Frequently Asked Questions
The attorneys at Yavitz & Levey, LLP, understand that clients have many questions concerning the divorce process, and we have attempted to answer some of the more frequently asked questions. Please note that these questions and answers are not to be considered as legal advice nor do they constitute the creation of an attorney-client relationship. These questions and answers are generic in nature and may or may not apply to your particular situation.
Please contact Yavitz & Levey, LLP, at 312-924-4400 to schedule an office consultation to discuss your particular situation.
Attorneys’ Fees And Costs
- How much will it cost to get divorced?
- How are fees determined?
- What out of pocket expenses can I expect?
- Will I be required to pay for my spouse’s attorneys’ fees and costs?
- Will my spouse be required to pay my attorneys’ fees and costs?
- Is there a formula for determining attorneys’ fees?
- Where are attorneys’ fees and costs paid from?
- What is a retainer and how is it determined?
- Do you accept credit card payments?
- Can my spouse and I use one attorney?
- When should I hire an attorney?
- What are the fault grounds for divorce in Illinois?
- How do I initiate a divorce?
- Should I file first?
- What should I do if my spouse tells me that he/she wants a divorce?
- How long does a divorce take?
- Will there be a jury trial?
- What is a marital settlement agreement?
- What is an uncontested divorce?
- Why do I need a premarital agreement?
- What are the myths concerning premarital agreements?
- What can premarital agreements do?
- What can’t premarital agreements do?
- What are the requirements for valid premarital agreement?
- When is the best time to sign a premarital agreement?
- What are the advantages of a premarital agreement?
- How is maintenance (formerly known as alimony) determined?
- When does maintenance (formerly known as alimony) terminate?
- What are the tax consequences of maintenance (formerly known as alimony) payments?
- How is Property Divided?
- What is marital property?
- What is nonmarital property?
- What is transmutation?
- What is dissipation?
- What will happen to my house?
- What will happen to my retirement plans?
- What will happen to my investments?
- What will happen to my club memberships, frequent flier miles and credit card points?
- What happens to my business?
- Will I need to hire experts?
- How does marital misconduct affect property division?
- What are the tax consequences of property division incident to a divorce?
Allocation Of Parental Responsibilities (formerly known as Custody) And Parenting Time (formerly known as Visitation)
- How is “custody”, now legally known as the allocation of parental responsibilities, determined?
- What is the difference between joint allocation of parental responsibilities and sole allocation of parental responsibilities?
- What is split physical custody?
- As a noncustodial parent, what can I expect for parenting time?
- Following the filing of a divorce, what is necessary to remove children from the state of Illinois?
- What rights do grandparents have to visitation?
- How is child support determined?
- In addition to child support what other children’s expenses are required?
- When does child support terminate?
- Will my spouse and I be required to contribute to my children’s college education?
- What about my children’s medical and dental expenses?
- What are the tax consequences of child support payments?
- How does the law define domestic violence?
- What is an order of protection?
- What happens if there is a violation of an order of protection?
- What information will my attorney need from me?
- What is involved in a divorce case and how long will it take?
- How is a judge selected? What if I don’t like my judge?
- How often will I have to go to court?
- What if I do not agree with or like what the trial court decides?
Attorneys’ Fees And Costs
- How much will it cost to get divorced?
The cost of a divorce varies and is difficult to determine without discussing the specific facts of the case. The number of issues to be addressed, the complexity of the issues and the inability to communicate between the parties are all examples of items, which will increase the cost to get divorced. Basically, the more time your case takes, the greater the fee. Your attorney will be able to give you a better estimate of the cost of your divorce once he/she learns the specific facts and issues present in your case, your spouse, counsel hired by your spouse and the judge assigned to your case.
Most attorneys charge minimum hourly rates for their services. Fees are determined by multiplying the rate your lawyer charges by the time they spend on each task associated with your case. Lawyers may charge different rates based on their education, experience, whether the task involves time in or outside of court, and whether or not an appeal is involved. Your lawyer should set forth their rates and the rates of each of the attorneys working on your case as part of the written retainer agreement.
Your fees will not be contingent upon the securing of dissolution of marriage, obtaining custody, or be based on the amount of maintenance, child support or property received.
Your attorney should not bill you for time spent to explain or correct a billing statement.
Please schedule an appointment with the lawyers at Yavitz & Levey, LLP, for a further explanation.
In addition to attorneys’ fees, clients can expect to pay for out-of-pocket expenses. These costs include, but are not limited to, the following:
• Court filing fee for the initial petition for dissolution of marriage
• Court appearance fee
• Other court fees
• Sheriff or special process server costs for service of court papers
• Court reporter fees for attendance at hearings, depositions or trials
• Fees to court reporters for transcribing proceedings
• Photocopy and scanning fees
• Travel costs
Perhaps. Illinois law regarding payment of attorneys’ fees is complex. In cases where you have the greater financial ability to pay attorneys’ fees and your spouse lacks the ability to pay his or her own fees, a court may order you to pay your spouse’s fees or make a contribution towards those fees. See following question.
