Illinois General Divorce Information FAQ's

1. Does it matter who files first?

It does not typically matter who is the first to file a case. The person who files the case is known as the Plaintiff and the other party is known as the Defendant. By filing the case, the Plaintiff will ultimately have the opportunity to go first if the case cannot be settled, at trial. There may be a slight advantage to being in this position. However, since 90% of all cases settle prior to going to trial, this is not a sufficient reason for you to be concerned with filing first. Additionally, it costs approximately $100.00 more in court costs to be the Plaintiff than the Defendant.

2. How long does the divorce last?

Each case is unique and there is no simple formula for determining the length of the case. The more issues that are unresolved and the more the parties disagree, the longer the case will take. Typically, from the point of reaching a settlement, it takes approximately one month to have the paper work completed and to obtain a final court date. If the case cannot be resolved and will need to go to trial, the case will take a minimum of approximately one year to complete. On average, however, most cases even if they are tried, will be resolved within eighteen months.

3. Can I date during the proceeding?

Legally there is generally no problem if you decide to start dating while the case is still pending. Practically, however, if you commence a new relationship, there may be certain problems. First, it may tend to inflame the situation and make your spouse "dig in" and fight harder. Additionally, if you expose your children to the new relationship it may tend to confuse and upset them. In the event your spouse is not otherwise inclined to seek custody, he or she may decide to proceed to seek custody if they believe there is a new person in your life. For all of the foregoing reasons, we advise clients if they do decide to date, to be discreet and not expose the children to the relationship.

4. What is the difference between joint and sole custody?

Many people are under the misconception that joint custody means that you will each have the children half of the time. This concept is known as shared custody and is not what joint custody means. Joint custody means that both parents have an equal say in the major decisions effecting your children's lives. Major decisions are defined as religious, educational and health care issues. The children will still typically live with one parent on a primary basis. This parent will be known as the residential custodian. If there is a dispute with regard to joint custody, the parties must first consult with a mediator to resolve the dispute. In the event the dispute is not resolved, the court will then resolve the issue.

5. What is shared custody?

Shared custody is a non-traditional form of custody that is designed to increase the amount of time the children have with both parents. Shared custody is not typically defined by the Statute, but in practice, is often used as a way to resolve custody disputes. Very frequently, parents will agree to divide time with the children equally. This type of arrangement will frequently have a detrimental effect to children. Our office recommends that any issue effecting children should be addressed to a child psychologist to get their input and advice concerning the impact on the specific family situation.

6. How much child support will I receive/pay?

The amount of child support paid is based upon the number of children of the marriage. Under Illinois law, there are certain minimum guidelines for the payment of child support based upon a percentage of the payor's net income. The amount of support is dependent upon the net income of the paying parent. The guidelines in Illinois provide:

The guidelines are typically employed by the court unless there are extraordinary circumstances. For higher income paying parents, the court may order that support should be less than the guidelines if the children will be paid in excess of their needs. Similarly, the court may order the paying party to pay in excess of the guidelines if the needs of the children exceed the amount of the support. Both of these examples are the exception and not the rule, and courts will typically apply the guidelines.

In addition to child support, courts will frequently make a support-paying parent to pay one-half of day care expenses incurred by the primary custodial parent relative to his/her employment or education.

7. Will my spouse have to pay my attorney's fees?

The law does not require that one spouse be automatically responsible for the other spouse's attorney's fees. However, if one spouse has the majority of the financial resources, the court is required to make that spouse assist the economically dependent spouse with their fees and costs. This concept has recently been introduced into the law in a statute commonly known at the "Leveling the Playing Field" law. The burden is upon the spouse seeking a contribution for fees to first show that he or she has an inability to pay the fees with their own resources. In that event, the court can require the other spouse to contribute fees and costs, both during and at the conclusion of the proceeding.

Additionally, if court orders are entered either during or after the case that our not complied with, and the spouse seeking to enforce the agreement is forced to incur attorney's fees, the court will order that those fees be reimbursed if the individual violating the court order did so without substantial cause or justification.

8. What if my spouse files and I do not want the divorce?

Divorce is a highly emotional process. Very frequently an individual may not be psychologically prepared for divorce at the point that their spouse files the case. Sometimes the person who files the case has had many years to work through his or her emotional issues and by the time of filing, is psychologically ready to move on. The other spouse, in contrast, may be totally psychologically unprepared for the proceeding and may desire to contest the divorce.

Illinois law allows a spouse to legally contest the grounds for the divorce, but it does not require that the parties live together even if the divorce can be successfully thwarted. Generally speaking, we recommend that informal solicitations towards the other spouse be used to attempt to reconcile the relationship. However, if one of the parties is irretractable in their wish to proceed with the divorce, we usually recommend that the other spouse not legally contest the divorce inasmuch as the cost will be excessive, and even if successful, the marriage truly will not be intact emotionally. Accordingly, the efforts towards restricting the divorce are futile.

