Law Office of John S. Xydakis, P.C.
Suite 3600
55 E. Washington St .
Chicago , Illinois 60602
(312) 727-1100    

WHAT LAW GOVERNS DIVORCE IN ILLINOIS?

In Illinois, divorce, marriage, child support, and child custody are governed by the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/1 et seq.).

DO I NEED GROUNDS TO GET A  DIVORCE?

  Not really.  In Illinois one of the grounds for divorce, and the most frequently used, is that the parties have lived separate and apart for over 6 months, the parties have irreconcilable differences and that future attempts at reconciliation are useless.

IN ILLINOIS, IS  FAULT CONSIDERED IN A DIVORCE?

No.  However, the conduct and character of the parties may be relevant if a child custody battle is waged.

IN ILLINOIS, IS FAULT CONSIDERED IN THE DIVISION OF PROPERTY?

No.

WILL I GET ALIMONY OR MAINTENANCE?

Alimony, now known as maintenance is discretionary and up to the judge.  The Court will look at the following factors to determine whether to give maintenance to a party:

•  the income and property of each party;

•  the needs of each party;

•  the present and future earning capacity of each party;

• whether, for how long, and to what extent one party worked in the home;

• whether the party seeking maintenance can acquire appropriate employment;

• the standard of living during the marriage;

• the duration of the marriage;

• the age and physical condition of the parties;

• the economic circumstances of the parties;

• contributions made from one spouse to another to further their career;

• whether the parties already signed a valid agreement regarding maintenance;

• any other factors the Court finds just and equitable.

CAN I EVICT MY SPOUSE FROM OUR MARITAL HOME DURING THE DIVORCE PROCEEDINGS?

No, unless there is the threat of imminent physical harm and must be done by a court order.


HOW LONG WILL IT TAKE ME TO GET A DIVORCE?

It depends on the circumstances.  Simple divorces can take 2-6 months.  Complicated and contested divorces can take much longer.  Issues of child custody can also significantly lengthen a divorce proceeding, as can fights over the equitable distribution of marital property.

HOW MUCH CHILD SUPPORT WILL I GET?

That depends on the number of kids.  The amount of child support  determined by statute and is based on the supporting party's net income.  The current rates are: 1 child - 20%, 2 children - 28%, 3 children - 32%, 4 children- 40%, 5 children - 45%, 6 or more children - 50%.

Remember, that this amount is based on the net income of the supporting party.  Federal and state income taxes, Social Security taxes, Medicare taxes, health insurance, union dues, and other mandatory expenses are subtracted from that party's gross income.

WHAT IS MARITAL PROPERTY?

Property that is acquired by either spouse individually or the couple together during a marriage is considered marital property. The time frame "during the marriage" starts as of the day the couple marries, and generally is regarded as ending on the date that the spouses begin to live apart (or the date that the spouses intend to live apart if they are unable to physically separate).

HOW WILL OUR PROPERTY BE DIVIDED?

Illinois employs what it calls "equitable distribution" in dividing marital property as a result of the dissolution of marriage (divorce). Instead of a strict fifty-fifty split (in which each spouse receives exactly one-half of the marital or separate property), equitable distribution looks at the financial situation that each spouse will be in after the termination of the marriage. While equitable distribution is more flexible, it is harder to predict the actual outcome, since the various factors are subjectively weighed. Factors considered in equitable distribution include:

• the contribution of each party to the marital property;

• the decrease in the value of any marital property caused by a party

• the value of the property assigned to each spouse;

• the duration of the marriage;

• the relevant economic circumstances of the parties;

• any obligations and rights arising from a prior marriage of either party

• any previous agreement reached by the parties regarding the division of the property 

• the age, health, occupation, earnings, estate and liabilities of each party;

• the custodial provisions of any children

• whether and to what extent maintenance is provided

• the future outlook for the earning capacity of each party

• the tax consequences of the division of property

• Earning power of the spouses (one might be much greater than the other)
  
  

WILL ALL OUR PROPERTY BY DIVIDED UP?