Primarily, a client is responsible for the payment of his or her own attorneys’ fees and costs. If you are unable to pay your own attorneys’ fees, a court may require your spouse to contribute towards your fees and costs. Illinois law regarding payment of attorney’s fees is complex. There are two main types of awards: interim awards and contribution awards. Interim awards of attorney’s fees are those that are temporary awards — they are made while a case is still pending. Contribution awards are awards made at the conclusion of a case.
The Illinois law regarding attorney’s fees is often referred to as the “leveling the playing field” statute although it is actually a series of provisions affecting the payment of attorney’s fees in divorce cases. The goal of the statute is to allow each side in a divorce case to have equal access to legal representation. Additionally, if a court order is violated and the spouse seeking to enforce the order is forced to incur attorney’s fees and costs, the court should order that the fees and costs be reimbursed to the enforcing party upon a finding that the individual violating the court order did so without compelling legal cause or justification.
Attorneys’ fees are calculated by the hourly rate charged by the attorney (which will be indicated in your retainer agreement) and the time spent working on your case. Most firms, such as ours, bill in tenths of the hour.
Attorneys’ fees and costs are paid from the marital estate. Thus, the attorneys’ fees and costs incurred by both parties reduce the marital estate to ultimately be divided.
A retainer is a fee paid in advance to your attorney to secure his or her services. It is determined based upon the complexity of your case. The attorneys’ fees and costs earned will be charged against retainer until it has been exhausted. Your attorney may request you to replenish your retainer at that time. Your retainer payment is NOT an estimate of the total cost of your case. Your attorney should not require a nonrefundable retainer fee and must remit any overpayment at the end of the representation.
Yavitz & Levey, LLP, accepts Visa and MasterCard. The reason our firm accepts a credit card is because a client is required to keep his or her account current. Our firm is not in the position to finance a client’s divorce or litigation. Nonpayment of fees is a basis for our firm to withdraw as your attorney.
No, you and your spouse cannot use one attorney. In Illinois, the law expressly prohibits one attorney from representing both parties in a divorce. That being said, there is no requirement that your spouse hire an attorney; however, it is recommended. Should your spouse choose not to be represented, our firm cannot be considered as representing both parties.
It is very important that you consult with an attorney as soon as you realize that the marriage is in trouble. This is not to say that you intend to file for divorce at that time. However, by consulting with our firm you will at least learn what is involved and what you should expect. The consultation may or may not result in your hiring an attorney; however, it should give you a better perspective and help you in making the important decisions including separation and/or filing for divorce.
Since January 2016, Illinois no longer recognizes “grounds” for a divorce. Illinois is now a pure “No Fault” state. There is only one ground: “irreconcilable differences”. To be granted a divorce, one must prove:
- Irreconcilable differences have caused the irretrievable breakdown of the marriage;
- Past efforts at reconciliation have failed; and
- Future efforts at reconciliation would be impracticable and no in the best interests of the family.
All other grounds for divorce, such as mental cruelty and adultery, have been abolished in Illinois divorce law. The new law also provides that if the parties to a divorce live separate and apart for a continuous period of not less than six months immediately before the divorce, there is an “irrebuttable presumption that the requirement of irreconcilable differences has been met.”
You initiate a divorce by filing a petition for dissolution of marriage with a cover sheet certificate and summons and paying the filing fee. You will then need to arrange for service of the summons. While it is possible to file for divorce without the services of an attorney, this is not recommended. The old adage applies, a person who represents himself has a fool for a client. While you may believe your case is simple and that you and your spouse have reached an agreement, there are many aspects of a divorce that require the specialized services of an attorney, including issues involving the tax consequences of the divorce, child custody, visitation and other complicated matters not typically understood or recognized by the parties.
If possible, you should file first. There are several advantages that come with being the first to file including:
- Filing first (and early) creates a date to which the court may consider that the marriage broke down. This is an important date when it comes to issues of dissipation.
- Filing first may also give you an emotional and psychological edge over your spouse, and it gives you a little extra control.
- Filing first also allows your attorney to put on your case first in the event that your case goes to trial.
- Filing first allows you to choose which county the case is filed if venue exists in more than one county.
Contact our firm and schedule an appointment. Members of Yavitz & Levey, LLP, understand that this is a very emotional time in your life, and we will make every effort to schedule your appointment as soon as possible after you call. Office consultations take between one and two hours and can in most cases be scheduled that week.
The length of time it will take to finalize your divorce depends on several factors including, but not limited to, the complexity of your case, difficulties in serving your spouse, the size and nature of your estate, whether you have children, your familiarity with your finances, the organization of your finances, the time you have to devote to assisting in the preparation of your case, the emotions involved, the cooperation of your spouse, and his or her attorney and the availability of the judge. Typically, an uncontested case, where there are no significant issues and the parties are in agreement, can be completed in 30-90 days. Once the parties’ have signed a marital settlement agreement, your case typically can be finalized within two-three weeks.
