Frequently Asked Questions
Does it matter who files first?
It rarely matters who files a case first. However, if you and your spouse live in different counties or states, the first to file may choose where the case proceeds. Also, the party who files has the opportunity to put on his or her case first if the case goes to trial. Since a majority of all cases settle prior to going to trial, this is typically not sufficient reason for you to be concerned with filing first. Additionally, it costs approximately $100.00 more in court costs to be the first to file.
How long does the divorce last?
Each case is unique and there is no simple formula for determining the length of the case. The number and complexity of the issues, combined with the level of cooperation between the parties and their lawyers, determine the length of the case. Typically, from the point of reaching a settlement, it takes approximately one month to complete the paperwork and obtain a final court date. If the case cannot be resolved and will need to go to trial, the case will take at least one year to complete. While there are some exceptions, we resolve most cases within twelve to eighteen months.
Can I date during the divorce?
There are generally no legal consequences if you date while the case is still pending. Practically, however, if you start a new relationship it may inflame things and make your spouse “dig in” and fight harder. Additionally, if you expose your children to the new relationship it may confuse and upset them. Generally, we advise clients who want to date to be discreet and not expose the children to the relationship.
What is the difference between joint and sole custody?
Effective January 1, 2016, the concept of “child custody” was abolished. Now, rather than orders of child custody, parents will be allocated decision making rights and parenting time. Within 120 days of the beginning of the case, the parents are to submit, either jointly or separately, a parenting plan. At a minimum, the plan is to include:
- allocation of decision-making responsibilities;
- provisions for the child’s living arrangements and parenting time for each parent;
- a provision for mediation if the parties intend to make joint decisions regarding the children;
- provisions for access to medical and other records;
- a designation of the parent having the majority of the time;
- a designated address for the child for school enrollment purposes;
- contact information for each parent;
- notification procedures for future relocation by either parent;
- notification procedures in the event of emergencies, healthcare, travel or other issues;
- communication procedures for when the child is with the other parent;
- provisions anticipating possible future relocations of the parents (if applicable) ;
- provisions for future modification in the event certain contingencies occur (e.g. if a parent becomes incapacitated);
- applicability and terms of a right of first refusal;
- other arrangements to facilitate cooperation between the parents.
If the parents cannot agree on a plan, the court will decide allocation of parenting time and decision making based upon the best interest of the child.
What is shared custody?
Shared custody is a non-traditional form of custody designed to increase the amount of time children have with both parents. Shared custody is used to resolve custody disputes. Parents will agree to divide time with the children equally. This type of arrangement, however may have a detrimental effect on children. Our office recommends that any issue affecting children should be discussed with a child psychologist to get their input and advice concerning the impact of a particular schedule on your family.
How much child support will I receive or pay?
Until July 1, 2017, 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 guidelines in Illinois provide:
One child: 20% of payor’s net
Two children: 28% of payor’s net
Three children: 32% of payor’s net
Four children: 40% of payor’s net
Five or more children: 50% of payor’s net
The court typically applies the guidelines but can, under appropriate circumstances, deviate from the proscribed guidelines. For higher income paying parents, the court may order that support be less than the guidelines if the support exceeds the children’s needs. Similarly, the court may order support in excess of the guidelines if the needs of the children are unmet by application of the guideline. 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 typically make a support-paying parent also pay one-half of day care expenses incurred by the primary custodial parent relative to his/her employment or education, as well as one-half of uncovered medical expenses.
Commencing July 1, 2017, Illinois is adopting an income share formula for the payment of child support. This means that the court will consider the income of both parents and the expenses for the children, as determined by economic reports by the government, and support will be allocated between the parents based upon their ability to pay.
Will my spouse have to pay my attorney’s fees?
Generally attorney’s fees are considered debts of the marriage, which means that marital assets will be used to pay both parties fees. Where there are insufficient assets to pay fees, and one spouse has more resources than the other spouse, the court may order the spouse with more resources to assist the other spouse. The law allows a party to seek assistance from the other for attorneys’ fees on an ongoing basis during the case. The law also allows a court to order one of the spouses to pay for or reimburse a spouse for fees incurred at the end of a case.
Additionally, if court orders are entered either during or after the case that are not complied with, and the spouse seeking to enforce the order is forced to incur attorney’s fees, the court will order that those fees be paid by the person violating the court order.
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 when his or her spouse files the case. Sometimes the person who files the case has had 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 want to contest the divorce. Unfortunately Illinois law does not allow one to contest the divorce if you and your spouse are separated for at least six months. And separation does not necessarily mean living in two homes; rather it contemplates an emotional separation.
Generally speaking, when our clients don’t want a divorce, we reach out to the other party to see if he or she is willing to consider counseling or other avenues besides a divorce. But if he or she is adamant in his or her decision to divorce, we usually recommend getting a counselor and doing your best to emotionally move on.
How do I choose grounds for my divorce?
Before January 1, 2016 a party seeking a divorce was required to allege and prove grounds before a divorce was granted. Those grounds included fault based grounds (e.g. physical or mental cruelty) and no fault grounds (irreconcilable differences). Now, if couples are separated for at least six months, the party seeking the divorce may obtain one, regardless of whether the opposing party agrees to the divorce. In other words, one no longer needs to prove fault grounds to obtain a divorce judgment. Under the former law “separation” did not require parties to live separately; a separation was accomplished if the parties were emotionally separated and not acting as a married couple.
What is a legal separation?
A legal separation is a formal court proceeding in which the court grants a decree for legal separation. The concept of legal separation allows people to divide their assets, allocate their debts, and live as if they are not married, yet not be formally divorced.