No, non-marital property is not subject to division.  That is, upon divorce, non-marital property goes completely to the spouse who owns it.  Non-marital property is property acquired in any of the following ways:

• property acquired from an inheritance

• property acquired before the marriage

• property acquired after a judgment of legal separation

Remember though, that for the property to remain separate, the spouse must keep it apart from marital or community property; that is, he or she would keep it entirely in his/her name. Once the separate property has been commingled (mixed) with marital or community property, it becomes part of the marital property.

For example, consider a bank account with $10,000 in it owned by woman before her marriage. This woman then marries and both she and her husband regularly deposit their respective paychecks into the account and periodically withdraw money to pay for their living expenses. At the time of separation twenty years later, the bank account has $5,000 in it. Since marital property has gone into it (deposits of the paychecks and marital or community debts have been paid from it is impossible to trace the original separate property money from that of marital or community property. The result is that this bank account has changed from separate property to marital property.

WHAT IS THE DIFFERENCE BETWEEN CUSTODIAL PARENT AND NON-CUSTODIAL PARENT?

The custodial parent is the term that is used for the parent that has primary physical custody of a child. Typically the child resides with the custodial parent.

The term non-custodial parent is used for the parent that has the child for a lesser amount of time. Typically the child does not reside with the non-custodial parent except during the time that the non-custodial parent exercises his/her visitation right with the child.

Typically, the child is either with the custodial parent or the non-custodial parent but not both. This arrangement comes as a result of the separation of the parents and both parents maintaining separate residences. The child resides with the custodial parent most of the time and the non-custodial parent spends time with the child during periods of child visitation. This way, both parents get to spend time with the child despite having separate residences.

WHAT FACTORS GO INTO DETERMINING CUSTODY AND VISITATION?

The primary consideration is, "What is in the best interest of the child?" The focus is from the viewpoint of the child as opposed to the wants and desires of one parent or the other.

The best interest of a child is determined on a case-by-case basis upon consideration of all relevant facts concerning the circumstances of both parents.

DO THE WISHES OF A CHILD HAVE ANY INFLUENCE IN CUSTODY DECISIONS?

It depends on the age of the child.  If a child is of sufficient maturity, judges have discretion to heard the child's stated preference and his or her reasons. The child does not have the final say and it will be the judge's decision just how much consideration is to be given to the child's wishes, depending on age, maturity, and the quality of the reasons. The overriding question will always be: what is in the child's best interest?


WHAT IF BOTH PARENTS AGREE ON CHILD CUSTODY AND VISITATION?

This is the ideal situation. Absent extenuating circumstances (such as abuse or neglect), the parenting plan agreed upon by both parents becomes the parenting plan. If the issue of child custody and visitation is not raised in a court action, the agreements worked out between the parents is left undisturbed. The agreement does not have to be reduced to a writing signed by both parents but a written, signed parenting plan is preferable for future reference. In addition, a written, signed parenting plan can typically be entered as a Stipulation between the parties and then issued as a court order for future enforcement purposes.


CAN CHILD CUSTODY RIGHTS BE MODIFIED?

Absolutely. You can go back to court to change a custody order if there is a substantial change of circumstance that has a significant, adverse effect on the child (such as visitation problems, erratic behavior, change in employment, residence, or marital status). 

Alternatively, the ex-spouses can voluntarily modify the last order by agreeing to changes between themselves. If there is a departure from the last custody order, it is best to put the new current changes in writing; oral agreements are difficult to enforce.

WHAT HAPPENS WHEN VISITATION RIGHTS ARE FRUSTRATED?

Frustration of visitation occurs when the custodial parent takes steps to prevent the non-custodial parent from having contact with the child. This could be an innocent isolated occurrence, such as taking a child to a doctor to receive medical attention at the time the non-custodial parent is to arrive at the residence to pick-up the child for a scheduled visit. On the other end of the spectrum, when one parent "disappears" with the child, this could be a kidnapping or abduction which would result in criminal prosecution.

Frustration of visitation could be the grounds for modification of or termination of custody rights.
 

