FREQUENTLY ASKED QUESTIONS
How long will my divorce take?
There are a lot of variables involved regarding the length of time it takes from start to finish in a divorce case: the complexity of the issues involved; the attorneys; level of cooperation between the parties, etc.
Generally speaking, however, the majority of divorce cases are concluded within 6-12 months of the date of filing.
How much will my case cost?
Again, numerous factors affect the cost of a divorce, including all those mentioned above. In addition, issues involving custody and visitation, maintenance, nature and extent of the property involved are other factors. After consultation with your attorney, an estimate of the possible range of cost should be able to be given to you.
Can my spouse and I use the same lawyer?
No. A lawyer is ethically prohibited from representing both sides of a divorce case. Neither side is required to have a lawyer, legally, but it is strongly recommended that both parties have their own attorney to guide and advise them through the process.
What does "no fault divorce" mean?
Prior to the concept of "no fault" divorces being allowed in Illinois the party seeking the divorce had to prove "grounds" (a legally recognizable reason to be divorced, i.e. mental cruelty, physical cruelty, adultery, etc.). Now, although these more traditional forms of grounds are still used, the parties can avoid proving them if they meet the requirements of a divorce on the grounds of "no fault."
The requirements for a "no fault" divorce in Illinois are:
1. That irreconcilable differences have caused an irretrievable breakdown of the marriage.
2. That efforts at reconciliation have been made, have failed and that future attempts would be unsuccessful, impracticable and not in the best interests of the family.
3. That the parties have lived separate and apart from one another for a continuous period of at least 2 years on the date the divorce case is final, unless they agree to waive the 2 years in which case the period of separation drops to 6 months.
Do we have to live together while the divorce case is going on?
No. In recent years, however, due to the expense involved with a divorce and the financial circumstances of the parties more and more couples find it necessary to continue living together and somehow "coexist" while their divorce case is pending. By agreement, the parties can choose to separate from each other or, if an agreement cannot be reached, the court has the power to order one of the parties to leave the home.
Is my spouse entitled to my retirement earnings?
Possibly. Illinois is known as a "marital property" State. In general, marital property is defined as anything acquired during the marriage until the date the divorce is final. There are some exceptions to this, but this is the general rule. In a divorce case "marital property" is to be "equitably" (fairly) divided. This may, or may not, mean a 50/50 division of property as many factors must be considered. It would include pension or other retirement benefits earned during the marriage.
Regarding the division of property, does it matter who was the cause of the marital problems?
No. In Illinois, marital property is to be equitably divided without regard to fault.
How is the amount of child support determined?
Generally speaking, the non-custodial parent will pay child support to the custodial parent based upon a percentage of the non-custodial parent's net income, determined by the number of children. For example, 1 child equals 20%, 2 children 28%, 3 children 32%, etc. The court can deviate from these percentages under certain circumstances.
What is the legal standard for determining who gets custody of the children?
If the parties cannot agree on where the children will reside and the nature of the custodial arrangement, the court will decide based upon the "best interests" of the children.
Can my children decide which parent they live with?
No. The wishes of the children, while a factor for the court to consider in determining their best interests, is only one of many factors involved. There is no "magical" age wherein the child gets to choose where they live.
What does "joint custody" really mean and how does it differ from "sole" custody?
There is a misconception that "joint custody" means that the child or children live half of the time with each parent. In reality, joint custody has nothing to do with the living arrangements of the children but, rather, the manner in which major decisions affecting the children are made.
In a joint custody arrangement, both parents participate in the major decisions involving the children, including health, education, religion and extra-curricular activities. In a sole custody arrangement, the parent having sole custody makes those decisions.
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