FAQ

DO I NEED A FAMILY LAWYER?

Although an attorney is not required by the court in Illinois to obtain a divorce or other family law determination (such as custody or separation), Judges are required to hold each person to the same standards as if he or she was an attorney, even if the person is representing him or herself. It is always advisable to have legal counsel to guide you through the divorce process, especially if you have children or assets. The Illinois Supreme Court has put certain rules in place that govern custody matters and the law regarding the division of assets in a divorce is complicated and ever-changing. Even if you believe your case to be very simple, an attorney will ensure that your case is handled smoothly, and often it will be completed much more quickly than if you were to handle the matter on your own. Further, spouses who believe they have agreements on all issues often eventually have disputes regarding certain matters before the divorce is finalized. An attorney will be able to provide advice regarding a proper resolution. Remember that the agreement you reach on financial and custody issues must be put into a legal document, and this document must be free of mistakes and oversights or you may be required to return to court in the future to further litigate the issues. Attorneys who limit their practice to divorce matters draft these documents regularly, therefore it is much less likely you will have to return to court to re-litigate.

WHAT SHOULD I ASK THE ATTORNEY DURING THE CONSULTATION?

Because the process is often confusing and you will have many questions, it may help to make a list before you meet with an attorney. Inquire whether the attorney utilizes paralegals who bill at a lower rate than an attorney, the retainer fee requirement, the projected timeline of your case, and ask about any special requirements if children are involved in the divorce.

WHAT SHOULD I BRING TO THE CONSULTATION?

Bring any documents that you feel are relevant to your case, including financial statements, prior court orders and pleadings (if any). Although you do not need to discuss the exact balances in your accounts during the consultation, approximate account balances will help in discussing the timeline of your case. If you are unaware of the balances or even what accounts exist, do not worry; your attorney will be able to obtain that information for you after your case is filed.

HOW IS A SEPARATION DIFFERENT FROM A DIVORCE?

Most people use the word separation interchangeably with divorce. Legally, however, they mean two different things. Couples who separate remain married pending any further action, while those who divorce are officially no longer married. How the couple’s assets and debts are divided during a period of separation varies by state and the type of separation that occurs.A legal separation results when the parties separate and the court rules on the division of property, alimony, child support, custody and visitation rights, but does not grant a divorce. The money awarded for support of the spouse and children under this situation is often called separate maintenance. Assets acquired after legal separation are non marital in the state of Illinois. In order to obtain a legal separation, you must file a different Petition than you would file to obtain a divorce.

WHAT IS A RETAINER?

A retainer is a fee that you pay to your attorney when you hire them to represent you. The Law Offices of Benedict Schwarz, II retainer is paid at the commencement of our services and it remains the property of the client until our firm applies it to charges for services rendered. Any unearned funds remaining after the completion of our representation will be promptly refunded to the client.

WHO PAYS THE ATTORNEY FEES?

Your Attorney can ask the court (by filing a Petition) to order the other party in the case to pay your attorney’s fees, if that person is in control of the assets. The statute in place providing for the payment of interim attorney’s fees allows for the immediate payment of attorney’s fees to the attorney of your choice, to be paid by the spouse in control of the family wealth. It is now easier, because of this statute, for spouses not in control of the family wealth to hire competent counsel and seek immediate relief from the court for payment of prospective attorney’s fees.

HOW LONG DOES A DIVORCE TAKE?

The length, and content, of the divorce process depends on many factors, including the agreement or non-agreement of the parties on division of assets, custody of the children, and support of the children or spouse. The more agreeable the parties, the less time and money spent on the divorce. The actual time period can range from 60 days to several years.

CAN MY SPOUSE AND I BE REPRESENTED BY THE SAME ATTORNEY?

In most circumstances, it is a conflict of interest for an attorney to represent both parties.

WHO WILL HAVE CUSTODY OF OUR CHILDREN?

Courts hearing child custody matters will always make a decision based on the “best interests of the child.” This governs all aspects of custody and parenting time. Determining the best interests of a child depends upon many factors, including the child’s age, mental and physical health, lifestyle and other factors of parents, love and emotional ties between parent and child, who has been the primary parent before the breakdown of the marriage, among other factors.

WHAT DOES CUSTODY MEAN?

Custody is used to refer to a parent’s right to have a child live with that parent and to make decisions concerning the child.Physical Custody is the right of a parent to have a child live with him or her on a primary basis.

Legal Custody is the right to make decisions about the child, such as education, religion, and medical care.

Courts will award legal and physical custody of a child to either one parent or both. Sole Custody is when one parent is the sole decision maker. Joint Custody (joint decision making) allows both parents to share in making decisions. Arrangements where parents share time with the children “equally” is unusual.

WHEN MAY A PARENT WITH PHYSICAL CUSTODY REMOVE THE CHILD FROM ILLINOIS?

Removal is allowed by agreement of both parents, or with the court’s permission. The court considers the following:

Best interest of the child
Will the proposed move enhance the quality of life for the child and the parent with custody?
Is the move designed to frustrate the other parent’s parenting time?
Are the non-custodial parent’s objections valid?
Will reasonable parenting time be maintained after the move?
Has the non-custodial parent exercised previous parenting time?

The burden is on the parent who wishes to remove the child to prove the child’s best interests would be served by removal.

WHAT ARE THE STANDARDS FOR CHILD SUPPORT?

Child support is based on the payor’s take-home (net) pay, with certain deductions. The percentage of child support to be paid depends on the number of children. Child support payments may be modified if warranted by the situation. Usually, modification requires a showing of a “change in circumstances”.

CAN CHILD CUSTODY AND PARENTING TIME BE MODIFIED?

Yes. Child custody and visitation agreements can be modified with the consent of both parents or by Court Order. Any of the original terms may be changed as long as the change is consistent with the best interests of the child.

WHAT DOES POST DECREE MEAN?

After a Judgment for Dissolution of Marriage is entered, other issues might arise. Circumstances can change that affect custody, parenting time, child support, and maintenance. Make sure that you discuss any new issues related to your case with your attorney.

HOW IS PROPERTY DIVIDED PURSUANT TO A DIVORCE?

In Illinois, marital property is divided equitably, which is not necessarily equally. There are several factors the court considers in allocating property, including the duration of the marriage; generally, where there is a long term marriage, the property settlement weighs in favor of the party who has the lower earning potential. Further, the division of marital property is without regard to marital misconduct.

WHAT PROPERTY IS MARITAL AND WHAT IS NON-MARITAL?

Any property acquired during the marriage is presumed to be marital property. This presumption can be overcome by the party claiming the property is non-marital by showing certain evidence. Non-marital property is property acquired before the marriage or property received by gift or inheritance. These guidelines, however, are not clear-cut and there are exceptions.

HOW ARE DEBTS ALLOCATED?

Debts are treated much like assets in that if a debt is incurred during the marriage it is presumed to be a marital debt and thus allocated accordingly. However, at times the court may order the spouse earning more income to assume more of the marital debt.

WHAT IS MAINTENANCE?

Maintenance was previously known as alimony and is a spouse’s right to support from the other spouse. Maintenance is separate from child support, but may be combined with child support and made in one payment; this type of support is called “unallocated support.” There are several factors the court considers in making an award of maintenance, including:

The length of the marriage;
The disparity in income;
Whether there are children of the marriage;
The age and health of the parties;
Each party’s ability to earn income; and
The standard of living established during the marriage, among others.

There is no exact formula for the length or amount of maintenance payments.