Frequently Asked Questions
about Divorce

WHAT IS A LEGAL DIVORCE?

A divorce is a method of terminating a marriage contract between two individuals. From a legal standpoint, your divorce will give each person the legal right to marry someone else, it will legally divide the couple's assets and debts, and determine the care and custody of their children. Each state addresses these issues differently, but there are some relatively uniform standards. Each state does have some type of "no fault" divorce laws that can significantly simplify the divorce process.

WHAT IS A NO FAULT DIVORCE?

Traditionally, divorce was granted on the basis of some marital misconduct such as adultery or physical abuse. In these cases the "guilty" spouse was punished by getting a smaller share of the couple's property or being denied custody of their children while the "innocent" spouse was rewarded for being faithful to the vows of marriage. In a no fault divorce, however, both parties agree that there is no "fault" involved in the grounds for divorce. In fact, any misconduct is irrelevant to the divorce proceedings. A marriage can be terminated simply because the couple agrees that it is no longer salvageable.

Please note that states' laws differ on the issue of fault or no fault divorce. Among the 50 states, 15 provide no fault divorce as their residents' only choice; residents of other states may pursue fault based or no fault divorce.

WHAT IS A FAULT-BASED DIVORCE?

A "fault" divorce is one in which one party blames the other for the failure of the marriage by citing a legal wrong. Grounds for fault can include adultery, physical or mental cruelty, desertion, alcohol or drug abuse, insanity, impotence or infecting the other spouse with a venereal disease.

HOW DO I START A DIVORCE PROCEEDING?

After an initial consultation with an attorney a Petition for Dissolution of Marriage will be prepared. It must be signed by you. After signed it will be filed with the Clerk of the Circuit Court.

HOW WILL MY SPOUSE FIND OUT ABOUT THE DIVORCE?

After your Petition for Dissolution is filed it must be served upon the opposing party - the Defendant. Service can be done by the Sheriff or the Defendant can pick it up at the Sheriff's office (called "counter-service") or if the Defendant has an attorney, the attorney can accept service for him/her.

HOW LONG WILL MY DIVORCE TAKE?

It is impossible to answer that question, however, there are some general timelines. Following service of the Petition for Dissolution, the Defendant has 30 days to respond to the Petition. Each party must then respond to discovery requests. This can be as short as 28 days or much longer, depending upon the cooperation of the parties. After there is complete discovery, the parties must agree upon the issue of custody and all issues of property division and distribution. How long that takes is a function of the ability of the parties to negotiate and agree upon these issues.
It is suggested (and recommended) that mediation with a neutral third party (a mediator) will facilitate and shorten the process.

HOW MUCH WILL MY DIVORCE COST?

Another question impossible to answer honestly. The cost is a direct result of the ability of the parties to reach agreements. Most attorneys charge by the hour and the more hours spent on discovery, negotiations and arguments involving your attorneys the more the divorce will cost. A suggested alternative is mediation..

HOW DO I TELL THE KIDS?

Of course, it is best to tell the children together, but if you don't or can't have that kind of cooperation initially, do not place blame or chastise the other party when telling the children. Just give them the facts about the separation and divorce. Children need to know the truth. They need to know that you and your spouse are separating and getting a divorce from each other - not from them - and that they will still be cared for and loved by you both.

DuPage County sponsors a workshop, Caring, Coping and Children Divorce Education that all couples with minor children are required by the court to attend within 45 days after filing for divorce. This informational workshop is designed to help parents understand what lies ahead during the difficult divorce process, what symptoms their children may show and offers coping strategies which can assist parents during this time.

WHO GETS CUSTODY OF THE CHILDREN?

Custody is determined upon the basis of what is in the best interest of the child. Both parents can be found to be fit and proper persons to have legal custody (“joint legal custody”) of the minor children, while one parent is found to be the better custodial parent (“primary residential custodian”). Custody, legal and residential, can be determined by agreement of the parties or by a finding of the court after trial. Joint legal custody is generally preferred and requires both parents to be involved and work together to continue to parent their children.

WHAT IF WE DON'T AGREE ON CUSTODY?

In DuPage county it is mandatory to attend mediation for a minimum of 3 hours if there is a disagreement over custody, visitation or anything to do with minor children. If the disagreement is not resolved in mediation, then the parties must participate in a custody evaluation by a court appointed psychologist. Other counties have similar provisions to resolve custody disputes, some requiring the appointment of a Guardian ad Litem or “GAL” to represent the children as a lawyer would and to recommend solutions to the Judge.

WILL MY SPOUSE HAVE TO PAY CHILD SUPPORT?

Child support will be paid by the non-custodial/non-residential parent. Child support is a right each child has and the parent cannot waive that right for the child. Child support may be reserved for determination at a later date under certain circumstances.

The following statutory minimums will be considered in establishing support orders. However, upward or downward adjustments may be made by the court, depending on the needs of the children, the debts assumed by the non-custodial parent and other extenuating circumstances and relevant factors.

No. of Children % of Net Income
1 – 20%
2 – 28%
3 – 32%
4 – 40%
5 – 45%
6 – 50%

WILL MY SPOUSE HAVE TO PROVIDE SUPPORT FOR ME?

Spousal support is known as "maintenance" and varies with each case. It is dependent upon your ability to support yourself, your spouse's ability to support him/herself and you and the lifestyle established during the marriage.

CAN I GET SOME OF MY SPOUSE'S PENSION?

All property, including pension or retirement benefits, earned during the marriage is subject to division. Generally speaking, pensions of both parties are divided equally between the parties. However, this may vary according to age, future earning ability, and amount of non-marital retirement funds.

WHAT PROPERTY AM I ENTITLED TO?

In Illinois there are 3 different estates to consider in a Dissolution proceeding. The marital property which is all the property acquired during a marriage, regardless of whose name it is in; the non-marital estate of the Wife and non-marital estate of the Husband which is any property belonging to either Wife or Husband prior to the marriage or acquired by gift or inheritance and kept separate throughout the marriage.

Each party is entitled to their non-marital estate.

Each party is entitled to an equitable share of the marital estate without regard to fault on the part of either party. "Equitable" does not mean "equal" . The courts generally start with an equal division and then look to various factors which will change the percentages, i.e., unequal earning power, responsibility for children, disabilities, share of non-marital property and various needs of the parties. 

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