Illinois Divorce Frequently Asked Questions
Q. HOW MUCH DOES IT COST TO GET A DIVORCE, LEGAL SEPARATION, OR CUSTODY JUDGMENT IN LINCOLNWOOD, GLEN ELLYN, CHICAGO, OR OTHER SURROUNDING AREAS?
A. The cost of a divorce varies depending on a number of variables, including the actions of your spouse. If your spouse desires to have a contentious divorce, it can be expensive. If you and your wife or husband are able to work together to form an agreement early in the process, this will save you money. Other issues that may make your divorce more expensive include highly emotional variables such as children with health needs, if your husband or wife has a personality disorder, and if maintenance or alimony is at issue. However, with the proper lawyers on both sides of the equation, your divorce or legal separation can be amicable and reasonably priced.
Q. HOW LONG DOES IT TAKE TO GET DIVORCED, LEGALLY SEPARATED OR OBTAIN OTHER KINDS OF FAMILY LAW JUDGMENT?
A. The duration of your divorce will depend on the complexity of issues and the cooperation or lack thereof of your spouse (and you) in the litigation. If you two are willing to act quickly and freely disclose information, the process can go rather quickly, such as 45 days to 3 months. If any person is going to play games, or if there are complex assets to be valued, or other issues that will require out of the box thinking, then a divorce can take in excess of a year. When children are involved, the court is supposed to limit the issue of custody to 18 months.
Q. IF MY HUSBAND OR WIFE CHEATED ON ME, DOES THAT STOP THE CHEATER FROM GETTING MAINTENANCE OR ALIMONY?
A. No, unless they are cohabitating with their partner. Otherwise, support is not based on “fault” issues. Fault issues can effect property distribution, but not alimony.
Q. WHEN DOES THE NEW ALIMONY OR MAINTENANCE LAWS COME INTO EFFECT AND WHAT DOES STATUTORY MAINTENANCE MEAN?
A. Commencing in January 2015, the State of Illinois is imposing guideline maintenance laws. This is similar to the guideline child support laws, but grayer. If your combined household income is more than $250,000 gross dollars, the new law will not have the same effect on your support.
Q. I WANT TO ADOPT MY STEP CHILD AND I DON’T KNOW WHERE TO START?
A. The first question you must consider when seeking to adopt a child is whether the biological parent is still in the picture. In order to adopt a child when their biological father (for example) is still alive, they must agree to terminate their parental rights–or a trial on the issue of terminating parental rights must be held. Once you get through that hurdle, then you have to prove your fitness to parent to the court. This step is usually not as burdensome, unless you have a criminal background. But even persons with criminal backgrounds can adopt under the right circumstances.
Q. I WANT MY EX HUSBAND OR EX WIFE TO CONTRIBUTE TO MY CHILD’s COLLEGE EDUCATION AND I DON’T KNOW HOW TO MAKE THIS HAPPEN?
Regardless of whether your divorce decree sets forth an obligation to contribute to your child’s college education, Illinois courts can make a divorced parent contribute toward their child’s college expenses. The first step in seeking contribution from your spouse or ex spouse is to file a petition with the Court. Once that petition is filed, you have preserved the issue retroactively to the date of filing and, at that time, you will exchange financial information with the other parent to determine whether contribution is likely to be ordered.
Q. WHY IS A PRENUPTIAL AGREEMENT OR PREMARITAL AGREEMENT RIGHT OR WRONG FOR ME?
Premarital agreements do more than just limit a party from receiving or not receiving certain assets. It also outlines whether a party will be responsible for paying alimony or maintenance in the event of a dissolution. If you have a business, a premarital agreement can protect your business. If created correctly, a premarital agreement can be right for every marrying party. It can also protect you in the event of death from other family members of the deceased. Premarital agreements cannot legally contract on issues related to a child, however, such as custody, visitation or limiting support.
Q. MY HUSBAND OR WIFE IS NOT SHOWING ME OR REFUSES TO PROVIDE ME WITH PROOF OF LIFE INSURANCE COVERAGE, NOW WHAT DO I DO?
A. If your divorce decree states that your ex should be maintaining life insurance, you have every right to receive proof of that policy. If they refuse to show you it’s active, then you may have cause for filing a petition for rule to show cause, in which case they may be responsible for your attorney’s fees and costs incurred in filing the suit.