IF CHILD SUPPORT IS NOT PAID, MUST VISITATION BE ALLOWED?

Yes. The issues of child visitation and child support are separate issues.

Failure to pay child support is typically insufficient grounds to stop the right of the non-custodial parent to visitation with his/her child. Visitation is typically ordered by a court in the best interest of the child to promote love and affection with both parents - custodial and non-custodial alike. Child visitation is vital to the non-custodial parent so that a meaningful relationship between child and parent can be maintained or established. On the other hand, child support is based upon the financial needs of the child and the ability of both parents to provide for the child's financial needs. Thus it is typically treated as a separate issue, the failure of one not having a determinative effect upon the other.

The custodial parent must continue to allow visitation with the child despite failure of the non-custodial parent to pay child support. Although this may be very frustrating to some, if the custodial parent "frustrates" the right of the non-custodial parent to visit with the child, the non-custodial parent could ask the court to change custody of the child based upon this frustration of visitation even though s/he is delinquent in payment of child support.

WHO CAN BE ORDERED TO PAY IT?

A court can order either parent of a child to pay support to other parent. The court order for support is usually payable on a monthly basis. Many states now require that child support be paid by wage assignment (automatic deductions from the paycheck) whenever available, thus reducing the need for subsequent enforcement actions.

HOW IS THE AMOUNT OF CHILD SUPPORT DETERMINED?

Federal law now requires that the amount of a child support payment be set in accordance with a guideline. Having a guideline is believed to prevent widely different amounts of child support being ordered from courtroom to courtroom. Guidelines provide an objective basis for the determination of the amount of support to be paid. As a result, most states have established formulas that are used to determine the amount of the payment from one parent to the other based on, but not limited to, wages and investments) to arrive at his/her net income.


HOW LONG MUST CHILD SUPPORT BE PAID?

The duration of this responsibility depends upon state law. All states require both parents to be financially responsible for their child during the child's minority, generally through the child's high school years. A few states have extended the time for financial responsibility beyond the minority of the child. Child support can be terminated in the event of the death of the child, if the child goes on active duty in the armed forces, or if the child becomes emancipated or self-supporting.


WHEN CAN A CHILD SUPPORT ORDER BE CHANGED OR MODIFIED?

An order for child support can be changed or modified any time there is a "material change in circumstances" from the time that the existing child support was issued. A material change in circumstances can take many forms. The change can be the result of changes in the parent's financial situation - such as appreciable difference in the amount of income earned, loss of a job, a large inheritance, or a change in the amount of time spent with the child. The material change in circumstance can be the result of a new situation for the child - such as large medical expenses, need for special education, or other unexpected requirements. A child support payment could be modified by stipulation between the parents (as long as guideline support factors have been accounted for) or by a noticed court hearing.

WHAT EFFORTS CAN BE TAKEN TO COLLECT CHILD SUPPORT FROM THE PARENT WHO DOES NOT PAY?

When a parent fails to provide support for a child, the parents need to work together to make arrangements for mutual sharing of the expense of raising the child. For all parties concerned, the best solution is often found when parents work together.

In the situation where one parent does not cooperate in sharing the responsibility for child support, the controversy should be submitted to a court. The first step is to obtain an order for the payment of child support. Further action in the court for the purpose of collecting child support can be taken if the obligor parent fails to comply with the court order for payment of child support. Like other enforcement of judgment actions, the available remedies range from simple to complex proceedings.

Wage assignments: The most common "tool" used to collect child support payments that are not voluntarily made is through a wage assignment order. A wage assignment order is an order of the court directing the employer to deduct the child support payment from the earnings of an employee-obligor parent and then make this payment directly to the obligee parent. Violation of a wage assignment order could result in the employer becoming responsible for such payment to the obligee parent. assignment orders can be obtained through a relatively simple court procedure. Once obtained, the wage assignment order must be served upon the employer of the obligor parent before it becomes effective.

