Divorce Attorney
Divorce proceedings in Illinois begin by filing a Petition for Dissolution of Marriage in the appropriate Court within the state by the “Petitioner”. The Petition is then served upon the spouse, or the "Respondent." When service is effectuated, the "Respondent" has 30 days to hire an attorney, file an appearance pro-se or otherwise plead. The following articles regarding divorce in the State of Illinois are for reference purposes only.
Divorce Article 2: Legal Separation vs Divorce
Divorce Article 3: Military Divorce
Divorce Article 4: Marital Fault in Divorce
Divorce Article 1: Maintenance
Maintenance, formerly known as alimony, is the provision of support from one spouse to the after taking into consideration several factors. The court takes many facts into consideration in determining an award of maintenance. The factors consist of the following:
- the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance;
- the needs of each party;
- the present and future earning capacity of each party;
- any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;
- the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment;
- the standard of living established during the marriage;
- the duration of the marriage;
- the age and the physical and emotional condition of both parties;
- the tax consequences of the property division upon the respective economic circumstances of the parties;
- contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;
- any valid agreement of the parties; and
- any other factor that the court expressly finds to be just and equitable.
The court may grant permanent maintenance award for either spouse in amounts and for periods of time as the court determines based upon the above factors. Maintenance is granted without taking into consideration any marital misconduct. The award of maintenance can be for a fixed amount and can also be for an indefinite period of time. Maintenance can be paid from the income or property belonging to the other spouse.
Divorce Article 2: Separation vs. Divorce
Some clients opt for a legal separation instead of a divorce from their spouse. In the event you want to be separated but not divorced from your spouse, a legal separation may be an option. A divorce would end the marriage, and a legal separation does not. There are circumstances in which a client is not ready to end the marriage but wants to obtain court ordered child support and/or maintenance (formally known as alimony).
In order to file a petition for legal separation the party filing is required to be separate from their spouse through no fault of their own. This means that if you are living with your spouse, or if you are separated from your spouse for reasons which are attributed to you one cannot file for legal separation. There is no requirement that you have to be separated for any length of time so you can file after one day, one month, one year, or longer as long as you are living separate and apart and you are without fault for the separation. A very simple example of such fault would be someone who kicks their spouse out of the home for the purpose of filing a petition for legal separation; however, there are circumstances such as an abusive situation when an abusive spouse is removed from the home under an order of protection filed by the victim’s spouse, and in that case the separation would not be the "fault" of the victim’s spouse even though they requested the removal of the abusive spouse. The circumstances of the separation differ from case to case and the analysis is fact specific.
The court does not have the jurisdiction to order a spouse to pay support or provide other temporary relief without the filing of a petition for divorce or legal separation. A legal separation may be an option if you are not ready to end the marriage but need support during a period of separation. It is important to keep in mind that if one spouse files a petition for legal separation it does not prevent the other spouse from filing a petition for dissolution of marriage. With the competing petitions, a dissolution of marriage will be granted over the petition for legal separation provided the requirements are met for the dissolution. Also a party who files a petition for legal separation can modify the petition to a petition for a dissolution of marriage. Legal separation can also provide some of the same relief as a petition for dissolution of marriage such as retraining order, custody, visitation, and, in certain circumstances, a division of property. There was a time when an important reason for obtaining a legal separation as opposed to a dissolution of marriage was a spouse who was unemployed and had no insurance was able to maintain the insurance benefits of their employed spouse. Since the passage of the Federal Legislative Consolidated Omnibus Budget Reconciliation Act (COBRA), which allows for insurance coverage of a spouse after dissolution of marriage, the maintaining of medical insurance is not as important. It is necessary to check with the spouse’s employer to make sure coverage will continue.
Divorce Article 3: Military Divorce
Enacted on December 19, 2003, the Service Members Civil Relief Act (SCRA) used to be known as Soldiers’ and Sailors’ Civil Relief Act (SSCRA) which began at the start of World War II to protect the members called into the military. The SCRA also protects reservists and members of the National Guard. One important aspect of the SCRA is that of judgment cannot be entered against a service member without appointing an attorney for him/her.
