• Court cost and attorney’s fees—Who pays what expenses?
• Property—Who gets the house? Who gets the note? How does the equity get divided if it is sold?
• Personal property—Who gets which car, what appliances, and what happens to the sofa in the guest bedroom?
• Retirement—What happens to any retirement benefits that have accrued for either party?
• Debts—Who pays which outstanding debts? Should the debts be paid off by refinancing?
• Alimony—How much? How long?
• Custody—Who gets which child? Should any aspects of custody be shared? The noncustodial parent may be the one who is a doctor and may be the one who should make medical decisions. Will joint custody work?
• Child support—How much? How long? Who carries health or life insurance on children? Who gets to claim the children as income tax deductions? Private school or college tuition?Visitation—Do you want a specific schedule or can you and your spouse work together on it?
• Life insurance— Who is insured? Who is the beneficiary? Term or cash value? How much?
• Health insurance— Who is covered? In many cases an employee’s spouse can be covered up to thirty-six (36) months after the divorce by the employed spouse’s insurance for a small additional premium.
• Other—Security for obligations in the agreement, for wills, for death, and for taxes. (You cannot avoid death or taxes, so you may need to provide for them.)

Divorce is a difficult enough time. If you find yourself facing a divorce, even if you and your spouse are willing and  able to “work things out”, it is always recommended that you hire a divorce attorney to review the decisions you make together and that your documents are written properly so that the understandings you come to do not fall apart at a later date.

Hiring a Chicago divorce attorney does not mean the divorce proceedings need to be filled with angst and undue stress.

If you try to work something out with your spouse, the following are some useful pointers to remember:

• Meet on neutral ground—Not at his office or at her mother’s home, but some place where both parties will feel comfortable.
• Put aside time—A reasonable amount of time should be set aside to deal with the issues. If you leave to answer a telephone call just as you almost have things worked out, you may find that things have fallen apart when you get back. On the other hand, do not leave the meeting time open-ended. A meeting without a deadline will drag on and issues will not get resolved.
• Set an agenda—Decide what will be dealt with at the meeting. “This week we will decide on custody and child support, next week we will decide on the house.” Do not bog down—Try to talk about what you agree on. No matter how bad it is, there are some things you agree on (“the marriage stinks” or “the kid is cute”). If you hit a point that gives you trouble, move on to something else and come back to the problem after you have resolved some other issues.
• Reschedule as needed—If things start to turn nasty, if someone gets angry, or if you think you are losing everything, reschedule the meeting for another time. It is important that both of you feel that the agreement is a good thing.
• Keep the kids out of it—Your children do not need to be involved in this. Do not have them around. They will interrupt you, and it will upset them.
• Start talking early—Divorces usually settle early on when both parties feel guilty and are not locked into a position, or divorces settle after much litigation when the parties are too exhausted to fight anymore. Sometimes you can get more with guilt than you can get at a trial. If you and your spouse work out something and you make notes, do not sign the notes. This could be considered to be an agreement. If it is not in the correct legal language, you may be bound by something other than what you thought you agreed to.

Section 501 of the Illinois Marriage and Dissolution of Marriage Act allows a court to award a spouse temporary support while the case is pending. The court sets an amount that is to be paid each month for maintenance or child support or both. This is a short term remedy and is not the final amount awarded at the end of the case.

In order to obtain temporary support, the spouse must file a Petition for Temporary Support. The Petition must allege that the party seeking support is without sufficient income or assets to meet the needs of that party and/or the children. The Petition must also allege that the opposing spouse has the income and ability to pay support. The Petition for Temporary is accompanied by an affidavit which details the categories and amounts of living expenses.

Each county in the State of Illinois requires all divorce litigants to prepare an affidavit of expenses in some form. In Cook County, the form is called “Disclosure Statement Pursuant to Rule 13.3.1(B)” (form #CCDR 0604) and can be found on the Clerk of the Circuit Court of Cook County website, Court Forms, Divorce Division. In Lake County, the form is called “Financial Affidavit 11.02” (form 171-12 FD33) and can be found on the Lake County Circuit Clerk website, Court Forms Online. In DuPage County, the form is called “Financial Disclosure Statement Pursuant to Local (Or Supreme) Court Rule” (form 3417) and can be found on the DuPage County Clerk of the Circuit Court website, Online Court Forms.

 Customarily, a short hearing on the issue of support is held after which, the Court makes a monetary award based upon the individual facts and circumstances of each case. In addition to the expenses of each party, the court may also take into consideration factors such as: the lifestyle the parties enjoyed while residing together; whether there are small children in need of child care; the employability of a spouse; the debts of the parties; and the like.

