and if a settlement has been reached, the spous- ties, or exclude one party from the home, or Copyright, Illinois State Bar Association 2016 es may be eligible for a simplified pro- grant other relief. The order is for a limited time This pamphlet is prepared and published by the cedure, which they can do themselves, quick- only, unless it is merged with a judgment for dis- Illinois State Bar Association as a public service. ly. In fact, no person seeking a divorce actually solution of the . Every effort has been made to provide accurate is required to use an attorney. If a person does Compliance. If one of the parties does not ad- Consumer Legal Guide information at the time of publication. plan to represent himself or herself during the here to the terms of judgment, the other person proceedings, though, they should not expect the may have to go back to court and ask that the non- For the most current information, please consult court clerks and judges to give legal advice. By compliant party be held in contempt of court. If your lawyer. If you need a lawyer and do not have law, they are unable to do so. Most people do, at held in contempt, the non-compliant party may be one, call Illinois Lawyer Finder at (800) 922-8757 or least, consult with an attorney, and usually select required to: a) do what he or she failed to do, b) pay online www.IllinoisLawyerFinder.com one who is experienced in divorce law. for the attorney’s fees for the other person, and/or It is very important to recognize that a lawyer c) pay a fine or be imprisoned. Pamphlets Available cannot represent both parties in a case: the law- yer can only represent the party who first saw Advice to Newly Marrieds him or her. Although quite often documents (in- If you’re looking for an Alternative Dispute Resolution cluding a separation agreement) are prepared by Auto Accidents one lawyer, and the other party does not hire a Illinois lawyer, look to Auto Insurance lawyer, the fact is that the lawyer who drafted the IllinoisLawyerFinder.com Bankruptcy Your Guide to documents is only representing one party. Being a Guardian Most lawyers do not charge a flat fee for a divorce Buying a Car unless the divorce is very simple, and both parties Buying a Home Getting a Divorce have agreed to everything from the outset. Instead, Buying on Time a lawyer will usually request a retainer from the cli- Divorce ent (like a security deposit) and charge for the law- Estate Planning in Illinois yer’s time, based on the amount of time he or she Gender Transitioning believes the divorce action will take to complete. General Practitioner Also taken into account are the attorney’s legal ex- Healthcare Privacy perience and the complexity of the case. Lawyers Healthcare Decisions in Illinois are prohibited from charging a contin- Hiring a Lawyer gent (or percentage) fee for a divorce. Once a fee ar- Illinois Traffic Courts rangement has been made, a lawyer should prepare Jury Duty a written contract which the lawyer and client sign. Landlord-Tennant With regards to actual payment of the fees, a IllinoisLawyerFinder.com is the Illinois State Law-related Careers judge may determine that one person should pay Bar Association’s statewide lawyer directory Limited Scope Representation for the other person’s attorney fees, either on a on the Web. Search for lawyers by practice Living Trusts temporary or final basis, if there is a great dis- area, name, county or town. Patients’ Rights parity in the income of the parties. Often, a judge Rights of LGBT determines whether each party has the ability to Find a lawyer near you 24/7 on the Web at Selling a Home pay his or her own fees. IllinoisLawyerFinder.com or call us from Serving as a Guardian for an Adult with Disabilities around the state at 217-525-5297 or Starting a Business 800-922-8757 Monday through Friday Your Rights if Arrested OTHER ISSUES from 9:00 a.m. to 4:00 p.m. For more information on legal issues or to obtain . With or without the fil- single copies of each of the pamphlets listed above ing of a petition for dissolution of marriage, an (free to individuals), please visit ILLINOIS STATE abused party may ask the court for an Order of www.ISBAlawyers.com BAR ASSOCIATION Protection for herself, himself or on behalf of someone who is unable to ask the court them- ILLINOIS BAR CENTER selves. If the court finds there is a danger of 424 S. Second Street ASK A LAWYER Springfield, IL 62701-1779 abuse, it may limit the between the par- www.isba.org 1/16 grounds for divorce recognized in Illinois is ir- the parties were married. The court may also THE LEGAL ISSUES INVOLVED reconcilable differences, which some people consider the increase in value of non-marital AND IN ENDING A MARRIAGE call no fault divorce. Illinois law defines irrec- property during the marriage as marital proper- MAINTENANCE oncilable differences as the “irretrievable break- ty. Unlike some other states, Illinois law requires down” of a marriage. In such a case, the that all marital property, including debts, be di- In the U.S., a divorce (known as a dissolu- are required to prove to the judge’s satisfaction vided “equitably,” not “equally.” Temporary orders and/or the judgment for di- tion under Illinois law) is the means by which that there is a breakdown in the marriage, that In determining what is equitable, the finan- vorce may call for payment of child support and/ the marriage between a couple is legally termi- all efforts at reconciliation have failed, and that cial or other contribution each party had made or maintenance. nated. A judgment for divorce means that the future attempts to reconcile would not be “in the to acquiring property is considered, along with Both parents have an obligation to support the parties have reached an agreement or, if the par- best interests of the family.” each person’s financial circumstances and the children. If