The attorneys
at Elizabeth L.
Krueger, P.C., in Wheaton, Illinois, provide legal counsel for
individuals who are going through a divorce. We
understand that a divorce can be trying for all parties, so we
emphasize mediation and attempting to settle the case. Whether
you are going through a dissolution or legal separation, our goal is
to help you to get through your divorce in a courteous and
respectful manner. When that is not possible, however,
our Wheaton divorce lawyers will fight for your rights and work to
obtain a fair resolution. We also represent clients in matters
of custody, child support, visitation, domestic violence, and
paternity. Our experience in these matters helps us get the
results our clients need.
.
Our Wheaton divorce lawyers have
helped many people with their divorce needs, and we want to help you
as well. Contact
us today to set up an appointment to discuss your personal situation
or to learn more about our practice.
Elizabeth L. Krueger, P.C.
305 Naperville
Road
Wheaton, IL 60187
Phone: (630) 682-3400
Fax:
(630) 682-5761
Contemplating divorce is always difficult. Whether you are sure
you want to end your marriage or are still considering your options,
it helps to learn the basics of divorce law and process. Should you
conclude that divorce is necessary, it is very important that you
seek the assistance of an experienced family law attorney. Involving
a knowledgeable family law attorney as soon as possible in the
divorce process is one of the best ways to preserve your own
long-term financial and emotional health.
Grounds for Divorce
A divorce is a method of terminating a marriage contract between
two individuals. From a legal standpoint, a divorce will give each
person the legal right to marry someone else, divide the couple's
assets and debts and determine the future care and custody of their
children. While each state has individual statutes that address
these issues differently, the basic principles the states follow
when considering requests for divorce are relatively uniform.
In a majority of the states there is at least one form of "no
fault" divorce. No fault divorce is a marital termination proceeding
where the divorce is granted without either party being required to
show fault. In no fault states, either party may obtain a divorce,
even if the other spouse does not consent to the divorce. (Please
see the table at the end of the article to learn if your state
allows no fault divorces.)
Other states require that you give a legal reason in order to get
a divorce. These are called fault-based divorces. Each state will
have a statute that specifically defines the different types of
fault that must be proved in order to establish the requested
marital termination.
In some states both fault and no fault divorce grounds are
available. An experienced attorney can help you determine if you
should pursue a fault based or no fault based divorce. Typically, a
fault-based divorce is pursued when a couple cannot reach a
satisfactory division of property, award of support, or child
custody agreement and one party wants the court to consider the
conduct of the other party when deciding the issue. Whatever the
issue, the decision to pursue a fault-based divorce should be based
on legal rather than emotional reasons.
Contested Divorce
Before a divorce may be granted, there are usually five basic
issues that must be resolved. They are:
1) Alimony or spousal support;
2) Property
division; and, if there are children:
3)
Custody;
4) Visitation; and
5) Child support.
If a divorcing couple agrees on all five of these issues in
writing, they will be granted an uncontested divorce and avoid
adversarial divorce litigation.
Conversely, if there is disagreement on any of the basic issues,
a contested divorce exists. When a divorce is contested, the couple
may proceed through all phases of litigation including trial before
a family court judge. The couple may also voluntarily seek
alternative dispute resolution methods like mediation or
collaborative divorce or they may be ordered by the court to do so.
It is important to consult with an attorney before deciding which
method is right for your situation.
Divorce Litigation
The actual legal process for getting a divorce varies by state.
However, most marital termination proceedings usually include some
version of the following components:
- Petition - The filing of some form of
petition document formally initiates divorce proceedings.
- Summons & Response - Formal notice to
your spouse about your intent to pursue court action to obtain a
legal divorce. The response is the other parties' acknowledgement
the divorce procedure has begun.
- Motions - A formal request to the court to
order some type of action before the trial. For example, in
situations involving domestic abuse it is not uncommon for a
motion for a protective or restraining order to be filed.
- Discovery - The phase of the proceeding where
each side gathers information in support of their legal arguments.
It is an important phase in contested actions, particularly if you
believe your spouse is hiding assets. It includes depositions and
interrogatories.
- Hearings & Temporary Orders - In some
instances there are questions or situations that need to be
temporarily resolved before the final divorce agreement is reached
or ordered by the court. For example, if the couple can't agree
about where their children should live during the process they
would ask the judge, during a hearing, to decide. Temporary orders
generally remain in effect until the final decision is made at the
end of the divorce process.
- Trial - A critical court appearance before
the judge where the case will be decided. The trial may include
witnesses, friends, financial experts, psychologists, as well as
other types of evidence including financial records.
- Judgment - The final decision is a judgment.
It is not a verdict in the sense the judge assigns blame to either
party. It is simply a legal statement of the judge's rulings on
all the issues in question during the trial, such as custody,
visitation, support and property division.
Alternatives for Dispute Resolution
Mediation
Mediation is an alternative to
litigation that can be less expensive and less stressful for
divorcing couples and their children. In the mediation process, the
couple works with a trained mediator to reach agreement on contested
issues.
Arbitration
Arbitration is more like
litigation than mediation. Instead of using a judge to decide the
final outcome, the parties agree to use an arbitrator. Each spouse
is represented by an attorney who will represent their best
interests during negotiation.
Collaborative Divorce
Collaborative divorce
is a relatively new divorce process that requires an up front
commitment to resolving disputes by negotiation, compromise and
agreement. If either attorney moves the case toward litigation, both
will be disqualified from representing their clients in the
litigation. If the parties can't reach agreement, both lawyers (and
their law firms) must withdraw.