The Uniformed Services Former Spouses Protection Act (USFSPA) gives the divorce court the authority to treat military retirement pay as marital property to be divided between the spouses in the event of divorce. Prior to the passage of the USFSPA in 1982 military retirement pay was not considered marital property, which in some situations, was the largest asset of the marriage. Military retirement pay is not a qualified pension plan but a federal entitlement, so a qualified domestic relations order is not necessary. In order for USFSPA to enforce a division of retirement pay as marital property the former spouse must have been married to the military member for at least ten years during which there was ten years of Active duty. This only applies to the ability of the former spouse to get paid their share through the Defense Finance and Accounting System (DFAS). this is a statutory requirement and not a personal right of the member that can be waived The ten-year rule does not affect the court’s aut hority to consider the military retirement pay marital property. This means that a five-year marriage to a military member with five years of service will allow the court to divide the military retirement pay granting a percentage to the former spouse.
The information necessary to draft the proper documents to divide military retired pay consists of:
names, addresses, and social security numbers of Service Member and Former Spouse.
How state court has jurisdiction to divide Service Member’s Disposable Retired Pay due to (a) residence, other than because of military assignment, (b) domicile in the territorial jurisdiction of the court, or (c) consent to the jurisdiction of the court
date of marriage
amount parties agree goes to former spouse (% to allow her to receive COLA’s)
Specific Dates of Military Service (active duty and reserve)
Rank - branch - current duty station
Whether or not former spouse will be entitled to the survivor benefit plan and who will bear the costs of the benefits. Survivor benefit plan (SBP) is good for the former spouse as it provides income for life that is tax free with guaranteed COLA; on the other hand it is inflexible, expensive, and has no cash value
It is suggested that an agreement be reached to reserve jurisdiction in the final judgment to award maintenance from benefits received which are not divisible under federal law - such as leaving the military just short of 20 years so there would be no entitlement to retired pay but member would receive a large lump sum payment or if there is no retirement but an election to "roll over" or merge the time of service into a federal government service job
Divorce Article 4: Marital Fault in Divorce
"My spouse cheated on me. If I file for a ’fault divorce,’ am I likely to get more in terms of support and property?"
The laws changed in Illinois once it became a no-fault divorce state. At one time, if the individual could prove that the other party was "at fault" for the divorce, the injured party may be awarded a lion’s share of the estate. That is no longer true.
Some of the available grounds for a "fault"divorce in Illinois are mental cruelty, physical cruelty, adultery, and desertion, to name a few. You will need to prove that the grounds exist and proof can sometimes be an issue. You have to be able to testify that this "fault" occurred through no fault of your own.
Some faults are harder to prove than others, and you cannot have forgiven the fault and thereafter receive a divorce on the basis of what was forgiven. Take the legal term condonation for instance. Condonation means that although your spouse did something to warrant a divorce, such as having an affair, if you forgive your spouse and continue to live together as husband and wife, you lose your ability to plead adultery based on that affair under condonation.
Most people are opting to choose a no fault divorce however, and plead "irreconcilable differences." This means that no one is at fault, but the parties desire a divorce because irreconcilable differences have caused an irretrievable breakdown in their marriage and that past attempts at reconciliation have failed and any further attempts at reconciliation would not be in the best interest of the family. In order to plead irreconcilable differences, the parties must have been living separate and apart for a period of two years, or six months if the parties agree to waive the two year period. The separation period can still occur while the parties live in the same household as long as they are living lives separate and apart from each other. The court will require both of you to sign an affidavit stating that you have been living separate and apart for at least six months and are voluntarily waiving the two year period as required under the statute. A person may obtain a divorce based on irreconcilable differences after a two year separation without such waiver or agreement from their spouse.
Current law provides that property must be divided equitably and the court is not allowed to consider who was at fault when this division occurs. Your spouse cannot refuse to allow the divorce to move forward. You can either wait two years and file under irreconcilable differences, or you can file without a two year separation and plead one or more specific grounds.
The only benefit to finding "fault" in a divorce is typically when there are children involved. However, courts look at a parent’s fault and make a determination as to whether that conduct has had some sort of negative impact on the child. If your spouse has had an affair and you can prove adultery as a ground for divorce, it does not mean that you are automatically entitled to custody. In fact, if you make such an issue out of it, and broadcast the affair to the child, you could find yourself on the losing end of a custody dispute.