FAQs

Frequently Asked Questions

How long will it take for my divorce to be final?

It’s impossible to predict how long it will take to resolve a divorce.  The more issues that are unresolved and the more the parties disagree, the longer the case will take.  Once the parties reach an agreement, it typically takes a few weeks to complete the necessary paperwork and obtain a final court date.  When child custody is at issue, the court is obligated to reach a resolution of the child custody issues within eighteen months of the date of filing.  The court is not obligated to resolve property issues within eighteen months, but typically does.

What happens if my spouse and I reconcile after filing for divorce?

Divorce is a difficult and emotional process.  It is not unusual for a couple to change their mind concerning a divorce after the case is filed. If you do decide to reconcile, even on a "temporary" basis, you can do so without dismissing the divorce case. Alternatively, you can dismiss the divorce case and re-file it later if necessary.

How much will my divorce cost?

Since every situation is unique, it is impossible to predict exactly how much your divorce will cost. An uncontested divorce will cost much less because it requires fewer court appearances and less attorney time. It also follows that the more issues you contest in your divorce, the more expensive it will be. Attorneys charge by the hour for the time they spend working on your case, whether it is in court, preparing pleadings or motions, or answering your questions by phone or email. Most attorneys require a retainer at the outset of the representation, which is held in an escrow account. You are then billed monthly for the work performed on your case. Any monies left on retainer at the conclusion of your matter shall be returned to you.

Will my spouse be responsible for my attorney's fees?

Generally, both parties are responsible for their own fees.  However, Sections 503 and 508 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) permit either spouse to request contribution for attorney’s fees from the other spouse.  In determining whether to grant a request for contribution, the court considers the relative financial positions of both spouses after the court has made an allocation of the couple’s property and determined whether to award maintenance.  To prevail on a request for contribution, it is not necessary to be destitute.  When payment of fees would strip a spouse of his or her means of support or undermine their economic stability, contribution is appropriate, provided the other spouse has the financial means to contribute.   Contribution petitions are typically granted when there is a significant income disparity between the parties.

Requests for contribution to attorney’s fees need to be distinguished from a request for interim attorney’s fees made pursuant to Section 501 of the IMDMA.  Either spouse may request funds for the payment of interim attorney’s fees while their case is pending.   Requests for interim attorney’s fees are often necessary when one spouse lacks access to the parties’ marital bank accounts.

Can one attorney represent both of us?

Pursuant to the Illinois Code of Professional Conduct, an attorney cannot represent both parties in a divorce case. By doing so, the lawyer would be violating a concept known as conflict of interest. An attorney can, however, represent one party in the divorce case and prosecute the divorce on behalf of that party, while the other spouse represents him or herself pro se.

How will I get a fair settlement if my spouse has all our financial information?

All spouses are required to complete and exchange financial disclosure affidavits detailing the nature and extent of all assets and sources of income pursuant to Section 501(a)(1) of the IMDMA.   The financial affidavit must be supported by copies of tax returns, pay-stubs, and bank statements.  Failure to disclose all required information or filing an inaccurate or misleading affidavit can result in penalties.  Additionally, your attorney can use the discovery process to ascertain the nature, location, and value of any assets belonging to your marital estate or to your spouse individually.

Can I get a divorce in Illinois even if my spouse refuses to consent?

Yes, you do not need your spouse's consent to obtain a divorce in Illinois.  You must only allege that irretrievable differences led to the breakdown of your marriage and efforts to reconcile have failed or would not be in the best interests of the family. Irreconcilable differences are presumed if you have lived separate and apart from your spouse for the six months immediately preceding the divorce.   Separate and apart does not necessarily mean that you maintained separate residences, just that you did not live together as husband and wife.

Can I date while my divorce is pending?

Generally, it is not a problem if you decide to start dating while your divorce is pending.  Practically, however, dating can have some unwanted consequences like inflaming your spouse and making it more difficult to reach a settlement agreement.  It may also be confusing for your children.  If you can't wait to date until you divorce is final, be discreet.  It is also worth pointing out that marital funds should not be spent on a new boyfriend or girlfriend.  If you have questions about dating, it's best to discuss your situation with an attorney of your choosing.

Do we need to live in separate residences before filing for divorce?

No.  In fact, couples often continue to share a home until the divorce is final, the marital home is sold, or until beginning a new job.  To obtain a divorce it is necessary to allege irreconcilable differences have led to the irretrievable breakdown of the marriage and that further attempts at reconciliation are not in the best interest of the family.  There is no requirement to live in separate residences.

Who will get authority to make significant decisions (custody) for the children?

There is no preference for either spouse when allocating significant decision-making authority.  Significant decision-making authority refers to decisions about healthcare, education, religion and extracurricular activities for the minor children.  Decision-making authority in these areas may be allocated in a number of different ways, giving exclusive control to one parent in one or more areas or sharing the responsibility in one or more areas.  If a divorcing couple is unable to agree on an allocation of significant decision-making authority, then a judge may ultimately decide guided by the best interests of the child standard.