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. We typically use this procedure only where parties want to separate their legal affairs for a lengthy an indefinite period but want to avoid a divorce for religious or other reasons. Often people contact us asking for a legal separation while they temporarily separate pending a possible reconciliation. However, if the parties want to separate for a period of time, we suggest they reach an informal agreement to avoid unnecessary court costs. Obviously, if the trust in a relationship is so low that a court order needs to be entered pending reconciliation, one shouldn’t expect a successful 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.
Can I relocate with the children?
If a parent has equal or the majority of parenting time with a child, that parent must notify the other parent, in writing, of plans to relocate within 60 days prior to the potential move. This provision applies to any move more than 25 miles from the children’s present home for residents of Cook County or the Collar Counties (including Kane County) and 50 miles for any move for a parent residing outside the Chicago metropolitan area. If the parties do not agree to the relocation or a revised parenting schedule, the parent desiring to relocate must file a petition with the court seeking permission to relocate with the child. The court is to either allow or deny the relocation based upon the best interest of the child.
Once the divorce case is filed, when can I get support or parenting time from the court?
The court has the power to grant temporary orders while a divorce is pending. Virtually immediately after the case starts, one of the parties can ask the judge to order temporary maintenance, child support or parenting time.
What will the divorce cost?
The cost of a divorce varies depending upon the facts and circumstances of each individual case. Attorneys in a divorce bill for time spent on the case, the more time an attorney devotes to the case, the larger the bill will be. Factors affecting the cost 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 and the general level of cooperation between the parties,
- the amount and type of assets,
- whether there are any disputes related to the children.
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 have a conflict of interest. An attorney can, however, represent one party in the divorce case without the other spouse obtaining his or her own independent representation. Generally we believe that both parties should have representation because of the many complicated and significant issues involved in a divorce proceeding.
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. If you do reach a settlement you consider to be fair, tell your spouse that you will need to speak with your attorney about the settlement before totally committing to it. Your spouse may try to dissuade you from talking to your attorney about the settlement. In that case, 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.
What happens if my spouse wrongfully takes money before or during the divorce?
If one of the parties improperly takes money or disposes of assets, either before or during the divorce case, the court can consider that factor in dividing up the balance of property. When 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 breaking down, it is considered a dissipation of marital assets. If that occurs, the court can credit the non-dissipating party with a portion of the money dissipated at the end of the case. Generally, however, prevention is a better approach; all efforts should be made to ensure your spouse does not improperly use monies. While the case is pending, the court can enter an order known as a Preliminary Injunction, which bars the improper use of monies by either party during the case. Also, substantial bank accounts can be divided up at the beginning of the case to make sure one party does not have access to all of the resources to the exclusion of the other party.
Will it be used against me if I obtain a counselor?
We recommend that all of our clients having difficulties with the divorce consult with a counselor. If an individual needs counseling and does not seek professional help, that fact could actually be used against that party. Courts do not frown upon people looking for help during a difficult time in their lives.
Does it matter what my spouse alleges in the Petition for Dissolution of Marriage?
While 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 spells out the exact terms of your agreement. Petitions for Dissolution are intentionally vague and are designed to leave all options open.
What if I am uncertain whether I want the divorce after the case is filed?
We urge you to exhaust all efforts at reconciliation before proceeding with the divorce. People frequently change their mind after the case has been filed. If you do decide to reconcile on a “temporary” basis, you can do so without dismissing the divorce case by taking a “time-out” and putting the case on hold for a period of time. Alternatively, you can dismiss the divorce case and re-file it later if things don’t work out.
My spouse keeps talking badly about me to the children. How can I stop this?
This is an extremely difficult and toxic circumstance for children. Any time one parent is referred to in a negative way by the other parent, the child’s self esteem is diminished. Virtually all 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 intervene in court. Often times, however, the offending party denies the behavior. A court order prohibiting such behavior is difficult to enforce because we try to avoid having children as witnesses in court. Probably the best way of handling the situation would be to consult a counselor with your child to develop strategies for both you and the child in dealing with this unacceptable behavior.
My husband has threatened to quit his job if I pursue him for child support. Can he do this?
Courts rarely allow 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 be under a court order to pay as if he still had the job. If he refuses to pay, the court can enforce the order in the following ways including:
- Ordering jail time;
- A court order forcing the person to look for work and report to the court weekly regarding their progress;
- Other sanctions including attorneys fees.
Many times during a divorce people make threats out of anger and frustration but do not follow through with those threats. The courts are prepared, however, to take action if a spouse does financially hurt the family.
How old do my children have to be to decide where they want to live?
There is no specific age at which a child can decide where he/she 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.
Will I lose in a custody case because I am a man?
In determining custody issues, the courts are guided by a “best interest of the child” standard. This standard does not discriminate against a parent because of their gender. Courts are predominately concerned with identifying the child’s “primary caretaker.” This person often has an edge in a custody case. If the parties were mutual caretakers of the children, then the party’s gender has no influence on the court’s decision unless the court feels that a child of a particular sex should be with the parent of the same sex for developmental reasons.
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, if a court order is in effect, neither party can take any action inconsistent with that order without prior permission from 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 chronic visitation abuse by either the custodial parent or the parent exercising visitation, the court can intervene. The offending party can be punished 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. When a parent attempts to use the children as a weapon to hurt the other parent, such behavior is considered despicable by the court. The court will address the matters and typically delivers a harsh response.
Do I have to pay tax on my child support?
Child support is not taxable to the recipient, nor tax deductible by the paying party. Maintenance, on the other hand, which is “spousal support,” is deductible by the payer and is taxable income to the recipient. Often times, we negotiate settlements considering the tax implications of a particular settlement.