FREQUENTLY ASKED QUESTIONS

Illinois is what is called a no-fault state, meaning the judge will not consider which party is at fault for the demise of the marriage in dividing assets.  The Judge will only consider the financial needs of each party in dividing the marital assets and determining whether maintenance should be paid.  That means it does not matter if a spouse has committed adultery, or domestic abuse, or did not live up to his or her duties and obligations during the marriage; the Judge will only consider the financial needs of the parties and make an equitable division of the assets so that the parties can continue, as much as possible, living in the lifestyle to which they grew accustomed.

An uncontested divorce is where both parties have come to an agreement dividing the assets, debts, and obligations of the marriage and there is no need to continue litigation or enter into discovery.  Instead, the attorneys draft the documents necessary to prove-up the case and have the judgment entered.

A divorce begins with the filing of a petition for dissolution of marriage and having your spouse served.  Once your spouse responds to the petition, the case then moves into the discovery stage where the parties exchange financial information.  This exchange requires both parties to provide their bank statements, credit card statements, paystubs, tax returns, retirement account statements, and other related documents.  They must also answer written questions called interrogatories and complete a ten-page financial affidavit.  While discovery is ongoing, the parties may also litigate pretrial motions that seek to appraise marital assets, prevent the parties from spending or wasting marital funds, dispose of assets prejudgment, provide compensation for the attorneys, award maintenance or child support on a temporary basis, and settle other issues.  Once both parties have a good understanding of the income, assets, and debts of the marriage, they should enter into negotiations.  They may meet in a four-way meeting with their spouse and the lawyers, or they may employ the help of a mediator.  They may even speak with each other, outside the presence of their attorneys, if they feel comfortable doing so.  If a settlement cannot be reached, the parties face the prospect of a trial.  Trials require considerable time for the attorneys to prepare arguments, witness examinations, witness preparations, and exhibits.  Trial is an expensive alternative to settlement and should be avoided if at all possible.

It depends on several factors, some of which the client can control, some of which s/he cannot.  As a rule of thumb, big estates cost more to divorce than small estates.  Parties with lots of issues and conflicts will pay more than parties with fewer issues.  Your spouse can drive up the cost of the divorce by filing frivolous motions, refusing to engage in negotiations, and otherwise being unreasonable.  The court can drive up the cost of the divorce by not being efficient or decisive.  But a client can keep the costs under control by keeping their expectations reasonable, following their attorney’s instructions, entering into negotiations, and responding to discovery requests in a timely fashion.

Like the cost of a divorce, the length of time it takes to get a divorce depends on the same factors.  Divorces can be complete in as short as a month.  Or, as in the case of Arnold Schwarzenegger and Maria Shriver, take more than ten years.

If a spouse cannot be located by reasonable efforts, then the court will allow a party to get service on the absent spouse by publication.  But a court will not allow a person to simply swear out an affidavit saying s/he cannot locate the spouse.  Reasonable efforts must be made to find that person, including contacting their last known kin, searching public records, and even hiring a private investigator to locate them.  Keep in mind that, in this day and age, it is rare to lose a spouse completely.  Private investigators can locate almost anybody in the United States.

Yes, you were present on the alter when you got married, and you must be present in the court when you get divorced.  The court requires a hearing before it enters the proposed Judgment.  You will have to answer questions about yourself, the marriage, and the agreement you have reached.  The hearing is brief, and the questions you have to answer are simple and straightforward.  But you will have to do so in person.

A collaborative divorce occurs when the parties agree to meet with a mediator, or with their attorneys in a collaborative setting, so that they can sort through the issues and come to an agreement with which they can both live.  The main aspect of a collaborative divorce is that the parties have agreed to do away with the adversarial nature of the litigation process and negotiate an end to their marriage.  It requires honesty from the parties concerning their income and assets, as well as an ability to meet with your spouse.  Keep in mind that a professional will always be present during the negotiations, either your attorney or a mediator, and these professionals will guide the parties in their discussions.  Collaborative divorces are a great way to both save money and reduce the emotional impact of the divorce process.

A divorce is when the bonds of matrimony are dissolved by the court and all of the property and debts of the marriage are divided between the parties.  A legal separation is when the parties stay legally married, but a court has divided the assets of the marriage and the obligations of the parties to one another in a judicially enforceable judgment.  Legal separations are rarely used in this day and age.

Marital property is equitably divided between the parties.  First, the court determines which property is marital and which is non-marital.  Next, the court looks to the financial needs of the parties, such as their ability to support themselves in the lifestyle in which they grew accustomed during the marriage.  Usually, marital property is divided in half and each party gets a fifty percent share.  But sometimes the Judge will give one party more of the property if he thinks that party needs more to support themselves going forward.

It is well established that pensions, 401(k)’s, 457(b)’s, IRA’s, and even checking and savings accounts, are marital property if contributions to them were made during the marriage.  Contributions to these accounts made before the marriage, and contributions made after the divorce is final, are not marital property and your spouse will not get any portion of those contributions.  Retirement accounts are routinely divided during the divorce proceedings by using a special order called a Qualified Domestic Relations Order.

Simply put, they are attorneys who are assigned by the court to represent the children in a divorce or parentage case.  They conduct an investigation which includes interviewing the children, the parties, witnesses with knowledge of the case, teachers and counselors, and may even inspect the homes of the parties.  They then make recommendations to the court as to what they think is in the best interests of the children in terms of living arrangements, parenting time, and decision making.  The key difference between a guardian ad litem, or GAL, and a child representative, or child rep, is that the GAL can be called as witness during a hearing or trial to testify about their findings during their investigation while a child rep cannot be called as a witness.

The court decides who will serve as a GAL or child rep but may ask for input from the parties’ attorneys in making this decision.  The court also determines who will pay their fee.  It may be divided equally between the parties, or a higher earning party may have to pay a greater share.  There are also social service agencies that provide these attorneys for free or reduced rates, but clients that are able to pay for their own attorneys are usually expected to pay for the child’s attorney as well.

In short, the court will consider the best interests of the child when making this determination.  It is important to remember that the court does not consider principals of fairness when making these decisions, such as it would for property settlements, but rather the court must do what is best for the child.  This usually means that children are sent to live one parent most of the time and to spend time with the other parent at designated intervals.