Contested cases that involve disputes over custody or visitation, support or property division can take between six months to over two years. Obviously, reaching an agreement with your spouse is less time consuming that proceeding to a contested trial.
There are no jury trials in domestic relations proceedings or in domestic violence proceedings in Illinois.
A marital settlement agreement is an agreement between the parties settling each and every issue of their divorce. A marital settlement is often thoroughly negotiated between the parties and their attorneys if they have them. A marital settlement agreement will include a property settlement agreement as well as a parenting agreement (or custody judgment) if there are children involved. A copy of the marital settlement agreement is attached to the final divorce decree and incorporated therein making it a binding contract upon the parties creating obligations, which may be legally enforced.
An uncontested divorce is just as the name implies. Issues concerning custody, visitation, child support, maintenance (formerly known as alimony), division of marital property, designation and assignment of nonmarital property, and attorneys’ fees are all agreed upon by the parties and a marital settlement agreement is prepared and signed.
Premarital agreements, also referred to as prenuptial agreements, are becoming more and more common. While marriage is never something that should be entered into without serious forethought, it must be considered that marriage, besides being an emotional partnership, is also a financial partnership. Please ask yourself, would I enter into a business partnership with another person without having a written partnership agreement? If your answer is yes, don’t read any further because a premarital agreement is not for you. However, if your answer was no, then you must seriously consider a premarital agreement. This is especially the case when you consider that statistically over 50 percent of all marriages end in divorce. While no one enters into marriage with the idea they will get divorced, a realistic approach recognizes that divorce is a possibility. People change, they get older, their experiences expand, and what may have seen as desirable today may not be as desirable five, 10 or more years down the road. The person you marry today may not be the person you want to be with later in life and conversely, your spouse may no longer want to be married to you. Accordingly, a realistic person will recognize this and take steps to protect himself or herself, should the marriage fail.
Myth Number 1: Premarital Agreements mean I don’t love you. Obviously, if you did not love the person, you would not be considering marriage. Asking your intended spouse to join you in a Premarital Agreement has nothing to do with either love or trust. You trust the person or you would not be getting married. Requesting a Premarital Agreement is simply a realistic approach to marriage and the possibility that it may not work.
Myth Number 2: Premarital Agreements are only for rich people. While in the comparative scheme of things you may not be rich in the eyes of the world, you are rich in the sense that everything you own or earn is at stake once you get married. Illinois law provides that all property acquired during the marriage, irrespective of how it is titled, and all income earned during the marriage is considered “marital property” subject to division upon divorce. Please consider, without a Premarital Agreement you are exposing your wealth to be divided by a judge. Do you really want a stranger to make those decisions?
Myth Number 3: Premarital Agreements are not enforceable. Illinois has adopted the Uniform Premarital Agreement Act that applies to all premarital agreements entered into after January 1, 1990. That statute provides that unless your premarital agreement was obtained by fraud, duress or coercion, it will be enforced.
Myth Number 4: Premarital agreements are only for second marriages. While premarital agreements are a valid consideration in second marriages, they also should be considered in a first marriage scenario. People who have already gone through a first marriage, may have children and assets they want to protect in the event the second marriage fails, this is understandable and a premarital agreement can address those concerns. However, in the United States it is estimated that 50 percent of first marriages, 67 percent of second marriages and 74 percent of third marriages end in divorce.
Myth Number 5: I don’t need a Premarital Agreement because I have no assets. While it is true that many people do not have any assets or great income when they get married, most of us want to change that financial situation in the future. No one wants to remain poor for the rest of his or her life and the Premarital Agreement is designed to look forward and protect the future. Many people get married right out of school before they have established a career and acquired assets, but this will change. Also, more and more families who have assets they want to pass on to their children are counseling their children to have a Premarital Agreement to protect the family inheritance.
A Premarital Agreement can establish parameters concerning assets and income both during the marriage and in the event of a divorce or death. A Premarital Agreement can define what will be considered “marital property” and how it is divided upon divorce. It can also determine whether or not there will be maintenance, formerly known as alimony, if a divorce takes place, and if so, how much and for how long. A Premarital Agreement can define “nonmarital” property and provide that it be assigned to the owner on divorce. Also, a Premarital Agreement can affect how property is handled if one spouse dies during the marriage. Premarital Agreements are used to protect assets owned before the marriage, how gifts or inheritances are treated, and generally allows spouses to modify property rights, which may attach as a matter of law by reason of marriage.
Premarital Agreements cannot regulate child custody, support or visitation. Any agreement dealing with child custody, child support or visitation, whether it be a Premarital Agreement, a marital settlement agreement, or a sole or joint custody agreement associated with a divorce, requires the approval of a court.
