Illinois Lawyer Referrals and Legal Guidance

A family business can be a major issue in divorce

If you and/or your spouse started a family business during the marriage, it will be considered a marital asset and needs to be dealt with in divorce. It's an issue that can be complex, and getting legal help is almost always recommended. Even if it's your spouse's business and you are not involved in running it or growing the business, you may be entitled to half if the business was started during the marriage. This doesn't mean that you would have to be in business together. One spouse often chooses to buy out the other.

No contingency fee in a divorce case

Many people wonder if they can hire an attorney and pay them a portion of the divorce settlement, much like a car accident lawsuit or other injury case. This is called a contingency fee, and it's not allowed in divorce cases. Instead, divorce attorneys charge hourly. As with any situation that has an hourly fee, your attorney will probably ask for a retainer. A retainer is an amount of money you pay upfront. As the attorney works on your case, they take their fee from the retainer you gave them. Contingency fees are the norm in injury cases, debt collection and other situations where someone is suing or making a claim for a sum of money. While you might get a sum of money at the end of your divorce, your attorney is not allowed to charge you a percentage of what you get.

You don't have to let the judge divide your property

If you and your spouse can agree on how you want your property divided in your divorce, then a judge is most likely going to approve it. There are guidelines for a judge to follow when the decision is up to them, but the parties in a divorce are free to make their own decisions if they can come to an agreement without the court's help. Even if you and your spouse have an amicable relationship and no disagreements about your divorce, it's best to have an experienced divorce attorney look over your settlement before you present it to the court. You never know what issue you might be overlooking, and it's not as easy to go back and ask for a modification later on.

Property and divorce: your inheritance is yours

When looking at a couple's property and assets in a divorce, the court will determine what is marital property and what is the separate property of each spouse. Marital property is considered joint property and subject to being divided during the divorce, whereas separate property remains the property of one person. An inheritance is an example of separate property. If your grandparents left you money or real estate from their estate, it should not be divided in your divorce. This does not mean, however, that your spouse won't try to claim a share. Divorce can get messy. Talk to an experienced family law attorney about protecting your separate property.

Don't underestimate customer service when looking for a divorce lawyer

In our opinion, a great divorce attorney is one who handles divorce cases day in and day out. They have been practicing law for at least 10 years, they have a great reputation in the local legal community and they know their way around the courthouse. In addition, we believe they should have good customer service. This means that they return your phone calls and emails, they keep you up to date on any changes or developments in your case, they let you know how best to reach them and they prep you before going into court. And perhaps most importantly, they treat their clients with respect and compassion. Don't underestimate the importance of these traits when looking for the best divorce attorney for your case.

Can't I just get an annulment?

Probably not. Even if you were only married for a short time, you'll likely need to file for divorce in order to end it. Annulment is used for an invalid marriage. It basically erases the marriage from existence, but it's only available in a few specific circumstances. If your marriage was not legal – you were under age for example – then it can be annulled. If you were tricked into the marriage, or didn't know what you were doing because of mental illness, or if the marriage cannot be consummated and you didn't know that, then you can try for an annulment. There also are time limits on seeking an annulment, with some as short as 90 days. Property division, spousal support and other things available in a divorce are not generally available in an annulment unless you entered the marriage thinking it was valid and later found out it was not.

We don't recommend sharing a divorce attorney with your spouse

It might seem easier, and certainly less costly, to share an attorney with your spouse. Be careful. There are few, if any, situations where this is going to be in your best interest. Even in an amicable divorce there are issues that come up where you and your spouse are in opposition. You want an attorney who is on your side and only your side. You want to know that someone is assessing the entire situation from your perspective. There are so many issues ... spousal support, child support, custody, property division (including real estate, retirement plans, etc.). You simply can't assume there won't be any disagreements. Hiring your own attorney doesn't mean you want a fight. It's just a smart thing to do.

Your spouse's income during the marriage is ‘marital property'

"Marital property" means joint property. It's anything that is considered shared property, which both spouses are entitled to in a divorce. If you buy a house together after you are married, it's marital property in most cases, even if only one spouse's name is on it. Income earned by both people during the marriage and any contributions to retirement plans are marital property. If you start a family business, it's marital property. There are always exceptions, but the general rule is that anything that comes in during the marriage is considered shared, even if it's brought in by just one person. Anything you already had before the marriage can remain separate. Inheritances are usually separate, as well. Again, there are exceptions and room for argument in some cases, but that's the general rule.