Section 701 of the Illinois Marriage and Dissolution of Marriage Act allows a “temporary eviction” of a spouse during the divorce proceeding if “the physical or mental well being of either spouse or their children is jeopardized by the occupancy of both spouses.” The degree of proof is greater than that of the Domestic Violence Act.

Exclusive possession of the marital residence may be obtained more easily under the Domestic Violence Act. Under the Domestic Violence Act, a spouse must prove abuse or harassment, and that it is less of a hardship for the other spouse to relocate to another residence. An action under the Domestic Violence Act may be brought as either an independent action or as part of a pending divorce case.

During the pendency of most divorce cases, the atmosphere in the marital residence is tense and stressful for all parties. This is an insufficient basis under both statutes to require the removal of a spouse. Also, under both statutes, a spouse’s being required to move does not affect title to the real estate or who, at the end of the case, is awarded the marital residence.

The question of residency arises when a person has resided in Illinois for only a short period of time prior to filing the divorce action. The primary factor in determining residency is a person’s intent to make Illinois his or her permanent residence. A party’s intent is determined by their actions. For example, the address on a driver’s license; or the name on utility bills; or a voter’s registration card; or the name and address on a bank account within the state. The factors vary in each case.

A person’s residence and domicile may or may not be the same. A domicile is where someone lives, versus a residence, which is a person’s intent to live in Illinois as a permanent home.

When seeking a divorce attorney in the Chicago area, take time to interview them and insure they are the right match for your needs. If your situation involves complex assets, it is even more important that your divorce attorney is experienced with higher end financial situations.

Read our “Qualities to look for in your divorce attorney” article to learn more.

People often mistakenly think that they are “legally separated” if they live in separate residences. In actuality, a legal separation is a marital status, just as is divorced or married. (Section 402 of the Illinois Marriage and Dissolution of Marriage Act). In order to be legally separated in Illinois, a court must approve the legal separation and enter a court order to that effect.

If a spouse desires a trial separation and not a divorce, a legal separation is a vehicle to provide that spouse with support during the separation. However, it should be noted that while providing a legal support obligation, that same section, Section 402 of the Illinois Marriage and Dissolution of Marriage Act, also states that a legal separation does not bar the other spouse from obtaining a divorce if the requirements for a divorce are met.

Today, a legal separation is rarely used instead of a divorce. The primary reasons are:

1. During the period of actual separation, attorneys can agree to an informal arrangement for spousal support, so it is not necessary to obtain a formal court order of legal separation.
2. Pursuant to federal and state law, a spouse with a chronic illness no longer needs to remain married in order to obtain continuing health insurance coverage.
3. In order to obtain a legal separation, a spouse must retain a lawyer, who then files a court case to obtain a court order. Should there later be a divorce case filed, a second set of additional attorneys’ fees will necessarily be incurred for representation in the divorce action.

When you file an action for relief under the Domestic Violence Act, you are asking the court to issue an “Order of Protection” enforceable, if it is violated, with either civil or criminal penalties. The relief requested can be for the Petitioner as well as other protected persons, such as children or disabled adults.  A summary of the remedies that may be obtained under the Act, 750 ILCS 214/60(b), are:

• Prohibiting Respondent from harassment, interference with personal liberty, intimidation of a dependent, physical abuse, or willful deprivation, neglect or exploitation.
• Granting a Petitioner the exclusive possession of a residence.
• Placing a stay away order against a Respondent. This is an order requiring a Respondent to stay away from the Petitioner or any other person protected under the order, or prohibit the Respondent from entering or remaining at a Petitioner’s school, place of employment, and other specified places. The order can apply to physical and/or non-physical contact.
• Requiring a Respondent to receive counseling.
• Granting the Petitioner the physical care and possession of a minor child.
• Granting the Petitioner temporary legal custody. (However, if a divorce case is later filed, this remedy does not automatically grant the Petitioner temporary custody in that case, nor is there a presumption that the Petitioner should be the legal custodian in the divorce case.)
• Granting the Respondent or Petitioner visitation.
• Prohibiting the Respondent from removing or concealing a minor child.
• Ordering a Respondent to appear in court, alone or with a minor child, to prevent that person from removing or concealing a child; or ordering the return of a child to the custody or care of the Petitioner; or ordering a child and/or the Respondent to attend a court ordered interview or examination.
• Granting the Petitioner possession of personal property.
• Granting the Petitioner protection of property.
• Ordering the Respondent to pay support.
• Ordering the Respondent to pay losses.
• Prohibiting the Respondent from entering a premises.
• Prohibiting the Respondent from possessing firearms.
• Prohibiting the Respondent’s access to records.
• Ordering the Respondent to pay the cost of shelter services.
• Ordering other Injunctive Relief against the Respondent.