Can fathers get sole or residential custody?

Illinois courts no longer award custody to either parent, but rather allocate parental responsibilities and parenting time.  There is no preference for awarding parental responsibilities and the majority of parenting time to mothers or fathers.  Judges must apply the best interests of the child standard when allocating parenting time and/or significant decision making authority between a mother and father.

What is the difference between joint and sole custody?

The terms joint custody and sole custody have been eliminated from Illinois law.  However, decision-making authority stills needs to be allocated to one or both parents.  Historically, joint custody meant that both parents had an equal say in the major decisions affecting their children's lives. Major decisions are those relating to religion, healthcare, education and extracurricular activities.  Sole custody meant only one parent could make decisions for the children in those areas.  Today, if parents cannot agree on an allocation of parental decision-making authority, a judge will use the bests interests standard to allocate responsibilities between the parents.

How is the amount of child support calculated?

Typically, child support payments are made to the parent with the majority of parenting time. In Illinois, the law sets guidelines for the level of support the non-custodial parent must pay. The guidelines provide for child support payments in the amount of 20% of net income for one child, 28% of net income for two children, 32% of net income for three children, 40% of net income for four children, 45% of net income for five children and 50% of net income for six or more children. The amount is based on the non-custodial parent's net income, which is the income from all sources minus the following: state and federal income tax, social security payments, mandatory retirement contributions, union dues, health insurance premiums, prior child support or maintenance obligations, and certain debt repayments.

A court may deviate from guideline support only if it makes findings that the guideline support would cause an undue hardship to the payer parent or would far exceed a child's reasonable needs, such as when the payer parent is a high earner.  In addition to guideline child support, you should also consider who will be responsible for paying for health insurance for the child and whether either parent will be financially responsible for college expenses after the child turns 18.

When will Illinois’ child support law change?

A new child support law is set to take effect on July 1, 2017.  The new law changes the way child support payments are calculated, taking into consideration the income of both parents.  The new law will also take into consideration the number of nights a child spends with each parent when setting child support.

What is the new Illinois law called?

Illinois’ anticipated new child support law is called Income Sharing.  Income sharing is distinguishable from our current child support law because it considers the income of both parents when making a child support award.

Can a parent avoid paying child support by quitting his or her job?

Every parent has a duty to support his or her children.  If any parent quits his or her job without good cause and for the purpose of causing financial harm, the law allows the court to set support based upon the parent's prior income.  At that point, the spouse would still be under a court order to pay as if he still had the job. If he refuses to pay, the court can employ various enforcement mechanisms to compel payment, including jail time, an order forcing the person to look for work and report to the court regularly regarding their progress, or other sanctions including attorney’s fees.  Learn more about Illinois Child Support laws here.

Can my children decide which parent they would like to live with?

In Illinois, children do not have authority to choose which parent they would like to reside with.  However, a court may consider a child's wishes with respect to custody, a court may consider a child’s wishes when the child is deemed to have the necessary maturity and ability to “express reasoned and independent preferences.”  Section 602.7(b)(2) of the IMDMA.  However, the court is not bound by that preference.   The child’s preference is only one factor considered in allocating parenting time.

Can I move out of state with my children?

Divorced parents wishing to move out of state with their children will need the written consent of the children’s other parent.  If the other parent refuses to consent to the relocation, then you may seek a modification to your Parenting Plan or Allocation Judgment allowing you to reside out of state with your children.  In making a determination, the court will consider whether the proposed relocation is in the best interests of the minor children.

Once my divorce is filed, when can I get support or visitation?

A divorce court has the authority to grant temporary orders while a divorce is pending.  Requests for temporary child support, custody, visitation or maintenance (spousal support) can be made almost immediately after the case commences.

What is a GAL?

GAL is short for guardian ad litum.  A GAL is an attorney with special training in family dynamics, child development, substance abuse, and mental health disorders.  A GAL is tasked with the job of investigating the family dynamic in order to make a determination about custody (parenting time and decision making).  The investigation will include interviews with the children and the parents and possibly teachers, caregivers, and physicians.  Based on the investigation, the GAL forms an opinion regarding the allocation of parenting time and decision making between the parents after applying the best interests of the child standard as utilized by the judge.  The GAL may write a report and can be called as a witness at trial and cross examined.

What is a Parenting Plan?

