Jul 1, 2018

Answers to Basic Questions About Divorce

questions about divorce

Equitable does not necessarily mean a 50-50, item-by-item split; rather, the emphasis is on a fair or balanced property division.

If you are considering a divorce, you probably have a number of questions. This article answers some general questions, giving you an overview of divorce in Illinois. Ask your attorney to provide you with the more specific, detailed information you need.

I want a divorce. How do I select a lawyer?

It is crucial to select an attorney with the right combination of expertise, experience and sophistication for your case. The following tips will help:

  • Start by asking friends and relatives for referrals.
  • Look for an attorney whose areas of expertise match your anticipated needs and who has considerable experience in financial, tax and child custody matters.
  • Trust your intuition. Your gut-level instincts count.
  • Ask about fees. A more accomplished attorney who charges a higher rate often proves to be a greater value to you by offering skill and experience that may streamline your case, shorten its duration and improve the result.

My spouse does not know I want a divorce. How do I let him or her know?

This is a decision to make with the help of your lawyer. You can tell your spouse yourself or let your lawyer do it in a letter or by a formal court summons.

How does the legal process begin?

The process begins by filing a petition that starts the court action. You may file a divorce case in Illinois if you are a resident for one day, as long as you intend to remain. To receive a Judgment for Dissolution of Marriage, you must have lived in Illinois for 90 days. The petition must specify that irreconcilable differences have caused the irretrievable breakdown of the marriage. There are only “no-fault” grounds.

Does fault have any meaning where the guilty party will pay more or get less?

No, fault does not mean the guilty party gets less unless he or she caused a waste of assets. Fault does not affect custody unless it directly harms the child.

What about bills, living arrangements and custody while the case is pending?

If you and your spouse cannot agree on temporary living arrangements, your attorney can try to negotiate a suitable arrangement. If your spouse tries to cut you off financially, your attorney can ask the court to determine temporary financial support for you and your child. Temporary custody and visitation can either be negotiated and agreed to, or decided by the court.

How do we determine who gets the house, cars, stocks and other assets?

Illinois, along with the majority of states, uses “equitable distribution” to divide marital property and assets. “Equitable” does not necessarily mean a 50-50, item-by-item split; rather, the emphasis is on a fair or balanced property division.

A host of factors must be considered, including age of the spouses, the number of years the couple has been married, each spouse’s financial and homemaking contributions during the marriage and their respective ability to earn a living.

The key factor in determining what property is marital and non-marital is when and how the property was acquired. Generally, anything acquired during the marriage is marital property. If, for example, a spouse started a business during the marriage, it is likely that it is martial property, subject to equitable division.

The fact that one spouse owns the business individually does not matter; the fact that he or she launched the business during the marriage is what counts.

The next step is to value the business so that it or its value can be equitably distributed. Having an attorney knowledgeable in the business valuation process is important to ensure a fair result.

Property acquired by a spouse before marriage, inherited or gifted is usually non-marital property. There are exceptions that could turn such property into marital property, so how property was acquired and handled during the marriage needs close analysis. Non-marital property belongs only to the party owning it and will not be shared on divorce.

How are issues of maintenance (alimony) and child support determined?

A party seeking maintenance or child support must show a need for it and that the other party has the ability to pay. There are statutory guidelines for the amount of child support based on income. Child support payments generally terminate on the child’s 18th birthday or upon completion of high school. If a child goes to college, support for educational purposes may be allowed. Usually, maintenance is paid for a predetermined period of time or indefinitely. There are statutory guidelines for the amount and duration of maintenance. Maintenance ends on remarriage or cohabitation with another unless there is a contrary agreement. 

Can I claim my ex-spouse and children as tax deductions after the divorce?

Under current tax laws, maintenance payments are generally taxable to the recipient and deductible by the provider. Child support is not deductible or taxable, and the parent who has custody usually gets to claim the dependency exemption. After divorce, neither party is able to claim the other as a dependent, nor can you file a joint income tax return for the year in which you are divorced.

I spent my married life raising our children and out of the workforce. How will I support myself?

If you are a fulltime homemaker in a long-term marriage, you may be awarded maintenance for an extended period of time if it is needed. A clear example of need is if you can prove you are unemployable or would earn very little and cannot maintain your standard of living. This might be shown if you have not worked, have no marketable job skills, are elderly or disable. On the other hand, if the marriage is of short duration, an unemployed dependent spouse may receive maintenance for a limited period of time until he or she becomes self-supporting or as presumed by statutory guidelines.

How are child custody and visitation rights determined?

The terms custody and visitation have been removed from the Illinois statutes. The care of children after divorce is determined by which parent has been allocated parental responsibility for the children and how parenting time is divided. Parents may share these as they agree or the Court directs. Mothers and fathers start with equal rights, but a parent who has been the primary caregiver during marriage will have an advantage. The determination is based on sharing these rights and can be defined as the parties wish to define it. Generally it means a high level of cooperation and joint decision making on schooling, religion and medical treatment.

Child support is not deductible or taxable, and the parent who has custody may claim the dependency exemption, although a divorce court can direct otherwise.

What if my spouse and I cannot agree on Allocation of Parental Responsibility and Parenting Time?

If you cannot agree, the divorce court provides mediation services free of charge. If you still cannot agree, the court may appoint a lawyer or child representative for the child. The court may also order evaluations of the entire family by mental health experts to help determine the best interest of the child.

There are two types of litigation on these issues: An original determination and changing the original determination. In original determinations, a parent need only demonstrate that an award to him or her is in the child’s best interest.

The divorce court provides custody mediation services free of charge. The court will determine the care of children based on the best interest of the child.

In a change proceeding, a party must prove, by clear and convincing evidence that a change is in the child’s best interest. A request for a change would be heard by the court when there has been a substantial change in circumstances regarding the child’s health and welfare. Seeking a change within two years of a custody order requires extreme circumstances.

In certain circumstances, grandparents, step-parents and siblings may seek allocation of parental responsibility and parenting time. Finally, neither party may remove a child to live outside Illinois without the consent of the other party or a court order; thus, a removal action may be necessary after the parties have divorced.

There are two types of litigation regarding child care: An original determination and change of the original determination.

How much will it cost to get a divorce?

The cost will depend on several factors, such as the amount of time required of your attorney, the complexity of the issues, the degree of conflict, your attorney’s level of expertise and how the case is resolved. The court may order you to pay your own legal fees, or order your spouse to pay them depending on your relative financial resources after the divorce. Since legal fees are usually paid out of the marital assets, both of you are effectively contributing to each other’s fees.

What does Schiller DuCanto & Fleck LLP offer?

Schiller DuCanto & Fleck LLP is recognized as one of the premiere divorce law firms in the United States, and the largest devoted solely to family law. The Best Lawyers in America. a reference book used by many in selecting attorneys, ranked Schiller DuCanto & Fleck LLP “number one” in the nation. We have lawyers with expertise in virtually all aspects of family and matrimonial law, including litigation, taxation, parental responsibility, retirement benefits, appeals, mediation, collaborative law, trusts and estates, business evaluations, forensic account and financial investigation. We use a valuable team approach, giving you the full range of talents and resources you need. Through experience, knowledge and a vast network of working relationships, Schiller DuCanto & Fleck LLP has truly developed an unparalleled understanding and ability to handle virtually any type of divorce, from the simple to the most complex, with the best possible result. 

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