Family Law & Divorce

Family Law & Divorce

A parentage or divorce case is started by filing a Petition (a paper which describes the issues and seeks relief) with the Circuit Clerk of the County in which you reside. You must pay a filing fee to the Clerk.

Divorce

A divorce petition states the grounds for divorce and the relief sought. Grounds for divorce include irreconcilable differences (no-fault), mental cruelty, physical cruelty, adultery, drug and/or alcohol addiction, as well as several others. Many people wish to get divorced on the grounds of irreconcilable differences. However, you must be separated for a period of two years, or six months (if both parties agree), to get a divorce on those grounds.

The relief sought in a divorce case generally includes dividing property, dividing debts, establishing child custody, visitation, child support, maintenance (alimony), and determining who pays attorney’s fees, among other things.

Parentage

A parentage case is started by filing a Petition to Establish Parentage. It asks that a person be named the father or mother of a child. It also asks that the issues of child custody, support and visitation be resolved if paternity is established.

After a case is filed, it is then served upon the other party. The party who is served with summons will have 30 days in which to reply in a divorce case In a parentage case, that party generally must appear in court on a specific date and admit or deny that he or she is the parent of the child in question. Genetic tests can be ordered upon a denial. The party who requests the tests may be ordered to pay for them.

After a finding is entered for paternity, or a person answers in a divorce case, the case is then docketed for the other issues in the case.

Custody

One of the biggest issues that parties face upon getting divorced or upon stating a parentage case is who is going to have custody of the minor child(ren) of the parties. The issue of custody is often worked through by the parties by agreement, or by a Judge after hearing in which evidence is presented as to which party would serve the best interests of the child(ren) as custodian.

Visitation

Once the parties and/or the Judge has determined what or who will receive custody of the child(ren), the next issue that is decided is the visitation schedule. Visitation is also set using the best interest of the child standard. It is presumed that it is in the best interest of the child that he have visitation with the non-custodial parent. The only way that visitation can be curtailed or supervised is upon a showing of serious endangerment to the minor child(ren). Courts tend to favor liberal visitation as opposed to restricting visitation.

Visitation can be whatever the parties agree upon. Many divorced couples opt for alternating weekends and alternating major holidays in setting visitation. Others never define visitation and give it to the other parent whenever they agree. The problem with this type of visitation arrangement is that it is hard to enforce it if one party refuses to agree to allow the other party to see the children.

One common misconception people have regarding visitation is that they can withhold if they are not receiving child support. This is not true. Child support and visitation are not related. Therefore, parties cannot punish each other for late child support payments by withholding visitation and vice versa.

Grandparents, great-grandparents and siblings are entitled to visitation as well in the State of Illinois.

Visitation will be allowed if a court finds it in the child’s best interest. The courts will, however, review recent Supreme Court Decisions and give weight to a reasonable parent’s decision.

Child Support

In Illinois, parents who do not have custody of their minor children have a duty to pay support to the custodial parent for the minor child(ren). This support payment is usually withheld from the paycheck of the child support payor, and the amount of child support is set by statute. Child support and visitation are not related and are not interdependent on each other.

Child support is based upon the net income of the person who is to pay child support. Net income is defined as the gross income for all sources, minus the following deductions:

  1. Federal income tax;
  2. State income tax;
  3. Social Security (FICA);
  4. Mandatory retirement contributions required by law or as a condition of employment;
  5. Union dues;
  6. Dependent and individual health/hospital insurance premiums;
  7. Prior obligations for support or maintenance actually paid pursuant to a Court’s Order;
  8. Expenditures for the repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child, and other, exclusive of gifts.

The court shall reduce net income in determining the minimum amount of support to be ordered only for the period that such payments are due and shall enter an Order containing provisions for itself, excluding modification upon termination of such payment.

The minimum amount of support is determined by the following guidelines:

Number of Children Percent of Supporting Parties Net Income
1 20%
2 28%
3 32%
4 40%
5 45%
6 or more 50%

The above guidelines shall be applied in each case unless the Court decides that it would be inappropriate to follow them. In determining whether or not to deviate from the guidelines, the Court considers the following factors:

  1. The financial resources needed by the child;
  2. The financial resources and needs of the custody parent;
  3. The standard of living the child would have enjoyed had the marriage not have been dissolved;
  4. The physical and emotional condition of the child and his educational needs;
  5. The financial resources and needs of the non-custodial parent.

