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Naperville family law attorneysAn order for spousal maintenance, or spousal support, in a divorce is issued on a need-based review of each individual case. There is no presumption that one spouse or the other will be required to pay spousal support. Spousal support, though less common than in previous generations, is still awarded in many divorce cases to help alleviate the financial burden of the divorce on an economically disadvantaged spouse. Once the final divorce judgment is entered, the spousal support order becomes enforceable by law and the supporting spouse must comply or face court sanctions. But what about during the divorce? Can spousal maintenance be ordered while the proceedings are still ongoing?

Temporary Orders

The simple answer is yes. Spousal support can be ordered by the court before the final divorce judgment is entered, but the order takes a somewhat different form. The process for obtaining a temporary maintenance order is different as well.

The Illinois Marriage and Dissolution of Marriage Act (720 ILCS 5) provides that either party in a divorce may request temporary spousal maintenance via a motion and a financial affidavit. The affidavit is a sworn (or affirmed) statement that lays out a party’s current financial situation, including all income, debts, and expenses. When filing, the spouse must also include supporting documentation such as tax returns, pay stubs, bank statements, and others as appropriate. The court will also take into account the current arrangements regarding parenting time and parental responsibilities.

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Naperville divorce attorneyAs you approach the divorce process, you and your soon-to-be ex-spouse may already have most of the details covered. It is not uncommon for a couple to “pre-negotiate,” if you will, regarding the various necessary considerations before the petition for divorce is even filed. For the vast majority of cases, this is very welcome, and a much lower-stress alternative to a long, drawn-out courtroom battle, the impact of which may be felt by both parties for years into the future. For some couples, however, their negotiated agreement might not meet the court’s standards and could be rejected on the grounds of being unconscionable. It is important to understand just what that means so you can be prepared to avoid such a response from the court.

Negotiate with an Understanding of the Law

While you certainly do not need to be an attorney to reach a reasonable agreement with your spouse, it does help to have a basic grasp of what the Illinois divorce laws require. This is especially applicable to concerns for property division, and spousal maintenance. A negotiated agreement does not necessarily need to adhere to each and every provision in the related laws, but understanding what the law considers to be just and equitable is a good place to start. From there, you and your soon-to-be ex can create virtually any type of settlement you wish, as long as it is reasonably fair to both parties and your children.

Unconscionable Agreements

Before the final decree of divorce is entered, the court will need to approve your settlement agreement. For issues unrelated to parental responsibilities, parenting time, or child support, the court must include the agreement in the decree, unless the terms of the agreement are found to be unconscionable, or too one-sided. For example, if, for some reason, you presented a signed agreement to the court that gives 100% of the marital estate to your spouse without valid justification, the agreement would not likely be approved.

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DuPage County family law attorneysWhen it becomes evident that you are headed for divorce, it is important to start planning for the process. You will need to have a good understanding of your current financial situation and what constitutes your ideal post-divorce scenario. Depending upon the circumstances of your relationship with your spouse, you may be able to begin negotiating the terms of your divorce agreement. At first, of course, such discussions would need to be relatively informal, but you and your spouse can at least start talking about the future. The conversation is even more important if you have a child or children together, so that you can both better understand the role you are to play in your child’s upbringing.

Determine a Primary Residence

Among your first child-related concerns should be which parent will assume responsibility for a majority of the parenting time. This is an important consideration in determining where the child will attend school. The parent who does not have the majority of the parenting time will most likely be responsible for paying child support. Just because one of you has less parenting time than the other is not considered to be a reflection on your parental rights; rather it is more of a logistical determination.

Significant Decision-Making

You and your spouse will also need to discuss how you will make significant decisions regarding your child’s life. You may agree to cooperate and make each decision together, or you may determine that each of you should have separate but complementary responsibilities for decisions about your child’s education, medical care, or religious training. You and your spouse may have particular areas of strength or strong feelings about a specific area of your child’s life that make one of you better equipped to handle related decisions.

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