Frequently Asked Questions
Additional Questions?
If you have any additional questions, or would like more information
on any of the issues mentioned, please contact our office at
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Benedict Schwarz, II, P.C.
Do I need a family lawyer?
The Court process for any family law matter can often be very
confusing, so it may be wise to consult with a family attorney
to help explain your rights and to protect your interests.
A lawyer experienced in family law will know how to navigate
through the complicated legal process in an efficient manner
and help you attain a more favorable agreement which is mutually
beneficial to both parties.
top of page How is a separation different from a divorce?
Most people use the word separation interchangeably with divorce.
Legally, however, they mean two different things. Couples who
separate remain married pending any further action, while those
who divorce are officially no longer married. How the couple’s
assets and debts are divided during a period of separation
varies by state and the type of separation that occurs.
top of page What types of marital separations are there?
Trial separation: When a couple lives apart for a test period
to decide whether or not to separate permanently. Even if the
couple decides not to get back together, the assets accumulated
and debts incurred during the trial period are often considered
marital property.
Living apart: Spouses who no longer
physically reside in the same home are considered to be living
apart. In some states,
living apart without intending to reunite changes the spouses’ property
rights. Thus, all assets and debts accrued during the separation
period belong to each individual spouse. This is not the case
in Illinois.
Permanent separation: When a couple
decides to split up, it’s
often called a permanent separation. In most states, all assets
and debts accrued after permanent separation are the separate
property of responsibility of the spouse incurring them, but
not necessarily in Illinois.
Legal separation: A legal separation results when the parties
separate and court rules on the division of property, alimony,
child support, custody and visitation rights, but does not
grant a divorce. The money awarded for support of the spouse
and children under this situation is often called separate
maintenance. Assets acquired after legal separation are non
marital in the state of Illinois.
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How does the divorce process begin?
After you retain your Family Law Attorney, a Petition and
a Summons are filed with the court system in the county where
one of the parties resides. After filing, the documents are
forwarded to a Special Process Server and served upon the other
spouse where he or she resides, or at their place of business;
this process can take approximately 3-7 days. The many steps
that follow in the divorce proceeding, such as discovery and
negotiations, become the responsibility of your Attorney.
top of page Who pays the attorney fees?
Your Attorney can file a Petition for Payment of Interim Attorney’s
Fees against the spouse who controls the assets. Courts must
adjudicate these petitions promptly, even before substantial
work has been completed in the case or when fees accumulate
during the case. It allows for the immediate payment of interim
attorney’s fees to the attorney of your choice, to be
paid by the spouse in control of the family wealth. It is now
easier for spouses not in control of the family wealth to hire
competent counsel and seek immediate relief from the court
for payment of prospective attorney’s fees.
top of page How long does a divorce take?
The length of time that it takes for a divorce or dissolution
to become final depends on many factors such as; the state
of filing; the agreement or non-agreement of the parties on
division of assets, custody of the children, and support of
the children or spouse. The more agreeable the parties become,
the less time and money will be spent on the divorce. The actual
time period can range from 60 days to several years.
top of page Can my spouse and I be represented by the same attorney?
In most circumstances, it is a conflict of interest for an
attorney to represent both parties.
top of page Who will be responsible for taking care of my children?
Establishing child custody and visitation
arrangements in a divorce or other separation are often the
most difficult
challenges parents must face. Courts deciding child custody
and visitation matters will always make a decision based on
the “best interests of the child.” The phrase “best
interests of the child” governs all aspects of child
custody and visitation. Determining the best interests of a
child depends upon many factors, including the child’s
age; mental and physical health; health of parents; lifestyle
and other social factors of parents; love and emotional ties
between parent and child; parents ability to provide food,
shelter, clothing and medical care; quality of schools in a
given locale; child’s preference depending on the child’s
age; ability and willingness of the parent to foster a healthy
relationship between child and other parent; and the stability
of the environment.
top of page Where will the children live?
There are several types of child custody; Legal, Physical,
Sole, and Joint. Legal Custody is the right and responsibility
to make decisions about the rearing of the child. This includes
issues such as education, religion, and medical care. Physical
Custody is the right of a parent to have a child live with
him or her. Courts will award legal and physical custody of
a child to either one parent (Sole Custody) or both parents
(Joint Custody). Sole Custody is where one parent possesses
the custody of the child and is the decision maker. Joint Custody,
also referred to as Joint Decision Making, allows both parents
to share the decision making responsibilities. The court systems,
in most states, are moving away from awarding Sole Custody
to allow both parents to play an important role in their child’s
life. All of these options should be discussed with one’s
legal representative.
top of page When may a parent with physical custody remove the child from
Illinois?
In this situation, the best interest of the child governs.
The following factors are relevant in determining the best
interest of the child:
- Whether the proposed move will enhance
the quality of life for the child and the parent with custody.
- Whether
the proposed move is motivated to frustrate the other
parent’s
visitation.
- Whether the non-custodial parent’s
objections are motivated by animus for the custodial parent.
