Family Law FAQs
Clients and other people who are interested in divorce and family law often ask similar questions about such issues as maintenance, termination and modification of maintenance, removal of children from Illinois, child support in divorce, enforcement of child support and maintenance, discovery of assets and distribution of property. Below are some of the most frequently asked questions on these matrimonial law topics.
What is maintenance?
Maintenance is what was formerly called alimony. It is a spouse’s right of support from the other spouse and is different from child support.
How does a court determine if maintenance is appropriate?
Some of the major considerations are:
- The length of the marriage
- The disparity in earnings of the parties
- Whether the parties have children and whether one spouse has given up their career opportunities due to the marriage
- The age and health of the parties
- Each party’s ability to acquire income and assets in the future
- The standard of living established during the marriage.
Are there tax consequences to maintenance payments?
I have heard the term “permanent maintenance.” When does that occur?
Termination and Modification of Maintenance
Does maintenance terminate if I am living with someone?
In most cases in Illinois maintenance terminates if someone lives with another person on a “resident, continuing, conjugal basis” which translates to a relationship similar to a marriage. The courts will take into consideration if your relationship is like a marriage (sharing income, sharing holidays and vacations) or more similar to a room mate arrangement.
Does maintenance automatically terminate or do I need to go to court?
If you are paying maintenance to a former spouse who is living with another person on a conjugal basis, it is best to go to court to terminate your support obligation. However, you must be able to prove that the conjugal cohabitation exists.
Are there cases where maintenance does not terminate due to living arrangements?
If both parties agree, the marital settlement agreement can provide that maintenance will not terminate in the event of a “conjugal cohabitation.”
Removal of Children from Illinois
I have sole custody of my children and would like to move to another state. Do I need a court order?
Illinois law does require a custodial parent to obtain a court order if they wish to move their children to another state.
When deciding on a removal petition, which is more important to the judge — the parenting schedule set out in the divorce decree or the actual time the non-custody custodial parent spends with the children?
The court will consider the time the non-custodial parent actual spends with the children and will take into consideration the time that parent was permitted to see the children pursuant to the Joint Parenting Agreement.
I was never married to my child’s father. Do I still need a court order to allow me to remove my child from Illinois?
Yes. In 2003 Illinois passed a law that provided that the provisions of Section 609 apply to the determination of custody under the Illinois Parentage Act.
Child Support in Divorce
Does Illinois have minimum child support guidelines?
Yes. Under most circumstances these guidelines are followed:
Number of Children – Percentage of Supporting Party’s Net Income
1 – 20% 2 – 28% 3 – 32% 4 – 40% 5 – 45% 6 or more – 50%
What is the difference between gross income and net income?
What deductions do the child support guidelines allow?
Can my 401(k) contribution be deducted?
Who pays for daycare expenses?
What about medical expenses for the children?
Who pays for extracurricular expenses for the children?
Can I avoid paying child support if I have equally time with the children?
Enforcement of Child Support and Maintenance
Where can I find information about the State Disbursement Unit?
Their Web site is www.ilsdu.com, where you can find answers to frequently asked questions, view payments or disbursements made within the last 30 days, print forms, etc.
Does that State Disbursement Unit have the ability to transfer support payments electronically?
Yes, you can obtain the form online at their Web site.
Are child support payments required to be made through SDU?
No, the parties can agree to have the payments made in another manner.
Discovery of Assets
What documents should I bring to my first meeting with my lawyer?
If is not necessary to bring any documents to the first meeting. However, if available it is helpful to bring tax returns for the past two years, recent pay stubs and the most recent statement for any pension plans.
What if I don’t have access to my financial information?
What is a subpoena?
Distribution of Property
Is there a presumption in Illinois divorce law that all property is divided equally in the divorce?
Illinois divorce law requires that property is to be divided equitably — which does not necessarily mean equally. There are a number of factors courts consider when dividing marital property.
If all the property purchased during our marriage was placed in my wife’s name, will this be advantageous to her?
No. If property was acquired during the marriage there is a presumption that the property is marital property. Some exceptions to this rule:
- property acquired by gift or through inheritance
- property acquired in exchange for property acquired before the marriage or in exchange for property acquired through gift or inheritance
How can I make certain that gifts and inheritances will remain my non-marital property?
The best way is to keep the property in your name only and not put it into any form of joint ownership and to never transfer any marital money into those accounts.
Other Frequently Asked Questions
Is It Important to Be the First Party to File for Divorce?
As a rule, the first party to file for a divorce has no advantage or disadvantage in the eyes of the law. The ultimate division of marital property as well as child custody issues have nothing to do with which spouse files first for a divorce. The first filer may benefit if the two spouses currently live in different counties, however. It may be more convenient to appear in court in the county where a party resides than to travel to another county. Filing fees, however, are somewhat higher for the first filer.
Should I Date During Divorce Proceedings?
It has to be said: What you can do and what you should do may not be the same thing. Courts divide marital property without considering infidelity, adultery, or other allegations of marital misconduct. Thus, parties are free to date during the divorce process without fearing a backlash from the court. On the other hand, having a girlfriend or boyfriend before a marriage dissolution may complicate the divorce. The presence of a girlfriend or boyfriend may affect your spouse’s emotions and thus decrease your chances of an amicable, quick and inexpensive divorce.
Can I Make Oral Agreements to Adjust Divorce or Custody Arrangements?
What, If Anything, Can I Communicate about My Divorce Electronically?
What are the Grounds for Marriage Dissolution?
“Irreconcilable differences” requires a separation of two years, although the period can be reduced to six months if the spouses sign a waiver. The odds of success in contesting the fault-based grounds of “mental cruelty” are not great, and judges typically view such litigation as a waste of time. Nearly any marital dispute that reaches court does so only after an extensive marital disagreement that causes the complaining spouse to feel upset enough to conclude the marriage is irrevocably broken.
In other words, if the parties want a divorce, no one should be unduly concerned when the grounds of mental cruelty are raised. Marital misconduct has no bearing on property division or the levels of child support and maintenance. It’s also irrelevant to custody unless the alleged cruelty affects the children or their care.
For more answers to frequently asked questions relating to divorce law and family law, please view the topics listed in the Divorce Magazine Newsletters heading.