Q. HOW DO I GET THE FATHER OF MY CHILD TO PAY CHILD SUPPORT FOR OUR BABY WHEN WE WERE NEVER MARRIED?
Unwed fathers have the same obligation to support their child as married fathers. If you had a baby out of wedlock and the father is not contributing to the expenses of your child, you may be eligible for child support and other expenses (such as medical costs, child care, and extracurricular activities) from the parentage or paternity court. The same is true for fathers raising their children without help from the mother.
Q. CAN I MOVE MY CHILD OUT OF STATE?
Once you go through a divorce or like action, you cannot move out of state without court permission or written agreement from the other parent. There are specific factors that are taken into account when a parent desires to move out of state. If those factors are met, a court may grant you the right to move even if the other parent objects. There are different standards involved for in-state moves.
Q. WHAT DOES A “TRUE UP” MEAN FOR CHILD SUPPORT OR ALIMONY EACH YEAR?
A. When income fluctuates, you will often hear that a true up is necessary at the end of each quarter or year. That is when all income information is exchanged, and the accurate child support (or maintenance) sum is realized. If there has been an over or under payment, you “true up” at that time. Documents involved in a true up often include W-2s, 1099s, K-1s, tax returns, and bank statements. These documents include personal and business records. A person refusing to cooperate at the time of a true up may be sanctioned by the court.
Q. ALL OF MY ASSETS ARE TITLED IN MY WIFE OR HUSBAND’S NAME, HOW DOES THIS EFFECT MY PROPERTY DIVISION IN OUR DIVORCE OR LEGAL SEPARATION?
A. Illinois does not base property division on how an asset is titled. If an asset was obtained during the marriage, it is presumed to be marital property subject to division in your divorce. Therefore, if all of your retirement is held in your spouse’s name, but it was all saved during the marriage, you have equal rights to that retirement asset and may gain access to it through a Qualified Domestic Relations Order (QDRO) or Letter of Direction.
Q. WHAT IS DISSIPATION?
A. Dissipation is spending of marital funds on a purpose not related to the marriage. The most typical forms of dissipation include gambling, abusing alcohol, paying for pornography or prostitution, or spending monies on a girlfriend or boyfriend. Dissipation only occurs once your marriage is broken (irreparable). If dissipation is proven in your divorce matter, than you are entitled to a reimbursement from the party dissipating assets.
Q. DOES IT MATTER THAT MY HUSBAND OR WIFE IS CHEATING ON ME AND NOW WANTS A DIVORCE?
A. The fact that a party is having an affair does not bar their right to a divorce. It also does not bar them from seeking maintenance, alimony, or child support. Nor does it bar them from receiving an equitable division of the marital estate. Adultery may create dissipation, as set forth above.
Q. I WANT TO CHANGE OR MODIFY MY CUSTODY OR VISITATION ORDER, WHAT IS THE FIRST STEP?
A. If your judgment is outdated, either because of changes in your children’s life or changes in your life or etc., then you may have grounds to seek to modify your judgment. In order to do so, a petition to modify alleging a substantial change in circumstances must be filed with the court. This can be true even if you and the other party agree on the changes to occur. Issues related to your children are always modifiable. Maintenance or alimony is sometimes modifiable. Properly done property settlements are never modifiable unless an error occurred in drafting or a fact was not disclosed at the time of entry of judgment (i.e., a hidden asset is later uncovered). To determine whether your instrument is modifiable, you should consult a lawyer.
Q. I HAVE NO MONEY AND CAN’T AFFORD AN ATTORNEY, CAN I ASK MY HUSBAND OR WIFE TO PAY MY ATTORNEY FEES?
A. Yes. Illinois has a statute that is referred to as the Leveling of the Playing Field statute. If your husband or wife has control of all of the income or assets of your marriage, they can be required to pay your attorneys fees. They can also be called upon to contribute to your overall attorneys fees at the conclusion of your case.
Q. WHEN CAN I TELL MY SPOUSE I WANT A DIVORCE?
A. This is a personal question that will vary from case to case. Legally, you can tell your spouse at any time that you want a divorce. Strategically, you may wish to consult with a lawyer and learn your rights before you disclose your intentions to your spouse. The bottom line is that anyone that wants a divorce is entitled to one, whether or not their spouse feels the same way. However, your attorney will be able to view your matter as a business transaction while your emotions may otherwise cause you to make poor decisions. Always consult a lawyer before filing for divorce.