What Money Is Divided & Awarded
In Both Mediated &
Adversarial Divorces

The following is a list of questions, broken down into categories, which must be answered by every separating and divorcing couple. This list does not exhaust the possible provisions that may be included in the parties’ agreement, and represents only the most essential ones.

Children

• Who will be the custodial or residential parent?
• What rights will the non-custodial or nonresidential parent have to be and spend time with the children?
• Will there be any restriction on where the custodial or residential parent may move with the children?
• How will major decisions affecting the children’s health, welfare, and education be made?
• If there are transportation expenses involved in the non-custodial or nonresidential parent’s being and spending time with the children, who will be responsible to pay them?

If the question is divorce... the answer is mediation.

Marital Residence (Owned)

• What disposition will be made of the parties’ home? (Will it be sold presently, will one of the parties deed his or her interest in it to the other, or will one of them have the right to continue to live in the home, and if so, for how long?)
• If one of the parties will have the right to live in the home for a period of time, will he or she have the right to rent any portion of the home or to allow any other person to live there? (If rent will be received, who will have the right to keep it?)
• If one of the parties will have the right to live in the home for a period of time, will that right be affected by that party’s remarriage or by his or her living in the home, as if married, with another person?
• If the home is to be sold, either now or in the future, how will the proceeds be divided upon its sale?
• If the parties cannot agree upon any of the provisions of the sale (for example, the selling price, whether it will be sold privately or through a broker), how will this be determined?
• Who will be responsible for the ordinary maintenance and carrying charges with respect to the home until it is sold?
• Who will be responsible for major repairs and the costs of preparing the home for sale?
• If and when the home is to be sold, will either party have a first option to buy it?
• Who will be entitled to deduct the mortgage interest charges and real estate taxes for income tax purposes?
• Who will be responsible for any income (capital gains) taxes which may be imposed as a result of the sale of the home?

Marital Residence (Rented)

• Who will have the right to continue to occupy the marital residence?
• Who will be obligated to pay the rent and other carrying charges in the future?
• What disposition will be made of any security on deposit?
• Will the party who will not continue to occupy the marital residence have an obligation to join with the other party in renewing the present lease if the landlord will not renew it without his or her signature?

Jury trials are NOT allowed in divorce cases.

Debts

• What debts (other than business debts or the mortgage on their home) do parties have?
• Who will be responsible to pay each of these debts?

Personal Property

• What disposition will be made of the furniture, household furnishings, and other items of personal property in the marital residence?
• What disposition will be made of any savings or checking accounts in either the joint or individual names of the parties?
• What disposition will be made of any stocks, bonds, or other securities in either the joint or individual names of the parties?
• What disposition will be made of any automobiles, boats, motorcycles or other items of personal property in either the joint or individual names of the parties?
• Will either party have the right to share in any pension or retirement benefits to which the other is or may be entitled, and if so, to what extent?
• Will either party be entitled to a share in the value of any business, professional practice, royalties or other personal property owned by the other party and if so, to what extent?

Support

• Will either party be required to make payment to the other for his or her support, and if so, in what amount and for how long?
• Will either party be required to make payment to the other for the support of their children, and if so, in what amount and for how long?
• If the parties have more than one child, by how much will the child support payments be reduced when the obligation for the support of one or more of the children terminates?
• Will the support payments to be made by one of the parties to the other, either of the other parties’ support or for the support of their children increase or decrease in the future due to the changed financial circumstances of either of the parties, economic conditions or other factors?
• Who will be entitled to claim the children as exemptions for income tax purposes?

Spouses want to try and kill each other during the holiday season, but won't file for divorce at that time.

Life Insurance

• Will either party be obligated to maintain life insurance on his or her life for the benefit of the other, and if so, in what amount and how long?
• Will either party be obligated to maintain life insurance on his or her life for the benefit of the children, and if so, in what amount and how long?
• If either party is obligated to maintain insurance on his or her life for the benefit of their children, who will be the beneficiary of such insurance?
• Will the obligation to maintain such insurance decrease (as to amount) in the future, and if so, when and in what amount?

Medical Insurance

• Will either party be obligated to provide medical or other insurance for the benefit of the other and if so, for how long?
• Will either party be obligated to provide medical or other insurance for the benefit of the children and if so, for how long?
• Who will be responsible to pay for any medical, dental, drug or hospital expenses of the children that are not reimbursed by any policies of insurance which either of the parties may have?

College

• Will either or both parties be obligated to pay for the college education expenses of their children, and if so, what expenses, and to what extent?
• If such expenses are financed, either in whole or in part, by loans, who will be responsible to repay them?
• If one of the parties is obligated to make payment to the other for the support of their children, will there be any reduction in those support payments while any of the children are attending college?

Income Taxes

• Who will be responsible for any deficiency which may be due on any past joint income tax return filed by the parties?
• Who will be entitled to receive any refund which may be due on any past joint income tax returns filed by the parties?
• If permitted by law, will the parties file joint income tax returns for the present year? If so, who will be responsible to pay any taxes due and who will be entitled to receive any amount refunded? How will the parties credit any estimated payments made by either of them or any income taxes withheld from their salary or other compensation?

The presence of a neutral third party completely transforms the dynamics of negotiation.

Miscellaneous Provisions

• Will the parties each waive whatever claims they may presently have in the other’s estate?
• Will either party be obligated to leave any portion of his or her estate to the other?

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Its content refers only to the law of the State of Illinois.

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