Q: Can I handle my own divorce without a lawyer?
A: If there are any contested issues in your divorce (meaning that you and your spouse are not in 100% complete agreement about all custody [parental responsibility], visitation [parenting time] and financial issues), you need to hire a lawyer to protect your rights and help you obtain the best outcome possible. If your spouse has a lawyer or you think your spouse may be hiding assets, you definitely need your own lawyer to protect your interests, even if you have an uncontested divorce (meaning that you agree on all issues such as property division, custody [responsibility] and visitation [parenting time]). In general, if you and your spouse have an uncontested divorce and neither of you wish to hire a lawyer, you can probably each represent yourself and handle your divorce “pro se” (without a lawyer). However, there are many reasons why you should hire a lawyer even if you have an uncontested divorce. A lawyer can advise you of your legal rights, determine whether the proposed marital settlement agreement is fair to you, and help ensure that your future interests are protected. Importantly, a lawyer can ensure that the divorce is done right and is legally binding so you don’t end up in court years down the road fighting about something that wasn’t addressed in your do-it-yourself divorce.
Q: How much will it cost?
A: For a contested divorce (meaning that you and your spouse do not agree 100% on custody (responsibility) of the children, parenting time, or division of assets), it is impossible to provide an exact number because attorneys charge by the hour for their time and the total number of hours necessary to handle a divorce case from start to finish depends on many factors. Some of the factors include the time it takes for the spouses to provide their respective attorneys with the necessary documents and information, the level of cooperation among the spouses during the divorce, whether one spouse is hiding assets, and whether the case settles or goes to trial. If there are many contested issues, the chances are greater that the divorce will take longer and will be more expensive. Likewise, the more issues you and your spouse can agree on with respect to custody (responsibility), visitation (parenting time) and division of assets, the lower your attorney fees should be. You can also significantly lower your litigation fees by being organized and providing your attorney with copies of all requested financial documents and information when requested.
Q: What if I can’t afford to hire a lawyer?
A: In Illinois, each spouse is generally responsible for payment of their own attorney’s fees but if you are unable to afford to pay attorney fees because your spouse has the financial resources and you don’t, a court may order your spouse to pay your attorney fees. Your attorney may be able to file a motion requiring your spouse to pay attorney’s fees under the Illinois “leveling the playing field” statute.
Q: How long will it take to get a divorce?
A:The amount of time it takes from start to finish will depend on the number of contested issues and the level of cooperation between you and your spouse. In general, an uncontested divorce can be completed in a couple of months but a contested divorce that goes to trial can easily take more than a year. Once an agreement is reached, it takes about one to two months to prepare the final legal paperwork and obtain a final court date.
Q: Is there a waiting period in Illinois for getting a divorce?
A: It depends on the grounds (or reason) for the divorce. If the spouse filing for divorce alleges “irreconcilable differences” (which is also called a “no-fault” divorce), you and your spouse must live “separate and apart” for at least two years before your case can be finalized. Living “separate and apart” does not necessarily mean you have to live in separate residences. However, the waiting period can be reduced to only six months if both parties agree to waive the two-year requirement (or if the divorce is not opposed) and the parties live separate and apart for at least six months before the divorce is finalized. There is no waiting period if “grounds” for divorce are alleged, such as mental cruelty, adultery, alienation of affection, physical cruelty, drug addiction or drunkenness, infections with a sexually transmitted disease, or conviction of a felony.
Q: Does it matter who files first for divorce?
A: It might if you and your spouse reside in different counties and you want the divorce to proceed in the county in which you reside. In Illinois, a spouse may file for divorce in the county in which either spouse resides at the time of filing. The spouse who files for the divorce (called the “petitioner”) has to pay about $120 more in court costs than the other spouse (the “respondent”). 90% of divorce cases settle before trial. However, if a case goes to trial, some attorneys believe that the petitioner has an advantage because the petitioner presents evidence at trial first.
Q: If I file for divorce, does my spouse have to move out of our house?
A: No, unless the physical or mental well-being of you or your children is jeopardized by your spouse remaining in the marital residence. If so, an attorney can file a petition for exclusive possession of the marital home while the divorce is pending.
Q: What is a Joint Parenting Agreement?
