FAQS

It depends on what term is being changed. Terns regarding the division of assets and liabilities generally cannot be changed. Maintenance terms may or may not be subject to modification depending upon the type of maintenance. Most terms about the kids are modifiable if there is a substantial change of circumstances. These modifiable terms include custody (the allocation of significant parenting decisions), visitation (parenting time), and child support.

The judge has the right to enforce his or her orders. If someone who has the ability to comply with a court order decides not to follow the order, he or she may be found in contempt of court. A common complaint of non-compliance is someone not paying child support when they have the ability to do so. However, if someone lost their job and had no other source to pay child support, they would not be held in contempt of court. The punishment for contempt can include fines and imprisonment. If one is jailed, they will hold the keys to their cell; as soon as they comply with the court’s order they will be released from jail.

Yes. The court must approve your settlement agreement(s). This is done during a short, non-adversarial hearing called a prove-up. Assuming your settlement agreement(s) is approved, your divorce should be granted immediately. When you leave the courthouse, you will have your divorce papers in hand.

No. Both parents are obligated to provide financial support for their minor children. Under Illinois law, child support is based upon certain statutory guidelines which are found in tables published by the Illinois Department of Health and Family Services. The primary factors for calculating child support are the net income of the parents, the number of minor children, and the parenting schedule. A parent’s income includes all sources including bonuses, commissions, overtime, deferred compensation, and investment income. The court must order guideline child support to be paid unless it expressly provides a reason for deviating down or up.

No. Child support covers unspecified expenses for a child’s shelter, food and basic expenses. The court has the authority to order one or both parents to contribute to a child’s curricular and extracurricular expenses such as school fees, private school tuition, activities, health insurance premiums, uncovered health care expenses, etc. The amount of each parent’s contribution will be dependent upon their respective financial resources.

In addition, divorcing or divorced parents can ask a court to require each parent to contribute to a child’s college or other post high school education expenses. The amount of the contributions will be dependent on each parent’s financial resources, as well as the resources of the child, at the time the expenses are to be incurred. Most often, this occurs at the time the child is admitted to the school of choice.

Yes, in certain circumstances. The divorce court cannot divide a person’s social security benefits. However, a person can receive benefits as a divorced spouse on a former spouse’s Social Security record if he or she:

• Was married to the former spouse for at least 10 years;
• Is at least age 62 years old;
• Is unmarried; and
• Is not entitled to a higher Social Security benefit on his or her own record.

Additionally, the former spouse must be entitled to receive his or her own retirement or disability benefit. If the former spouse is eligible for a benefit, but has not yet applied for it, the divorced spouse can still receive a benefit if he or she meets the eligibility requirements above and has been divorced from the former spouse for at least two years.

Generally, benefits are not paid if the divorced spouse remarries someone other than the former spouse, unless the latter marriage ends (whether by death, divorce, or annulment), or the marriage is to a person entitled to certain types of Social Security auxiliary or survivor’s benefits.

Yes, but it is known as maintenance in Illinois. There are various factors for courts to consider when determining if someone is entitled to maintenance. If maintenance is warranted, there are guidelines to calculate the amount and length of time it will be paid if both parties’ combined incomes are less than $500,000. There are many types and forms of maintenance (such as maintenance in gross, fixed-term, indefinite, reviewable, modifiable, non-modifiable, etc.), and other factors that are very fact dependent. Always consult a divorce attorney about these many nuances.

If you or your spouse is covered under the other’s health insurance coverage, it will terminate when you are divorced. You may obtain a continuation of the coverage under a federal law commonly referred to as COBRA. There is a time limit for how long you are eligible for COBRA coverage, but under no circumstance does it exceed 36 months. In order to take advantage of COBRA coverage, a premium will need to be paid. As this premium is not subsidized by the employer, it may be more expensive than your spouse’s current premium. The responsibility for payment of this premium is sometimes a term to be negotiated in your case. There are strict rules about how to and when to elect coverage, so advise your divorce attorney if you are considering or in need of COBRA coverage.

In most cases, you should not cancel your spouse’s health insurance if they are covered by your plan. Insurance is maintained to pay for unexpected and catastrophic expenses that you may not otherwise be able to pay without insurance. Medical expenses can be huge and the obligation to pay them can wipe out one’s savings. If you terminated your spouse’s insurance before you are divorced and a medical expense is incurred, it will likely be considered a marital obligation that you can be held responsible for. The prudent course of conduct is to not eliminate health insurance coverage unless replacement coverage has been obtained.

In Illinois annulments are referred to as a Declaration of Invalidity of Marriage. Illinois courts will declare a marriage invalid only under these limited circumstances:

• A party did not have the capacity to consent to the marriage because he or she was: mentally unable; intoxicated or under the influence of drugs; or induced by force or duress or by fraud involving the essentials of marriage;
• A party lacks physical ability to consummate the marriage (have sexual intercourse) at the time of the marriage and the other party did not know of the incapacity;
• A party was 16 or 17 years of age and did not have parental consent; or
• The marriage is prohibited by another law (such as bigamy).

Requests to declare a marriage invalid are made by filing a petition with the court within a certain time limit. Each of the above grounds for invalidity of marriage has a different time limit. If you think you qualify to invalidate your marriage you must seek immediate legal advice.

No. You can file even if you and your spouse live together. Illinois law does not require you to be separated before you can file for divorce.

Sometimes there is an advantage to filing first.  However, in most cases, who files first will not have a major impact on the outcome of the case. In some cases, there may be options of where a case is filed, whether it is one county versus another or one state or another. There may be advantages in one venue over another. The one filing first may be able to determine where the case will be conducted. These advantages can range from one court moving a case along faster or slower, perceived biases from locale to locale, convenience, or the discrepancy in laws such as community property versus non-community property states.

No. You do not have to move out. Unless and until your spouse gets a court order granting him or her exclusive possession of the home, you have the same right to live in the house as he or she does. Prior to a divorce being final, there are very strict standards a court must consider before it will order one spouse to leave a residence that served as the marital home. This is true even when ownership of the house is in your spouse’s name only.

No. Your right to ownership and right to possession of the home are separate. If you move out, your right to an equitable share of the home remains an issue to be resolved in your case.

No. These are separate issues with no legal connection. The law expressly states that a court shall not consider conduct of a present or proposed custodian for a child that does affect his or her relationship with the child.

Yes. Courts will not deem dating an issue unless the relationship somehow affects the best interests of the children. Dating during divorce may raise practical concerns that may need to be considered such as when and how new significant others are introduced to ones children.

The mere fact that one is dating is irrelevant when determining financial issues. However, if marital assets or income are spent on the other person, those monies may become an issue in the case. Courts can consider the funds spent as wasted or dissipated, and the spouse who spent it may be responsible for repayment.

However it should be noted that dating can impact a case in non-legal was. Often, dating triggers an emotional reaction in the spouse who learns of the other’s dating. The reaction may impair a spouse from making rational decisions that can result in more difficult and prolonged negotiations.

No. A minor child (a child who has not attained age 18) cannot decide which parent he or she will live with. However, the wishes of a child is one of several factors a court must consider when determining with whom the child will live with. As a general rule, the older the child, the more weight will be given to the child’s wishes.