With offices in downtown Chicago and Wheaton, for cases throughout Cook and DuPage Counties, I counsel and represent individuals who are going through divorce. I understand that divorce is trying for all parties. As a result, I emphasize mediation and attempting to settle the case, but always with an eye toward litigation to protect my client’s interests in the event that settlement fails.
Whether you are going through dissolution of marriage or civil union, or legal separation, my goal is to help you get through your case with the minimal amount of stress and best possible results. I represent clients in all matters of parenting time (formerly called custody and visitation), child support, domestic violence and paternity. My experience in these and related matters means you get well-rounded representation capable of handling all facets of your case.
A divorce (I use this term for both, a dissolution of marriage and civil union) is a method of terminating a marriage/civil union contract between two individuals. From a legal standpoint, your divorce will give each person the legal right to marry someone else, it will legally divide your assets and debts, and determine the care and custody of your children. Each state addresses these issues differently, but there are some relatively uniform standards. Each state, including Illinois, does have some type of “no fault” divorce laws that can significantly simplify the divorce process. Most states, like Illinois have done away with all but no fault divorces.
A “fault” divorce is one in which one party blames the other for the failure of the marriage by citing a legal wrong. This does not exist in Illinois any longer. Grounds for fault used to include adultery, physical or mental cruelty, desertion, alcohol or drug abuse, insanity, impotence or infecting the other spouse with a venereal disease.
Length of Divorce
It is impossible to provide a definitive time, however, there are some general timelines. Following service of the Petition for Dissolution, the Defendant has 30 days to respond to the Petition. Each party has 28 days to respond to discovery requests, but in some cases parties waive discovery and in others parties drag their feet and must be compelled to respond. Throughout the process, there may be court appearances and/or negotiation attempts. How long that takes is a function of the ability of the parties to negotiate and agree upon issues of parenting time (formerly, custody & visitation), support, asset and debt distribution. Mediation with a neutral third party (a mediator) often facilitates and shortens the process. The shortest divorce in my experience took about a month and the longest about four years.
Custody (now referred to as parenting time) is determined by agreement or based upon the “best interest of the child” standard. Both parents can be fit and proper persons to have “joint legal custody” (now referred to as joint decision making authority), while one parent can be granted “primary residential custodian” (now referred to as majority of parenting time). The parties may also share residential custody (now referred to as shared or equal parenting time), though this is less common. Joint legal custody/decision making is generally preferred, but where parents cannot work together to continue to parent their children, sole custody/decision making authority may be awarded.
In Illinois, there are 3 different estates to consider in a divorce proceeding: (1) the marital property, primarily acquired during the marriage, regardless of whose name it is in; (2) and (3), the non-marital estate of the each spouse. Property belonging to either Wife or Husband prior to the marriage or acquired by gift or inheritance and kept separate throughout the marriage is nonmarital. Each party is entitled to their non-marital estate and to an equitable share of the marital estate without regard to fault on the part of either party. “Equitable” does not mean “equal” . The courts generally start with an equal division and then look to various factors which will change the percentages, i.e., unequal earning power, responsibility for children, disabilities, share of non-marital property and various needs of the parties. It is true that in most cases, equitable, does end up being equal.
No Fault Divorce
Traditionally, divorce was granted on the basis of some marital misconduct such as adultery or physical abuse. In these cases the “guilty” spouse was punished by getting a smaller share of the couple’s property or being denied custody of their children while the “innocent” spouse was rewarded for being faithful to the vows of marriage. In a no fault divorce, however, both parties agree that there is no “fault” involved in the grounds for divorce. In fact, any misconduct is irrelevant to the divorce proceedings. In Illinois, a marriage can only be terminated because the couple agrees that it is no longer salvageable. Legally, the only remaining grounds for divorce are “irreconcilable differences.”
Period of Seperation
In Illinois most parties divorce on the grounds of irreconcilable differences (no fault). Until recently, Illinois law required that the parties have either lived separate and apart for a period of two years or six months and that they waive in writing the two year period of separation. Now, six months prior to the date of divorce is the only separation that is needed.
Cost of Divorce
Like the length of a divorce, the cost of a divorce is impossible to generalize. The cost is a direct result of the ability of the parties to reach agreement. Of course, the parties are influenced by many factors, some within and some out of their control. For example, circumstances, such as prior abuse, and medical and psychological conditions, may make settlement impracticable. At times, other individuals, significant others, family members, attorneys, etc., may make negotiations difficult. Most attorneys charge by the hour and the more hours spent on discovery, negotiations and arguments involving your attorneys the more the divorce will cost. Mediation can be used to minimize costs, but both parties must be open to mediation for it to be successful. I have had divorce cases completed within $1,000 and ones that cost in excess of $50,000.
Child support used to be paid by the non-custodial/non-residential parent. Now, it is still mostly paid by the parent with less parenting time, but not always. Child support is a right each child has and the parent cannot waive that right for the child, but child support may be reserved for determination at a later date under certain circumstances. Child support used to calculated solely based on the net income of the non-residential parent. Now, child support is calculated based on the parents’ joint total support obligation (figured out by the State) and each parent pays his/her share based on the his/her relative income and annual parenting time. In most cases this results in the parent with less parenting time paying his/her share of the total support obligation to the other parent.
Pension or retirement benefits, earned during the marriage are subject to division. Generally, the marital portion of each account is divided equally between the parties. The method of calculating that portion is often a matter of debate, and should be discussed with your attorney in depth.
Spousal support is known as “maintenance” and varies with each case. It is dependent upon many factors including, your ability to support yourself, your spouse’s ability to support him/herself and you and the lifestyle established during the marriage. If an award of maintenance is appropriate, it is usually calculated using a statutory formula.
A Strong, Reliable and Convenient Ally In Your Corner
I have offices in DuPage County and downtown Chicago. I make myself available to my clients and I respond to calls and e-mails same day whenever possible, but nearly always within one business day. I do not accept cases I do not intend on handling attentively and well. My aim is to do the worrying for you so you can go on with your life. Please contact me to learn more. It would also be helpful if you complete and submit the Family Law Questionnaire.