A: A Joint Parenting Agreement (“JPA”) is jointly drafted by the spouse’s attorneys and lists each parent’s rights and responsibilities in parenting their children after the divorce. Joint Parenting Agreements typically address the following issues:
- How the parents will make major decisions for the children, such as the children’s education, health care, and religious training;
- The decision-making rights of each parent with respect to day-to-day issues;
- What types of decisions require joint agreement between the parents, which decisions require consultation, and which decisions require notification;
- A detailed schedule for visiting/parenting time, including holidays, vacations and special occasions;
- How the parents will communicate with the children when the children are with the other parent;
- How the parents will communicate with each other about their children;
- How school and medical records will be obtained or shared;
- How future disagreements will be handled (i.e.: most JPA’s require the parents to mediate the dispute prior to going to court).
Q: Can I date before my divorce is final?
A: Only if you want your divorce to take longer and you want to incur higher litigation fees. While you legally can date during this time, dating will likely inflame your spouse, possibly causing him or her to contest issues that otherwise would have been uncontested.
Q: What is the procedure for getting divorced in Illinois?
A: See my blog “What are the steps involved in getting divorced?”
Q: Is there a way to get divorced without litigating through the court system?
A: Yes, you can obtain a divorce through out-of-court options such as mediation or collaborative law.
Q: What is the difference between mediation and collaborative law?
A: In mediation, the spouses meet with a neutral independent mediator to help them reach agreements regarding contested issues in their case. The mediator tries to help the spouses communicate better but cannot give legal advice. Mediation may be useful in helping to solve some of the contested issues in the case so there are fewer contested issues at trial which may shorten the trial and reduce litigation costs. Spouses using mediation may have their own attorneys to consult with prior to and during the mediation. A collaborative divorce is a non-adversarial team-oriented approach which emphasizes cooperation and problem solving and allows each spouse to take an active role in helping to create solutions. A collaborative divorce may be quicker, less expensive, and less stressful because all meetings and negotiations occur out-of-court, there is no formal written discovery, and neither spouse has to give a deposition or testify in court. In a collaborative divorce, each spouse retains their own collaboratively-trained lawyer and agrees to negotiate a settlement in good faith without going to court. Each spouse and attorney signs a participation agreement and commits to honest, voluntary and good faith exchange of all relevant information and finding solutions that consider the needs and interests of all family members. Additional team members are added as needed, such as a financial specialist, a divorce coach (a trained mental health professional with significant training in divorce issues), and child specialist. A series of meetings are held over a period of time sufficient to discuss all issues and reach acceptable solutions. However, if it becomes clear that a settlement cannot be reached, the spouses may withdraw from the collaborative process and go to court. However, the spouses must retain new counsel because the collaborative lawyers are disqualified from representing the clients in litigation if the case cannot be settled. The requirement of the lawyers to withdraw is an important element to the collaborative process because it motivates the attorneys to find creative solutions to keep their clients out of court. If the attorneys have not signed a disqualification agreement, it is not a collaborative case.
Q: Are there some cases where collaborative law should not be used?
A: Yes. A collaborative divorce may not be appropriate in cases involving domestic violence or extreme mental illness. A collaborative divorce may also not be appropriate if one spouse is believed to be hiding assets. In that scenario, the traditional litigation approach is necessary so subpoenas can be issued to uncover hidden assets.
Q: What is the difference between sole custody and joint custody?
A: The term “custody” or “responsibility” does not determine how much time each parent gets to spend with the child. Custody (Responsibility) only refers to whether one or both parents make decisions regarding the child’s religion, education and health care issues. With joint custody (responsibility), both parents make these major decisions related to the child together. With sole custody (responsibility), only one parent makes those major decisions. Joint custody (responsibility) will be awarded only if parents are able to effectively and consistently cooperate in matters that directly affect their children. Joint custody (responsibility) does not mean that each parent spends the same amount of time with the child. Parents can have joint custody (responsibility) of a child with only one of the parents having possession of the child for most of the time. Likewise, if a parent has sole custody (responsibility), the other parent can have possession of the child for the same amount of time as to the other parent. Even if the parents have joint custody (responsibility), the parent with whom the child spends the majority of his or her time is designated as the “primary residential custodian” of the child.
Q: What happens if we cannot agree on custody (responsibility)? And what does “best interests of the child” mean?
A: If you and your spouse cannot agree on custody (responsibility), The Illinois Divorce Act requires a judge to determine custody (responsibility) by considering the “best interests of the child.” Some of the most common relevant factors include:
- The wishes of the parents;
- The wishes of the child (if an older child);
- The child’s relationship with his or her parents, siblings and other persons who significantly affect the child’s best interests;
- The child’s adjustment to his or her home, school and community;
- The mental and physical health of all individuals involved;
- Evidence of violence or abuse by either parent; and
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
Prior to trial, a spouse may request or the judge may order a custody (parental responsibility) evaluation at the parents’ expense to be completed by a psychologist or psychiatrist to assist the judge in making a custody (parental responsibility) determination. The custody (parental responsibility) evaluator meets separately with and interviews the children and parents, and submits a written report containing impressions and opinions to the judge.