- Whether and to what extent realistic
and reasonable visitation schedules may be maintained
after move.
- Whether the non-custodial parent has exercised previous
visitation rights.
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What is child support?
Child Support is the amount of money a parent is required
by law, to pay to the spouse who retains primary physical custody
of the child. Child Support can be awarded and enforced until
a child reaches the age of majority. Child support is intended
for the benefit of the child, and usually pays for food, shelter,
clothing, ordinary health and medical expenses, and some educational
expenses.
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Who is obligated to pay child support?
Either party can be required to pay child support, regardless
of whether they are married or not. If there is a dispute about
who the father is, a paternity test can be ordered. By law,
step-parents are not obligated to pay child support unless
that parent legally adopted the child.
top of page How do I enforce a child support award?
If you are not receiving child support payments that are owed
to you, the states attorney of each state can assist by serving
the delinquent parent with papers requiring him or her to pay.
If the non-paying parent still does not contribute their child
support, the states attorney can take any of the following
actions against the delinquent parent:
- Seize any tax refunds
- Garnish any wages
- Liens can be put on property
- Driver’s licenses can be
revoked
- Passports can be revoked
top of page Can child support payments be modified? Child support payments may be modified
if warranted by the situation. Usually, modification requires
a showing of a “change
in circumstances”. A change in circumstance may include:
- Job change of either party that increases or decreases
income levels
- Child custody or visitation changes
Temporary medical or economic hardship of the paying spouse
(i.e. unemployment, illness).
- A medical emergency for a child
- Child needs change, such as school or daycare
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How long must child support be paid? Generally, child support must be paid until a child reaches
the age of majority.
- A child reaches majority on the 18th birthday,
or the 19th birthday if still attending high school.
- A court may order support after a child reaches the
age of majority if the child is disabled.
- A court may order payment of educational
expenses until a child has earned a bachelor’s
degree.
- In
determining the amount of continued support beyond
the age of majority, a court will consider the financial
resources
of the parents, the standard
of living the child would have enjoyed if there had not been a divorce,
the financial resources of the child, and the child’s
academic performance.
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Can child custody and visitation arrangements be modified
once originally awarded? Yes. Child custody and visitation agreements can be modified
with the consent of both parents or by the Court. Anything
can be changed as long as it is consistent with the best interests
of the child. Typical justification for a change in child custody
or visitation are:
- Relocation - Some states allow parents with physical custody
to relocate no matter what distance is involved.
- Substantial
change in circumstances - Anything significant that disrupts
the stability of the child’s life (i.e. illness) may warrant a
modification.
- Change
in lifestyle - Modification may be justified if substantial changes
in a parent’s lifestyle threaten or could harm the
child.
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What is a decree? Historically, in the legal system, a Decree is referred to
as a Court Order or Judgment. The enforcement of Decrees or
Judgments require a separate legal proceeding whereby the court
or judge is asked to affirm a prior Court Order that has not
happened or not been complied with.
top of page What are typical situations in which the enforcement of a
decree is necessary?
- Divorce
- Child support
- Child custody and visitation
- Spousal support
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What does Post Decree mean? After a Divorce Judgment is finalized, other issues can arise.
Circumstances can change that may affect custody, visitation,
child support, and maintenance. Make sure that you discuss
any new conflicts related to the divorce with your attorney.
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What is spousal support/maintenance? Alimony or Spousal Support, is also known as Maintenance and
represents regular payments made from one spouse to the other
during a separation or after a divorce. The amount paid by
one spouse to the other will be set forth in a Court Order
or the Marriage Settlement Agreement. Sometimes there will
be a fixed date when the support ends and if not, it is usually
expected that the payment will continue for life or until the
remarriage of the payee. In order to alter such an arrangement,
you must petition the court for a change.
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How is property divided after a divorce? In many cases, a couple filing for divorce is able to work
out an agreement concerning the division of their property
and debts on their own. In cases where such an agreement cannot
be reached, a court must step in and apply state law to settle
the dispute. Illinois is an Equitable Distribution of Property
state. This means assets and earnings accumulated during the
marriage are divided equitably not necessarily equally. In
most cases, less of the assets go to the higher wage earner
and more to the other spouse.
top of page What factors are weighed in determining property distribution?
Marital property shall be divided equitably. That is the key
standard. The following factors are weighed:
- The contribution
of each party in acquisition of marital property
- The dissipation
of property by one party
- The value of nonmarital property
- The duration of the marriage
- The relevant economic circumstances
of each spouse
- Obligations and rights from previous marriages
- Any valid
agreement of the parties
- The age, health, location, occupation,
amount and sources of income, vocational skills, employability,
estate, liabilities, and needs of the parties
- The custodial
provisions for children
- Whether maintenance or alimony
is awarded
- The reasonable opportunity of each spouse to
acquire capital assets following the
divorce
- The tax consequences to each party
One should note that marital misconduct is usually not a relevant
factor in Illinois. It only becomes a relevant factor if it
included dissipation of property; then equitable principles
would favor the innocent spouse.
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