Also, a Premarital Agreement must not be unconscionable when it is executed. While Premarital Agreements can regulate, limit or bar you from being required to pay or contribute towards your spouse’s attorneys’ fees and court costs, such a waiver may be unenforceable when it comes to child-related issues.
A Premarital Agreement must be in writing and signed by both parties. No other consideration need be given. The marriage itself is the consideration. Execution of the Premarital Agreement must be a voluntary act, free of coercion or duress. Typically a Premarital Agreement must not be unconscionable; however, an unconscionable agreement may still be enforceable if the agreement was unconscionable when it was executed and, before execution of the agreement, that party:
(i) Was provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(ii) Voluntarily and expressly waived, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(iii) Did have, or reasonably could have had, an adequate knowledge of the property or financial obligations of the other party.
Whether a Premarital Agreement is unconscionable is a matter of law to be determined by the trial court.
A Premarital Agreement should be based on a full disclosure of assets and income by both parties. Although it is preferred that both parties be represented by independent legal counsel, it is not a legal requirement.
Any Premarital Agreement that waives or restricts maintenance (alimony), may be unenforceable if that waiver causes undue hardship in light of circumstances not reasonably foreseeable at time the Premarital Agreement was executed. A court may require spousal support to avoid undue hardship.
The subject of a Premarital Agreement can be broached either before or after the engagement. It is not improper for a couple to discuss the subject of a Premarital Agreement before they get engaged, such as “you know, I would never get married without a Premarital Agreement” or “my family insists if I get married I have a Premarital Agreement.” A Premarital Agreement should never be a surprise, in fact, agreements that are first shown to the bride at the church just before the wedding, have be held as invalid by reason of duress or coercion. If there is going to be a Premarital Agreement, the sooner it is discussed and prepared the better. Everyone should have sufficient time to comprehend and understand the Premarital Agreement and its consequences. If a person absolutely refuses to discuss or enter into a Premarital Agreement, serious consideration should be given to their motives and whether or not there should be a marriage.
The greatest advantage of a Premarital Agreement is to allow a couple to have dignity in the end if there is a divorce. Marriages fail for many reasons. One of the most common reasons for divorce is the failure to fulfill expectations. Couples should not have to fight about asset division or maintenance at a time in their lives when they are going through a traumatic breakup. The Premarital Agreement helps a divorcing couple to get through the divorce process with minimal controversy. A Premarital Agreement can save both time and money, including attorneys’ fees and costs associated with a divorce. What otherwise may have been a contested divorce can instead be resolved with an amicable dissolution.
Illinois has adopted guidelines for determining the amount and length of maintenance in marriages where the court first determined that maintenance is appropriate. The factors a court is to consider in deciding whether or not maintenance should be awarded include such considerations as the income and property of each spouse, needs, present and future earnings, impairment to earnings including impairment due to devoting time to domestic duties, time needed to acquire training or education, standard of living during the marriage, length of the marriage, age, health occupation, tax considerations, any agreement of the parties and other factors a court finds is equitable.
Once a court determines that maintenance is appropriate, there is a formula for calculating the amount and duration of maintenance payments based on the gross income of the parties and the length of the marriage. Although a judge isn’t required to use this formula, if he or she chooses not to, there must be a finding explaining why he or she deviated from the formula. Also, the formula only applies to couples whose combined gross income is less than $500,000. Basically the formula calculates 30% of the paying party’s gross income minus 20% of the receiving party’s gross income; the number should not then exceed 40% of the parties’ combined gross incomes when added to the receiving party’s gross.
The duration of the maintenance award is then based on the length of the parties’ marriage. The formula is graduated so the longer the marriage the longer the maintenance expressed as a percentage of the number of years from the date of the marriage until the date of filing for divorce. For long marriages of 20 years or more, permanent maintenance may be awarded.
Under Illinois law maintenance terminates upon the death of the payor or the recipient, by marriage of the recipient or by the recipient’s cohabitation with another person, as determined by a court, on a continuing residential, conjugal basis. In addition, the parties in a marital settlement agreement can stipulate as to when maintenance is to terminate. This can include the factors mentioned above, or specify a given number of months or after a specific amount of money has been paid. The parties also can agree that maintenance is nonmodifiable either as to monthly amount or time, or both.
Typically, unless the parties otherwise agree, maintenance payments are tax deductible to the payor and are taxable to the recipient on both federal and state income tax returns. The one requirement for tax deductibility and inclusion is that the payments termination upon the death of the recipient.
Illinois is not a community property state. In community property states, property belonging to the community is equally divided 50-50. Illinois is an “equitable distribution” state. This is not to say that marital property is not equally divided in Illinois. There may be many equitable considerations that would result in a 50-50 asset division. It is just that courts in Illinois are not required to divide marital assets equally.
