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. If both parties live in the same county, it is immaterial who files first. Judges do not evaluate any issues in the case based upon who files it. Because a person who files a case can dismiss it for tactical reasons, it is usually prudent to file a counter-divorce to block them from doing so.
How long does the divorce last?
There is no simple formula for anticipating the length of the case. The complexity of the issues, combined with the level of cooperation between the parties and their lawyers, affect the length of the case. Typically, from the point of reaching a settlement, it takes approximately one month to finalize the divorce. If the case cannot be settled and needs to go to trial, the case will typically take at least one year to complete. While there are some exceptions, we resolve most cases (either by settlement or trial) within twelve to eighteen months after filing.
Can I date during the divorce?
It’s not a problem if you date while the case is still pending. But if you start a new relationship it may make your spouse dig in and fight harder. Also, 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 don’t involve the children with the new person in your life.
What is the difference between joint and sole custody?
Our State abandoned the concept of “child custody” in 2016. Now, rather than orders of child custody, 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 these issues based upon the best interest of the child. In that event, the court will set a hearing and both parents will testify to their respective plans, and why they believe their plan is in the best interest of their children. The court is to weigh a number of factors when deciding these issues but again, the north star is always a consideration of the children’s best interest.
What is shared custody?
Shared parenting schedules are designed to increase the amount of time children have with both parents. Shared parenting arrangements are often used to resolve custody disputes. Parents will agree to divide time with the children equally. This type of arrangement, with frequent exchanges between the parents, may have a detrimental effect on children. We recommend consulting with a child psychologist to get advice concerning the impact of a particular schedule on your family.
How much child support will I receive or pay?
Illinois has adopted 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. In addition to child support, the Court can allocated out of pocket expenses for the minor children.
Will my spouse have to pay my attorney’s fees?
Attorney’s fees are considered debts of the marriage, which means that marital assets will be used to pay both parties’ fees. Where there aren’t enough assets to pay attorney fees or costs of litigation, and one spouse has a greater ability to do so, the court may order that spouse to assist the other spouse. The law allows a party to seek help paying fees or costs fees throughout the case. The law also allows a court to order one of the spouses to pay or reimburse the other spouse for fees incurred at the end of a case.
Additionally, if court orders are not complied with, and a spouse incurs fees to enforce the order, the court will order the violator to reimburse the spouse incurring fees unless the violator can show a good reason why the order was violated.
What if my spouse files and I do not want the divorce?
Divorce is highly emotional. Sometimes somebody might not be prepared for divorce when their spouse files the case. The person who files the case typically has had years to work through their grief, and by the time of filing, they are ready to move on. The other spouse, in contrast, may be emotionally unprepared and may reflexively want to contest the divorce. But Illinois law does not allow you 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 they are willing to consider counseling or other options besides a divorce. But if the spouse is adamant in wanting to divorce, we usually recommend accepting it, getting a counselor, and doing your best to move on emotionally.
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, no grounds are necessary if a couple is separated for at least six months. Separation does not require parties to live separately; parties are considered separated if they are emotionally separated and not acting as a married couple. Suppose parties are not separated for six months. In that case, a party can still get a divorce over the spouses objection if the petitioning spouse proves that “irreconcilable differences” have caused the marriage to breakdown. Either way, it is difficult to block a spouse wanting to proceed with a divorce.
What is a legal separation?
A legal separation is a formal court proceeding in which the court grants a decree for legal separation. A legal separation allows people to enter orders allocating their income, assets, and debts, and live as if they are not married, without divorcing.
Legal separations are not often used. Generally, we recommend against a legal separation for people who are uncertain whether a divorce would be in their best interest. We 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 estate planning reasons. Often people contact us asking for a legal separation while they separate pending a possible reconciliation. However, if you want to separate for a period of time, we suggest instead 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, the likelihood of a successful reconciliation is small.
Can I relocate with the children?