You can sue your husband's mistress – but it's probably not worth it

If your spouse has been unfaithful, we don't blame you for wanting to sue the other man or woman who was responsible for the situation. The emotional damage is real, but unfortunately, it's not enough. Although Illinois is a state that allows lawsuits for alienation of affection, you can't recover damages for emotional distress. You have to prove actual (financial) harm. You also have to prove that the third party was responsible for the break-up of the marriage. So you'll have to prove that your spouse was put under some sort of spell and was unable to control their actions. All of this is probably going to cost you a lot more than you'll be able to recover in the end.

Lawsuit proceeds are marital property

If you or your spouse wins a lawsuit and gets a big check, that money is considered martial property. In Illinois, all marital property is to be divided equitably upon divorce. So even if the lawsuit was about a car accident injury that only affected one spouse, they both have some entitlement to the money since it was received during the marriage. It's treated like income from a job, or retirement benefits earned during the marriage. Things that are not considered marital property: anything owned prior to the marriage and a few things received during, such as an inheritance or gift.

Child support guidelines: What you can expect to pay

These are not mandatory, but they are guidelines mentioned in the law that are usually followed. The bottom line is that the judge can stray from the guidelines if they think it's in the best interest of the child or children. Here are the percentages of net income (after certain deductions) that you can expect to pay for child support, according to Illinois law:

• For one child, 20%
• For two children, 28%
• For three children, 32%
• For four children, 40%
• For five children, 45%
• For six or more, 50%

Other factors that the judge can consider include the financial resources of the child and the custodial parent, the standard of living the child would have enjoyed had the marriage not ended, the physical and emotional condition of the child and educational needs, and the financial resources of the non-custodial parent.

QDROs (Qualified Domestic Relations Orders)

These are used to split retirement plans in a divorce. Retirement plans are considered marital property, and should be divided equitably upon divorce. Any retirement money earned before the marriage is separate, however, and should not be shared.

Because retirement plans aren't easy to split, especially pensions that don't have a set current value, it's not as easy as drawing a line down the middle. After the two parties agree to how it will be split (perhaps using an expert to determine value), a QDRO is used to carry out the split. The document is sent to the retirement plan administrator. It basically tells them to create two accounts from the original account, one in each spouse's name. We almost always recommend having an attorney during this process.

If you can't find your spouse, you can still divorce

If your spouse left without keeping in touch, and you can't locate them through employment or family members or any other records, then you can still get a divorce. You just have to take a few extra steps to show the court that you tried to locate them and notify them of your divorce petition. Instead of serving your spouse with the divorce papers, you can publish notice in an approved publication. The court is going to require that you first make a strong effort to locate your missing spouse. But you will not be prevented from getting a divorce because your spouse disappeared.

How do you end a civil union in Illinois?

Illinois now has civil unions. In many ways, it's similar to marriage; in other ways it's not. When it comes to ending a union, it's the same. The divorce law and procedure applies to both. So, the requirements for getting a divorce in Illinois still stand – you have to have been a resident of Illinois for at least 90 days, and satisfy the requirement that you have lived separate and apart for a certain amount of time. The court will rule on property division and other similar issues, unless the two parties can agree, in which case they can sign a settlement agreement.

Voiding a marital settlement agreement

A marital settlement agreement, or MSA, is a final document in a divorce in which the parties agree on all sorts of issues, from spousal support to property division to splitting retirement accounts. The document will be approved by the judge and signed by each party. It is not easy undo this once it's done, because presumably it was all agreed to by everyone. You can't simply change your mind.

You can, however, try to prove that the agreement was unconscionable. You will have to show that you did not sign it on your own free will, and that the terms are so unfair that they're oppressive. Courts may consider the fact that one party was not represented by an attorney, because uneven bargaining power is relevant. However, it's not the only factor, and not having an attorney isn't an automatic ticket out. It's extremely important to have an attorney during the drafting and negotiation process – if you realize later on that you got a bad deal, it's often too late.

What is a conciliation conference?

If, during the divorce process, one or both of the parties decide they would like to try and reconcile, they can request a conciliation conference. It can also be initiated by the court. This is basically counseling. In some counties, such as Cook County, the divorce case can be put on hold for a year while the parties attempt to work things out. Any court orders in effect at the time are still in effect, but not enforced. Either party can request, during that year, to move forward on the divorce if it's not working out. If the year passes, the divorce case can be dismissed unless one of the spouses objects.

