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1. How does a court split up property in a divorce?
Illinois is called an “equitable distribution” state, meaning that when a couple divorces, their marital property must be fairly divided. The parties can reach a fair agreement regarding the division of property or can ask the judge to make a ruling on the matter. The court first determines whether property is marital or non-marital property. Non-marital property includes property that was acquired before marriage, by gift, by inheritance or subject to a prenuptial or postnuptial agreement. Then, it determines a fair distribution of property based on several factors, including the following:
- Each party’s contribution to the marriage, including economic and non-economic contributions
- The extent that any party wasted the marital estate
- The value of each party’s non-marital estate
- The economic situation and earning power of each spouse
- Whether the primary custodian of the children wants to retain the marital home
- Age, health and occupation of the parties
2. What are grounds for divorce in Illinois?
In 2016, Illinois became a pure no-fault state. Other grounds for divorce such as adultery or impotency were no longer necessary to establish a right to divorce. A spouse can no longer file for divorce based on these grounds. Instead, the sole grounds are “irreconcilable differences,” defined as such differences that caused the irretrievable breakdown of the marriage and the court determines that attempts at reconciliation have failed or future attempts would be impracticable and not in the best interests of the family. Now, someone can file divorce without having to show that either spouse did something wrong. Irreconcilable differences can be established if both spouses agree this is the case. There is an irrebuttable presumption that irreconcilable differences have arisen if the spouses have been separated for at least six months.
3. How long do divorce proceedings take?
One of the spouses must have resided in Illinois for 90 days before a divorce petition can be filed. If both parties agree that irreconcilable differences exist in the marriage, Illinois courts generally will not require the parties to wait for a certain amount of time, or be separated before a certain time duration has passed before filing for divorce. Some couples who meet statutory guidelines qualify for a “simple” divorce in Illinois. Others who do not meet these guidelines can expedite the process by pursuing an uncontested divorce. If spouses disagree on getting a divorce, the family court may require them to first try a trial separation of up to six months before divorce. Additionally, the divorce case may take longer if there are contested issues involved in the case, negotiations stall or multiple hearings are required to resolve these issues.
4. What is the difference between legal separation and divorce?
Both a legal separation and divorce can resolve legal issues, such as how to divide property, determining who can continue to live in the marital home, parenting time allocation and child support. In a legal separation, the parties must agree about how to divide their assets and liabilities while they do not have to be in a divorce. The court order for divorce or legal separation is an enforceable court order. However, a divorce permanently ends a marriage while a legal separation does not. Spouses who are legally separated cannot marry someone else while former spouses who are divorced can. Getting a legal separation does not prevent either spouse from later filing for divorce.
5. Do I have to go to court to get a divorce?
If the spouses have reached a settlement regarding the terms of their divorce, they may be able to avoid going to court. Their attorneys may be able to appear on their behalf. However, some county courts do require the spouse who petitioned for divorce to go to court. In these situations, the defendant spouse usually does not have to attend court as long as he or she has signed the marital settlement agreement and any other necessary documents. The petitioning spouse will only have to spend a few minutes in front of the judge to verify certain information. If the case is contested and a settlement is not reached, both spouses will likely need to go to court.
6. How does the court determine child custody?
Illinois uses the term “allocation of parenting time and responsibility” rather than “custody” or “visitation” to describe how much time the child will have with each parent. Parents are encouraged to negotiate their own arrangement regarding parenting time and responsibility and include this information in a parenting plan. If the parents are unable to reach an agreement, the court considers several factors to determine what is in the best interest of the children, including the following:
- Recommendations submitted by appointed experts in the case
- Which parent has primarily provided caretaking responsibilities
- The geographic locations of the parents
- The child’s school situation and extracurricular activities
- The child’s wishes
7. How is child support determined?
The amount of child support that is awarded in a family law case depends on the obligated parent’s net income and the number of children for which the parent is financially responsible. The state has minimum percentages that are based on the number of children the obligated parent has. The court uses the state’s child support guidelines unless the court explicitly makes a finding that application of the guidelines would be inappropriate when considering the best interests of the child. Deviations can be made after considering factors such as:
- The child’s financial resources and needs
- The custodial parent’s financial resources and needs
- The obligated parent’s financial resources and needs
- The standard of living the child would have if the parents stayed together
- The child’s physical and emotional conditions
- The child’s educational needs
8. I want to divorce my spouse, but he or she is not going to agree. I am thinking about just leaving. Do I have any other choices?
A person can technically file for divorce in Illinois even if he or she is in the same home as the other spouse. Additionally, if a spouse does not want to file for divorce, he or she may petition the court for a legal separation. With this option, the parent can petition the court for a legal separation that makes temporary orders related to parenting time, child support and spousal support.
9. I moved to Illinois for a fresh start, but my marriage just did not get better. Do I need to go back to my old state to divorce?
Not necessarily. Illinois law requires that you or your spouse be a resident of the state for at least 90 days before filing a petition for divorce. If you have children and child custody will be at issue, your child must have resided in the state for at least six months. Many people who have recently moved may simply wait out the residency requirement and then file a case based on the legal relief they are seeking. The case is filed in a circuit court in the county where one of the spouses currently resides. If you filed for legal separation in another state or the state has an existing court order in the case, you might want to check if that court still has jurisdiction of the case before taking legal action in Illinois.
10. I made a lot of money in the past, but, in this economy, I cannot pay in alimony anywhere near what I could have three years ago - will the court understand what happened to me?
Illinois divorce courts do not automatically order spousal support. Spousal support is appropriate when the spouses have disparate incomes and the higher-earning spouse can afford to pay spousal support. The spouse wanting spousal support must petition for this relief. It is possible that you can enter into an agreement regarding spousal support that considers your current earnings. The court determines whether to award spousal support based on several factors, such as your separate property, earning capacity, any impairment on your present and future earning capacity, the standard of living established during your marriage and any other “just and equitable” factor.