9. How do I choose grounds for my divorce?

The grounds for a divorce are set forth in the statutes. There are a number of grounds, including mental cruelty, physical cruelty, adultery, extended drug or alcohol abuse, and irreconcilable differences. Grounds need to be plead in the divorce, however, their significance is more symbolic than actual. The grounds alleged will not impact the distribution of the property nor, typically, affect the custody of the children unless the behavior alleged in the grounds directly affects the children. The grounds of irreconcilable differences are a no fault basis and essentially mean that the marriage has irretrievably broken down as a result of irreconcilable differences. In order to use these grounds, the parties must be separated for six months and agree to proceed on these grounds by waiving a two year waiting period in writing. If one of the parties does not agree to waive the two (2) year waiting period, the party seeking the divorce can still proceed after two years under the grounds of irreconcilable differences without the other party's consent.

10. What is a legal separation?

A legal separation is an actual formal court proceeding whereby the court will grant a decree for legal separation. The concept of legal separation was developed by the legislature in the 1950s for people who wanted to divide up their assets, allocate their debts, or live as if they are not married. The parties are not divorced, however.

The procedure is similar to commencing a divorce and involves filing a Petition for Legal Separation. The proceeding can only be filed by a spouse who has not vacated the marital premises. In other words an individual cannot move out and then file a Petition for Legal Separation. Legal separations are infrequently used. Generally, we recommend against the formal process of a legal separation for people who are uncertain whether a divorce would be in their best interest. Frequently people will contact us asking for a legal separation while they temporarily separate pending either a reconciliation or a decision to proceed with a divorce. Generally, if the parties want to separate for a period of time, we encourage that an informal agreement between them be reached and not be committed to a court order in order to avoid unnecessary court costs. Obviously if the trust of a relationship is so low that a court order needs to be entered pending a reconciliation, one should suspect the likelihood of the success of the reconciliation.

Usually prime candidates for legal separation are people attempting to protect their respective assets from the other's creditors because once the legal separation is granted, bills incurred by one spouse are not the liability of the other spouse.

11. Can I leave the state with the children?

Illinois law does not allow the permanent departure of the state with minor children without prior leave of court. Vacations can be taken with the children without a specific court orders assuming that prior notice has been given to the other parent concerning the children's whereabouts. In order to move from the state of Illinois on a permanent basis, the court must first find that it is in the best interest of the children that they move. Under the current status of Illinois law, it is a difficult proceeding to remove a child on a permanent basis from the state of Illinois if they have an ongoing and regular relationship with the other parent.

12. Once the divorce case is filed, when can I get support or visitation from the court?

Generally speaking, the court has the jurisdiction to grant temporary orders while a divorce case is pending. In other words, virtually immediately after the case commences, one of the parties can ask the judge to order temporary support or visitation. The amount of the temporary support is not limited to temporary child support, and the court can order that extra monies be paid to maintain the status quo of the parties finances. With regard to temporary visitation, as in all matters affecting the children the court will employ a "best interest" standard with regard to temporary visitation.

13. What will the divorce cost?

The cost of the divorce vary depending upon the facts and circumstances of each individual case. Since attorneys for a divorce case bill for time spent on the case, obviously, the more time an attorney must devote to the case, the larger the bill will be. Factors affecting the cost will typically include the level of hostility between the parties; the experience of the attorneys involved with the case; the intricacy of the legal and factual issues involved with the case; and the general level of cooperation between the parties.

14. Can one attorney represent both parties?

Pursuant to the Illinois Code of Professional Conduct, an attorney cannot represent both parties in a divorce case. By doing so, the lawyer would be violating a concept known as conflict of interest. An attorney can, however, represent one party in the divorce case and prosecute the divorce on behalf of that party, without the spouse obtaining their own independent representation. Generally we believe that both parties should have representation because of the many complicated and significant issues effecting people in a divorce proceeding.

15. Can I work out a settlement directly with my spouse?

Nothing prohibits you from talking directly with your spouse concerning settlement. If you have a history of agreeing to all of your spouse's demands, however, this approach may be dangerous. Thus settlements should be conferred with, if you do reach a settlement you consider to be fair with your spouse, advise your spouse you will need to speak with your attorney about the settlement before totally committing. Your spouse may attempt to dissuade you about talking to your attorney about the settlement. In that event, it is all the more imperative that you speak with your attorney due to your spouse's efforts to avoid having the settlement objectively critiqued.

16. What happens if my spouse wrongfully takes money during the divorce?

If one of the parties improperly takes money or disposes of assets, either prior to or during the divorce case, the court can consider that factor in dividing up the balance of property. The law generally states that if one of the parties uses money or resources for their own individual benefit, and not for the benefit of the family, during a period of time that the marriage is undergoing an irretrievable breakdown, that is known as a dissipation of assets. At the end of the case, the court can credit the non-dissipating party with a portion of the money allegedly dissipated. Generally, however, all efforts should be made to make sure one of the spouses does not improperly use monies. While the case is pending, the court can enter a court order known as a Preliminary Injunction which bars the improper use of monies by either party while the case is pending.

