Q. What are the steps for people to get divorced in Illinois?
A. In traditional litigation, one party files a Petition for Dissolution of Marriage. The party who files is called the Petitioner, and the other party is called the Respondent. If the Respondent will file their Appearance voluntarily, then they don’t have to be served in order to move the case forward. If the Respondent refuses to file their Appearance, then they have to be served with the Petition for Dissolution and a Summons by the Sheriff or a special process server. Once the Respondent has been served, they have to file their Appearance within 30 days, or face default judgment.
In a collaborative case, each party is represented by his or her own attorney, and they often agree to not file the Petition until everything has been decided and agreed to in writing within the collaborative process. Since the divorce statute changed as of January 1, 2016, when a maintenance formula was added to the statute (see below), the parties sometimes do agree to file the Petition as a way of stopping the clock on maintenance duration. With the passage of the Collaborative Process Act, effective January 1, 2018, if the collaborative team has agreed to file the Petition, thus triggering the commencement of court appearances, the parties can ask the judge to place the case on hold so that routine court appearances are not required for a period of time while the parties work out their agreements within the collaborative process.
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, even if the mediator is also a licensed attorney) drafts the necessary documents and one of the parties files the Petition for Dissolution in court.
Regardless of the way a case starts, the divorce will not be concluded until the parties have come to an agreement and signed a Marital Settlement Agreement, which identifies and distributes all of the assets and liabilities of the marriage, and, if applicable, sets child support and child-related financial obligations, as well as maintenance, if appropriate. If there are minor children, the parents also have to enter into Allocation Judgment and Parenting Plan which outlines child-related rights and responsibilities such as parenting time and decision-making.
Of course if the parties are unable (or unwilling) to come up with their own agreements, then a judge will decide for them. For good reason, most people choose to come up with their own agreements, rather than be forced to comply with what the judge orders.
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 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, parenting time and decision-making), 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. None. In Illinois, as of January 1, 2016, there are no longer “grounds” for divorce, and all divorces are based on “irreconcilable differences.”
Q. Do you have to live in separate homes to establish the 6 month 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 I receive a larger share of the marital estate if I prove the my spouse is the cause of the 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. As of July 1, 2017, Illinois follows the “income shares” method of calculating child support. Both parents’ incomes are taken into account and the State of Illinois sets the guideline amount of child support based on the combined incomes of the parents and the number of children in the family. The formula is too complicated to be summarized here, but the Illinois Department of Healthcare and Family Services has charts and worksheets on its website to help calculate the amounts each parent may be ordered to pay for child support. Most attorneys who practice family law, however, maintain software that they use to calculate the child support for each individual case.
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 also both contribute separately to extracurricular activities, child care and medical expenses not covered by insurance.
Q. What are the statutory factors the court considers in deciding whether to award maintenance?
A. Since January 1, 2016, there has been a maintenance formula in Illinois. The judge still first has to decide whether maintenance is appropriate (based on the 14 factors listed below), then, if maintenance is appropriate, the judge has to either order guideline maintenance, or state a specific reasons for not ordering guideline maintenance.
The guideline for the amount of maintenance is 30% of the higher earner’s gross income less 20% of the lower earner’s gross income, as long as the person receiving maintenance doesn’t receive more than 40% of the total gross incomes.
The guideline for the length of maintenance is determined by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.
The statute lists 14 factors for the court to consider when determining if maintenance is appropriate:
the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage;
the needs of each party;
the realistic present and future earning capacity of each party;
any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;
any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought;
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 any parental responsibility arrangements and its effect on the party seeking employment;
the standard of living established during the marriage;
the duration of the marriage;
the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties;
all sources of public and private income including, without limitation, disability and retirement income;
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. When does someone receive a greater percentage of the marital estate and when does someone receive maintenance?
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 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 is the difference between sole custody and joint custody?
A. This is sort of a trick question, because since January 1, 2016, there has been no such thing as “custody” in Illinois. But people still ask, so we answer! As of January 1, 2016, the court awards the “allocation of parental rights and responsibilities” to one or both parents. This term covers parenting time (both routine and holiday/special time) and decision-making in the areas of healthcare, education, extra-curricular activities and religion.
Q. How much parenting time will each parent be given?
A. There is no set formula, and if the parents cannot agree on a schedule, the judge will create a schedule based on the best interests of the child.
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 the children, after due notice to the other parent.
Q. If we get divorced, does that mean my spouse will get unrestricted or unsupervised parenting time even if that endangers the child? What is necessary to get restricted or supervised parenting time?
A. If the judge finds that unrestricted or unsupervised parenting time endangers the child, the judge can order that the parenting time 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.
Q. Is child support impacted by the amount of parenting time each parent has?
A. Yes. Under the new income shares guidelines, if one parent has more than 146 overnights, then the calculation changes.
Fees and Costs
Q. How much will it cost?
A. Our office handles family law matters on an hourly basis and charges 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 or part of the fees incurred during the case), as well as “interim” attorney’s fees for 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 spouse A has access to marital funds with which to pay attorneys fees, and spouse B does not have the same access, then the court can order spouse A to pay “interim” attorneys fees to the attorney for spouse B.
Q. Can my spouse and I save money 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 represent themselves (called 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. Often nothing is actually filed in court until everything is agreed upon in writing and ready for finalization by the court (saving attorney time for court appearances). (Please see “Collaborative Law” under Practice Areas for more information.)