Q: What are the steps for people to get divorced in Illinois?
A: In traditional litigation, one side files a Petition for Dissolution of Marriage. The spouse who files is called either the Petitioner or the Plaintiff, depending on the county. The other spouse is then served with the Petition for Dissolution and a Summons requiring a response within 30 days.
In a collaborative case, both sides have attorneys, but neither side files a Petition for Dissolution until everything has been decided in a team-oriented, problem-solving approach seeking to facilitate a fair and equitable resolution.
In mediation, a neutral mediator can work with the parties to facilitate to an agreement on all the issues to be resolved, and then an attorney (not the mediator) drafts the necessary documents and one of the parties files the Petition for Dissolution.
Q. What happens if the Respondent doesn’t respond within 30 days of being served with the Summons and Petition for Dissolution of Marriage?
A. They you can ask the judge for “default judgment” in your favor.
Q: How long will my case take?
A: This question (and the next, “How much will it cost?”) is what everybody wants to know, but is something nobody can answer for sure. Some cases can be finalized in less than two months. Others can drag on for more than two years or more. How long a case takes depends on the complexity of the issues involved (marital assets, non-marital assets, marital debts, dissipation of assets, maintenance, children, custody, parenting time), how motivated you and your spouse are to settle, how adversarial you and your spouse choose to be, the behavior of the attorneys involved, and many other factors.
Q: What are the grounds for divorce in Illinois?
A: In Illinois, a person may obtain dissolution of marriage either with grounds (ex. habitual drunkenness, adultery, mental cruelty) or without grounds (irreconcilable differences). There is no waiting period if grounds are alleged. If irreconcilable differences are alleged, then there is a 2 year waiting period which the parties can agree in writing to waive if they have been living “separate and apart” for 6 months. Most cases take at least six months to conclude, so having the requisite 6 month waiting period does not delay the process.
It’s important to note that the nature of the grounds and the degree of fault are seen as irrelevant by the court in determining an equitable property division. For this reason, divorces based on grounds are disfavored. One reason for this is that it was discovered that when divorces could only be granted base on grounds, and the nature of those grounds had an effect on division of the marital estate, the parties spend an enormous amount of time and money trying to smear the other in court. That behavior does not aid in helping the family heal and move on from the divorce.
Q. Do you have to live in separate homes to establish the waiting period for irreconcilable differences?
A. No. Courts often find people have lived their lives “separate and apart” even under the same roof if they haven’t lived as a married couple.
Q: Will the judge give me more child support if I have “grounds” for the divorce?
A: No. Child Support is determined and set according the statute, with some deviation allowed under certain circumstances. Grounds are irrelevant in the setting of support.
Q: Will I receive a larger share of the marital estate if I have fault “grounds” for divorce?
A: No. The judge will divide the marital estate “equitably” without regard to why the divorce is happening or who is more at fault. Note that “equitably” does not necessary mean “equally.”
Q: How is child support calculated?
A: Child support is paid by the non-custodial parent to the primary residential parent based on the net income of the non-custodial parent and according to the following statutory guidelines:
One child – 20%
Two children – 28%
Three children – 32%
Four children – 40%
Five children – 45%
Six or more children – 50%
Q: How is a child support obligation enforced?
A: Once the amount has been set by court order, the payor’s employer can be served with a notice to withhold the child support, in which case the amount is withheld from the payor’s wages and sent directly to the State Disbursement Unit which will then issue it to the payee (the parent who is receiving the child support). The parties can also agree to have it paid directly without going through the employer or the State.
Q: When child support is ordered, what is it supposed to be used for?
A: Child support covers food, shelter, clothes, and other necessary living expense of the children. Frequently, both parents will contribute to the medical expenses not covered by insurance, extracurricular activities and child care.
MAINTENANCE (formerly known as “alimony”)
Q: When does someone receive a greater percentage of the marital estate and when does someone receive maintenance (formerly known as alimony)?
A: Sometimes courts disproportionately divide the marital estate in order to compensate one spouse who has lower earning potential.
