Frequently Asked Questions
Answers to some common questions that helps demystify Illinois law
Family law matters can be confusing and daunting. No matter how someone comes into the process, most have questions about everything from how you initiate a divorce to what a settlement looks like — and all the facets in between. There are also many misperceptions about the process.
Is marital property always divided 50/50?
Illinois courts are required to divide a couple’s marital property, which is generally property acquired after the date of the parties’ marriage, equitably. An “equitable” division may be 50/50, but equitable, by definition, does not mean “equal.” The Illinois divorce statute requires the court to consider several statutory factors, such as the length of the marriage; whether one of the parties will receive spousal support; whether one party has a large non-marital estate; and each party’s ability to acquire assets in the future through employment or other means.
What role does marital misconduct play?
One of the most common questions divorce attorneys are asked is whether marital misconduct, such as an extramarital affair, will result in a higher settlement in favor of the other spouse. The short answer is no. The statute does not permit a court to consider marital misconduct when allocating marital property. The exception to this is that the court can assess one party with dissipation of marital assets, which is defined as one party’s use of marital funds for a non-marital purpose.
Can my spouse freeze me out by refusing to pay my attorneys' fees
In Illinois, attorneys’ fees and costs are governed by the “leveling of the playing field” statute which ensures that the financially disadvantaged spouse has access to funds to enable him or her to adequately participate in the case. If one party does not have access to funds, and the other party has access to funds, the spouse who does not have funds will be provided attorneys’ fees so they can participate in the case.
Can a party earn no income to avoid paying child support or spousal support?
If one spouse claims that he or she earns no income and therefore cannot pay support, several avenues may be pursued. If the judge is shown evidence that the party who is not earning income is intentionally doing so in order to reduce his or her support obligation, the court can impute income to the other party. Secondly, in Illinois, a court can order that maintenance be paid out of assets. As for child support, it can be paid out of a child support trust from assets that the court places into the trust. The court can also assess child support based on the payor’s historical access to funds, accounts, gifts and loans.
Can the parent who has primary parenting time move out of state?
The 2016 amendments to the Illinois divorce statute now carve out specific notification provisions for a parent’s relocation both within and outside of Illinois. Generally, if the parents do not agree, the parent wishing to relocate with the child(ren) outside of Illinois must file a petition with the court requesting permission to move. The court will rule on the petition under a “best interest of child” standard by taking into account a number of statutory factors.
Does a 50/50 parenting schedule mean that no child support is payable from one parent to the other?
In 2017, Illinois moved from a guideline percentage child support model to an income shares model. What this means is that before July 1, 2017, child support was calculated solely on the basis of the payor’s net income. Now, both parent’s incomes are taken into account in the new child support formula and the parenting schedule plays a role in the calculation. However, a 50/50 schedule does not automatically mean child support will not be mandated.
Does infinite maintenance mean that it will be paid forever?
Despite its name, “infinite maintenance” does not mean that it will be paid forever. All it means is that the payor has the burden to petition the court to terminate it for good cause.
Can a party bypass full disclosure of financial information by going to mediation
If mediation or another alternative dispute resolution (ADR) process is used properly to resolve a divorce case, the process will include a good faith exchange of financial information between the parties. In turn, both parties enter negotiations and a potential settlement with the information they need to make an informed decision. While the exchange of information is more informal than the formal discovery in litigation, this does not mean that a party can avoid disclosure. If one party holds back information, that could halt and potentially disrupt the entire process.
Is it important to "file first" in order to gain an advantage in court?
Generally, there is no advantage to one party filing first. Both parties have the same rights and responsibilities in a divorce case and judges do not view the initiating party one way and the responding party another way. However, if there is a potential jurisdictional dispute, meaning there are possibly two states that may have jurisdiction over the parties and subject matter, there may be an advantage to filing first because different states have different rules for property distributions. In such a complex situation, you should always consult divorce counsel to evaluate your options.
Does joint custody mean the children spend half of the time with each parent?
In 2016, the term “custody” was officially removed from the Illinois divorce statute and replaced with the term “parental decision-making responsibilities.” “Custody,” now “parental decision-making responsibility,” actually means decision-making responsibilities regarding health, education, religion and welfare, not physical possession of the child. And “parenting time” (formerly known as visitation) refers to the time children spend with each parent. In practice this means one parent could have sole medical, educational, religious and extracurricular decisions making responsibility, but the children still spend 50/50 time with each parent. As always, family law is fact-driven and based on the laws of each individual state. Each case is different. It is necessary to consult your individual attorney with respect to your own case in order to understand the full ramifications of how the law interplays with your specific set of facts.