When a couple decides to divorce, there is not only an emotional upheaval as the family begins to divide, there is also a learning curve. What are you supposed to do? How does the process work? How long will it take? What are your rights as a parent?
Each individual’s situation is different. To answer your specific questions, it would be wise to obtain the legal counsel of an experienced divorce attorney. The answers to many basic questions are answered here.
Alternatives to Divorce
Child Custody Determinations
Child Support and Visitation
Marital Assets in Divorce
Additional Marital Issues To Consider
- ADR Available: Yes
- Fault or No Fault: Both
- Parenting Plan Required: Yes
- Property Distribution: Equitable
Grounds For Divorce
Illinois is one of the states which have both fault and no-fault grounds for divorce. The guidelines which must be met before the court will agree to a no-fault divorce are:
- Spouses must have been living separately for at least two years.
- Irreconcilable differences have caused the irretrievable breakdown of the marriage.
- Attempts at reconciliation have failed.
The person who files for divorce is called the petitioner and the other party is the respondent. The following conditions which can be considered grounds for divorce in Illinois:
- Abandonment for one year
- Respondent has been an alcoholic or drug addict for two years
- Respondent was convicted of a felony
- Respondent infected the petitioner with a sexually transmitted disease
- Respondent made an attempt to harm the petitioner (poison, physical or mental cruelty)
- Either party was married to someone else at the time of the marriage
- Respondent is naturally impotent
Divorce Waiting Periods
If the conditions of the no-fault divorce have been met, or the petitioner is asking for a divorce with grounds, there is a 90-day residency period before a divorce will be granted. As a practical matter, it often takes longer than 90 days to obtain a divorce due to the negotiations between spouses, the court’s calendar and other factors.
Many people use legal separation as a trial divorce. The spouses live as though they are divorced, including sharing child custody and making child support or spousal support payments. The couple can either reconcile, or get a divorce. Divorce in Illinois is called dissolution of marriage.
An annulment is a way to end a marriage without getting a divorce. The annulment is a legal way of stating that the marriage was never valid. Grounds for annulment include:
- Bigamy (one party was married at the time of the new marriage)
- Underage (one or both parties were ages 16 or 17 and did not have parental approval)
- Duress or fraud (one party lied or threatened the other party)
- Incapacity (one party was intoxicated or for some other reason could not consent to the marriage)
- Inability to consummate (one party could not consummate the marriage, and did not inform the other party prior to the marriage)
Couples may also obtain a religious annulment of a marriage, although that is an entirely separate matter. A religious annulment is called declaration of nullity and is a determination by the church that the sacrament of marriage was invalidly contracted.
When a couple decides to divorce, and there are children from the marriage, the sharing of parenting duties can be one of the most difficult issues with which the two parents must negotiate. It is important to note that the court has the authority to overrule decisions made by the parents, although that is not common. Decisions are made by the court according to the best interests of the child or children.
Child Custody Determinations
Gone are the days when child custody was given to the wife in the family. Today child custody is frequently shared and if there is any consideration of roles, it is that consideration is given to whichever spouse has been the primary caregiver.
There are two types of child custody:
- Legal custody grants the power to make decisions regarding religious instruction , education and medical decisions such as surgery. Legal custody is typically shared.
- Physical custody is where the child lives and food and shelter are provided. Joint physical custody means that the child or children spend roughly half the time with each parent. Sole physical custody means that the children live primarily with one parent and the other parent has visitation privileges.
In Illinois the court will require that the parents create a visitation or parenting plan. The visitation order is part of the dissolution of marriage and is legally binding. To change the visitation plan, the parents will need to obtain a post-divorce modification.
Child support payments can be ordered to be paid by the noncustodial or nonresidential parent to the custodial parent in instances where one parent has sole physical custody. There are Illinois state guidelines defining the amount a noncustodial parent will need to pay the custodial parent, based on the noncustodial parent’s net income after taxes and any other child support obligations. The net percentage payments are:
- One child = 20 percent of net income
- Two children = 28 percent
- Three children = 32 percent
- Four children = 40 percent
- Five children = 45 percent
- Six or more children = 50 percent of net income
In addition to this mandatory amount, the parents will need to come to agreement regarding other expenses such as dance lessons, hockey expenses, summer camp, braces and health insurance.