Q: What is a “guardian ad litem” or GAL?
A: A guardian ad litem (also called a “G.A.L.”) is similar to a custody (parental responsibility) evaluator except that the GAL is a lawyer, not a psychologist or psychiatrist. A GAL has received special training approved by the court in child development, substance abuse, domestic abuse, and mental health issues. A judge may appoint a GAL, at the parents’ expense, to meet with the parents and children to advise the court about the child’s best interests in order to assist the judge in making a custody (responsibility) decision. The GAL may also meet with other people involved with the child such as teachers, grandparents and doctors.
Q: How does a judge determine the amount of child support?
A: In Illinois, the statutory guidelines for child support are based on the net income of the non-custodial parent and the number of children:
|No. of children||% of Net Income|
A judge may increase or decrease the amount based on the financial circumstances of the parents, the needs of the children, the standard of living the children would have enjoyed had the marriage not been dissolved, or other relevant circumstances. Net income is income from all sources minus the following: Federal and state income tax; social security (FICA); mandatory retirement contributions; union dues; health insurance premiums; prior support or maintenance obligations; and repayment of certain debts and expenses.
Q: Can the amount of child support be changed?
A: Child support is always modifiable. Child support may need to be changed when the needs of the child or the income of the parent paying changes, or there has been some other substantial change in circumstances.
Q: My ex stopped paying child support. What should I do?
A: Your ex is legally obligated to pay the full amount of the court-ordered child support unless and until a court order has been entered which states otherwise. If your ex refuses to pay child support and there is a court order in place requiring the payments, you should immediately contact an attorney to file a petition to enforce the court ordered child support payments.
Q: I lost my job. Can I stop paying child support until I find a new job?
A: Unless you file a Petition to Modify Child Support with the court, you are still legally obligated by pay the full amount of child support. Therefore, if you are unable to pay the full amount of the court-ordered child support, you must contact an attorney immediately to file the appropriate motion so the child support payments can be reduced or temporarily abated until you can find new employment.
Q: If my spouse pays child support, does he/she also have to pay day care expenses? What about extracurricular activities?
A: Child support payments cover the basic needs of the child such as shelter, food and clothing. Child support payments do not necessarily include expense for daycare, education and extracurricular activities. A court may order that the parent who is paying child support also pay additional amounts for these or other child related expenses. If there is a significant difference between the incomes of the parents, the non-custodial parent may be required to pay a greater percentage of these expenses. Your attorney should draft your marital settlement agreement carefully to address anticipated common expenses such as day care and extracurricular activities so you aren’t forced to litigate these foreseeable expenses years after your divorce was finalized.
Q: Are child support payments taxable?
A: Child support is not taxable for the spouse who receives it and is not tax deductible to the spouse paying child support. However, if a spouse pays both child support and spousal maintenance, it may be possible to make the entire amount income to the receiving spouse and deductible for the paying spouse. This is called “unallocated spousal support” which may result in more money for both spouses. However, there are strict IRS guidelines so if the marital settlement agreement is not drafted carefully, the paying spouse may incur unexpected tax liabilities.
Q: How do I get my ex to help pay for my child’s college expense?
A: If your marital settlement agreement or judgment makes no mention of college expenses, you have a statutory right to petition the court to request that your ex contribute towards collage expenses. Illinois is one of only 13 states where parents can be ordered to contribute to the college expenses of their child. In considering the contribution from each parent, the judge will consider the financial resources of both parents, the standard of living the child would have enjoyed had the parents not divorced, the financial resources of the child, the child’s academic performance, and any other factors the court deems relevant. If your marital settlement agreement “reserved” the issue of college expenses for future determination, you must file a petition for allocation of college expenses before your child incurs any college expenses. College expenses incurred before the petition is filed may not be recoverable.
Q: How is visitation (parenting time) determined?
A: The non-custodial parent must show that visitation (parenting time) is in the child’s best interests. Some of the most common relevant factors include the wishes of the parents, the wishes of the child (if an older child), the child’s relationship with his or her parents, siblings and other persons who significantly affect the child’s best interests, the child’s adjustment to his or her home, school and community, the mental and physical health of all individuals involved, evidence of violence or abuse by either parent; and the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
Q: My spouse is not following the visitation (parenting time) order. What can I do?
