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.
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.
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.
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.
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.
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.
Yes, you do not need your spouse’s consent to obtain a divorce in Illinois. You must allege that irreconcilable differences led to the breakdown of your marriage and that efforts to reconcile have failed or would not be in the best interests of the family.
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 your 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.
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.
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.
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.
The terms joint custody and sole custody have been eliminated from Illinois law. There terms have been replaced by the phrase, “allocation of parental responsibilities.” Historically, joint custody meant that both parents had an equal say in the major decisions or significant 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 responsibilities, a judge will use the bests interests standard to allocate responsibilities between the parents..
Since July 1, 2017, child support in Illinois has been based on an income shares model that takes into account the income of both parents. The model relies on a formula to calculate the parents’ combined income, the costs of child care, and parenting time. The court may also consider extraordinary circumstances in determining child support or deviate from the child support guidelines as long as it is in the best interests of the children.
The court may impute income to a parent who quits or otherwise becomes voluntarily unemployed based on his or her earning capacity, which would typically include consideration of the parent’s prior income. The court might consider how much the voluntarily unemployed parent might reasonably expect to earn at a full-time job in his or her particular line of work. If the parent refuses to pay, the court can take a number of steps to enforce the support order, including holding the non-paying parent in contempt of court.
In Illinois, children do not have the authority to choose which parent they would like to reside with. 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 602.7b)(2) of the IMDMA). However, the child’s preference is only one factor considered in allocating parenting time, and the court is not bound by it.
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.
A divorce court has the authority to grant temporary orders while a divorce is pending. Requests for temporary child support
, visitation or maintenance
(spousal support) can be made almost immediately after the case commences.
GAL is short for guardian ad litem. 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.
An Allocation Judgment is a parenting plan; a legal document that outlines how and when you and your spouse will parent your children following your divorce. An Allocation Judgment sets forth the rights and responsibilities of both parents. The following issues are typically addressed in an Allocation Judgment:
- 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.
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.
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.
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.
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.
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.
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, depends on many factors. Visit our page on maintenance
for more details.
Once a court determines that an award of maintenance is appropriate, then it can set the amount and duration of its award. For divorcing couples with a combined gross income of less than $500,000.00 and no maintenance or child support obligation from a prior relationship, Illinois law provides a formula for setting the amount of maintenance. Section 504 of the IMDMA provides in relevant part that maintenance:
shall be calculated by taking 33 1/3 % of the payor’s net income minus 25% of the payee’s net income. The amount calculated as maintenance, however, when added to the net income of the payee, may not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties.
• Maintenance = (33 1/3% of Payor’s Net Income) – (25% of Payee’s Net Income)
• Maintenance + (Payee’s Net Income) ≤ 40% (Payor’s Net Income + Payee’s Net Income)
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:
|5 years or less:
|.20 years of the marriage
|More than 5 years but less than 6 years:
|.24 years of the marriage
|More than 6 years but less than 7 years:
|.28 years of the marriage
|More than 7 years but less than 8 years:
|.32 years of the marriage
|More than 8 years but less than 9 years:
|.36 years of the marriage
|More than 9 years but less than 10 years:
|.40 years of the marriage
|More than 10 years but less than 11 years:
|.44 years of the marriage
|More than 11 years but less than 12 years:
|.48 years of the marriage
|More than 12 years but less than 13 years:
|.52 years of the marriage
|More than 13 years but less than 14 years:
|.56 years of the marriage
|More than 14 years but less than 15 years:
|.60 years of the marriage
|More than 15 years but less than 16 years:
|.64 years of the marriage
|More than 16 years but less than 17 years:
|.68 years of the marriage
|More than 17 years but less than 18 years:
|.72 years of the marriage
|More than 18 years but less than 19 years:
|.76 years of the marriage
|More than 19 years but less than 20 years:
|.80 years of the marriage
|More than 20 years:
|The length of the marriage or for an indefinite term