Divorce & Family Law Commonly Asked Questions
Experiencing family law matters can be highly emotional and likely raises many questions. Below are common concerns families and individuals face when they seek our assistance.
For additional questions or assistance, contact the experienced attorneys at Kogut & Wilson.
- How long will this take and how much will it cost?
In short, it is difficult to tell. There are timelines with courts and a fair amount of documents to be completed by both parties. When parties do not agree on a matter, it takes time to negotiate. In these situations, we do our best to keep things moving. An average range is three to 18 months. However, keep in mind, it may take longer depending on the level of conflict and complexity of the issues.
- How do I file for divorce?
The first step is to file a Petition for Divorce with the court. In Illinois, there is no waiting period to file for divorce, however, it is required that one spouse be a resident of Illinois for at least 90 days prior to entry of the divorce judgment.
- What happens if I am served with a Petition?
Once you are formally served with a Petition for Divorce, you have 30 days to file an Appearance in the case or hire an attorney to file one on your behalf. If you do not file your Appearance within this time period, your spouse could potentially seek to default you and enter the divorce judgment with their requested terms.
- Can I request financial support from my spouse during the pendency of the divorce proceeding?
Yes, depending on your access to funds and respective incomes. After the initial Petition is filed, you may file petitions to request temporary relief while the divorce is pending. This can include temporary spousal and child support and contribution to household and children’s expenses. These orders are typically temporary in nature but can provide some financial relief while the divorce is pending.
- Will a spouse’s affair affect custody or property division in the divorce?
No. Illinois is a no-fault divorce state so a court will not consider your spouse’s affair in custody or property division, unless your spouse spent a significant amount of marital funds on the affair.
- What is Collaborative Divorce?
Collaborative divorce is an alternative approach in a divorce case where the parties work together to reach an agreement outside of court. Each party will be represented by an attorney and then subsequently engage other professionals including a financial neutral and mental health professional to reach a well-rounded agreement using a team approach.
- What can I do if I don’t receive court-ordered child support and maintenance payments?
If a court orders your spouse to pay child support or maintenance (formerly known as alimony) and your spouse fails to make the payments, our attorneys can draft a letter demanding immediate payment. If your spouse still fails to pay, our attorneys can file a Petition for Indirect Civil Contempt and request that the court hold your spouse in contempt of court.
- How can I find out if my spouse is hiding income or assets?
Parties in all Illinois divorce cases are required to complete a form called a Financial Affidavit where they disclose their income, monthly expenses, assets and liabilities. This form can inform parties of their spouse’s assets and liabilities. If you believe your spouse has an account not listed on the Affidavit, you can seek to issue a subpoena to receive these records.
- Why should I get a pre/postnuptial agreement?
You should consider hiring an attorney to help draft a pre-nuptial or post-nuptial agreement to protect your assets and reduce potential litigation in the event of divorce. These agreements can designate what assets and liabilities will be awarded to each party and address limitations or waivers of spousal maintenance as well.
- Will our assets be divided equally in divorce?
Illinois is an equitable distribution state. This means, while oftentimes an Illinois court will divide assets 50-50, there are instances when a court will find a disproportionate division is more equitable. In making this determination, a court will consider factors including each party’s incomes, respective ages and non-marital assets.
- What happens to debt in a divorce?
Your debt will be allocated equitably between you and your spouse as part of the marital estate.
- Do I have to continue paying maintenance if my ex has a new spouse?
No, you can seek to terminate your obligation to pay maintenance (formerly known as alimony) to your spouse if your spouse passes away, remarried or cohabitates with another person on a continuing conjugal basis. Our attorneys can help you draft, file and if need be, litigate these issues in court.
- What is mediation?
Mediation is an alternative dispute resolution process where parties meet with a mediator (neutral) to reach an agreement on pending issues in the divorce. With minor children involved, mediation is a mandatory first step if parties cannot reach an agreement on parenting time. Parties can discuss issues regarding custody (in Illinois, “allocation of parental responsibilities”), including a parenting time schedule and decisions regarding children.
