Divorce Issues

 

 

 

Chicago Divorce Information

If you live in the Chicago area and need divorce information this article is a good place to start.

Table of Contents

1. Grounds for Divorce in Illinois
a. Irreconcilable Differences
b. Fault based grounds for divorce (Repealed effective 2016)

2. Child Custody and Visitation
a. Joint Custody
b. Sole Custody
c. Visitation
d. Removal of Child from Illinois

3. Child Support

4. Spousal Maintenance (sometimes known as spousal support or alimony)
a. Types of Maintenance
b. Factors in Awarding Maintenance
c. Termination of Maintenance

5. Property
a. Separate property
b. Marital property

6. Declaration of Invalidity of Marriage (formerly known as Annulment)

The following are definitions and descriptions of the major issues in divorce and family law cases in Illinois. If your case is pending in another state, you should consult an attorney who is licensed in that state.

1. GROUNDS FOR DIVORCE
In Illinois, you must have been a resident of Illinois for 90 days preceding the commencement of the case or the making of the finding, and prove specific grounds to obtain a divorce.

a. Irreconcilable Differences
Illinois is a “no-fault” state and you need not prove any fault-based grounds to get a divorce in Illinois. The majority of Illinois divorce cases are based upon irreconcilable differences. To establish irreconcilable differences in Illinois, you must prove all of the following:

i. You and your spouse have been living separate and apart for 2 years (This period of time may be reduced to 6 months if both spouses sign a written waiver. This does not mean you have to live in separate residences – sleeping in different beds, leading separate lives will suffice.)
ii. Irreconcilable differences have caused the irretrievable breakdown of your marriage; and
iii. Further attempts to reconcile would be impracticable and not in the best interests of the family.

You do not have to testify to or prove specific instances of conflict – the allegation of “irreconcilable differences” in the divorce petition and your testimony at the prove-up to the fact of “irreconcilable differences” will be enough to establish this grounds for divorce.

b. Fault based grounds for divorce
Fault-based grounds for divorce include adultery, mental cruelty, physical cruelty, abandonment. The grounds for divorce will not be considered in dividing the marital property. (Repealed effective 2016)

2. CHILD CUSTODY AND VISITATION
Child custody is awarded based upon the child’s “best interest.”

a. Joint Legal Custody
Joint custody means that both parents will jointly decide the major life issues of the minor children including education, health care and religious education. Joint custody does not have to do with who the children will physically live with – you may hear the phrase “residential custody” or “physical custody” or “custodial parent” to denote who the child actually lives with. If parents with joint legal custody are unable to reach an agreement on a major life issue or visitation, they must first mediate the matter before bringing to court.

b. Sole Legal Custody
Sole custody means that the parent awarded sole custody has the legal authority to make the major life decisions regarding the minor children. If the other parent feels that the decision made by the parent with sole custody is not in the child’s “best interest,” the other parent may bring the issue to court.

c. Visitation
The non-custodial parent will usually be granted visitation in cases involving either joint legal custody or sole legal custody. The visitation schedule will generally be set forth in the marital settlement agreement. A common visitation schedule for parents living in the same metro area would include visitation every other weekend with longer visits during the child’s spring, summer and/or winter school breaks.

d. Removal of Child from Illinois
If the other parent objects, a minor child may not be permanently removed from Illinois with court permission. This rule applies whether joint or sole legal custody was awarded. If the parties have joint custody, the issue must be mediated before asking the court to decide the matter. If one party has sole legal custody, the court will decide the issue based upon the “best interests” of the child.

3. CHILD SUPPORT
In Illinois, the party that is not awarded residential custody or physical custody is known as the “non-custodial parent.” The non-custodial parent generally pays child support to the custodial parent. The child support obligation is based on the non-custodial parent’s “net income.” “Net income” is defined as all income from all sources, minus certain deductions including, but not limited to, federal income tax, state income tax, Social Security, mandatory retirement contributions, union dues, health insurance premiums, prior obligations of support or maintenance actually paid pursuant to a court order. Voluntary contributions to a 401(k) are not deducted.

The Court usually sets the minimum amount of child support by using the following guidelines:

Number of Children Percent of Supporting Party’s “Net Income”
1 20%
2 28%
3 32%
4 40%
5 45%
6 or more 50%

Note – Illinois child support change to an Income Shares Model 7/1/2017.

4. SPOUSAL MAINTENANCE
a. Types of Maintenance

i. Temporary maintenance
Temporary maintenance may be awarded while the case is pending to provide the dependent spouse with money for living expenses.

ii. Permanent Maintenance
Permanent maintenance lasts for the life of the payee.

iii. Rehabilitative Maintenance
Rehabilitative maintenance may be awarded to allow the payee to pursue an education, job or job skills; the payee must make efforts to become financially independent; at which time, the rehabilitative maintenance may be terminated.

iv. Reviewable Maintenance
Reviewable maintenance may be awarded for a specific period of years or months and then reviewed by the court to determine if the award of maintenance should continue.

b. Factors in Awarding Maintenance
The factors the court will consider in determining whether to award spousal maintenance include income of each party, need of each party, present and future earning capacity of each party, time necessary to acquire education and employment, standard of living during the marriage, duration of the marriage, age and physical and emotional condition, and tax consequences. Note – Effective 2016, there is a formula for spousal maintenance.

c. Termination of Maintenance

Unless agreed otherwise in writing, all types of maintenance terminate upon the death of the payee; death of the payor; remarriage of the payee; payee’s cohabitation on a resident, continuing, conjugal basis with another person.

5. PROPERTY
a. Separate Property

Under Illinois divorce law, separate property is property that was acquired prior to the marriage or during the marriage by separate gift or inheritance.

b. Marital Property

Marital property is property that was acquired during the marriage and not by separate gift or inheritance. Even if you don’t own a home with your spouse, you may have marital property together such as your spouse’s interest in a 401(k), pension or other retirement account.

c. Factors Considered in Dividing Marital Property

The court will try to make a fair and equitable division of the marital property after considering many factors including the duration of the marriage, age and health of the parties, present and future earning capacity, and tax consequences. The court will not consider marital misconduct such as adultery.

6. DECLARATION OF INVALIDITY OF MARRIAGE (FORMERLY KNOWN AS “ANNULMENT”)
In Illinois, annulment is available when:

(1) a party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs or other incapacitating substances, or a party was induced to enter into a marriage by force or duress or by fraud involving the essentials of marriage;
(2) a party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was solemnized the other party did not know of the incapacity;
(3) a party was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial approval; or
(4) the marriage is prohibited (generally, this means bigamy).

Under Illinois law, the annulment case must be commenced within in certain time limits which I can explain in an initial consultation to determine if you qualify.

Chicago divorce lawyer Brian J. Thompson represents clients in Chicago and the Greater Chicago area.

Brian J. Thompson, CPA & Attorney