A: You should contact an attorney to file a Petition for Rule to Show Cause. If the court finds that your spouse violated a court order, the court may order that your spouse pay your attorney fees and costs in bringing the motion.
Q: I’m behind in my child support payments so my ex is not allowing me to see my kids. What can I do?
A: In Illinois, visitation (parenting time) and child support are separate issues. You cannot be denied visitation (parenting time) just because you have not paid child support. You should contact an attorney who can prepare a petition to bring the visitation (parenting time) issue to the court’s attention. An attorney can also advise you if you have a valid basis to file a petition to reduce or temporarily abate child support if there has been a significant change in your employment or income. An attorney can help you establish a repayment plan for the past due child support (called an “arrearage”).
Q: What is the difference between “alimony,” “spousal support” and “spousal maintenance?”
A: There is no difference. Spousal support, maintenance and alimony are the same. Maintenance can be received by either spouse. There are three different types of maintenance, temporary maintenance, rehabilitative maintenance and permanent maintenance. A judge may order temporary maintenance while the divorce case is pending. A judge may award short-term rehabilitative maintenance for a limited time period so that the spouse can pay for living expenses while attending school or learning new skills in order to become self-supporting. Longer-term maintenance may be awarded in a long-term marriage where the spouse did not work or attend school and instead, supported the family at home by taking care of the children. The spouse is expected to make good faith efforts to become employed and self-supporting. However, if the spouse can show a permanent inability to become self-supporting, the spouse may be awarded permanent maintenance. Permanent maintenance may be awarded if a spouse is unable to work due to illness or disability.
Q: How does the court decide if one spouse receives spousal maintenance from the other spouse?
A: The Illinois Marriage and Dissolution of Marriage Act requires the judge to considers the following relevant factors when deciding whether to award maintenance:
- The income and property of each spouse;
- The needs of each spouse;
- The present and future earning capacity of each spouse;
- Any impairment of the present and future earning capacity of the spouse seeking maintenance due to that spouse devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;
- The time necessary to enable the spouse seeking maintenance to acquire appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment;
- The standard of living established during the marriage;
- The duration of the marriage;
- The age and the physical and emotional condition of both spouses;
- The tax consequences of the property division;
- Contributions and services by the spouse seeking maintenance to the education, training, career or career potential, or license of the other spouse;
- Any valid agreement of the spouses; and
- Any other factors that the judge finds to be just and equitable.
Note: As of January 1, 2015, the law regarding maintenance is changing. See Erlich Law Office, LLC Blog Post “What the New Maintenance Law Means.”
Q: Can one spouse receive temporary support while the divorce proceedings are pending?
A: Yes. A court may order temporary maintenance while the divorce case is pending until a final order or judgment is entered.
Q: Is maintenance or spousal support taxable?
A: Yes, this is considered “income” to the spouse that receives it so that spouse must pay taxes on it. Similarly, maintenance or spousal support is tax-deductible to the spouse who pays it. However, if a spouse pays both spousal maintenance and child support, it may be possible to make the entire amount income to the receiving spouse and deductible for the paying spouse. This is called “unallocated support,” which may result in more money for both spouses.
Q: How will our property be divided?
A: Before property can be divided, a court must determine what is marital property and what is non-marital or separate property. Each spouse is first awarded his or her non-marital property. Non-marital property is that property that belonged to either spouse prior to the marriage or property that was acquired by a spouse by gift, inheritance, judgment award, or the appreciation of non-marital property. However, it is possible that non-marital property may have been converted to marital property if the non-marital asset was placed in a form of co-ownership or was commingled with marital property. If so, there is a presumption that it was a gift to the marriage and was converted to marital property. This presumption can be rebutted by clear and convincing evidence. All property earned or acquired by either spouse during the marriage is generally presumed to be marital property. In Illinois, marital property is divided “equitably” which does not necessarily mean 50/50. Equitable distribution means what the court finds is fair and just. In determining equitable distribution of marital property, a judge considers numerous factors including the length of the marriage, the financial needs and means of each spouse, the value of the property assigned to each spouse, the contributions of each spouse to the marital estate or family unit, the age, health, occupation and employability of the spouses, the amount and sources of income of each spouse, and the economic circumstances of each spouse including any obligations and rights arising from a prior marriage. The court does not consider the misconduct of a spouse in awarding marital property.
Q: If my spouse cheated on me, will I get more?
A: No. Under Illinois law, issues regarding division of property and maintenance must be determined by the court “without regard to marital misconduct.” However, you may have a claim for “dissipation” if your spouse spent marital funds on the affair. In general, if your spouse cheated, you have grounds to seek a divorce and there is no waiting period.
