Divorce
Introduction
Divorce and legal separation are principally governed by the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101, et seq. But many other laws too numerous to mention affect this very complex area of family law. While the statute quoted above sets a framework, the courts have decided thousands of cases interpreting the statute. Further, new cases are being decided constantly, modifying, reversing or re-interpreting the statute or previous case law.
Preparation for Interview with a Lawyer
To do a good job for you the lawyer needs information. The attorney will want to know all the debts and all the assets (including pension, retirement, IRA, 401 (k), savings, checking and other accounts). The court will insist on total disclosure of all assets and all debts no matter who incurred the debt or who believes he or she "owns" an asset. We have forms to use to help organize this information.
Residency Requirements
In Illinois one must have been a resident of, or while a member of the Armed Forces had a military presence, in the state of Illinois for at least ninety (90) days prior to filing for divorce.
Discovery of Information
Probably nothing irritates divorce litigants more than the court's insistence on full disclosure. This stage of the case, called Discovery, is the single biggest delay in divorces. Sometimes a spouse will decide not to disclose something and the case is delayed until the court forces the disclosure. Immediate full disclosure saves time, attorney's fees, and can save the embarrassment and cost of the court forcing the disclosure. Disclosure however, should be done through the attorney for the protection of the client.
Grounds
There was a day when the courts spent a lot of time on grounds. This is no longer true. Generally, if a spouse wants a divorce he or she is going to get it. There are still two kinds of grounds in Illinois: fault and no fault. The eleven fault grounds are: impotence at marriage that continues, bigamy, adultery, desertion, habitual drunkenness, drug addiction, attempted murder of spouse, extreme and repeated physical cruelty, conviction of a felony or other infamous crime, infliction of a sexually transmitted disease on the other spouse, and extreme and repeated mental cruelty. Mental cruelty is the most often alleged fault ground.
To obtain a "no fault" divorce the spouses must have lived separate and apart for a continuous two (2) year period and must have irreconcilable differences that have caused the irretrievable breakdown of the marriage; and the court determines that reconciliation efforts aren't going to be productive. However, the parties can waive the two (2) year period and substitute six (6) months separation instead, if they both waive the two (2) year period in writing.
Children of the Marriage
If there are children of the marriage four (4) principal issues must be dealt with: child support, medical care for the children, custody/primary residential care and visitation rights.
1. Child Support
Child support is governed by statute. First, the court determines income from all sources (regular wages, overtime, tips, investment income, etc.). Then the spouse with whom the children will not be living will pay, by court-ordered deductions from the paychecks, the following:
1 child . . . . . . . . . . . . . . . 20% of net income
2 children . . . . . . . . . . . . . 28% of net income
3 children . . . . . . . . . . . . . 32% of net income
4 children . . . . . . . . . . . . . 40% of net income
5 children . . . . . . . . . . . . . 45% of net income
6 or more children . . . . . . . 50% of net income
"Net income" is defined by the statute, and allows only certain deductions from gross wages. For example, payments to a savings account or for a payment to a credit union, are not deducted to meet the divorce law's definition of "net income."
The court almost never deviates from the above scheduled payments.
2. Custody/Primary Residential Care
The children nearly always are ordered to reside primarily with one of the parents, with the other parent getting visitation rights. The courts favor what is commonly called "joint legal custody", meaning the children principally live with one of the parents but both of them share the decision making regarding the children. The parent with whom the child lives with is called the primary residential care parent. The parent with regular visitation is called the non-custodial parent.
3. Medical Care For The Children
Medical care must be provided for the children and this is also nearly always ordered to be provided by the non-custodial parent. Ordinarily the principal wage earner has health/hospitalization and even dental and optical insurance coverage for his children. Typically the court will want that coverage continued and the spouses to divide, in some proportion, such expenses not covered by insurance.
4. Visitation Rights
The courts in the St. Clair County/Madison County, Illinois area tend to grant the non-custodial parent the right to visit his/her children at least every other weekend, split the holidays, grant from two (2) weeks to one (1) month in the summer with the non-custodial parent, give the father and mother Father and Mother's Day respectively, divide the birthday visitation and otherwise see to it that the non-custodial parent has a chance to regularly see his/her children. This scheme obviously has to be modified when the divided ex-spouses live a significant distance from each other.
Maintenance
This used to be called alimony. The statute says ". . . The court may grant a temporary or permanent maintenance award for either spouse in amounts and for periods of time as the court deems just . . .". Maintenance requires the court to consider "all the relevant factors" including but not limited to a long list of factors in the statute itself. It would be dangerous to advise anyone regarding maintenance without having a thorough knowledge of all the circumstances of both spouses. But this is an area where the court has considerable discretion to do what the court "deems just".
Division of Property/Debts
The Illinois courts will divide property "without regard to marital misconduct." Other states differ in their methods of property division.
But one thing is certain. The court will want ALL the property and debts identified, regardless of who thinks he/she owes or owns any particular amount or thing.
After the court is satisfied that everything is disclosed, it will put the property and debts into two (2) classes: marital and non-marital.
Non-marital property/debts are kept by the proper owner. It consists of property/debts had before the marriage, property inherited anytime, property assigned by a proper pre-nuptial agreement and property acquired by gift. (For a complete list see 750 ILCS 5/503 (a).)
Once the court has assigned the non-marital property to the proper person it will then divide the marital property "in just proportions considering the relevant factors". There is no required 50/50 division. The court could divide the marital estate 90/10 or any other proportion. However, it is true that a 50/50 division is fairly common.
Marital property/debt (the property/debt that will be divided) is determined simply: any and all property/debt acquired on or after the date of marriage.
Therefore, a spouse who bought a car after the marriage, put that car in his/her name alone on the title, paid every last payment out of his/her own paycheck, has a car that is marital property, probably with marital debt owed on it. The court will treat this property/debt owned by the marital estate, not as owned by the spouse who bought and paid for it.
Remember that pensions/retirement funds earned after the date of the marriage are marital to the extent they're earned during the marriage. These must be divided, usually by a complicated order called a QDRO (Qualified Domestic Relations Order).
Attorney's Fees
Your attorney will tell you that there will be a filing fee to file your divorce with the court. These fees are charged by the court at a different rate depending on the county where you file, but they typically are around $200.00.
Your attorney will also set a "retainer", or deposit on your total fee. This will normally be paid in advance with the filing fee. The total fee will vary from case to case , as there is a great deal of difference in divorce cases. That fee will depend on the amount of time the attorney will spend on the case, which amount is very difficult to determine because there is no way to guarantee what the other side may, or may not do, to cause the problems and, therefore, more time to be spent on the case.