one parent has custody or in most ties cannot agree, a judge has made a decision Irreconcilable differences can be proven by likelihood with each party will acquire assets in cases, residential custody, the law assumes that regarding parental responsibilities for the chil- showing that the parties have lived separately the future. The court may also look at whether a the residential parent is contributing to the chil- dren of the marriage and the couple’s financial for at least six continuous months prior to the party used marital income for purposes not re- dren’s needs, and directs the other parent to affairs. Following a divorce, each party is free divorce action. lated to the marriage, the duration of marriage, pay a percentage of his/her income to the par- to remarry and is also able to resume a former and the custodial provisions for any children of ent receiving support (for example: 20% of in- (maiden) name. the marriage, among other factors. Marital prop- come after mandatory deductions if there is one Other issues to consider before the divorce is TRIAL OR AGREEMENT erty may be divided when the judgment is ren- child, 28% if there are two children). Any de- final are the needs for medical insurance or life Although most couples who are divorcing have dered, or there may be provisions for payments viations from these percentages are the excep- insurance, obligations on a mortgage if one party disagreements about certain issues, these dis- to be made over a period of time. tion. The law also requires that whenever pos- stays in the marital home, and tax implications putes usually are resolved through negotiation, sible, the payments for child support must come of property division or financial awards. and advice from lawyers and a judge. Most di- directly from the paycheck of the parent paying vorce cases ultimately are settled by agreement, CUSTODY AND VISITATION support, through payroll withholding. Except in RESIDENCY AND FEE in part because going to trial can be expensive. REQUIREMENTS special circumstances, the parent who has custo- REQUIREMENTS Among the issues that must be settled before dy is able to claim the child for income tax pur- the divorce can be granted are the following: Some of the most painful and expensive dis- poses. Child support is always modifiable, how- putes that divorcing parents experience involve ever, should there be a substantial change in cir- If a couple decides to divorce, there are a num- • division of property—real estate, invest- ments, money; parenting rights and responsibilities. A judge cumstances. ber of steps they must take before the divorce may require couples who have disagreements The obligation to pay child support continues can be granted. Their first step is to file a peti- • division of debts; about these issues to attend parenting programs until a child reaches 18 or graduates from high tion for divorce. In Illinois, there is no waiting • whether or not one person will have to or participate in mediation. Some courts may re- school. Both parents may also have an obligation period to file a petition: it can be filed as long as pay maintenance to the other, and if so, quire all parties to attend classes concerning the to contribute to a child’s post-high school edu- one of the spouses legally resides in the state on how much and for how long; effects of divorce on children. If the judge ap- cation. the day of the filing. The actual divorce, howev- • if there are children, what the custody points an attorney to represent a child in a con- The court will make the determination wheth- er, can be granted only if he or she legally has re- and visitation arrangements will be; and tested case, the parents will be responsible for er or not the payment of maintenance to one sided in Illinois for 90 days before the judgment. • what financial obligations each person paying the fees of that attorney, as well as their is appropriate. If maintenance is ap- After a petition for divorce is filed, temporary will have to the children. own attorneys’ fees. propriate, the court will follow statutory guide- orders often will be entered into and will ad- In making decisions regarding children of the lines as to how much maintenance is paid, and dress maintenance (formerly called ), marriage, the court will consider the allocation for how long. Under that guideline, the mainte- visitation, and child support; and these may re- MARITAL PROPERTY of various parental responsibilities, including nance award will generally be calculated as 30% main in effect until the divorce is final. the ability to make decisions about educational, of the paying spouse’s gross income minus 20% The fee for filing the divorce petition is differ- If the parties do not reach agreement, a trial health, and religious matters for the child. The of the receiving spouse’s income. The length of ent in each county. If a person cannot afford the will be held in front of a judge. court will consider what is in the best interests time maintenance will be paid depends on the filing fee, a fee waiver is possible. Property includes real estate, furniture, cars, savings accounts, stock portfolios, retirement of the child, as well as any agreements made be- length of the marriage. savings and other assets. Anything that is ac- tween the parents. All parents, after the filing of GROUNDS FOR DIVORCE quired during the marriage, unless it was a gift, a divorce action, will be required by the court to HIRING AN ATTORNEY inherited or specifically excluded by a pre-mar- file, either separately or jointly, a proposed par- Before a judge will grant a divorce, a spouse ital agreement, is considered marital property, enting plan. If the marriage was short in duration, if the or both spouses must prove grounds. The only regardless of who earned the most money while couple had no children, if there is no real estate,