Divorce is handled by state law. If you are under the jurisdiction of a state by that own state’s rules you CAN get divorced in that state. That doesn’t mean you MUST get divorced in that state. Theoretically, it’s possible to get divorced in one of many states depending on you and your spouse’s residency and ties to those respective states. But for this article, let’s just consider Florida vs. Illinois divorce laws.
I, personally, am licensed to practice law in Illinois and Florida and have focused my two practices (one in both Illinois and Florida) on the family law in particular. If you’ve read either of my blogs, you’ll see that I’m kind of obsessed with family law.
Family law is often broad but not deep. As a family lawyer, you learn how to divide a business and the next day you’re determining if a custody valuation is correct. Divorce law doesn’t have the minute nitty-gritty like the lawyers who regulate nuclear power plants, for example, have to deal with…until you come to jurisdictional issues.
Jurisdiction of Divorce in Florida.
Florida has great weather, low taxes and tough jurisdiction laws. To get divorced in Florida, either you or your spouse must be a resident of Florida. To be a resident of Florida, you must reside in Florida for at least six months of the year.
If either spouse has spent 183 days of the current year or the past year in Florida, they are a Florida resident for the purposes of divorce. If anyone contests those 183 days, you must prove via calendar that you were in Florida during that time. Honestly, your phone probably can prove exactly where you were if you’re inclined to ask it.
If you or your spouse were not in Florida for exactly 183 days then the courts look to the intent of the parties. Do you have a Florida driver’s license? Did you file your taxes in Florida? Do you own a home and car in Florida? These can all be proven via testimony and filing exhibits with the court. If you have a tax filing, home and/or car in another state that will weigh against your residency in Florida for the purposes of divorce.
Jurisdiction of Divorce in Illinois
Illinois has a bad reputation for not accommodating businesses…but they sure accommodate divorce. You only have to be in Illinois for 90 days to get a divorce in Illinois. That’s not 90 days before filing, that’s 90 days before the actual divorce.
There used to a lawyer in Chicago who would only advertise in the Philippines (where it is illegal to get a divorce). Filipinos would take a long vacation in Chicago and 90 days later they would be divorced. The Philippines would then have to recognize that Illinois divorce due to treaties between the Philippines and the United States. (For more colorful Chicago divorce stories, please ask me as I have a million)
I’ve been practicing family law in Illinois for 13 years. Illinois never turns down a case unless it’s contested by another jurisdiction.
What Happens When Jurisdiction Is Contested between Illinois and Florida?
When jurisdiction is contested between Illinois and Florida the two respective Illinois and Florida judges schedule a “judicial conference” which most people know better as a “phone call.”
The two judges then discuss the practicality of proceeding with the divorce in their respective jurisdictions.
If the kids have lived in a state for more than 6 months then the divorce will be happening in that state. There’s a whole interstate treaty and body of law dedicated to this subject called the UCCJEA.
If all or most of the assets of a divorce case are in one state, then that state may handle the divorce for the sake of efficiency.
If the kids are in one state and the assets are in another, it is theoretically possible to conduct each part of the divorce in that respective state. I have never seen this happen, however. (But I would love to do it)
So Which Is Better For Divorce? Illinois or Florida?
It really depends on the facts of your divorce and what your interests are. Let’s go through each of the main factors in divorce.
Division Of Assets In Florida vs. Illinois
Florida law requires marital assets to be divided 50/50. If those assets are not divided equally, the court MUST explain why in written findings. Explaining why you didn’t follow the default law in written findings is essentially asking to be appealed and overturned.
Illinois law says that assets must be distributed “equitably.” What does “equitably” mean? In Illinois, equitably means whatever the judge wants it to mean. An Illinois judge can say, “I award the wife 60% of the estate” and the judge doesn’t really have to explain him or herself. If there’s no court reporter recording the evidence entered, then it’s essentially impossible to appeal an equitable decision.
Alimony or Spousal Maintenance in Illinois vs. Florida.
In Illinois, there is no alimony. Instead, people receive a large sum of money every month that is, instead, called spousal maintenance. As Shakespeare said, “a rose by any other name would smell as sweet.”
Illinois has guidelines spousal maintenance. That is, the large earner pays the small earner 33% of his or her income minus 25% of the small earner’s income. This is all pre-tax money!
There is a cap, though. You cannot receive maintenance (including your income) beyond 40% of the total income of the couple, together.
So, for the mathletes out there, if you make more than 150% of the income of your spouse, you will pay your soon-to-be ex-spouse some kind of spousal maintenance.
If an Illinois judge deviates from these guidelines, the Illinois judge has to issue written findings (and possibly be appealed because of them).
Illinois maintenance lasts a specified amount of time according a long, byzantine schedule that the Illinois legislature keeps amending. The longer the marriage, the longer the spousal maintenance until 20 years where maintenance becomes permanent.
In Florida, alimony is whatever a judge wants it to be.
There are two tests involved in Florida alimony. 1) What are the needs of the lower earning spouse. 2) What is the capacity of the higher earning spouse to pay for those needs.
Child Custody in Florida vs. Illinois
In both states, child custody is determined through the standard “the best interests of the child.”
How the courts arrive at the best interests of the child in both states is usually done with the help of an outsider.
In Florida a child custody evaluator is appointed to meet with both parents, the children and anyone else associated with the case. The child custody evaluator is usually a therapist, child psychologist or some other professional whose professional expertise can be relied on by the court.
In Illinois, the child is appointed their own attorney called a Guardian Ad Litem or a Child Representative. The child’s attorney then coordinates professionals such as therapists to make recommendations to the court regarding parenting time. Obviously, attorneys are more expensive than therapists so Illinois has a more expensive process.
Child Support in Florida vs. Illinois
Child Support in Florida is determined based on the parties’ incomes and the time that each party spends with the child.
If a parent spends more than 20% of the time with the child, that parent will get a reduction in any child support owed based on the percentage of nights the child is with the parent.
In Florida. Each parent who pays for health insurance or child care then gets a credit against or for the child support owed.
Florida’s child support calculator can be found here.
Child support in Illinois is also determined based on the parties’ income.
A parent in Illinois must have the child at least 146 nights (that’s almost 5 months of a 12 month year) before the child support will be reduced from the basic guidelines amount.
Illinois’ child support calculator can be found here.
Expenses like insurance and extracurricular activities in Illinois can be split proportional to income but are usually split 50/50.
So Where Should I File My Divorce? Illinois or Florida?
The law really isn’t dramatically different between the two states except for Alimony or Spousal Maintenance.
Illinois has a set formula to determine the amount and length of spousal maintenance.
Florida has no alimony formula for amount or time. This means that in Florida, you are really relying on the quality of your attorney to set your alimony.
For most people, if you’re paying alimony, you want to file for divorce in Florida. If you expect to receive spousal maintenance, you’ll want to file for divorce in Illinois.
The division of assets in Illinois is more flexible than it is in Florida. So, if you think you have a good argument to get more than 50% of the marital estate, you’ll want to file for divorce in Illinois. If you want to lock in a 50/50 split, you’ll want to file for divorce in Florida.
As far as child related issues go, you don’t really have a choice. You’ll be locked into whatever jurisdiction that your children have lived in for the last 6 months.