Illinois law directs a court to divide marital property in just proportions, without regard to marital misconduct, considering all relevant factors including:
• The contributions of each spouse to the acquisition, preservation, increase or decrease in value of property including decreases by reason of interim attorneys’ fees deemed to be an advance to a spouse from the marital estate and the contributions of a spouse as a homemaker of to the family unit.
- Dissipation of property
- The value of property assigned to each spouse
- Duration of the marriage
- Relevant economic circumstance of each spouse when the property is divided
- Obligations and rights of a spouse from a prior marriage
- Any antenuptial agreement
- Age, health, station, occupation amount and sources of income, vocational skills, employability, estate liabilities and needs of each spouse
- Child custody provisions
- Whether the division of marital property is in lieu of or addition to maintenance
- Reasonable opportunity for future acquisition of capital assets and income of each spouse, and
- Tax consequences of the asset division
Marital property is all property acquired during the marriage by either spouse except for nonmarital property.
Illinois law requires the court to assign to the owner his or her nonmarital property. Nonmarital property is:
- Property acquired by before the marriage or by gift, legacy, decent or property acquired in exchange for such property.
- Property acquired after a judgment of legal separation
- Property excluded by a valid agreement of the parties (such as a valid prenuptial or postnuptial agreement)
- Property acquired through a judgment awarded to a spouse from the other spouse
- The increase in value of property acquired from one of the above methods
- Income from nonmarital property not attributable to the personal efforts of a spouse
Transmutation is when one type of property (marital or nonmarital) is converted into the other type of property. A typical example of transmutation is where a spouse who owns a home before the marriage with title in his or her sole name, after the marriage places title in joint tenancy with the spouse. The previous nonmarital home has now become marital property.
Dissipation is defined in Illinois as the expenditure of assets for a nonmarital purpose at the time the marriage is undergoing an irreconcilable breakdown. If a court determines a spouse had dissipated marital assets, that dissipation will be taken into consideration, typically charged to the dissipating spouse, in the division of the marital estate.
Assuming your home is a marital asset, i.e. it was acquired during the marriage, the value of your home will be included in the list of total marital assets, with those assets then being divided as equity directs “in just proportions.” The courts are required to consider the desirability of awarding the family home, or the right to live in that home for reasonable periods, to the spouse having custody of the children. Some other considerations to be considered in awarding the home to one spouse are:
• The value of the house with respect to the value of the entire marital estate
• Should the house be an asset awarded to one spouse as an offset to the business being awarded to the other?
• The desire of a spouse to remain in the home
• The availability of alternate housing for the other spouse
• Whether or not it is economically feasible for a spouse to remain in the family home taking into consideration the cash flow of the spouse remaining in the home from income, investments, maintenance and child support
• The economic feasibility of either spouse retaining the family home or whether it would be better to sell it now and divide the equity
In many instances, a retirement plan may have been entered into before the parties got married. Those portions of plans that were entered into before the marriage and later continued to receive contributions during the marriage will be divided into marital and nonmarital segments. The nonmarital portions of the plans are assigned to the owner, while the spouses divide the marital portions as part of the equitable division of marital assets. This marital asset division of retirement plans can be through the entry of a qualified domestic relations order (QDRO) or as an offset of other marital assets. It is important to remember that most retirement assets contain “pretax” money and the tax consequences of a division must be taken into consideration.
Investments acquired during the marriage and which are marital property will be included in the marital estate and divided equitably in “just proportions.” See How is Property Divided?
Club memberships, frequent flier miles credit card points and merchant loyalty programs benefits acquired during the marriage are marital property which will be included in the marital estate and divided equitably in “just proportions.” See How is Property Divided?
A business that is marital property typically will be awarded to the spouse that runs that business with the value of the business included on the “marital balance sheet.” Courts understand that a divorce means separation, and typically the court will not deem it desirable to require the parties remain as “partners” in the business after a divorce. The major problems concerning businesses are the valuation of the enterprise and whether or not there are other marital assets to offset the award of the business to one spouse. It must also be remembered that the business is typically the primary source of income of a spouse which will be included in setting maintenance and child support.
Family law attorneys are just that, attorneys and not valuation experts. Typically, family law attorneys require assistance from experts in the valuation of marital property. Experts may be needed to value real estate, including the family home, business, investment and other valuable marital property. Experts may also be needed if there are issues of dissipation, vocational or employability issues, lifestyle issues involving the standard of living enjoyed during the marriage, medical or health-related issues of a spouse seeking maintenance, and child custody issues. The costs involved in hiring experts are over and above your attorneys’ fees. If you are not able to pay for an expert, your attorney may be able to petition the court for these fees to be paid by your spouse.
Illinois law specifically directs courts not to consider marital misconduct in either dividing property or awarding maintenance. This is not to say that a court will not consider marital misconduct that results in dissipation from taking that into consideration in dividing the marital estate.
Property divided as a result of a judgment for dissolution of marriage in almost every instance, will not be deemed “a taxable event.” Please check with your attorney or tax advisor concerning the tax consequences of specific property divisions or transactions.