Child Support Enforcement
A child support determination is part of the dissolution of marriage, and so it is legally binding. If child support payments are not made, the custodial spouse and the court have several options to obtain payment including wage garnishment, withholding federal income tax refunds, driver’s license suspension and other measures.
It is important to note that withholding visitation to obtain child support is not allowed, nor is withholding child support to obtain visitation.
In Illinois, as in most states, if a couple is married at the time of the child’s birth, the husband is assumed to be the father, even if a DNA test proves that he is not the biological father. Marriage comes with a presumption of paternity. With paternity come all the rights, as well as the obligations, of parenting.
In addition to marriage, there are three other ways to determine paternity:
- A Voluntary Acknowledgement of Paternity (VAP) form is signed by both parties to acknowledge paternity.
- A paternity order is issued by the Department of Healthcare and Family Services’ Child Support Services, typically due to concerns about the child’s welfare and need for support.
- A paternity action or order of paternity is issued by a judge.
The paternity action can be requested by the child or its mother, a pregnant woman, any government agency with child custody or by the presumed (alleged) father.
Illinois is a communal property state. This means that all assets and liabilities which are incurred during the marriage belong jointly to both spouses.
Marital property is divided in a manner which the court deems equitable. It is important to note that equitable is not the same as equal. Depending upon the length of the marriage, and the income-earning ability of both spouses, the property may be divided in a way the court feels is fair and just. The type of property that is subject to division includes:
- All motor vehicles
- Checking and savings account balances
- Credit card balances and other unsecured debt
- Household furnishings including artwork
- Recreational vehicles and boats
- Retirement savings (IRAs, SEPs, 401(k)s, Keoghs)
- Stocks, bonds and other similar investments
- The family home and other real estate property
Property which is not subject to division is personal property that was owned prior to the marriage and was not comingled with the other marital property. An example of this would be an IRA which remained separate. The other property which is not divided is inheritance property that, like the premarital property, has not been comingled.
Alimony, also called spousal support or spousal maintenance, can be awarded to one spouse as either a temporary or permanent award, or both. Temporary maintenance can be awarded for the time period between filing for divorce and the final dissolution of marriage. Temporary maintenance can also be awarded to allow time for a lesser income-earning spouse to find a job, go back to school or in other ways become financially self-sufficient.
Permanent alimony can be awarded for some spouses. The factors a judge will consider in determining a permanent alimony amount are:
- Age and health of each spouse
- Any prenuptial or postnuptial agreement
- Current income level of each spouse
- Income-earning capacity of the spouse requesting alimony
- Length of marriage
- Sacrifice of one spouse’s career or education on behalf of the other spouse or for child care
- Standard of living established during the marriage
- Tax consequences due to the property division
Once the dissolution of marriage or divorce has been finalized by the court, it is legally binding. If one ex-spouse wishes to change the agreement, a post-divorce modification will need to be approved by the court. The reasons for a modification range from health issues of either spouse or of the children, to job offers in other states or unemployment.
Prenuptial And Postnuptial Agreements
A prenuptial agreement typically covers the same issues that a divorce may cover such as division of property and alimony. A prenuptial agreement can also include “what if” scenarios such as provisions for child custody even though the couple does not have children.
A postnuptial agreement covers the same types of items as a prenuptial agreement, and is sometimes used during a difficult period in a marriage to reach an agreement on property of child custody while the couple is still cordial or in basic agreement.
A prenuptial or postnuptial agreement that is signed under duress, threat or fraud would not be valid.
When a couple divorces, the in-laws and the grandparents can become separated from the couple’s children. A grandparent, great-grandparent or sibling can request visitation rights for a minor child if there is an unreasonable denial of visitation by a parent and one of the following situations is present:
- The child’s other parent is dead or has been missing for three months or more.
- A parent is ruled as incompetent.
- A parent has been in jail during the three months before the visitation request.
The couple is divorced or legally separated.
As same-sex marriage becomes more common in Illinois, so too can same-sex divorce. Same-sex marriage is legal in the state as of June 1, 2014. Civil unions have been legal since June 1, 2011. Whether a couple has a same-sex marriage or a civil union, the process for divorce is largely the same as compared to a husband and wife divorce.
To learn more about the divorce process, please call us to schedule an appointment with an Illinois divorce attorney.