Many of these remedies can also be obtained under the Illinois Marriage and Dissolution of Marriage Act. However, it is usually easier to prove the necessary elements in an Order of Protection proceeding than under the divorce statute.

Each person contemplating a divorce has different needs and expectations. The divorce process can be intimidating and frightening.

When deciding upon a divorce attorney, your goal should be to retain someone who:

• has a proven history of being knowledgeable in the area of divorce law.
• who listens to your needs and the results you hope to achieve.
• who you can ask questions of, without feeling uncomfortable.
• who will include you in all decision making.
• who will keep you informed on a regular basis.

It is reasonable to expect your divorce attorney to give you personal attention and prompt responses to your inquiries.

Because you want to obtain the best result possible, you should look for someone who is pragmatic and able to creatively problem solve.

It is important that you interview the attorney in person and determine whether you will be working directly with that person or with another attorney from that firm.

It is also important for you to ascertain the attorney’s approach to a divorce case. A personal interview will allow you to decide, at the outset, whether you are comfortable with the attorney’s philosophy.

Some questions you may want answered during the interview process could be:

Does this attorney understand complex financial situations?

What kind of experience does this attorney have with diverse assets?

How will this attorney insure my interests are looked out for?

Make your own list of questions. Interview more than one attorney. You deserve to have the best representation available.

An attorney is also permitted to take the deposition of a party, to obtain information. A deposition consists of the attorney asking the other spouse or a witness questions. The answers are sworn to, under oath, with a court reporter present to record the answers. Again, there are safe guards in the event that the party being asked the questions is not being truthful.

Also, an attorney has been granted the power to subpoena documents from third parties and to obtain testimony from third parties. Since most people are paid by check or their salaries are direct deposited into their bank accounts, and dividends and retirement contributions are documented, uncovering income or an asset can be as simple as obtaining the right document and following the paper trail, which is called “tracing”. Even if someone maintains a cash business, income and assets can be discovered. It may be more complicated but, nevertheless, it can be accomplished.

If you are in need of a Chicago divorce lawyer that understands divorce laws and how to use them to help their clients, please contact us.

The divorce statute defines “net income” as “the total of all income from all sources, minus the following deductions:

(a) Federal income tax payments (properly calculated withholding or estimated tax payments);

(b) State income tax (properly calculated withholding or estimated tax payments);

(c) Social Security (FICA payments);

(d) Mandatory retirement contributions required by law or as a condition of employment;

(e) Union dues;

(f) Dependent and individual health/hospitalization insurance premiums;

(g) Prior obligations of support or maintenance actually paid pursuant to a court order;

(h) Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts. The court shall reduce net income in determining the minimum amount of support to be ordered only for the period that such payments are due and shall enter an order containing provisions for its self-executing modification upon determination of such payment period.”

These guidelines are customarily applied by courts in divorce cases. However, Illinois law allows divorce courts the ability to deviate from these guidelines, if the facts of a specific case warrant it. That is why it is important to choose a divorce attorney that is familiar with Illinois divorce laws.Some examples where there have been adjustments are: where one or both parents have an extraordinarily high income; one parent is unemployed; a child has special needs of a child; or there is a split custody arrangement. Having said this, whether there is a downward or upward deviation is made on a case by case basis and there is no hard and fast rule.

By way of example, in the case of In ReThe Marriage of Bush, 191 Ill. App. 3d 249, 547 N.E.2d 590, 138 Ill.Dec. 423 (4th Dist. 1989), the 20% amount of child support for a four-year- old child was $30,000.00 per year. The divorce court found this amount excessive because it was disproportionate to the actual needs of the child. The purpose of child support is not to result in a windfall to the custodial parent.

Another example is the case of In Re InThe Marriage of Keown, 225 Ill. App. 3d 808, 587 N.E. 2d 644, 167 Ill. Dec 375 (4th Dist. 1992). In that case, the split custody arrangement consisted of one child living with the mother and the two other children living with the father. The trial court stated that that there need not be a strict mathematical application of the guidelines where there is split custody of the children. This decision was affirmed by the Illinois Appellate Court.

As your Chicago based divorce lawyer I will help you traverse these complex laws to insure your assets and responsibilities are fairly allocated.