It is not uncommon for people to have two homes and for people in Chicago, Illinois, that second home is often somewhere in Florida. Florida has many advantages: great weather in the winter, no income tax, and low property taxes. Chicago has its own advantages: high wages, job opportunities, lots of culture. So, people who have a home in each state eventually have to be a resident of one of the states for various purposes, usually taxation. But what about divorce in Chicago? Which state’s laws are advantageous for you in your divorce? Do you have the ability to choose which state you will file and prosecute your divorce?
As a divorce attorney in Chicago, Illinois and a Divorce Attorney in Naples, Florida, I will walk you through the options available to you if you have a home in Chicago and a home in Naples, Florida.
Where Can I File For Divorce in Chicago and Florida?
If one party to the divorce lives in Chicago, Illinois, the divorce can proceed in Chicago, Illinois. The Illinois statute requires that you be a resident of Illinois for 90 days before filing for divorce but in reality, if you file for divorce and then stick around for 90 days, you will be allowed to proceed with your divorce in Chicago.
Florida is a lot stricter. You absolutely positively have to live in Florida for at least six months continuously before you are allowed to file for divorce.
Chicago Divorce Lawyer
Russell D. Knight
1 North State #1500
Chicago, IL 60602
Naples Florida Divorce Lawyer
Russell D. Knight
3375 Pine Ridge Rd #201
Naples, FL 34109
The subsequent question is “Which courthouse in Chicago and Naples Florida do I file my divorce?”
If you live in Cook County, Illinois or your spouse lives in Cook County, Illinois there are six courthouses where you can file your divorce in Chicago. As a Chicago divorce lawyer, I only file at the Daley center in Chicago, Illinois. There are a variety of judges at the Daley Center (it’s the largest single courthouse in the world) and you have the option of substituting the judge if you’d like to exercise that right. The other courts within Cook County often only have one judge and you cannot substitute that judge without removing the case to Chicago’s Daley Center.
If you live in Naples, Florida there is only one courthouse to file your divorce in, the Collier County Courthouse. As a Divorce Attorney in Naples, Florida I only file divorce cases in Collier County when I file for Divorce in Naples for my clients.
You or your spouse are not locked into the particular court within which the case was first filed. Either of you can plead “forum non conveniens” wherein you explain to the court that you don’t live there, your spouse doesn’t really live there, that your children don’t live there, and that your marital property is not there. This usually requires that you file for divorce in Chicago in the state and county that you actually want the case to be heard. Typically, the judges from the two different counties get on the phone with each other and discuss where the case should actually be held. If the question is between Cook County, Illinois and Collier County, Florida, the judges will be familiar with me as a Chicago divorce lawyer and as a divorce lawyer in Naples, Florida.
Knowing where you can file (or can’t) you will now need to consider where you should file to put yourself at the greatest advantage based on the respective states.
Mediation for Divorce in Chicago
In both Illinois and Florida mediation is mandatory when there are children involved in a divorce. If the parties’ incomes are below a certain threshold Cook County, Illinois or Collier County, Florida can provide mediators. Parties with means can and should hire private mediators.
In Naples, Florida, financial mediation is required whereas in Chicago, Illinois it is merely optional (and rarely exercised).
In Florida, divorce attorneys are intimately involved with the mediation proceedings. The lawyers help with the negotiations as they proceed with the help of the mediator.
In Chicago, Illinois divorce lawyers usually tell their clients, “Good luck with the mediation. Let me know how it worked out.”
Child Custody After a Divorce In Chicago, Illinois and Naples, Florida.
Unlike the other aspects of a divorce, divorce in Chicago where your selection of venue can impact the results of your divorce, child custody does not allow for a much selection.
49 of the states in the United States entered into a treaty amongst themselves called the The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This agreement provides a very specified layout of how to determine which state issues as to the children shall be determined.
The first test is always, “Where have the children been living for the last six months?” If the children have been living in Florida AND nothing has been filed, then Florida shall have jurisdiction over the children. If the children have been living in Florida for less than six months and one of the parents files a petition for custody (now known as a petition to allocate parenting responsibilities and parenting time) in Illinois then both the court in Florid and the court in Illinois must follow the regulations of the UCCJEA in determining which state will hear the case.
The UCCJEA can become extremely byzantine. The UCCJEA has rules for what happens when a child has been moved back and forth from a state within six months, for example. Typically, the two judges from the two different states get on the phone and discuss the matter cordially.
Keep in mind that even if a court decides that Florida or Illinois is the state within which custody matters shall be heard, both courts will consider what is best for the child in determining where the child will eventually live or who will have custody of the child. In my experience, there is clearly a “home court advantage” to whomever gets the case heard in their state. This is primarily due to the fact that contested custody cases are the worst kind and judges typically want to keep an eye on them. That requires the case, the parties and the children to stay in the state the court is located in.