Allocation Of Parental Responsibilities (formerly known as Custody) And Parenting Time (formerly known as Visitation)
The court determines the allocation of parental decision-making responsibilities by looking at the best interests of the child or children, considering factors such as:
- The wishes of the parents
- The wishes of the child
- The relationship of the child with his or her parent or parents, siblings, and any other person who may be significant
- The child’s adjustment to his or her home, school and community
- The mental and physical health of all individuals involved
- Physical violence or the threat of physical violence by the child’s potential custodian, whether directed against the child or another person
- The occurrence of ongoing repeated abuse as defined by the Illinois Domestic Violence Act
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child
- Whether one of the parents is a sex offender
The law regarding child custody is gender neutral, and does not favor either the father or the mother. Often, the parent who has historically been the child’s primary custodian is made the primary residential custodian.
- What is the difference between joint allocation of parental responsibilities and sole allocation of parental responsibilities?
Joint allocation of parental responsibilities means that both parents are entitled to make decisions regarding major issues affecting the child, including religion, education, health, and extracurricular activities. Parents awarded joint allocation are required to confer with each other and agree before making decisions on issues such as what religious upbringing the child will have, what type of school the child attends, and which non-routine medical or dental services the child will have.
Joint allocation of parental decision making does not refer to ordinary day-to-day issues affecting the child such as routine medical appointments, and it does not necessarily translate to an evenly split 50-50 physical parenting time. Typically, in a joint parental decision making agreement, one parent will be designated as the primary residential custodian and the other parent will be given reasonable parenting time (formerly referred to as visitation).
Joint allocation of parental decision-making responsibilities is not mandatory in Illinois, and will only be awarded if the court is satisfied that the parties are able to effectively and consistently cooperate with each other in matters directly affecting the joint parenting of a child. Joint parenting does not imply or presume equal parenting time. Parenting time is determined either by the agreement of the parties or by a court ruling.
Sole allocation of parental decision making to one parent refers to that parent’s legal ability to make all major, minor, routine and non-routine decisions regarding the child.
Split physical custody refers to essentially equal parenting time for each parent.
A noncustodial parent is entitled to reasonable parenting time rights unless the court finds that parenting time would seriously endanger the child’s physical, mental, moral, or emotional health.
Most commonly, a noncustodial parent can expect parenting time, which includes alternating weekends, alternating holidays, a fairly equal division of any spring and winter breaks, and approximately two weeks or more of vacation time during the child’s summer break. A non-residential parent often also receives one or two after-school evenings per week or every other week. This may not be the result in your case. It is up to the parties to reach an agreement or a judge will determine a reasonable parenting time schedule.
Parenting time arrangements by agreement can involve many variations and the parties can craft a schedule that fits their unique needs.
Even if both parents agree, a court order granting removal needs to be entered, do not just pick up and move. If the parents cannot agree, the parent seeking removal must petition a court and prove that such removal is in the best interests of the child. In determining whether or not a removal is in a child’s best interests the court will consider:
- The likelihood that the move will enhance the quality of life for both the custodial parent and the child
- The motives of the parent seeking removal and whether removal is merely a ruse to frustrate visitation
- The motives of the noncustodial parent in opposing the removal
- The effect of the removal on visitation for parent left behind
- Whether a reasonable and realistic visitation schedule and be reached
Grandparents of a minor child, as well as great grandparents and siblings of a minor child, may petition the court for visitation if there is an unreasonable denial of visitation by a parent and one of the following conditions exists:
• The child’s other parent is deceased or missing for at least three months
• A parent of the child is incompetent as a matter of law
• The child’s parents are divorced or have been legally separated pending a divorce and at least one parent does not object to the grandparent, great-grandparent or sibling visitation and the visitation does not diminish the visitation of the parent who is unrelated to the grandparent seeking visitation
• The child is born out of wedlock, the parents are not living together and the petitioner is a maternal or paternal grandparent, great-grandparent or sibling of the child
Rather than relying on the net income of the non-custodial parent, as of July 2017 the law now uses an income-sharing system, which looks at a more comprehensive set of factors when calculating child support.
There are three main factors to be considered under the “income shares” model of child support calculation:
- Basic child support obligation: The combined value of child support owed by both parents together, which is then divided proportionally between the parents based on each party’s contribution to the combined household net income.
- Additional expenses: Other costs, which are determined by the court, and added to the basic child support obligation. These costs can include childcare expenses, extracurricular activities, and outstanding medical or health insurance costs.
- Parenting time: The amount of time the child or children spend with each parent, which determines which parent should receive child support, if any. If the paying parent spends more than a certain number of overnights per year with the children, it will change the child support calculation.