Also, substantial bank accounts can be divided up at the beginning of the case to make sure one of the parties does not have access to all of the resources to the exclusion of the other party.

17. Will it be used against me if I obtain a counselor?

We recommend all of our clients that are having difficulties with the divorce consult with a counselor. Counseling should be considered a help during a confused time and not necessarily an admission of mental illness or impediment to good parenting. Ironically, if an individual needs counseling and does not seek professional help in this regard, that fact could be used against that party.

18. Does it matter what my spouse alleges in the Petition for Dissolution of Marriage?

The Petition for Dissolution of Marriage, which is the initial pleading, is a formal court document. The requests in that document do not necessarily suggest either what your spouse's specific wishes are, or what the ultimate settlement will be. Do not place too much emphasis on this document. The final Marital Settlement Agreement will spell out exactly what the terms of your agreement are. Petitions for Dissolution are intentionally vague and ambiguous and are designed to leave open all options.

Frequently, the spouse will become very upset if an agreement had been informally been reached concerning an issue, and request was made in the petition contrary to that request. Again, Attorneys are trained to keep all options open at the commencement of a case and an unnecessary limit and a refusal to request something in the Petition for Dissolution of Marriage could be a bar to a request at a later date.

19. What if I am uncertain whether I want the divorce after the case if filed?

It is not infrequent that people change their mind concerning the divorce after the case is filed. In fact, we urge you to exhaust all efforts at reconciliation before proceeding with the divorce. If you do decide to reconcile on a "temporary" basis, you could do so without dismissing the divorce case. Alternatively, you can dismiss the divorce case and re-file it later if necessary.

20. My spouse keeps talking badly about me to the children. How can I stop this?

This is an extremely difficult circumstance, which should be avoided at all costs by the offending party. Any time the other parent is referred to in a negative or non-positive way the child's self esteem is diminished. Virtually all credible counselors will tell you that that the child suffers when a parent is disparaged. If this occurs in your case, you should notify us to seek the appropriate court relief. Often times, however, the offending party will deny the behavior. This is always very problematic. It is also difficult to enforce because we try to avoid having the children as witnesses in court. Probably the best way of handling the situation would be to consult a counselor with your child to help develop strategies for both the child as well as you in dealing with this horrible behavior.

21. My husband has threatened to quit his job if I pursue him for child support. Can he do this?

It is rare that the court allows someone to profit from this type of behavior. Essentially, the law allows the court to set support based upon the spouse's prior income if the spouse quits a job without good cause and for the purpose of harming the family's finances. At that point, the spouse would still be under a court order to pay as if he still had the job. If he refuses to pay, the court can employ various enforcement mechanisms to compel payment including:

• jail time
• the order forcing the person to look for work and report to the court weekly regarding their progress
• other sanctions including attorneys fees

Many times in divorce situations people make threats out of anger and frustration and do not follow through with those threats. The courts are prepared, however, where people do take actions designed to financially hurt the family.

22. How old do my children have to be to decide where they want to live?

There is no specific time frame no specific age at which a child can decide where that child wishes to live. Typically at the age of 12 or 13, if the child is articulate and has specific reasons why they want to live with a particular parent, the court will consider the child's preference. The court is not bound by that preference, however.

23. Will I lose in a custody case because I am a man?

In determining issues effective custody, the courts are guided by a "best interest of the child" standard. Essentially this standard does not discriminate against a parent because of their sex. Courts are predominately concerned with who historically was the child's "primary care taker." This person invariably will have an edge in a custody case. If the parties were mutual care takers of the children, then the parties gender will have no influence on the courts decision except unless the court feels that a child of a particular sex should be with a parent of the same sex for developmental reasons.

24. My wife has advised me that I can no longer have visitation with my children because I have a girlfriend, can she do this?

First of all, if a court order is in effect, neither party can take any action inconsistent with the court order without prior permission of the judge. If there are no court orders in place, and visitation is being denied, the attorney should be notified immediately so that a court order can be obtained setting specific visitation. If there is a chronic visitation abuse by either the custodial parent, or the party exercising visitation, the court can intervene and punish the offending party through a number of means including the contempt powers of the court. Generally speaking, it is in the best interest of the children to have a maximum and fulfilling relationship with both parents. Where a parent attempts to use the children as a weapon or a tool to hurt the other parent, this behavior is considered despicable by the judge, by the court, and the court will address said matters. The court will typically deliver a harsh response.

25. Do I have to pay tax on my child support?

Child support is not taxable to the recipient, nor a tax deduction by the paying party. Maintenance, on the other hand, which is "spousal support", is deductible by the payer and taxable income to the payee. Often times, we attempt to negotiate settlements considering the tax implications of a particular settlement.