A big difference in determining child custody and child visitation issues between Florida and Illinois is that Illinois judges will often say, “I can’t determine such personal issues such as where a child should spend the night and with who. Therefore, I will appoint a third attorney called a Guardian Ad Litem or Child Representative to represent the best interests of the child, investigate the situation and report back to me.”
In Florida, guardian ad litems are usually only available for children with no parents. Florida judges will rely on the representations made by the divorce attorneys in Naples, Florida.
Child Support after a Divorce In Chicago, Illinois and Naples, Florida.
Child support is typically determined by the laws where the child lives. But, if the divorce case is being heard in a state where the child does not live, the court will be likely to apply their own laws regarding child support because that is what the courts are empowered to do.
But once the child support is entered and the divorce is finalized, either parent can register the divorce in Chicago in the state where the child lives and ask for a modification of child support under the laws of that state.
In order to modify child support, a court in both Chicago, Illinois and Naples, Florida will require something in addition to just mentioning that the child lives in their state. The court will often require “a substantial change in circumstances.” This usually means a twenty percent change in the income of either party. Courts have a strong bias to dismiss cases that cannot prove the substantial change in circumstances because courts are there to settle conflicts. Courts love to say, “there is no conflict here. Therefore, there is no case.” For this reason, it is imperative that you employ a divorce attorney in Naples, Florida or a Chicago divorce lawyer if you file in either jurisdiction.
Child support is determined in a similar fashion in both Chicago, Illinois and Naples, Florida. The first step is to determine the income of both of the parents. Upon determining the income of the two parents, a number is calculated as child support payable to the parent with whom the child spends the most time with. In lieu of going through the guidelines tables for each state which will compare every foreseeable income between the two parties, I would direct the reader to find one of the many online calculators available throughout the internet for Illinois and Florida.
There are some differences between the Naples Florida and Chicago Illinois in determining the amount of child support beyond what I’ve described above.
In Illinois, the primary parent’s child support is not diminished until the non-primary parent has at least 146 overnight visits with the child.
In Florida, all parents who have the child spend 20% or less of their overnights with them pay “guidelines support.” Again, just use an online calculator to determine guidelines support.
If the non-primary parent has more than 20% of the overnights with the child, a new calculation is made. The non-primary parent with more than 20% of the overnights with the child shall calculate his child support as the guidelines support multiplies by 1.5 and then multiplied by the percentage they have with the child. This is not simple. Do not merely rely on an online calculator in this scenario. Hire a Chicago divorce lawyer or a Divorce attorney in Naples, Florida.
In both Florida and Illinois, children’s expenses beyond food and shelter are typically split between the parents proportionally to their income.
Florida has an additional requirement that the payor of daycare and/or health care expenses be extended a proportional credit to their child support obligation. This could increase or decrease a parent’s child support depending on who is paying what.
Alimony after a Divorce in Chicago Illinois and Florida.
Illinois calls alimony “maintenance.” For the purposes of comparing the Illinois and Florida’s laws, I will refer to the support a party receives from another party that is not child support as “alimony” for both states.
Illinois has very specific and predictable alimony laws. The greater earner pays the lesser earner 33% of his or her net income. This amount is then reduced by 25% of the lesser earner’s net income. The amount of support to be awarded is capped at 40% of the total of the two parties’ incomes.
This is not mandatory in every case. The court can make exceptions to this calculation for any of the following reasons or factors:
- If one party has a great deal of assets, they may not be entitled to maintenance because they can presumably support themselves with those assets after a divorce in Chicago.
- The realistic present and future earning capacity of each party.
- Any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having foregone or delayed education, training, employment or career opportunities due to the marriage.
- Any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought.
- The time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether the party is able to support himself or herself through appropriate employment or any parental responsibility arrangements and its effect on the party seeking employment.
- The standard of living established during the marriage.
- The duration of the marriage.
- The age, health, station occupation, amount and sources of income, and sources of income, vocational skills, employability, estate liabilities, and the needs of each party.
- All sources of public and private income including, without limitation, disability and retirement income.
- The tax consequences of the property division upon the respective economic circumstances of the parties.
- Contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse.
- Any valid agreement of the parties.
- Any other factor that the court expressly finds to be just and equitable. (See, it really is anything)
Despite the above exceptions covering almost every possible scenario, Illinois courts prefer to apply a nice clean formula when determining alimony.
The length of the alimony in Illinois is more unchangeable. The length of alimony in Illinois is determined by the length of the marriage before the filing of the petition for dissolution of marriage.
Illinois courts apply the following percentages of the length of the marriage for the respective lengths of the marriage:
Less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.
Even though Illinois’ alimony statute seems predictable, it is imperative that you retain a Chicago Divorce Lawyer to guide you through this process and ensure that you are paying and/or receiving the right amount of alimony.