A Parenting Plan is a legal document that outlines how and when you and your spouse will parent your children following your divorce.  A Parenting Plan sets forth the rights and responsibilities of both parents.  The following issues are typically addressed in a Parenting Plan:

  • The decision-making rights of each parent with respect to the child's health, education, religious upbringing and extracurricular activities;
  • The rights of each parent with respect to day-to-day decision making;
  • A schedule for Parenting Time that addresses weekly visitation, holidays, special occasions and vacations;
  • Rules and restrictions on Parenting Time;
  • Rules for communicating with each other about your child;
  • Rules for how school and medical records will be obtained and/or shared;
  • How future disputes will be resolved.
How will our property be divided?

Generally, all property acquired during a marriage (except for gifts and inheritances) by either spouse is considered marital property. Marital property is divided equitably or fairly. Notably, marital property is not necessarily divided equally. A court considers several factors when determining an equitable distribution of marital property. Some of the factors the court may consider are the length of the marriage, the financial needs and means of each spouse, and the contributions of each spouse to the marital estate. (Notably, fault is not a factor that the court considers in equitably dividing the marital property). To reach an equitable distribution of the marital assets, it is imperative that all marital assets are accounted for and properly valued.

Am I entitled to more assets or property because my spouse cheated?

No property division is made on an equitable basis and fault is not a factor the court may consider. However, if you can demonstrate that your spouse used marital assets without your approval for something unrelated to the marriage (i.e., affair) after the point of irretrievable breakdown, then your spouse may have to repay the marital estate. The legal term used to describe this situation is called dissipation. Dissipation frequently arises when one spouse bought expensive gifts (i.e., jewelry, vacations, expensive dinners, etc.) for another person.

What will happen to my retirement account or 401k?

Retirement account contributions made during the marriage are part of the marital estate and will be divided equitably. Retirement accounts and 401k’s require a special court order called a Qualified Domestic Relations Order (QDRO) to divide the asset.

Who will be responsible for paying our debts?

Debt requires careful consideration. Generally, debt incurred during the marriage is the responsibility of both parties. However, creditors will seek repayment from either or both individuals. Therefore, even if a divorce court orders your former spouse to pay a specific debt, it will not stop a creditor from seeking repayment from you. Further, if your former spouse declares bankruptcy and gets a discharge after the divorce, any debt that you jointly incurred during the marriage may now become your sole responsibility. Speak to a knowledgeable lawyer to discuss your options when it comes to divorce and debt allocation.

What can I do if my spouse takes money without my consent while our divorce is pending?

If your spouse spends marital money for their own individual benefit, and not for the benefit of the family, after the marriage has reached the point of irretrievable breakdown, the expenditure may be considered dissipation.  You may request that the judge reimburse the marital estate for the dissipated funds at the end of your case.

What is maintenance or spousal support?

Maintenance or spousal support (also commonly referred to as alimony) is a sum of money paid to a financially dependent spouse following a divorce.  Either party may request maintenance.  Whether maintenance is awarded, and if so, the amount and duration, depend on many factors.  Visit our page on maintenance for more details.

How are maintenance awards calculated?

Recently Illinois adopted guidelines that provide a formula for calculating maintenance awards when maintenance is appropriate.   It’s important to keep in mind that the formula is a guideline and there are many circumstances where a judge may deviate from the guidelines.  Nevertheless, it is helpful to consider what amount of maintenance would be awarded if the guidelines are strictly applied.

For couples with a combined gross income of $250,000 or less, and no prior support obligations, the formula for calculating maintenance is as follows:

Maintenance shall be calculated by taking 30% of the payor's gross income minus 20% of the payee's gross income. The amount calculated as maintenance, however, when added to the gross income of the payee, may not result in the payee receiving an amount that is in excess of 40% of the combined gross income of the parties.

Section 504 of the IMDMA.

Can I see an example of the maintenance guideline?

Yes, our practice area pages discussing maintenance awards in Illinois contain a hypothetical maintenance calculation using the Illinois maintenance guidelines provided for in Section 504 of the IMDMA.

How long will I pay or receive maintenance?

Assuming a maintenance award is appropriate, generally the duration a court will require maintenance payments depends on the length of the marriage.  The longer you have been married, the longer the duration of any maintenance award.  The Illinois maintenance statute measures the length of the marriage from the date you were married to the date your case is filed.

To determine the duration of a maintenance award, apply the length of the marriage (date married to date case filed) to the following chart:

Marriage Length Maintenance Duration
5 years or less: .20 of the marriage
More than 5 years but less than 10 years: .40 of the marriage
More than 10 years but less than 15 years: .60 of the marriage
More than 15 years but less than 20 years: .80 of the marriage
More than 20 years: permanent maintenance or
equivalent to duration of marriage

For example, if a couple was married on January 16, 1999 and filed for divorce on March 4, 2017, the length of the marriage is 18.13 years.

We then multiply the length of the marriage 18.13 years by .80. This results in a maintenance duration of 14 years and 6 months.

If this couple were married for 20 years or more, the court would have the discretion to order either permanent maintenance or maintenance for a period equal to the length of the marriage.