Enforcement action: When the obligor parent continually fails to make support payments, the total amount of the "arrearage" (payments due and owing but not yet paid) can be set as a judgment for further enforcement proceedings. Interest on the arrearage is often included as part of the judgment, since many states provide for interest to accrue on outstanding orders for support. The expense of an enforcement action to collect a judgment is justified as the amount due increases. When the obligor parent has income or property, there is financial incentive to pursue enforcement efforts and, with the assistance of professionals, well worth the effort and expense.

Attachment or levy: Child support can also be collected through other procedures. For example, if the obligor has money in a bank, a valuable automobile, an investment in a mutual fund, or an interest in a property in the possession of a third-party, an attachment or levy can be executed. When executing a levy or attachment, care must be taken since some property is exempt. In a levy or attachment proceeding, the court can have the property of the obligor parent "seized" or taken away and given to the obligee parent. Although an obligor parent may challenge the levy or attachment in court ("claim an exemption"), it can be very effective in obtaining payment of a child support judgment. Strict adherence to the established rules for levy and attachment is required to protect an obligee parent from an allegation theft of property.

WHAT OTHER COLLECTION REMEDIES ARE AVAILABLE?

 The following are other alternative courses of action:

Government: Many states have empowered local government agencies (such as the Office of District Attorney) to collect child support for an obligee parent. Under law, the local agency may (or must) take action to collect outstanding child support arrearage. Resources, such as parent locator services, and a staff of attorneys/clerks, are available to local agencies to assist in collecting court ordered child support.

Tax refund intercepts: Local agencies have the authority to follow a procedure to "intercept" federal or state tax refunds which otherwise would be paid to the obligor parent. Also, local agencies can provide information about child support arrearage to consumer credit reporting agencies who are then required include such information in the agency's report. Although local child support enforcement agencies can be slow, because of the additional resources available to them, their assistance should be requested as part of the overall effort to collect a child support arrearage.

Real estate liens: A "judgment lien" based on child support arrearage can be recorded against real estate owned by the obligor parent in the county in which the property is located. When such a lien is recorded, the real property becomes security for the payment of the judgment. A judgment lien for child support is then paid from the proceeds of the sale when the property is sold. A judgment lien against real property should be established whenever an obligor parent owns real property that has an equity value (that is, the amount of all outstanding liens, including mortgages, is less than the fair market value of the property).

Civil contempt of court: A more complex proceeding is an action for contempt. Since payment of child support is a direct order by a court to pay, failure to pay is treated as a contempt of a court order. In this proceeding, which is quasi-criminal in nature, the obligee parent must prove to the court that the obligor parent had the income from which support could have been paid. Although a contempt proceeding is complex, it certain to gain the attention of the obligor parent.

Since collection of child support can be difficult, professional assistance is often needed. Child support judgments can easily reach many thousands of dollars a year, and the cost of professional assistance is justified, since those who are familiar with collection procedures often obtain favorable results.

HOW DOES A COURT DETERMINE THE AMOUNT OF ALIMONY TO BE PAID?

Subject to specific rules, standards and precedents in each state, a court sets the amount of alimony it determines to be just and reasonable to be paid for a period of time, typically based upon the standard of living established during the marriage, and after taking into consideration the facts and circumstances with respect to the spouses.

CAN AN ORDER FOR ALIMONY BE MODIFIED IN THE FUTURE?

That varies somewhat from state to state.

In some cases, dual income spouses who were married for a relatively short time (usually less than ten years), irrevocably waive their right to seek alimony from each other, in order to avoid protracted litigation. This waiver may then become part of the final Judgment of Dissolution, and thereafter each spouse is precluded from seeking any alimony from the other. There would then be no way that one ex-spouse can seek alimony form the other, regardless of circumstances.

In other cases, a court may order the payer spouse make certain alimony payments to the supported spouse for a set period of time. Before the expiration of that time, the supported spouse may petition the court to modify the amount or duration of alimony payments based upon a material change of circumstances since the previous order.

In a long term marriage, or where the court has reserved continuing jurisdiction over the amount and duration of alimony, either spouse may petition the court to modify the amount and duration of alimony payments, based upon a material change of circumstances since the previous order.