Typically, a noncustodial parent will be required to maintain health, dental and/or optical insurance for the minor children, and either be ordered to pay all or a percentage of the medical and dental expenses not covered by insurance. The noncustodial parent may also be required to contribute towards day care expenses, lessons, tutoring and other extracurricular activities of the children. Courts may also order parents to continue to maintain or obtain life insurance for the benefit of the children.
Child support terminates on a child’s 18th birthday or their graduation from high school, but in any event, when the child is 19; whichever is later unless a court has determined that the support should be extended based on the needs of the child. A court often extends child support when the child is mentally or physically disabled and not otherwise emancipated.
The court may award sums out of the property an income of either or both spouses for the support of the child or children who have attained majority for the post high school educational expenses of those children.
An application must be made before or after the child has attained majority.
The authority of the court to make provision for the educational expenses of the child or children extends not only to periods of college education or professional or other training after graduation from high school, but also to any period during which the child of the parties is still attending high school even though he or she attained the age of 19.
The educational expenses may include, but shall not be limited to room, board, dues, tuition, books, fees, registration and application costs, medical expenses including medical insurance, dental expenses and living expenses during the school year and period of recess which sums may be ordered payable to the child to either parent or directly to the educational institution.
The court will consider all relevant factors that appear reasonable and necessary including, but not limited to:
• The financial resources of both parents
• The standard of living the child would have enjoyed had the marriage not been dissolved
• The financial resources of the child
• The child’s academic performance
In addition to child support, a court may require you to make additional payments towards all or part of a child’s health/dental/vision insurance as well as uncovered medical/dental/vision expenses. Uncovered expenses may include copays, deductibles, prescriptions, and any other medical, dental, and/or vision cost incurred as a result of a medically necessary treatment or procedure.
Child support payments, generally, are not deductible as an itemized deduction on the payor’s income tax returns and, likewise, generally are not reported as income on the recipient’s income tax return. Your attorney can discuss with you creative methods of apportioning support to create tax benefits.
In any proceeding involving child support, custody, visitation, education, parentage, property interest of general welfare of a minor or dependent child, the court may, on its own motion or that of any party, appoint an attorney to serve as a representative of the child. The court shall apportion the cost of the attorney appointed to represent a child between the parents. Representatives of the child may be appointed or hired in one of three capacities.
• Attorney: As an attorney, the hired or appointed person will provide independent legal counsel for the child and will have the same duties to the child as he/she would have to an adult client.
• Guardian ad litem: As a guardian ad litem, the appointed person will testify and/or submit a written report to the court regarding his/her recommendations in accordance with the best interest of the child. The report will be made available to all parties and the guardian ad litem may be called as a witness to testify regarding their report. The guardian ad litem will investigate the facts of the case as well as interview the child and the parties.
• Child’s representative: As a child’s representative, the appointed person will advocate as to what they find to be in the child’s best interest after reviewing the facts and circumstances of the case. The child representative will meet with the child and the parties, investigate the facts of the case and encourage settlement. The child’s representative has the same authority and obligation to participate in the litigation as does an attorney for the parties. The child’s representative is required to consider the expressed wishes of the child but is not bound by those expressed wishes.
In Illinois, domestic violence includes physical abuse, harassment, intimidation of a dependent, interference with personal liberty and willful deprivation.
Physical abuse is defined as sexual abuse, physical force, confinement or restraint, purposeful repeated and unnecessary sleep deprivation, and behavior which creates an immediate risk of physical harm.
Harassment is defined as unnecessary conduct which causes emotional distress and includes conduct such as creating a disturbance at the victim’s work or school, repeatedly telephoning the victim’s work or school, repeatedly following the victim in a public place, keeping the victim under surveillance, threatening physical abuse, and improperly hiding the victim’s child or repeatedly threatening to do so.
Intimidation of a dependent involves the abuser forcing the dependent (who is dependent because of age, health or disability) to participate or witness physical abuse.
Interference with personal liberty is defined as the committing or threatening to commit physical abuse, harassment, intimidation or deprivation with the intention of forcing the victim to do something he or she does not want to do or not allowing the victim to do something he or she has a legal right to do.
Willful deprivation is defined as the purposeful denial of medication, medical care, shelter, food or other necessary assistance to an elderly or disabled person thereby putting that person at risk of physical, mental or emotional harm.
There are three types of orders of protection: emergency, interim and plenary.
An emergency order of protection is the product of only the victim’s testimony before a judge. Prior notice to the alleged abuser regarding the hearing is not required. Emergency orders of protection can be sought even on weekends and holidays when courts are otherwise closed. An emergency order will last until the hearing on the plenary order, which is usually between 14 and 21 days.
An interim order of protection requires notice to the alleged abuser or his counsel if he/she is represented. Interim orders are usual granted for any time between the expiration of an emergency order of protection and a hearing on the plenary order of protection. An interim order of protection can last up to 30 days.
