Divorce FAQs

Everything you need to Know about the Divorce Process in Illinois

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 statute governing custody was changed in 2017 and there have been substantial changes to the law governing the determination of who the children will live with and who will make decisions on behalf of minor children.  The amount of time each party has the minor children can even have an impact on the amount of child support paid or received.  It is critical that you obtain the services of an attorney who is very familiar with the changes in the law to protect your children’s welfare and ensure your continued close relationship with your children.

What if there is No Agreement on Custody?

In the event an agreement with regard to the children is not reached soon after the divorce begins, there are 3 main actions the Court or the parties may take, specifically,

1)         Mediation (which is required in most counties in Illinois) is the non-adversarial process wherein the parties meet with a trained impartial third party trained mediator and attempt to reach an agreement, in this case on custody. The parties, not the mediator, make the decision. The mediator has no power to render a decision or to force the parties to accept a settlement. Because the voluntary settlement that the parties reach is designed by the parties themselves, it is more likely to be carried out without the need for external enforcement or further litigation.  The role of the lawyers is to advise their clients throughout the mediation process on their legal rights and obligations. (Even if the mediator is a lawyer, the mediator does not provide legal advice to the parties.) The parties cannot make competent and informed decisions without sufficient legal advice. The lawyers will also review the Memorandum of Understanding and see their clients sign the Separation Agreement.

2)         Another possibility is the Court appointing a Guardian ad Litem or GAL who is a trained attorney who meets with the parties, children, and other witnesses, and then makes a recommendation to the Judge with regards to the best interests of the children.  Here, I am talking about a GAL in a divorce or parental rights and responsibilities case. The GAL will look into the family situation and advise the court on things like:

  • where the children should live most of the time
  • whether the child is being harmed by a parent’s actions
  • what contact the child should have with a parent

3)         Evaluation is the process wherein one party retains the services of an evaluator (so the evaluator is not impartial) the parties meet with a psychologist who then gives the Judge a recommendation on an appropriate custodial arrangement for the children.  While not all evaluators utilize the same process, there are certain things that you should expect in all evaluations. These include:

  • At least two, and perhaps three, individual interviews with each parent,
  • At least two individual interviews with each child,
  • Observations of your children with each parent,
  • Review of court documents and other appropriate written information,
  • Contact with some collateral sources (e.g. therapists, teachers, day-care personnel, pediatricians), and
  • A written report with specific recommendations about custody / visitation, and which addresses all of the major concerns raised by you and your ex-spouse.

In addition, your evaluator might do psychological testing or use questionnaires that help provide additional information about your emotional functioning or parenting style. These additional techniques are commonly used by psychologists, especially in more complicated evaluations, and they are designed to provide further information that will help in his/her recommendations. Your evaluator might also include a home visit at each parent’s home. This is designed to give the evaluator an observation of your family in a more natural setting. Home visits are particularly useful with very young children, especially those under age 6.

What About Child Support?

Typically, child support is paid to the parent with a majority of parenting time with the minor children by the other 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 statute recently underwent a substantial chance and now child support is calculated based on both parties’ net incomes not just the payer spouses net income.  Additionally, if the payer has at least 146 overnights with the minor children, the statute provides for a substantial decrease in the amount of child support that party is to pay.  Ths change recognizes the increased costs the payer party has for providing appropriate housing for the children.  Finally, the new statute provides for a decrease in child support paid if the payer is responsible for providing support for other children not from the current marriage.  All this makes it even more important to contact an attorney conversant with the current child support laws to ensure that your children are provided for appropriately.

What About Alimony?

The laws which provide for Alimony also known as Maintenance have undergone extensive modification in the last few years.  Also, changes in federal tax laws have demanded that our state legislature make additional revisions.  First the Court must determine if alimony is appropriate based on 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;
  • 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, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each party;
  • All sources of public and private income including, without limitation, disability and retirement income;
  • 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.

Due to the recent revisions in the Federal Tax Laws, alimony awarded after January 1, 2019, is no longer deductible from the income of the payer and is not now includible in the income of the recipient.  Out State law was changed to now calculated an alimony award based on the net incomes of both parties.  Additionally, the new statute provides that if alimony is appropriate, the duration will be based on a percentage of the length of the marriage.  Due to the complexities of the new laws, it is more important than ever to contact an attorney with substantial experience in family law to guide you through the support process.

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 generally 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 in a Divorce?

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