Divorce: Preplanning Strategies

Nobody marries with the expectation of failure. Married couples never contemplate that the person they once loved could later seem to be a stranger and perhaps even an enemy. Yet, statistics paint an ugly picture. Approximately four out of 10 marriages today end in divorce. In divorce proceedings, women lose financially, their standard of living may drop as much as thirty percent in the first year following a divorce. Men, may not suffer as great financially, however, they tend to lose precious time with their children.

One of the greatest contributors to divorce is the issue of "control" - either financial or personal. Who controls the bank account? Who sets the social agenda? When one partner to a marriage "controls", the other partner loses their sense of self. A divorce becomes imminent as they controlled partner tries to regain their self-esteem.

There are several simple and logical ways to protect yourself financially if you believe your marriage is in jeopardy:

ONE: Keep Non-Marital Assets Separate

Non-marital assets are not part of the assets divided in a divorce. Instead, they are considered the asset of either the husband or the wife and generally awarded to that person in a divorce proceeding. Categories of non-marital assets include:

1. property you inherit;

2. proceeds from personal injury awards (eg. Worker's compensation or accident proceeds);

3. items owned prior to marriage; and

4. gifts to one party rather than the family.

If non-marital assets are commingled with assets purchased or improved during the marriage, it may not be possible to claim the asset as yours in the event of divorce. However, some "tracing" of non-marital assets may be possible. For example, if a non-marital asset is sold during the marriage and the proceeds from the sale are used to purchase another asset, it may be possible to "trace" a non-marital interest in the new asset. For example, if a car owned before a marriage is sold during the marriage and the proceeds used to purchase a new vehicle, a party may be able to claim a non-marital interest in the new vehicle. To do so, it is very important to retain all documents demonstrating the sale of the asset and the use of the proceeds realized from the sale.

TWO: Establish Your Own Credit

Make sure your name is listed on all household accounts and investments. Establish at least one credit card in your own name. This will help to create an individual credit history. When you are on your own, you will have a better chance qualifying for loans, mortgages and credit cards. These are all important considerations after a divorce.

THREE: Review Your Financial Holdings Regularly

Maintain complete and separate records of your financial holdings such as bank accounts, IRA's, 401K, land purchases, and stocks. This includes assets in your spouse's name as well. You may wish to maintain copies of these records at your place of employment or in a safety deposit box in your name. Records have a way of disappearing after a divorce has been started.

FOUR :Time Your Divorce

The timing of your divorce may carry with it a significant financial impact. For example, in a single income family, the non-working spouse may not have earned enough money to qualify for Social Security at the age of retirement. However, if spouses are married at least 10 years and don't remarry, the non-earning spouse may qualify for Social Security benefits based on the ex-spouse's earnings when both reach the age of 62.

FIVE: Close Joint Accounts

If a divorce is imminent, you should immediately contact joint-credit-card companies in writing to freeze or cancel your joint accounts. You do not want to be responsible for your spouses' new credit card charges, particularly when those charges may include attorney's fees. This protects your credit. It is important to remember that, although a creditor may freeze a joint account, the outstanding balance must be paid off before the account can be closed. You may also wish to close your joint bank accounts. If any proceeds are removed, keep a carefully accounting where the money is placed or how the proceeds are spent. You will undoubtedly be asked for that accounting as part of the divorce process. You can save yourself time and money by keeping accurate records.

SIX: Hire an Experienced Divorce Lawyer

It may be very important to hire a good lawyer early in your divorce planning process. An experienced attorney can help you avoid mistakes that could later cost you in your divorce proceeding. There are many lawyers to choose from so it is important that you ask important questions in order to choose one that is knowledgeable and right for you. Ask about their experience in family practice and specifically divorce. Ask the attorney to explain the legal issues as well as the legal.

If you would like an evaluation of your case, please fill out the form by clicking here: Chicago lawyer for divorce, custody, support, alimony.

Law Office of John S. Xydakis, P.C.