Frequently Asked Questions About Chicago Divorce
For many families, divorce is a time of grief, stress, and chaos. Often, divorce also brings out other issues such as allocation of parental responsibilities, maintenance, child support, and property division. During such an emotionally charged time, you may have questions about everything from financial issues to parental arrangements.
Here are answers to some of the critical questions you may have:
A: No. As of January 1, 2016, Illinois is purely a no-fault state. Previously, Illinois was a no-fault state, but also maintained traditional grounds for divorce in its statutes for procedural reasons. In a no-fault divorce, there is no requirement to prove misconduct; rather, the court must merely find that there are irreconcilable differences between the parties. This finding is presumed if the parties have been separated for a period of six months or more.
A: It is impossible to say exactly how long a divorce proceeding will take. It depends on the facts of the case. If you and your spouse agree to settle your issues without a court hearing, then the process will likely be fairly short. However, if the divorce is contested, or if the court is particularly busy with other hearings already, then it is likely that your divorce will take much longer.
A: Ideally, you and your spouse can resolve property issues out of court, either through negotiation with one another, or with the assistance of your attorneys and/or a mediator. If mediation or other attempts at settlement are unsuccessful, the division of property will be determined by a judge through litigation. An Illinois judge will take into consideration several factors, including how long you were married, each spouse's occupation, the value of the property, the effects of any prenuptial agreement, each spouse's opportunity for future acquisition of assets, and who will have physical allocation of the children. Illinois is an equitable distribution state, meaning that the property is divided on an equitable basis as determined by the judge. The judge may give more weight to one or more of the factors, as he or she sees fit.
A: The cost of a divorce depends heavily on the details and complexity of the case. If you have an amicable, simple, and uncontested divorce, it will likely be fairly inexpensive. On the other hand, if you have an aggressive and complex divorce it may cost you a decent amount. Generally speaking, you may have to pay for things like court costs, legal fees, document production, or depositions. We recommend getting a pre- or post-nuptial agreement, as they can help keep emotions out of your divorce, should you end up requiring one, and keep the process as streamlined and inexpensive as possible.
A: The court will consider the best interests of the children while determining allocation, which Illinois now refers to as allocation of parenting time and allocation of parental decision-making responsibilities under the re-writes to the custody statutes as of January 1, 2016. It is common for the court to allocate parental responsibilities to both parties. This does not mean that the children will live equally with both parents, but it does mean that both parents will have authority on major decisions relating to education, religion, medical treatment, and extracurricular activities. This includes deciding where children go to school, which doctor they see, where they go to church, and which sports and activities they engage in. In some cases, the court may allocate parental decision-marking responsibilities to only one of the parents, typically in abusive situations and situations where the parents are unable to cooperate effectively to make decisions together.
A: Prior to July 2017, child support was a percentage based only on the net income of the party paying child support. A new law went into effect on July 1, 2017, which eliminates the former percentage model and bases child support on the parents’ combined net income. This approach allocates the amount of child support to be paid by each parent based on the parent’s net income and the child’s physical care arrangements.
Under the new law, income is calculated in a different manner. The new statute specifically includes spousal maintenance received pursuant to a court order as income for child support purposes. Social Security Disability and retirement benefits are also included in gross income; however, benefits from a means-tested public assistance program are not. After determining each parties’ gross income, the combined net income of the parties must be calculated for child support purposes.
The court can also order a contribution to extracurricular activities, school expenses, and childcare expenses.
A: It is impossible to say without looking at the facts of your case, as everyone’s situation is different. In the end, the court will be the one to decide if you are required to pay your former spouse maintenance after your divorce. There are many factors they will take into consideration for this decision, such as:
- What standard of living each party was accustomed to before the divorce
- How long the marriage lasted
- How much each party makes at their current employment
- How much each party owns in property value
- What the future earning capacity is for each party
- Whether one party has a lowered earning capacity due to time spent doing domestic duties during the marriage
- What the perceived need of each party is
- Whether one party is physically or emotionally impaired
If you are unsure as to whether you will be ordered to provide your former spouse with maintenance, look at your case as the court will and consider the above factors. An experienced divorce attorney can also help you determine how likely it is you will owe maintenance and how to fight that order if it seems likely.
A: Annulments are allowed in Illinois, but only under certain circumstances. An annulment in Illinois is only granted if the court finds that the original marriage was not valid. This means that the marriage should have never been recognized by the state, and so it can be dissolved. Often it is called a “declaration of invalidity of marriage” rather than annulment.
There are many reasons why a marriage in Illinois may be found to be invalid. Some of the more common ones include:
- A lack of consent on the side of one or both parties. This means that at least one of the parties had a cognitive disability, was married while intoxicated by alcohol or drugs, or was forced into the marriage via violence or fraud.
- One or both parties were under the age of 18, and did not receive consent from their parents, judicial approval, or legal guardians.
- The marriage was, for one reason or another, prohibited by law and thus illegal.
That being said, if the court finds that your marriage was valid, then an annulment will not be granted, and you will have to seek a divorce in order to become separated from your spouse.
A: It is not legal to hold someone in a marriage they no longer want to be part of. If your divorce is contested, it can certainly make the process take longer and it may be more emotionally difficult to go through. However, at the end of the day, your spouse does not get to keep the divorce from happening. Your marriage will be dissolved if you no longer feel the relationship is working out.
A: Even if you and your former spouse are on good terms and agree on important issues such as child allocation and property division, it would still be in your best interest to consult with a family law attorney. Whatever agreement that you and your spouse may reach with regard to property division, support, and child-related issues, you will need to make sure that the terms of your agreement are accurately put into a written agreement to present to the court for approval.
The experienced Chicago divorce attorneys at Nottage and Ward, LLP, can help review your case and guide you through what can become a complex process. We provide quality, compassionate legal support that you and your family deserve during these turbulent times.
Call us at (312) 322-2915 for a comprehensive and confidential consultation.
- The History of No-Fault Divorce in Illinois
- When Does Legal Separation Become Divorce?
- Understanding “Invisible Divorce”
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