Here are some common questions and answers about divorce, child custody, child support and alimony in Illinois.
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. Note, it costs approximately $100.00 more in court costs to be the Plaintiff than the Defendant
How long does the divorce last?
The more issues that are unresolved and the more the parties disagree, the longer the case will take. Typically, 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.
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, 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 and may affect custody decisions.
What is the difference between joint and sole custody?
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.
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
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: one child: 20% of payer's net; two children: 25% of payer's net; three children: 32% of payer's net; four children: 40% of payer's net; five or more children: 50% of payor's net. 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.
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. 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. 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.
What if my spouse files and I do not want 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, efforts towards restricting the divorce are futile.
How do I choose grounds for my divorce?
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. For a divorce based on fault, common grounds include: 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.
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 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. 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.
Can I take the children out of state?
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.
Once the divorce case is filed, when can I get support or visitation?
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.
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.
Can I work out a settlement directly with my spouse?
Nothing prohibits you from talking directly with your spouse concerning settlement.
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.
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. 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.
My husband has threatened to quit his job if I pursue him for child support. Can he do this?
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, an order forcing the person to look for work and report to the court weekly regarding their progress, or other sanctions including attorneys fees.
How old do my children have to be to decide where they want 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.
Will I lose in a custody case because I am a man?
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.
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.
You can find much more information by browsing through our Illinois Divorce and Family Law topic page.