Ending a Marriage
A divorce (known as dissolution under Illinois law) is the means by which the marriage between a couple is ended. The judgment for divorce contains the parties’ agreement concerning parental responsibilities for the children and parenting time schedules, support and property/debt division. If the parties cannot agree, a judge makes these decisions after a trial.
Residency and Fee Requirements
If a couple decides to divorce there are a number of steps that must be taken before the divorce can be granted. The first step is to file a petition for divorce in the county in which one or both of the parties reside. In Illinois there is no waiting period to file a petition; however, a judgment may be granted once a party has resided in Illinois for 90 days.
The fee for filing the divorce petition is different in each county. If a person cannot afford the filing fee, a waiver of the filing fee may be possible upon application to the court.
Grounds for Divorce
Before a judge will grant a divorce, a spouse or both spouses must prove grounds. The only grounds for divorce recognized in Illinois are irreconcilable differences which some people refer to as no-fault divorce. Illinois law defines irreconcilable differences as the “irretrievable breakdown” of a marriage. The spouses are required to either be separated for six months in separate households or within the same household during the time of the breakdown of the marriage, or to assert there is a breakdown in the marriage, but all efforts at reconciliation have failed, and that future attempts to reconcile would not be “in the best interest of the family.”
Trial or Agreement
Although most couples who are divorcing have disagreements about certain issues, these disputes usually are resolved through negotiation, and advice from lawyers and a judge. Most divorce cases ultimately are settled by agreement, in part because going to trial can be expensive. Among the issues that must be settled before the divorce can be granted are the following:
- Division of Property - real estate, investments, money;
- Division of debts;
Whether maintenance shall be paid from one party to the other. If maintenance is awarded, the amount and duration of the maintenance award;
- If there are children, what the allocation of parental responsibilities and parenting time arrangements will be;
- What financial obligations each party will have to the children.
If the parties do not reach an agreement, a trial will be held in front of a judge.
Property includes real estate, furniture, cars, bank accounts, stock, retirement/pension plans, and other assets. Anything that is acquired during the marriage, unless it was a gift, inherited or specifically excluded by a premarital agreement is considered marital property regardless of whose name is on title. That may include mortgages, credit card balances, medical bills and other obligations incurred during the marriage for the parties or the parties’ children regardless of which party incurred the debt.
Unlike some other states, Illinois law requires that marital property and marital debts be divided “equitably” which may or may not be equally.
In determining what is equitable, the financial or other contributions each party made in acquiring the property is considered along with each party’s financial circumstances and the likelihood either may acquire assets in the future. The court may look at whether a party used marital income for purposes not related to the marriage, the duration of the marriage, and the allocation provisions for any children of the marriage, among other factors, in determining what would be an equitable property and debt distribution.
Allocation of Parental Time and Responsibilities
Some of the most painful and expensive disputes that divorcing parents experience involve parenting rights and responsibilities formerly known as custody and visitation.
Illinois law now requires allocation of decision- making concerning the children and a parenting time schedule. Illinois parents, after the filing of the divorce action, will be required by the court to file, either separately or jointly, a proposed parenting plan. A judge may require couples who have disagreements about these issues to participate in mediation. All parties are required to attend classes concerning the effects of divorce on children.
In making decisions regarding children of the marriage, the court will consider the allocation of various parental responsibilities, including the ability to make decisions about education, health, extracurricular activities, and religious matters for the child. The court will consider what is in the best interest of the child as well as any agreement made between the parents.
If the judge appoints an attorney to represent a child in a contested case, the parties will be responsible for paying the fees of that attorney as well as their own attorneys’ fees. In determining a parenting schedule, the court will consider each parent’s work schedule, the child’s schedule, the level of cooperation between the parties, and other factors affecting the best interest of the child.
Child Support and Maintenance
Both parents have an obligation to support the children. In Illinois, child support is determined by using an “income shares” model, which considers the income of both parents and requires utilization of charts provided by the Department of Healthcare and Family Services. The chart can be found online at www.childsupport.Illinois.gov. Also considered is the number of overnights each parent has with the child. In addition to child support, the court may also allocate the expenses for health insurance, uncovered medical and dental expenses, daycare expenses, extracurricular activity expenses and school fees. Payments for child support should come directly from the paycheck of the parent paying support through payroll withholding. Child support is always modifiable should there be a substantial change in circumstances.The obligation to pay child support continues until a child reaches age 18 or graduates from high school. Both parents may also have an obligation to contribute to a child’s post-high school educational expenses.
The obligation to pay child support continues until a child reaches age 18 or graduates from high school, whichever is later. Both parents may also have an obligation to contribute to a child’s post-high school educational expenses.
The court will make the determination whether or not the payment of maintenance to one spouse is appropriate. If maintenance is appropriate, the court will follow statutory guidelines as to how much maintenance is paid and for how long. Under that guideline, the maintenance award will generally be calculated as 30% of the paying spouse’s gross income minus 20% of the receiving spouse’s gross income as long as the receiving spouse’s total gross income does not exceed 40% of the total combined income of the parties. The length of time maintenance will be paid depends on the length of the marriage.
Hiring an Attorney
If the marriage was of short duration, the couple has no children, there is no real estate, and a settlement has been reached, the spouses may be eligible for a simplified divorce procedure which they can quickly do themselves. No person seeking a divorce is actually required to use an attorney. If a person plans to represent himself or herself during the proceeding, he or she should understand that the court clerks and the judges cannot give him or her legal advice. They are unable to do so by law. Most people seeking a divorce usually consult with an attorney, however, and select an attorney who is experienced in divorce law.
It is very important to recognize that a lawyer cannot represent both parties in a case. Although quite often if documents are prepared by one spouse’s lawyer, and the other party does not hire a lawyer, the lawyer who drafted the documents is only representing one party.
Most lawyers do not charge a flat fee for a divorce unless the divorce is really simple and both parties have reached an agreement on everything from the outset. Instead, a lawyer usually charges an hourly rate and requests a retainer from the client from which the attorney is paid for the lawyer’s time charged the client. The amount of the lawyer’s hourly rate usually takes into account the lawyer’s legal experience and the complexity of the case. Lawyers in Illinois are prohibited from charging a contingent (or percentage) fee for a divorce. Once the fee arrangement has been made, the lawyer should prepare a written contract (engagement/retainer agreement) which the lawyer and the client sign.
Attorney’s Fees. If the court finds there is a large disparity in the income of the parties or lack of access to funds by a party, the judge may determine that one party should pay for the other party’s attorney’s fees, or a portion thereof.
Domestic Violence. With or without the filing of a Petition for Dissolution of Marriage, an abused party may seek an Order of Protection from the court for herself, himself or on behalf of someone who does not have access to the court such as a child. If the court finds there is a danger of abuse, the court may limit the contact between the parties, or exclude one party from the home or grant other relief. The order is for a limited time unless it is merged with a Judgment of Dissolution of Marriage.
Compliance. If one of the parties does not comply with the terms of the Judgment, the other party may have to take the non-compliant party to court and ask that the non-compliant party be held in contempt of court. If held in contempt, the noncompliant party may be required to do what he or she has failed to do, pay the attorney’s fees for the other party, and/or pay a fine or be imprisoned until such time as the non-compliant party is compliant.
Prepared by the Illinois State Bar Association's Family Law Section (2018)