuable asset. Most have purchased the home and lived in it for many years; renovating, updating, paying extra towards the mortgage in hopes of having a large chunk of equity when the time comes to sell. The “housing bubble” that burst set many of these folks back quite a few years. I will say though, that I am once again beginning to see people’s homes have substantial equity in them. Having equity is a great prospect when in the midst of a divorce because it gives the parties the ability to do one of two things: 1) sell the home and split the proceeds, or 2) one party keeps the home and “buys-out” the other party with other assets (think, retirement plans, money markets, etc.) Although all too many times have I seen the emotional connection to a home get the better of a client. I advise my clients to consider three very important items before making the decision to keep the home.

  1. Can you actually afford it?   Many times the person who is not in charge of the finances in the home is unaware of all of the actual expenses. In many counties in Illinois, at the outset of a divorce, each party is required to fill out a financial disclosure statement. This is a packet provided by the court that itemizes income, assets, and expenses. This is a useful tool in determining the affordability of your home. If you don’t know, look at the packet that your spouse submitted. Here are the big ticket items to consider:
  • Mortgage? Is there more than one? Do you have a home equity line (HELOC)?
  • Taxes? Are the taxes being escrowed with the mortgage payment or are they going to come due twice a year?
  • Insurance? Do you have adequate homeowner’s insurance? Is this included in your mortgage?
  • Upkeep? Snow removal, yard care, pest control, housekeeping service?
  • Utilities? Water, gas, electric, trash, sewer, internet, cable?
  • Repairs? What shape is your home in? Roof, windows, water heater, etc.? Will something need to be replaced soon?
  • Furniture? What if the spouse who moves out takes half of the furnishings, how will you re-furnish empty rooms?

Now that you know the “hard” costs of the home. Can you still pay for your car, food, clothing, children’s expenses, and other miscellaneous costs? If you will be receiving maintenance and/or child support, now would be the time to ask your attorney to run some rough numbers for you so that you may know what to expect.

This is also the point where many begin to get emotional, particularly if there are minor children in the home who attend public school nearby. There is no doubt that taking a child out of their home and school is difficult, but I assure you that it would be much more traumatizing for a child to see their parent not be able to afford a home and provide adequately for their family. One important thing to remember when going through a divorce is that the income(s) that were supporting one household will undoubtedly be stretched thinner when supporting two households. There is no way around it. You must put your emotions aside and if you determine that you cannot keep your home with your income, child support, and maintenance payments think of this as a chance to start a new beginning. To find a more affordable home, in a great neighborhood, where you will have additional money to do the things you want instead of putting it all into your home will likely be a much happier prospect.

2. Can you refinance?

Since the majority of married couples purchased their homes together, that means that both spouses are on the mortgage. Here is where some confusion sets in so check to see if you are actually both listed on the loan, not just as co-owners of the house. If you are both on the loan, this means that after the divorce, the person who has decided to keep the home will have to refinance the loan to remove the ex-spouse from the mortgage. A refinance will place only one person on the loan and remove the other person. So you can automatically see why lenders are hesitant to do this in the first place. Now there is only one person responsible should the mortgage stop being paid. Removing a person will free up that spouse’s credit so that they may obtain a home for themselves and not have the current mortgage count against their income-to-debt ratio. Now, to refinance, most mortgage companies require 6-12 months of steady income. If you intend to use your child support and maintenance payments that you will be receiving, then you would have to wait 6-12 months after the divorce (depending on your lender) for those payments to count. I have sometimes seen lenders accept your Judgment for Dissolution of Marriage as proof of payments to come, but not often. When a client of mine begins to show interest in keeping the marital residence, I always advise them to speak to a mortgage lender first. If it appears a refinance will be possible, and all of the other factors have been considered, then things may go well. If it appears that a refinance will be impossible, then keeping the house after the divorce is unlikely. Most Judgments will require the refinance within 12 months (however, this item is open for negotiation), but if a refinance is not completed within the timeframe specified, then that party could be in violation of the Judgment. If in violation, you may be forced to sell the home or give the other spouse the option to buy it back. Coming back to court after the divorce is something nobody wants to do so I suggest doing your homework on this issue long before making your decision to retain the house or not.

