The basics of a divorce case

By Rita Novak | Jan 7, 2013

A divorce in Illinois can be either quite simple or complex, depending on the presence or absence of children and the amount and type of assets the couple owns.

For instance, a Joint Petition for Simplified Dissolution of Marriage may be filed when (1) there are no children (and the wife is not pregnant by her husband); (2) there is no real estate owned; (3) the marriage is less than eight years; (4) there is no claim for maintenance (formerly called “alimony”); (5) neither party earns income of more than $20,000 in gross or together they earn less than $35,000; (6) the value of all marital property does not exceed $10,000; and (7) the parties have been separated for at least six months. In this situation, both parties can appear before the judge who will consider the petition “expeditiously.”

In all other cases, a Petition for Dissolution of Marriage must be filed and served on the other party. Unless the divorce is simple and issue free, it is best to consult or retain a lawyer because of the emotional tensions and nature of the issues involved in a divorce case.

Several legal grounds for divorce in Illinois still exist such as mental cruelty, physical cruelty and desertion. Most divorces, however, involve what can be called a no-fault ground for divorce known as “irreconcilable differences.”  Simply put, irreconcilable difference means the marriage is unalterably broken and efforts at reconciliation are unlikely. To allege the ground of irreconcilable differences, the law requires the parties to be separated for two years, but the parties may agree to waive that time period as long as they have been separated for at least six months.

To promote amicable divorces in Illinois, the parties may enter into a marital settlement agreement regarding the disposition of their property, their debts and maintenance. The terms of the marital settlement agreement are binding on the court unless a judge finds, after consideration of all the economic circumstances of the parties, that the agreement is unfair.

Divorcing couples with minor children also may enter into an agreement regarding the custody of the children and the non-custodial parent’s visitation schedule. The parties often agree that it is in the best interest of the children either for one parent to retain sole custody or for both parents to share custody jointly. Sole custody means that one parent assumes most or all decision-making responsibilities and the child lives with that parent. A joint custody agreement, on the other hand, means that major decisions like schooling, medical care, and religion are discussed and decided by both parents. And, the parents may agree that other decisions be made together.

Joint custody requires the parents demonstrate a future ability to cooperate in matters relating to the children and sign a document setting out the terms of joint custody and a dispute resolution plan in the event that an issue arises that the parents cannot decide on their own. Whether a sole or joint custody situation, a parenting schedule will be established. Judges prefer a flexible schedule whenever possible because it is usually in the best interest of the children.

Child support cannot be given up by a parent. A statute guides the amount of child support usually paid, which increases with each additional minor child.

A court will divide the marital property in just proportions without regard to marital misconduct. Maintenance can be awarded to either spouse for a fixed or an indefinite period of time, which may be paid from the income or property of the other spouse. The judge may decide that no maintenance will be granted to either party.

Some of the factors a judge considers in determining whether or how much maintenance is to be awarded are each spouse’s income, property, needs, and earning capacity. The judge also will consider if a spouse devoted time to domestic duties and delayed education, training or career opportunities because of the marriage. Another factor the judge may look at is the time needed for that spouse to get the education and training necessary to support him or herself. Some other factors of importance include the standard of living the parties’ enjoyed during the marriage, the length of the marriage, and age and health of the parties.

Should the parties be unable to work out an agreement on child custody or the division of property, debts, and maintenance, the judge conducts a trial to decide the contested issues. Jury trials are not permitted.

Rita M. Novak is president of the Illinois Judges Association. She serves as an associate judge at the Circuit Court of Cook County.

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