Divorce attorneys charge hourly

The fees of a divorce attorney can be anywhere from $100 to $400 an hour. You will be asked to put down a retainer at the outset of the case, which is a lump sum of a few thousand dollars. Your attorney will deduct their fee from the retainer as they complete the work on your case. If it runs out or gets low, you may have to refill it (maybe even several times). Divorce is expensive, often because it is so contentious. If the parties cannot agree on anything, the attorneys have to spend a lot of time reaching an agreement or arguing for either side. The more you can agree on, the less your divorce should cost.

Illinois law says you are a child's legal father if….

1. You were married to the mother when the child was conceived or born.
2. You married the mother after the birth of the child and you are listed (with permission) on the birth certificate as the child's father.
3. There is a court order of Department of Public Aid administrative order saying that you are the father.
4. You and the mother have signed a voluntary acknowledgement of paternity form.

Once paternity is established, the father is entitled to seek custody and/or visitation. In addition, a child support obligation exists.

You can fire your attorney and hire a new one

If you don't get along with your attorney, or if you feel like they aren't fighting for you, or if you feel like you're being ignored, you may have considered firing your attorney. It's allowed. You have the right to fire your attorney at any time. Whether it's a good idea is a different story. We suggest that you first try to work things out with your current attorney. It's the easiest solution, especially if the problem is caused by a misunderstanding. You may think your attorney is just sitting on your case when in fact it has been moving along but they haven't been updating you. It's not a good excuse, but it may be fixable. On the other hand, if your attorney has never handled a divorce before and is struggling with yours, you should probably move on as soon as possible. The fired attorney will be entitled to any fees they have already earned, but any unearned portion of your retainer should be returned to you, along with your case file. In some situations, it's helpful to have your new attorney deal with the transition and work things out with your previous attorney.

Whose side is the judge on?

The judge shouldn't be on anyone's side. But as hard as they may try, it's impossible to be absolutely, completely impartial. Judges are human and bring their own experiences, biases and assumptions into their courtrooms. If you've never been in divorce court, there's no way for you to know a judge. But you can find an attorney who does. An experienced divorce attorney – one who spends a lot of time in the courthouse where your divorce is taking place – should know the judge or judges. Most importantly, they should know their tendencies. How do they usually rule on spousal support? Are they more traditional, or are they willing to consider non-traditional solutions to things like custody and visitation? Your attorney should be aware of any pet peeves a judge has so that you can avoid them. And if your attorney appears before the judge often, they should have a good working relationship. If your attorney is respected by the judge, it can go a long way.

If one spouse is dating, it usually doesn't affect divorce issues

In Illinois, divorce issues tend to be decided equitably (when it comes to property) or in the best interests of the children, and are not affected by the dating habits of one spouse or the other. So if your husband or wife cheated or is in another relationship during the divorce process, it usually doesn't matter. This question comes up a lot in custody and visitation issues, where one parent does not want their children spending time with the other parent's girlfriend or boyfriend. You aren't going to be able to prevent visitation simply because your soon-to-be ex is seeing someone else. Even though it can be a very upsetting situation, the court is concerned with the best interests of the child and that usually means making sure they have a relationship, and spend time, with both parents. As usual, there are exceptions, such as if the situation puts the child or children in danger.

What does "post-decree" mean?

Post-decree means after the divorce is finalized in court. After the divorce, many couples still have to deal with each other in some way. Maybe one spouse is paying maintenance to the other, or they have children and therefore ongoing custody and visitation issues. When former spouses what to change anything that was in the final divorce papers, they have to go back to court to make it official. Informal agreements happen all the time, but if your ex changes their mind you don't have any way to enforce it because the change in child visitation, for example, wasn't ordered by a judge.

Temporary spousal support during the divorce process

A judge can order that one spouse pay support to another during the divorce process, which sometimes can take years. Spousal support or alimony is called maintenance in Illinois. You can get temporary maintenance until the divorce is finalized, at which point you may or may not get maintenance for a certain number of years, or indefinitely in some cases. Maintenance is not awarded in every case. It depends on the situation and each spouse's ability to support themselves. Maintenance can be agreed upon by the parties or ordered by the judge.