3. Are there sufficient assets in your marital estate to “buy out” your soon-to-be-ex’s share of the residence?

If you plan to keep the house, and there is equity in the home, you will have to figure out a way to purchase your spouse’s interest in the house. Now, there are many considerations here but the most common is an offset of retirement accounts. By way of example: A married couple owns a home with a fair market value of $310,000 and a mortgage balance of $250,000. This means that there is essentially $60,000 in equity in the home. If we are dividing the assets in the marital estate equally, each party should receive $30,000. (Generally speaking we do not consider “closing costs” when transferring an asset like this pursuant to a divorce but this is a negotiating item and something you should discuss with your attorney.) If the parties also have an IRA worth $100,000, we again assume each receives $50,000 from that account. So, if for example the Wife wishes to keep the home, then instead of receiving $50,000 from the retirement account, she would only receive $20,000 from the IRA and the Husband would keep $80,000, thus essentially paying the Husband the $30,000 she owes him for keeping the house. It becomes much more difficult when the assets in the estate are insufficient to complete such a “buy-out” so take a good look at what your net worth really is and consider this before making the decision to keep the marital residence.

If you closely consider your position using these three factors, you may determine that you are in a financially sound position to retain your home. If however, one or more of these factors is not “adding up”, I suggest that you consider moving on and starting anew in a home that may suit your financial situation better. Do not think of it as a loss as this could be a good opportunity to make a fresh start.

Nothing herein should be considered in place of tailored legal advice for your specific situation. No attorney client privilege exists simply for reading this blog. This is for informational purposes only. I always suggest speaking with an attorney.

Looking for divorce, custody, support, maintenance, or other family law representation in Cook, DuPage, Kane, Kendall, or Will County? Contact our office to schedule a free 60 minute consultation.

Lindsay C. Stella, Esq.

Lindsay@mkfmlaw.com

Mirabella, Kincaid, Frederick, & Mirabella, LLC

1737 S. Naperville Road, Suite 100

Wheaton, Illinois 60189

(630) 665-7300

http://www.matrimoniallawdupagecounty.com

 568-Lindsay

About Me – Divorce Attorney, Mom, and What to Expect

Hello! My name is Lindsay Stella. Thank you for taking the time to start reading what I intend to be an informative, easy to understand, and sometimes humorous blog on the issues that people face when presented with a divorce, custody issue, or post-divorce problems. I am a fifth year Senior Associate Attorney at a primarily Family Law firm in the Western suburbs of Chicago.  I have handled almost every type of family law matter possible, but I am certainly not claiming to know everything!  I am open to any thoughts or opinions on anything that I write!  I’m a lawyer…I love a good argument…I mean, discussion.

Most of what I write will be advice based upon my experience practicing in  DuPage  and Kane County.  I will reference most of the tough issues that my clients bring up to me because I think these are the things that are perplexing and difficult to somebody new to the specific process they may be enduring,

A little about me? I am a working mom of two little boys.  My husband works in sales. We have been married five years. We live in the Western suburbs of Chicago and love every minute of our hectic lives.

I was recently named one of the Top 10 Most Influential Suburban Moms by Glancer Magazine, named a Super Lawyer’s Rising Star in 2014 and 2015, Top 10 Family Law Attorneys Under 40 in Illinois by the National Association of Family Law Attorneys, Top 10 Family Law Attorneys Under 40 for Client Satisfaction by the American Institute of Family Law Attorneys, was appointed to the Illinois State Bar Association’s Family Law Committee and assisted in drafting the new Illinois Divorce Legislation, and I have a 10.0 Rating on Avvo for client satisfaction and professional reputation….so hopefully all of these awards and experiences give me a little credibility.

My plan is to write at least two blogs a week. As I stated earlier, I will try to add a little humor where I can because this time in your life will likely be the one of the most difficult. This blog will be sympathetic at times and harsh at others.

I have also found in my practice that many people have something in their life that they reference as “before x” and “after x”.  For many, a divorce or custody dispute may qualify as that dividing line.  Remember though, a divorce, separation, or custody dispute does not have to be difficult.  I have seen many cases of amicable separations which I encourage whole heartedly.  At times I have simply sat down with both parties and finished an agreement in a day.  So there are horror stories, yes, but this process will be what you make it.

And now for all the legal disclaimers we all hate (yes, even lawyers hate them)…nothing herein should be considered in place of tailored legal advice to your specific case.  Furthermore, no attorney/client relationship can exist between us merely because you read my blog.

If you would like to meet and obtain a free 60 minute consultation, please contact my office: Mirabella, Kincaid, Frederick & Mirabella, LLC.  1737 S. Naperville Road, Suite 100, Wheaton, IL 60189 (630) 665-7300, http://www.matrimoniallawdupagecounty.com

568-Lindsay

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