Custody, Visitation and Parenting Time
- What if my former spouse and I don’t agree on custody arrangements?
In this event, you will likely first be ordered to mediation to try to resolve issues regarding parenting time, which includes several sessions with a mediator to limit the outstanding issues. If you still cannot reach an agreement, the court will likely appoint a guardian ad litem or child’s representative for your children, who will interview you and your spouse and make recommendations on what is in the child’s best interests.
- Will I have to pay my child’s college tuition and expenses alone?
Most likely, no. The court will examine both incomes and assets to determine what contribution percentage each spouse should contribute to their child’s college tuition and expenses. Illinois is one of the few states where courts can order contribution to these expenses. Illinois law caps tuition at the rate of University of Illinois at Urbana-Champaign, but parties can waive out of that cap if they both agree.
- Can I move to a different state with my child?
No, during a divorce, neither party may move the child out of the state without the written consent of the other parent or court order. Illinois requires that a parent seeking to relocate with a child must provide at least 60 days written notice outlining the party’s intended date of relocation, new address and length of time of the intended relocation.
- What factors determine who will receive custody?
Courts look at a wide variety of factors to determine how custody (in Illinois, “allocation of parental responsibilities”) should be designated. Overall, the standard for awarding custody (“sole allocation of parental responsibilities”) to one parent in Illinois is in “best interests of the child.” These include the amount of time each parent spent performing caretaking functions over the past two years, the child’s interaction with parents and siblings, the child’s adjustment to his or her home, school and community, the mental and physical health of both parents, the needs of the child, the distance between the parents’ houses and whether the parent has the ability to foster and facilitate a relationship between the child and the other parent.
- Can my child decide where they’ll want to live?
A child’s wishes is one factor that courts will analyze in determining what is in the child’s best interest. Considering particular factors, the court will detect the child’s maturity and ability to express reasoned and independent preferences for parenting time.
- What happens if my ex gets a new job? Loses a job? Gets injured?
If your ex’s income increases drastically (by 20%), you should consult with an attorney to determine whether you can seek to modify and increase spousal maintenance (formerly alimony) and child support. An attorney can explain what the potential increase in support could be. If your ex’s income decreases drastically, he or she may ask to decrease their support obligation to you. In these cases, courts consider whether the decrease in income was voluntary and whether imputing income to that spouse is appropriate.
- How is child support determined?
Child support is calculated using a formula set in the Illinois Marriage and Dissolution of Marriage Act. This formula considers both parties’ respective incomes, tax deductions and how many overnights a parent has with the children on an annual basis. Child support is always modifiable upon a showing of a substantial change of circumstances, including a substantial increase or decrease in income or parenting time.
- What can I do if my ex won’t let me see my child?
You should consult with an attorney immediately to file a petition to address this with the court. The longer you wait, the more time your spouse will be granted to establish a new “status quo,” and it will become more difficult to receive additional parenting time. If your spouse does not comply with a court order for parenting time, your attorney can file a Petition for Visitation Abuse, seeking relief including make-up parenting time.
- Can I get custody of my grandchildren?
Grandparent visitation requests are fairly limited in Illinois. Specifically, the child must be one year or older. Grandparents have the burden of proof to show the parent denying visitation causes undue mental, physical or emotional harm to the child and the child’s other parent is deceased, has been missing or incarcerated for at least 90 days or the child’s parent is incompetent as a matter of law.
- What can I do if I don’t feel safe or endure domestic violence?
There are options to ask courts for relief to escape a situation of domestic violence, such as filing for an Order of Protection in court. Relief for an Order of Protection can include exclusive possession of your residence, ordering your spouse to stay away from your work and ordering your spouse to stop abusing and harassing you. If the order of protection is granted and your spouse violates its terms, you can call the police to report the violation.