Signing a voluntary acknowledgment of paternity form

There are a couple of ways to establish paternity. One way is for both parents to sign a form identifying the father of the child. Once this form is signed, the father has a right to seek custody and visitation. He also has the obligation to pay child support. This form can be rescinded within the first 60 days after it was signed, but after that it is difficult to undo. There have been cases where a father found out later that he actually wasn't the child's biological father but he was still required to pay child support. These forms shouldn't be signed lightly, or at all, unless you're absolutely certain about paternity.

You don't have to get married here to get divorced here

You don't have to have an Illinois marriage license or certificate in order to get a divorce in Illinois. There are two requirements. First, either you or your spouse must have lived in Illinois for at least 90 days. Second, you and your spouse must live separate and apart for a certain amount of time. This second one depends on the type of divorce and whether children are involved. But it's not set in stone. If the parties both agree, the waiting period usually can be waived.

In a divorce, fault doesn't matter, at least not to the judge

In Illinois, divorces are either labeled no-fault or based on fault. Although it may affect the waiting period rule (spouses must have lived separate and apart for a time in order to get a no-fault divorce), it's pretty much a technicality. The waiting period can be waived and fault does not come into play in determining most of the issues, such as child custody or property division. Just because your spouse cheated doesn't mean you'll get the house, and just because your spouse is the one who wants the divorce doesn't mean you'll get custody of the kids. Generally speaking, custody depends on the best interest of the child, and all property is to be divided equitably.

Will I Owe Child Support for College?

The general rules is that a parent's child support obligation ends when a child turns 18. However, "post-majority" support may be ordered when the child is attending college. Expenses include room and board, tuition, medical insurance, etc. Technically, these are called "education expenses" and can be for expenses other than college - vocational school, training programs, or even high school if the child turns 19 while still in high school. Ordering a parent to pay support for educational expenses after the age of 18 is not mandatory and the amount is completely up to the judge.

Helpful tips for those going through a divorce in Illinois

We have been helping people find Illinois divorce lawyers since 2001. Here is some information that people have found useful and interesting over the years.

• If you sign a prenuptial agreement right before you were married it will not likely be enforceable.
• If both parties agree on every aspect of the divorce, the 6 month waiting period can be waived.
• An Illinois divorce lawyer cannot represent a client on a contingency basis.
• There are no jury trials in Illinois divorce cases.
• Once a divorce case has been filed in the courts, you typically cannot move out of state with your children without the courts permission.
• In an Illinois divorce, in order to get your maiden name back you need a court order.
• Inherited money or property is not a marital asset.
• If you move out of the house during divorce you are not abandoning your rights to that property.
• A truly uncontested divorce means that you and your spouse have worked out every issue.
• In many counties if you are getting divorced and the parties cannot work out a joint parenting agreement the court will order mandatory mediation.
• Where you were married is not relevant in determining where divorce should be filed. What is important is where you are currently living.
• Although adultery is grounds for a divorce in Illinois, judges usually do not factor adultery into their decisions about child custody unless it is affecting the best interests of the child.
• When a divorcing couple lives in a separate county or state, the jurisdiction for the divorce will be determined by the first party that files for divorce and serves the other side.
• Illinois does not have alimony, but does have maintenance which is similar to what most people think of when they say alimony.
• Although there are guidelines on how a judge should decide a divorce case, the parties can agree on whatever they want and the courts will usually approve it.
• Annulment is usually a church term. In Illinois you can only get an annulment if you did not consummate your marriage or if you were forced to marry under some sort of duress.
• If you file for divorce in Illinois you must have lived here for at least 90 days.
• If your spouse cheats on you, in order to sue his or mistress, you must show that the mistress essentially put them under a spell to which point they could not control their actions.

There is no such thing as the best divorce lawyer in Illinois. Rather you should seek out the best lawyer for your needs.

When people call us looking for Illinois divorce lawyer referrals it is not uncommon for us to have someone ask us for a referral to "the best lawyer in town."   That doesn't exist. The best lawyer for you may not be the best for your neighbor or co-worker. Sometimes the "best" are too expensive. Sometimes they don't deliver customer service. Sometimes they make you think you are hiring them and stick you with a young associate. Our advice is to come up with a list of goals and when you interview prospective lawyers, ask them tough questions about how they will help you meet your goals.

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