Divorce Process

Settlement Agreements

Marital settlement agreements and separation agreements are specifically authorized and encouraged. The terms of the separation agreement will be accepted by the court unless the court finds it unconscionable.

All courts encourage the parties in every divorce to try their best to work out all issues between the two spouses. Everything can be concluded in the agreement, from child support and custody, to property division and spousal maintenance (alimony).

Legal Separation

Illinois law specifically provides for a court judgment of legal separation which makes a final division of the property and debt. The legal separation judgment may also address the temporary arrangements for custody, visitation and support.

A legal separation judgment does not end the marriage. The parties remain married until a divorce judgment is entered with the property and debt issues already resolved by the legal separation judgment and the custody, visitation and support issues reviewed by the court at the time of divorce.

Merely being “separated” does not constitute a “legal separation”.  A legal separation requires a court proceeding and a court ordered Judgment setting forth the terms of the separation.

Residency Requirements

If you seek to file a divorce in Illinois, it is important to be aware of the residency requirements prior to filing for your divorce. In order to obtain a divorce in Illinois you must have been a resident of Illinois for at least 90 days.

The papers for dissolution of marriage must also be filed in a county where either of the spouses resides.

Grounds for Divorce

In order to seek a divorce in Illinois, your divorce must be filed under one of the following grounds: Irreconcilable differences; Extreme physical  or mental cruelty; Desertion (one year or more); Adultery; Impotence at time of marriage; Existing marriage; Habitual drunkenness or excessive addictive drug use (2 years or more); Attempts to take spouse’s life; Conviction of a felony; or Infection of spouse with sexually transmitted disease.

If the parties seek a divorce based upon irreconcilable differences, the spouses must have lived separate and apart continuously for a period in excess of two years and irreconcilable differences must have caused an irretrievable breakdown of the marriage.

The court must further determine that efforts of reconciliation have failed, and that future attempts at reconciliation would be impracticable and not in the best interests of the family. The court can grant a no-fault dissolution after a six-month separation of the parties if agreed to by testimony or affidavits.

Periods of living together while attempting reconciliation or continued living in the same residence after the breakdown of the marriage may be considered “living separate and apart” for purposes of the required separation period.

If the court feels that the marriage still has a chance of survival it has the power to suggest that the parties seek counseling. The court also has the power to order a mediation conference, where is can make a finding whether the marriage is irretrievably broken.

Division of Property

Non-Marital Property
Property that a person had before the marriage or was a gift to just one spouse which has not been converted to marital property is not subject to division in a divorce.

To prove that property should be considered non-marital property you need to show that you either owned it before marriage or that it was a gift or inheritance to you but not your spouse. Some examples of non-marital property might include cars, boats, investments, retirement accounts, and real estate.

Marital Property
Marital property will be divided in just proportions, determined by the finances and property of each spouse.  Even if one spouse stayed home and cared for the house and the children, most courts will consider that an equal contribution to the relationship and thus that spouse will be awarded an equitable share of the property.

If the parties can agree upon the value and division of the property, the court will accept their settlement. If there are disagreements on the value or division of the property, the parties will need to present their valuations of the personal property and real estate, usually by appraisals.

The court may then determine the values and divide the personal property and real estate, or order the property sold and divide the proceeds.  Bank accounts, investments, and retirement accounts will be valued and divided as well, which may require valuation by accountants or actuaries as well as consideration of any tax implications of the divisions.

Spousal Support

Either spouse may be required to provide for the support and maintenance of the other after the divorce. Spousal maintenance is based on the financial circumstances and the needs and abilities of the divorcing spouses.

To help determine the amount for spousal maintenance it is important to look at the standard of living prior to the divorce. There are four forms of spousal maintenance.

The first is temporary maintenance, which is paid from one spouse to the other until a final decision on spousal support can be made.

Rehabilitative maintenance is awarded to assist one spouse to complete an education or meet other transition needs such as debt payment or temporary health issues that will help the other spouse to become financially self-sufficient.

Permanent maintenance is awarded for either a specified period of time or an open-ended period of time.

Maintenance in gross is a lump sum award in addition to the property division to give one spouse sufficient assets to avoid the need for rehabilitative or permanent spousal maintenance.

Rehabilitative and permanent maintenance are subject to future post-divorce modification or early termination under certain circumstances.  Maintenance in gross is an absolute obligation that can not be modified or terminated.

Child Custody

If the parents agree about the custody and visitation issues relating to their children the court will usually accept such agreements. Custody is the legal decision making authority with regard to the child which may be placed with one parent (sole custody) or shared by both parents (joint custody). Visitation is the schedule for the parents to be responsible for and spend time with the child.

At the outset of the initial case involving custody, the parties must attend a court approved education program regarding the impact of the legal proceedings upon children. If the parties are unable to promptly agree on custody and visitation, court approved mediation will be required unless there is clear evidence that such mediation would be futile.

If the custody and visitation issues can not be resolved through mediation, the court will hold a hearing on all relevant custody and visitation issues to determine the best interests of the child. To fully develop the relevant information, the court may appoint an attorney or other representative for the child, usually referred to as a Guardian ad Litem.

If there are significant parenting issues, the court or either party may propose the parties undergo a custody evaluation by a qualified professional, such as a psychologist. Testimony from expert witnesses, such as educators or physicians may also be relevant.

Child Support

Child support is the amount that the court determines should be paid from the non-custodial parent to the custodial parent to help maintain the children until they graduate high school or reach age 19, whichever occurs first.

Child support determinations can only be altered if there has been a substantial change in the circumstances relating to the children or the parties.  Illinois has a specific definition of “net income” that is used for calculating child support, which is not limited to taxable income or base wages. Determination of the net income requires a close review of the finances of the parties.

The court will apply the statutory percentages to the net income unless either party can demonstrate a need for a deviation up or down from the statutory amount due to the finances of the parties, needs of the children, and any other support of the children provided by the paying party.  The statutory percentages are 20% for one child, 28% for two children, 32% for three children, 40% for four children, 45% for five children, and 50% for six or more children.

Non-Minor Support

Illinois provides for either parent to seek contribution from the other parent towards the support of the child after graduation from high school or age 19, whichever occurs first to meet the needs of a disabled child or to aid in the post-secondary education of a child.

The determination of what, if any, non-minor support is based upon the needs and abilities of the child and each parent and may be indefinite if the child is disabled or terminates upon the completion of a bachelor’s degree if for education.

Taxes and Debts

All debts acquired during marriage will be considered marital debts and will be allocated by the parties or the court to minimize the future financial entanglements of the parties. Debts on property, such as mortgages and car loans, will go with the property.

Unsecured debts, such as credit cards or personal loans, will be divided based upon who is legally liable for the creditors, who received the benefit of the debt, and who can best afford to pay off the debt.

The divorce judgment only allocates the debts between the spouses and does not affect the rights of the creditor to pursue collection from either or both spouses after the divorce so that the debt allocation should be carefully structured to avoid future collection efforts against one spouse for future non-payment of debts by the other.