If the Court deviates from the guidelines, the court’s findings shall state the amount of support that would have been required under the guidelines, if determinable. The Court shall include the reason or reasons for the variance from the guidelines.

The court will also decide who will pay uncovered medical expenses for the minor child(ren). These include: deductibles, co-pays, dental, orthodontic and eye care expenses. Some times the Court orders one party to pay the entire amount, and other times it will be equitably divided between the parties.

The Court will also determine who receives the income tax deductions for the minor child(ren). The IRS presumes that the party who has custody of the minor child(ren) receives the deduction. However, the Court can award the deductions to either party in a divorce if it feels that awarding the deduction to the payor or payee would be fair.

Property & Debts

In a divorce proceeding, courts must separate the property and debts of the parties and assign them to each party in a fair manner. Before the court can separate the property, it must determine whether or not the property is marital or non-marital property. Marital property is all property acquired by either spouse during the marriage. Non-marital property is the following:

  1. Property acquired by gift, legacy or descent;
  2. Property acquired in exchange for property acquired by gift, legacy or descent;
  3. Property acquired by a spouse in a Judgment of Legal Separation;
  4. Property excluded by valid agreement of the parties;
  5. Property acquired before the marriage;
  6. Any judgment or property obtained by a judgment awarded from one spouse to another spouse;
  7. The increase in value of a property acquired by any of the methods mentioned hereinabove;
  8. An income from a property acquired by any of the methods Mentioned hereinabove.

In dividing marital property, courts do not consider misconduct in the marriage. It will, however, consider the following factors:

  1. The contribution of each party to the acquisition, preservation, or increase and/or decrease in the marital or non-marital property, including the contribution of a spouse as homemaker or to the family unit.
  2. The dissipation by each party of the non-marital and/or marital property.
  3. The value of the property assigned to each spouse.
  4. The duration of the marriage.
  5. The relevant economic circumstances of each spouse when the division of the property is to become effective, including the desirability of awarding the family home, or the right to live therein for a reasonable period, to the spouse having custody of the children.
  6. Any obligations and rights arising out of a prior marriage of either party.
  7. Any prenuptial agreement of the parties.
  8. The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
  9. The custodial provisions for any child(ren).
  10. Whether the division is meant to be part of or in addition to maintenance.
  11. The reasonable opportunity of each spouse for future acquisition of property and income; and
  12. The tax consequences of the property division upon the respective economic circumstances of the parties.

As courts divide all property acquired during the marriage, it can also divide pension and retirement plans as well. Again, non-marital property is the property of the respective spouse and is not subject to equitable division. However, if one party has a significantly higher amount of non-marital property than the other, then the Court can determine the wealthy party’s non-marital property in dividing the marital property.

Debts are divided in the same manner.

Maintenance

In divorce cases, a Court can award either spouse a temporary or permanent maintenance award in amounts and for periods of time that the Court deems fair, without regard to marital misconduct. Maintenance is what used to be called alimony or spousal support. It is usually cash payments from one spouse to another on a regular basis, or in a lump sum amount.

In deciding whether or not to award maintenance to a spouse, the Court will consider the following factors:

  1. The income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance.
  2. The needs of each party.
  3. The present and future earning capacity of each party.
  4. Any impairment of the present and/or future earnings capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage.
  5. The time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment and whether that party is able to support himself/herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seem employment.
  6. The standard of living established during the marriage.
  7. The duration of the marriage.
  8. The age and physical and emotional condition of both parties.
  9. The tax consequences of the property division on the respective economic circumstances of the parties.
  10. The contribution and services by the party seeking maintenance to the education, training, career or educational potential or license of the other spouse.
  11. Any valid agreement of the parties; and
  12. Any other factor that the court finds to be just and fair.

Maintenance will automatically terminate upon the remarriage of the spouse receiving maintenance or upon that spouse living with another person of the opposite sex. Maintenance can either be for a short period or for an indefinite period. Maintenance is subject to modification (change) upon a showing that the circumstances of either or both parties have substantially changed (for better or for worse) such that it is fair that the maintenance award be increased, decreased, or terminate.

Financial Affidavit Divorce Questionnaire

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