Divorce FAQs

How Does the Divorce Process Work?

There are specific steps to any divorce proceeding. First you attend an initial consultation with an attorney where you are given detailed information about your specific circumstances. A Petition for Dissolution of Marriage is prepared, signed by you, and filed with the Clerk of the Circuit Court. Your spouse then files an answer to the Petition or Dissolution of Marriage. Information is then gathered about the children (if any), the assets and debts of the spouses, and the income and future needs of the parties. If there are children, you might be required to attend mediation/evaluation (the specific requirements vary from county to county). After all this, either a settlement is negotiated or the matter may continue to trial. It is vital to obtain the counsel of a knowledgeable and competent attorney to guide you as quickly and efficiently as possible through the divorce process.

How Long Does a Divorce Take?

Each divorce is a unique process. However, there are some standard timelines. Your spouse has 30 days to file an answer to the Petition for Dissolution of marriage. Each party must provide any requested information and documents, which can take as short a time as 28 days or may take much longer, depending upon the level of cooperation between the parties. After pertinent information is gathered, the parties must agree upon the issues of custody, property division, and future support. Use of a neutral, trained mediator may facilitate an agreement. In the absence of an agreement, the matter will be set for pre-trial and then trial, scheduling depends completely on the Judge’s calendar, and may take several months.

How Much Does a Divorce Cost?

The cost of a divorce depends entirely on the ability of the parties to provide necessary information and reach an agreement. Most attorneys charge by the hour and the more time necessary to complete the required steps of the divorce process, the more the divorce will cost. A client can dramatically decrease the cost of a divorce by being organized, providing the necessary information, and working to secure the cooperation of his/her spouse in the process.

How Can I Get Money to Pay for an Attorney?

If you don’t have access to the funds necessary to pay for an attorney, a petition can be filed with the court to require your spouse to take funds in his/her possession to pay towards your initial attorney fees. This procedure is independent of the Judge’s ability to make a final award for payment of attorney’s fees at the end of a divorce.

Who Will Get Custody of the Children?

Absent an agreement, the Judge will determine custody based upon what is in the best interests of the children. Even though both parents are fit and proper persons to have custody of the children, one parent will most likely be found to be the better custodial parent. The differences between sole custody, joint custody, and shared custody are to complex to be addressed here, but there are actions you can take to improve your chances of being found to be the better custodial parent. A major element is who provides the day to day primary care for the children.

What if there is No Agreement on Custody?

Mediation is the process wherein the parties meet with a trained mediator and attempt to reach an agreement, in this case on custody. Evaluation is the process wherein the parties meet with a psychologist who then gives the Judge a recommendation on an appropriate custodial arrangement for the children. The exact procedures for the mediation/evaluation process vary from county to county. In Kane county mediation is either voluntary or must be ordered by the Judge. If there is no agreement on custody, visitation or anything to do with children the parties are ordered to attend the mandatory evaluation sessions resulting in a recommendation to the Judge.

What About Child Support?

Child support is paid by the non-custodial parent to the custodial parent. Child support is a right belonging to the children and neither parent can waive that right, however, child support can be reserved (temporarily stopped) based on the financial circumstances and agreements of the parties. The divorce statutes provide the following minimum guidelines in establishing child support. However, upward or downward adjustments may be made by the Judge, depending on the needs of the children, the financial circumstances of the parties, and other relevant circumstances.

No. of Children

% of Net Income

1
2
3
4
5
6

20%
28%
32%
40%
45%
50%

What About Alimony?

Alimony is now known as Maintenance and varies with each case. The Judge may order either rehabilitative or permanent maintenance based upon the following factors:

  • The income and property of each spouse;
  • The needs of each spouse;
  • The present and future earning capacity of each spouse;
  • Any impairment of the present and future earning capacity of the spouse seeking maintenance due to that spouse 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 spouse seeking maintenance to acquire appropriate education, training, and employment, and whether that spouse 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 spouses;
  • The tax consequences of the property division;
  • Contributions and services by the spouse seeking maintenance to the education, training, career or career potential, or license of the other spouse;
  • Any valid agreements;
  • Any other factor that the Judge finds to be just and equitable.

How is Our Property Divided?

Before property is divided it must be determined what is marital property and what is non-marital property. Marital property is all the property earned during a marriage, regardless of who holds title to the property. Non-marital property is that property belonging to either spouse prior to the marriage or acquired by a spouse by gift, inheritance, or the appreciation of non-marital property. However, it is possible that non-marital property may have been converted to marital property. When dividing property, first, each spouse is awarded his or her non-marital property. Then each spouse is entitled to an equitable share of the marital property based on the following factors:

  • The contribution of each spouse to the acquisition of marital, including the contribution of a spouse as a homemaker or to the family unit;
  • The dissipation by each spouse of the marital or non-marital property;
  • The value of the property assigned to each spouse;
  • The duration of the marriage;
  • The economic circumstances of each, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
  • Any obligations and rights arising from a prior marriage of either spouse;
  • Any premarital agreement of the spouses;
  • The age, health, occupation, amount and sources of income, employability, wealth, liabilities, and needs of each of the spouses;
  • The custodial provisions for any children;
  • Whether the award of property is in lieu of or in addition to maintenance;
  • The reasonable opportunity of each spouse for future acquisition of capital assets and income;
  • The tax consequences of the property division upon the respective economic circumstances of the spouses.

What Happens to Retirement Benefits?

Pensions, 401(k)s, IRAs and other retirement benefits earned during the marriage are marital property, and are subject to division with other marital property as set forth above. The tax consequences of the division of retirement benefits are very important, and it is critical that you obtain the advice of an experienced attorney prior to any such action.

 

Attorney Warren G. Sylvester


     

We offer free, 30-minute initial consultations and welcome clients from communities throughout Kane and Kendall counties, including Geneva, Elgin, Aurora and St. Charles.

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Law Office of Warren G. Sylvester | Geneva, Illinois