If a parent wants to relocate with a child (and has the majority of the parenting time by prior order), the moving parent must notify the other parent in writing within 60 days prior to the potential move. This provision applies to any move exceeding 25 miles from the children’s present home (for residents of Cook County or the Collar Counties) and 50 miles for a move for parents residing outside the Chicago metropolitan area. If the parties do not agree to the relocation or a revised parenting schedule, the parent wanting to move with a child must then 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?
Once your spouse is properly served, the Court has the power to enter temporary orders until a divorce is granted. After service is effected, either party can immediately ask the Court for parenting time. Likewise, after a party has tendered their financial affidavit to the other, the Court can be asked for temporary maintenance and child support.
What will the divorce cost?The cost of a divorce varies depending upon the facts and circumstances of each individual case. Because each case is so so unique, it is difficult to predict the ultimate costs with any degree of certainty. 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 intricacy of the legal and factual issues involved and the general level of cooperation between the parties;
- the amount and type of assets at play;
- whether there are any disputes related to the children;
- whether there exists any agreements between the party between the parties regarding the issues in the divorce.
Can one attorney represent both parties?
The Illinois Code of Professional Conduct prohibits an attorney from representing both parties in a divorce. Due to the nature of a divorce, and the division of assets, there would inherently be a conflict of interest. An attorney can represent one party in the divorce case without the other spouse obtaining an attorney; however, significant and complex issues may arise during a divorce proceeding. We believe both spouses should have representation to resolve these issues correctly.
Can I work out a settlement directly with my spouse?
Despite the typical portrayal of divorces being unpleasant and prolonged legal battles, there are instances where parties can reach a settlement between themselves. Even when both parties are represented by counsel, nothing prohibits you from speaking to your spouse to settle the case. However, suppose your history with your spouse consists of following their every direction; in that case, settlement in this way can lead to dangerous results, especially if your spouse attempts to prevent you from reviewing the agreement with an attorney. Regardless of your relationship with your spouse, you should always seek attorney review of any settlement agreement reached before signing any documents.
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?
A child’s preference as to which parent the child wants, can be considered by the Court if the child has matured to the point they can express their preferences independently and with specific reasons. Most children are presumed by the Court to have matured when reaching the age of 12 or 13. Although not determinative of the division of parenting time or binding, the Court can consider the child’s reasons in the ultimate parenting arrangement. The Court is not bound by that preference, however.
Will I lose in a custody case because I am a man?
Courts use a “best interest of the child” standard to determine parental responsibility issues. Nowhere in the law is the gender of a parent considered. Courts focus on other factors, including past responsibility for the kids. Thus, the parent who acted as the primary caregiver for the children usually has a slight advantage, regardless of gender. Other factors courts consider include the parents’ health (physical and mental), the ages and preferences of older children, and whether either parent has engaged in domestic violence.
My wife has advised me that I can no longer have visitation with my children because I have a girlfriend, can she do this?
Parenting time must be determined by the Court or by agreement between the parents. If there is no court order or agreement in place, and a parent denies the other visitation, you must ask the Court to set a specific parenting time schedule. If the court-ordered parenting time continues to be denied, Illinois law provides for expedited relief. Depending on the circumstances, the parent who continues to deny parenting time to the other can be ordered to take parenting education courses, forced to allow the other parent make-up time, or even pay monetary penalties for each day parenting time was denied.
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. Likewise, due to recent changes in Illinois law, maintenance is not tax-deductible to the paying party, nor taxable as income to the recipient.
Can I stop parenting time during COVID-19?
If neither parent nor the child has been diagnosed or exposed to someone with COVID-19, the Court has indicated that withholding parenting time during the present pandemic will be viewed as an abuse of parenting time. However, if either parent or the child has been diagnosed with or exposed to COVID-19, the Court may not consider the prevention of parenting time as abuse.
How is maintenance calculated?
Illinois law calculates maintenance by subtracting 25% of the net income of the spouse with lower income, from 33 and 1/3% of the net income of the higher-earning spouse. In any event, the spouse receiving income may not receive an award of maintenance that exceeds 40% of the combined net income of both spouses.