Alimony in Florida works completely differently from Illinois. Florida has no statutorily specified amounts of alimony and Florida’s rules about the lengths of alimony are also not nearly as specific as Illinois.
In Florida, the courts consider whether the alimony requester is eligible for any and all of the four different kids of alimony.
There is rehabilitative alimony where the courts try to determine what it would cost to restore the spouse to their earning capacity had they never been married. This almost always means, sending the spouse to college (if they didn’t go).
Next is bridge-the-gap alimony which is a general acknowledgement that the transition from being married to being single is going to be harder financially for one spouse than the other. Therefore, in Florida, the spouse for which the transition will be easier may have to pay the other party alimony. You can see how this would be appropriate for a college educated housewife or househusband as they re-entered the work force.
Next is durational alimony. This is Florida alimony that has a set end date no matter what. Whether the receiver gets back on their feet or not. Durational alimony is typically only ordered for marriages that lasted longer than 7 years and less than 17 years. The amount and the length of durational alimony is determined by courts with no guidelines from the statute.
Finally, there is permanent alimony. In Florida, if you were married for more than 17 years you will be paying or receiving permanent alimony if there is a significant dichotomy in your incomes. But, if you’ve been married for 17 years, you probably are relatively close to retirement age. In Florida at age 65 you are entitled to modify or terminate alimony.
This is not simple! A divorce in Naples FL could include none to all of these kinds of alimony at the same time. If facing an alimony claim or asking for alimony get a divorce attorney in Naples, Florida.
In all considerations of alimony as described above, the first consideration is the payor’s ability to pay. A spouse may very well need support to go back to school, get back on their feet, and live the lifestyle they were living before the divorce in Chicago or Naples but if the other spouse has no ability to pay, they shall not be required to pay. This is why it is so important to have a divorce attorney in Naples, Florida. You must keep in mind your legal abilities as well as your legal obligations and adequately communicate those to the court before the system takes over.
In both Illinois and Florida, alimony orders shall be observed with the force of law. Alimony orders must be complied with or the courts can enforce compliance via a separate court order that can garnish wages, bank accounts or issue a civil writ that is essentially an arrest warrant.
Division of Assets and Debts in Naples, Florida vs. Chicago, lllinois divorces
Marital assets and debts work the same in both, a divorce in Chicago and Florida divorces. If you accumulated the asset or the debt during the marriage, it’s marital and thus divisible in the divorce.
The exception to this rule is if the asset was a gift from an outside party. Then the asset is non-marital and thus non-divisible with a divorce in Chicago.
If both parties names become associated with a non-marital debt or asset (example: refinancing a house) then the debt and asset becomes non-marital.
As you’ve read so far, in one state things will be very specific in a divorce in Chicago while in another state the rule will be really loosey-goosey. Division of assets and debts is no exception.
Florida requires that all marital debts and assets be divided 50/50. A Florida court is obligated to explain why it did not divide the assets 50/50 if the court did not, in fact, do so.
This makes the definition of what is a marital asset or debt all the more important in Florida because once an asset is declared “marital” it must be divided 50/50. There is no negotiating, really. Even an award of a whole marital asset to one party must be equalized with an award of a similarly valued marital asset to the other party.
Illinois divides assets “equitably” which means “fairly” but really means whatever the judge wants it to mean. This creates enormous wiggle room which often results in more practical settlements like, “I keep the house and you keep the 401(k).” The more variance that the law allows the more important it is to have a Chicago divorce lawyer who can work at the margins to have that variance work for you for your divorce in Chicago.
The difference between the two states’ rules creates a very stark dichotomy for younger divorcees: student loan debts get divided in Florida. In Illinois, there is no statute or case law, at this time, regarding student loans debts. Most Illinois judges say, “All the information you learned is in your head, therefore you are responsible for the debts associated with that information.” After all, this is the reasoning behind why you cannot discharge student loans in a bankruptcy. In Florida, student loans are readily divisible and not dischargeable in bankruptcy which makes whoever has the student loans a figurative walking time bomb in the case of divorce in Chicago.
Of course, in both Florida and Illinois, if both parties agree, the court will approve the division of assets and debts so long as the result is not unconscionable. But, why would anyone accept anything less than 50/50 in Florida if a strict accounting and division is required?
So, if I can file my Divorce in either Naples, Florida or Chicago, Illinois, Where Should I file?
Despite all the rules and advantages that I have laid out above, you probably want to file in the state where you have regular access to the court. All these rules really only apply if you cannot agree with your spouse and you have to let the court decide who will get what. If you are in a truly contested divorce your ability to be present in court and active in your case will have a big impact on the result of that case. Especially if you have minor children. It is simply easier for the judge to disappoint the party that is not there.
Beyond your presence, you’ll need to consult a Chicago divorce lawyer and a Divorce Attorney in Naples, Florida to review the facts in your case and suggest a jurisdiction to file in. There are very few of us who practice in both places.