Colky and Kirsh, Ltd.

Q: Do I need to have grounds to obtain a divorce?

A: Yes. Illinois is not a “no fault” state. In a divorce case, grounds are rarely a contested issue. The most common grounds for divorce are irreconcilable differences. Other grounds include mental cruelty, physical cruelty, adultery and desertion.

Q: What is the difference between sole custody and joint custody?

A: Sole custody means that the children reside with the custodial parent, subject to the visitation rights of the other parent. The custodial parent has full decision making authority on issues related to the children such as medical care, choice of schools, and religious upbringing.

Joint custody means joint decision making authority on major issues such as medical care, choice of schools and religious upbringing. In the event the parents disagree on an issue vital to the well-being of the children, the joint custody statute requires that the parents attempt to settle the dispute through mediation before either one has a right to go back to court. Joint custody does not mean equal time with each parent. Joint custody has nothing to do with how much time the children spend with each parent. Joint custody refers only to joint decision making and the use of mediation before returning to court.

Q: How much visitation does the non-custodial parent get?

A: In almost all cases, the parent with whom the children do not reside is entitled to visitation. This is true in both sole custody and joint custody situations. The frequency and duration of visitation is governed by the best interests of the children, not by whether a parent has joint or sole custody. Typically, a visiting parent will have visitation every other weekend, one or two evenings during the week from after school through dinner and on alternate holidays. Extended visitation often takes place during the children’s winter, spring and summer breaks from school. Remember that every case is different and the goal is to end up with a visitation schedule that best serves your children’s needs.

Q: Am I entitled to child support?

A: In almost all cases the non-custodial parent will be required to pay child support to the other parent. Illinois uses a system of minimum child support guidelines which are expressed in terms of a percentage of the support paying parent’s net income.

1 child 20% of net income.

2 children 28% of net income

3 children 32% of net income

4 children 40% of net income

The guidelines are minimum guidelines. A court will often require the non-custodial parent to contribute to the cost of medical and dental expenses not covered by insurance, extracurricular activity expenses and day care expenses. Depending on the facts of the case, a court can require a parent to contribute to the cost of parochial or private school education. In cases where payment of guideline support would result in a windfall to the custodial parent, the court can deviate downward from the guidelines and order support based upon the needs of the children. Child support is not tax-deductible to the parent paying the support.

Q: Am I entitled to alimony?

A: Alimony is called “maintenance” in Illinois. Whether a spouse is entitled to maintenance depends on a number of factors, including the ability of the spouse to pay maintenance and still meet his or her own needs, the length of the marriage, the ability of the spouse seeking maintenance to be self-supporting and the marital property awarded to the spouse seeking maintenance. The amount and duration of the maintenance depends on many of the factors listed above, but an additional factor is the standard of living enjoyed by the parties during the marriage. Maintenance is tax-deductible to the spouse paying the maintenance.

Q: How are assets divided in a divorce?

A: In Illinois, division of property is without regard to fault. This means that the court will not consider your spouse’s deficiencies when deciding how the marital assets and debts are divided. Even if your spouse was physically or emotionally abusive, an absentee parent or unfaithful, the court cannot consider such matters when deciding the issue of division of property.

When dividing property the court first determines which property is “marital” and which property is “non-marital”. Marital property consists of any property acquired during the marriage, including pensions, 401k accounts or other retirement accounts. However, property acquired by gift or inheritance (and various other means) is not considered marital property.

Each spouse keeps their own non-marital property. Marital property is divided on an equitable basis. “Equitable” does not mean 50/50, although 50/50 is generally considered the starting point for any analysis of division of marital property. Factors the court considers when dividing marital property include: the length of the marriage, the education of each spouse, the ability of each spouse to acquire property in the future through earnings or other means and the non-marital property of each spouse.

Q: How long will my divorce take and how much will it cost?

A: This is probably the most frequently asked question and, unfortunately, the answer is “it depends”. How long your divorce takes depends on a number of things including the county in which the case is filed, the ability of the parties and their attorneys to resolve issues without litigation and the nature of the contested issues. For example, a case in which custody of the children is disputed will take significantly longer than a case in which the custody and visitation issues are agreed upon. Not surprisingly, cases which require frequent trips to court to fight about temporary issues take longer to resolve; court dockets are crowded and therefore litigation is the most time consuming way to resolve an issue.

How much a case costs also depends primarily on the nature of the disputed issues and the ability of the parties and their attorneys to resolve issues without extensive litigation. Generally, the longer a case lasts, the more it costs. Because of the uncertain nature of divorce litigation, domestic relations attorneys charge an hourly rate and rarely will work for a flat fee. Most attorneys require a retainer fee to be paid as an advance against future fees and costs which will be incurred in your case. The amount of the retainer fee depends on the nature of the disputed issues and varies from attorney to attorney.

A: The general rule is that each party is responsible for payment of their own attorneys fees. However, Illinois law contains a “leveling the playing field” statute which allows a court to order one spouse to pay the other’s attorney’s fees. Fee awards under the leveling the playing field statute are called “interim fees” and are awarded based upon the ability to pay. The goal of the statute is to allow each side in a divorce case to have equal representation.

In addition to interim fees, the court can also order one spouse to pay the other’s fees at the conclusion of the case and also in post-decree proceedings.

Disclaimer: the above is intended for general informational purposes only and should not be considered a substitute for legal counsel.