Sometimes the only way a court can compensate a party with lesser earning potential is by ordering monthly spousal support payments, now known as maintenance. Sometimes, a spouse who would ordinarily be entitled to monthly maintenance payments receives a larger share of the total marital estate instead of monthly payments after the divorce is finalized. Sometimes they receive both.
Q: What are the statutory factors the court considers in deciding whether to award maintenance?
A: The statute lists 12 factors:
The income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance;
The needs of each party;
The present and future earning capacity of each party;
Any impairment of the present and future earning capacity of the party seeking maintenance due to the party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;
The time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment;
The standard of living established during the marriage;
The duration of the marriage;
The age and the physical and emotional condition of both parties;
The tax consequences of the property division upon the respective economic circumstances of the parties;
Contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;
Any valid agreement of the parties; and
Any other factor that the court expressly finds to be just and equitable.
Q: What is the difference between joint and sole custody?
A: First what you need to know is that there is legal custody, which can be either joint or sole, and there is residential (or physical) custody, where one parent is designated the primary residential parent and the other parent has a right to parenting time (or “visitation”) with the child. Legal custody refers to the right to make medical, educational and religious decisions regarding the child. Joint legal custody requires that parents come to an agreement about these major decisions. Sole legal custody allows the custodial parent to make all decisions regarding medical, education or religious issues without consulting the other parent.
Q: Is the right to parenting time (or “visitation”) for the non-custodial parent the same in joint and sole legal custody situations?
A: Yes. Custody and parenting time are two separate issues. Generally the parties agree on legal custody and work out a mutually agreeable parenting schedule. If they can’t, the judge will decide for them based on the best interests of the child.
Q: Is child support different in cases of joint vs. sole legal custody?
A: No. The amount of child support is set by statute and does not depend on legal custody.
VISITATION OR PARENTING TIME
Q: How much parenting time will the non-residential parent be given?
A: There is no set formula. The statute indicates that the non-residential (or visiting) parent shall have reasonable visitation. Reasonable visitation is generally determined by how involved the non-residential parent has been in the child’s life. Parenting time can be extensive or rather limited.
Q: What about holidays and vacations.
A: Whatever the parents decide is usually approved by the judge, but typically parents alternate the major holidays (ex. Mom has Thanksgiving in even years and Dad has Thanksgiving in odd years.), and each parent generally has the right to take a vacation, with due notice to the other parent.
Q: If we get divorced, does that mean my spouse will get unrestricted or unsupervised visitation even if that endangers the child? What is necessary to get restricted or supervised visitation?
A: If the judge finds that unrestricted or unsupervised visitation endangers the child, the judge can order that the visitation be either supervised in a clinical setting, supervised by a professional supervisor outside a clinical setting, or supervised by someone chosen by agreement of the parties
FEES AND COSTS
Q: How much will it cost?
A: Our office handles family law matters on an hourly basis and charge against a retainer that must be paid at the beginning of representation and must also be replenished when the balance goes below a certain amount.
Q: Can my spouse be ordered to pay my attorney’s fees?
A: Yes. The court can order “final” fees (all the fees incurred during the case), as well as “interim” attorney’s fees of the other spouse in order to “level the playing field” during the litigation process. Again, it depends on the facts of the case, but generally if only one spouse is earning an income and can afford to pay the attorney’s fees of the other spouse who does not have sufficient assets or income, then the judge may order such a payment.
Q: Can my spouse and I save costs by having just one attorney represent both of us?
A: No. By law, an attorney in a divorce matter can only represent one party. However, in a basically uncontested matter, an attorney can represent just one party and the other party can remain unrepresented (proceeding “pro se”). The attorney who represents the one party can communicate directly with the pro se party in order to finalize the necessary documents.
Q: What is Collaborative Law?
A: Collaborative Law is a non-adversarial method of obtaining a divorce through problem solving designed to reach a fair and equitable resolution. Each spouse hires his or her own collaboratively trained attorney, and then the parties and their attorneys (and possibly divorce coaches and a financial neutral) have a series of group meetings where they work out everything that will be needed in the final court papers. Nothing is actually filed in court until everything is agreed (saving attorney time for court appearances). (Please see “Collaborative Law” under Practice Areas for more information.)