A plenary order of protection may be issued only after a full hearing on the matter and after both the victim and the alleged abuser have the opportunity to present evidence. A plenary order of protection may be entered for a period up to two years and there is no limit as to how many times the plenary order may be renewed subject to a motion to extend and either the abuser’s failure to contest or another hearing on the matter.
Remedies under an order of protection are:
• Prohibition of abuse, neglect or exploitation including prohibiting harassment, interference with personal liberty, intimidation of a dependent, physical abuse, willful deprivation, neglect or exploitation, or stalking
• Granting exclusive possession of a residence
• Stay away order prohibiting Respondent from entering or being present at petitioner’s school, employment or other specified locations
• Counseling orders
• Physical care or possession of a minor
• Temporary legal custody
• Prohibiting the removal or concealment of a minor
• Order to appear in court alone or with a minor
• Possession of personal property
• Protection of property, forbidding Respondent from taking, encumbering, concealing or damaging or otherwise disposing of any real or personal property
• Payment of temporary support for Petitioner or minor child
• Order payment of losses as a direct result of abuse, neglect or exploitation
• Prohibiting Respondent from entry or remaining in residence while under the influence of drugs or alcohol
• Prohibiting Respondent from possessing firearms
Violation of an order of protection may be a crime that can subject the offender to arrest. The county state’s attorney, not your private attorney, will be responsible to prosecute a criminal violation of an OOP. Violation of an OOP may also subject the offender to contempt of court proceedings that can result in a jail sentence and/or a fine.
Be prepared to provide your attorney with general background information about your family including the date and location of your marriage, the birth date of your spouse, the birth dates of your children, employment information, and residence information. It would also be helpful to having the following documents available for your attorney’s immediate review:
• One year of past banking (checking and savings) statements
• Past three years’ income tax returns
• Your own current pay stubs
• Your spouse’s current pay stubs
• Most recent account statements for any investment accounts
• Most recent account statement for any retirement accounts
• Any and all recent information involving your family’s finances
This information will allow your attorney to get a good overview of your family’s finances and will be a good indicator of the complexity of the financial aspects of your case. Do not worry if you do not have all of the above information available the first time you meet with your attorney since most of that information will be made available during the discovery phase of the case. Discovery is the process where each spouse is required to produce financial information concerning the family’s assets, liabilities, income and expenses. Discovery can include requests for production of documents, request to admit, interrogatories (written questions), subpoenas to third parties for documents and depositions (oral questioning under oath) of the spouses and third parties.
In any divorce case there are several stages. The initial stage you’re your case is filed. After filing there is the service of the petition for dissolution of marriage and the summons on your spouse who then typically has 30 days to file an appearance and response. At this point either the parties agree on temporary support and custody or the court conducts a hearing on these issues. This can typically take anywhere from two weeks to two months. The discovery phase of the case is the next order of business and can last between several months to over a year. See What information will my attorney need from me? Once the parties have the requisite financial information they should begin the settlement negotiation process. If you and your spouse are able to reach a settlement, the attorneys can schedule the final court hearing, called a prove-up, within two to three weeks.
If the parties are unable to reach a settlement, the case will need to be tried before the court. There is no way to know exactly when your divorce will take place prior to the court’s entering of a case management or trial order. That date selected by the court will depend on a number of factors including, whether your case is contested, how busy the court docket is, the schedules of the attorneys involved, your schedule, and your spouse’s schedule. If your case is contested, it is not at all unusual for a case to take anywhere from 12-24 months to go to trial.
Each county in Illinois has specific judges assigned to hear domestic relations cases. When a case is filed, a judge is randomly selected at the clerk’s office by the computer system to hear your case.
If you do not like the judge that was randomly selected for your case for any reason, you may make one change of judge as a right and the clerk’s office will randomly select another judge for your case. You may not request a change in judge after the judge has heard substantive matters involving your case.
Your presence will be required in court on occasion. At minimum your presence will be required at the trial of your case or at the prove-up of your case if you are the petitioner. Your appearance will be required when a contested evidentiary hearing is scheduled, such as a hearing on a petition for temporary support or child custody. The court may also require you to be present at a pretrial conference where settlement is being discussed. Your attorneys can advise you as to what each court appearance involves and whether or not your attendance is necessary. For example, if a court appearance is for status and/or scheduling, your presence would likely not be necessary, however, if you want to be present, let your attorney know.
Every litigant has the right to appeal from a final ruling of the trial court. The appeal is taken to the Illinois Appellate Court and is assigned to a three-judge panel. Each side files written briefs and, at the discretion of the court, oral arguments may be required. No testimony is taken in the Appellate Court and the court will decide the case based on the record on appeal, which contains the pleadings, testimony heard at the trial and the documents admitted into evidence. A written opinion will issued by the Appellate Court, which can either affirm or reverse the trial court, and remand the case back to the trial court with instructions. Appeals from decisions of the Illinois Appellate Court to the Illinois Supreme Court are not a matter of right and are only allowed by the Supreme Court granting leave to appeal.