Q: What will happen to my 401k or retirement accounts?
A: Division of retirement benefits is a complicated and often contested issue in divorce. In general, retirement benefits earned during the marriage are considered marital property and subject to equitable division. If you had a 401(k) prior to the marriage, your spouse may claim a percentage of the portion that accrued during the marriage. However, your attorney should ensure that the value of the 401(k) when you married is awarded to you. Defined benefit retirement plans such as pensions are especially complicated because valuation is difficult to ascertain. It is also extremely important to consider the tax consequences of the division of retirement benefits.
Q: What is a QDRO (pronounced “quadro”)?
A: A QDRO, which stands for “qualified domestic relations order,” is an Illinois court order that transfers part or all of a spouse’s retirement benefits to the other spouse. A marital settlement agreement or judgment granting you a portion of your spouse’s retirement benefits may be worthless unless a QDRO (pronounced “quadro”) has been entered, approved by the plan administrator and signed by the judge. The best approach is to get the QDRO pre-approved by the plan administrator so the QDRO can be entered and signed by the judge at the time the divorce decree was entered. Be sure to promptly send a copy of the signed and court-stamped QDRO to the plan administrator. QDROs do not apply to individual retirement accounts (IRAs).
Q: My spouse has incurred a lot of credit card debt. Do I have to pay that?
A: Marital debt is equitably divided in a divorce, just like assets, but equitable distribution does not necessarily mean 50/50. Marital debt can include credit card balances, loans, mortgages and other financial and tax obligations. Credit card debt may be considered a marital debt if it was incurred during the marriage. However, if your spouse incurred the credit card debt in anticipation of the divorce, you may have a claim for “dissipation of assets.” If your spouse has accumulated credit card bills, there are strategies your attorney can use in drafting the marital settlement agreement to minimize the risk that your credit will be negatively impacted after the divorce. Ideally, you should eliminate any joint debt when the divorce is finalized so that your spouse’s actions after the divorce cannot negatively impact your credit rating. If you still have joint debt after the divorce has been finalized and your spouse subsequently files for bankruptcy, the creditors can seek to recover the total amount of the debt even though the judgment assigned half the debt to your spouse.
Q: Do I need to hire an attorney if I am being sued?
A: Yes, especially if the party who is suing you has a lawyer and you want to win your case. If you are personally sued (i.e.: your name is listed as the defendant), a court will allow you to represent yourself “pro se” (without a lawyer). However, you will be held to the same standards as a lawyer and will be at a tremendous disadvantage unless you have extensive legal knowledge and trial experience.
Q: I have a valid case against someone but are legal fees going to cost me more than what my case is worth?
A: An attorney should be able to give you an estimate of legal fees for handling a small claims case and you can help lower your legal fees by being organized and providing your attorney with a written chronology of events (dates, facts, what happened, who said what, etc.) and copies of all relevant documents. Even if you decide to file a small claims lawsuit “pro se” (without a lawyer), you may greatly benefit from hiring an attorney to provide you with advice for preparing for trial.
Q: Can I file a lawsuit against someone without hiring a lawyer?
A: Yes, but if the person you sue hires a lawyer to defend himself or herself, you will be at a tremendous disadvantage unless you have extensive legal knowledge and experience.
Q: What can I do if I am being sued but cannot afford a lawyer?
A: Whatever you do, don’t ignore the lawsuit because if you do, a judgment will be entered against you. Many lawyers offer free consultations and can provide you in advance with an estimate for legal fees. There are many free or low-cost legal aid services in DuPage and Cook County. If you do not qualify, you need to ask yourself if you can afford to lose if you don’t hire a lawyer (especially if the person suing you has a lawyer).
Q: If I have a dispute with a person or a business, what is the deadline for filing a lawsuit?
A: In general, the “statute of limitations” (date by which you must file a lawsuit or be barred from doing so) depends on the nature of the dispute. If you have a dispute with a person or a business, you should consult with an attorney immediately so the attorney can evaluate your claim and advise you regarding the statute of limitations, the strengths and weaknesses of your case, and likelihood of winning your case. An experienced attorney may be able to settle the dispute quickly and without litigation.
The purpose of these frequently asked questions (FAQs) is to provide a general overview of basic Illinois law concepts regarding common issues that arise during and after divorce. There is no attorney-client relationship created or formed and you should not rely on these answers as legal advice because the answers make assumptions that may or may not apply to your case. No attorney-client relationship exists unless the client signs an engagement agreement and provides a retainer. If you wish to protect your rights, you should consult with an attorney immediately.