Division of Property
Most states use an equitable distribution system to divide the
property of divorcing spouses, though each state has its own rules
and procedures for doing so. States that use an equitable
distribution scheme attempt to divide the property fairly between
the spouses. That doesn't mean an equal, 50-50 split of all the
property. Rather, the goal is to achieve an equitable, or fair,
distribution.
Under equitable distribution, the court will divide the couple's
assets in a way it deems fair given the particular circumstances of
the case. Generally, property will be classified as joint assets or
separate property. Joint assets are those held or considered to be
held by both parties.
Separate property includes the property each spouse had before
the marriage or acquired during the marriage by gift or inheritance,
including personal injury damage awards. In order to establish that
something is separate property, it must have stayed within exclusive
ownership and control of one spouse, which can be very difficult to
prove. If separate property is combined with joint property a court
may include that property among the other property divided upon
divorce.
There are several factors used by the courts to determine how to
arrive at an equitable distribution of the property. They will look
at each spouse's monetary and non- monetary contributions to the
marriage. Courts will value the contribution of a spouse who stays
home to raise children and the value of a spouse who works so the
other spouse can obtain a professional degree. The objective is to
look at the whole picture to arrive at a fair solution.
The equitable distribution of property can become one of the most
contentious issues in a divorce. To make sure your interests are
being adequately protected, you need the advice and assistance of a
family law attorney familiar with the family laws and procedures in
your particular state.
Alimony, Spousal Support & Maintenance
Alimony, also known as spousal support or maintenance, is
financial support paid by one spouse to another. Each state
determines alimony differently. You should consult with an attorney
in your state to determine what factors will be considered when
deciding if, how much, and to whom alimony will be paid in your
case.
There are essentially three types of alimony: permanent,
restitutional and rehabilitative. Permanent alimony is an allowance
for support and maintenance (such as food, clothing, housing and
other necessities) of a spouse. When a party requests permanent
alimony, they must establish that they have a need for support and
that their spouse has sufficient means and abilities to provide for
part or all of the need. Restitutional and rehabilitative alimony
are paid for a shorter period of time and most likely provides less
than the standard of living during the marriage. Rehabilitative
alimony is designed to provide the means necessary to enable a
spouse to refresh or enhance job skills necessary to become
self-sufficient by providing financial support while the spouse is
obtaining necessary training.
The types of factors the courts consider vary from state to
state. In fault-based states the respective fault of the parties may
be considered in awarding alimony. Other factors include:
- Length of the marriage
- Each party's financial conditions after the property division
- The parties' ages, health and physical conditions
- Education and educational opportunities foregone
- Employment and foregone employment
- Skills and time necessary to become self sufficient
Alimony is often the most difficult issue to be successfully
resolved in a divorce because it directly addresses the ongoing
lifestyles of both parties.
Conclusion
Reaching the decision to end a marriage is enormously difficult.
Once you do make the decision it is in your best interest to
approach the divorce process from a rational, businesslike
perspective, which is extraordinarily difficult given the emotional
issues with which you must also cope. Working with an attorney who
is experienced in family law will ease your stress and help you get
through the process to begin your new life.
The following table summarizes the grounds for divorce and
residency requirements in each state.
Grounds for Divorce and Residency Requirements
| STATE |
No
Fault
Sole
Ground |
No
Fault
Added to
Traditional |
Incom-
patibility |
Living
Separate
and
Apart |
| Alabama |
|
X |
X |
2
years |
| Alaska |
|
X |
X |
|
| Arizona |
X |
|
|
|
| Arkansas |
|
X |
|
18
months |
| California |
X |
|
|
|
| Colorado |
X |
|
|
|
| Connecticut |
|
X |
|
18
months |
| Delaware |
X |
|
|
|
District
of
Columbia |
X |
|
|
1
year |
| Florida |
X |
|
|
|
| Georgia |
|
X |
|
|
| Hawaii |
X |
|
|
2
years |
| Idaho |
|
X |
|
|
| Illinois |
|
X |
|
2
years |
| Indiana |
X |
|
|
|
| Iowa |
X |
|
|
|
| Kansas |
|
|
X |
|
| Kentucky |
X |
|
|
|
| Louisiana |
|
X |
|
6
months |
| Maine |
|
X |
|
|
| Maryland |
|
X |
|
2
years |
| Massachusetts |
|
X |
|
|
| Michigan |
X |
|
|
|
| Minnesota |
X |
|
|
|
| Mississippi |
|
X |
X2
|
|
| Missouri |
|
X |
|
1-2
years |
| Montana |
X |
|
X |
180
days |
| Nebraska |
X |
|
|
|
| Nevada |
|
|
X |
1
year |
New
Hampshire |
|
X |
|
2
years |
| New
Jersey |
|
X |
|
18
months |
| New
Mexico |
|
X |
X |
|
| New
York |
|
X |
|
1
year |
| North
Carolina |
|
|
|
1
year |
| North
Dakota |
|
X |
|
|
| Ohio |
|
X |
X |
1
year |
| Oklahoma |
|
X |
X |
|
| Oregon |
X |
|
|
|
| Pennsylvania |
|
X |
|
2
years |
| Rhode
Island |
|
X |
|
3
years |
| South
Carolina |
|
X |
|
1
year |
| South
Dakota |
|
X3
|
|
|
| Tennessee |
|
X |
|
2
years |
| Texas |
|
X |
|
3
years |
| Utah |
|
X |
|
3
years |
| Vermont |
|
X |
|
6
months |
| Virginia |
|
X |
|
1
year |
| Washington |
X |
|
|
|
| West
Virginia |
|
X |
|
1
year |
| Wisconsin |
X |
|
|
|
| Wyoming |
X |
|
X |
|
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