F.A.Q.

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FREQUENTLY ASKED QUESTION FOR DIVORCE CASES

Q) What is the difference between a divorce, legal separation and an annulment?

There are differences between a divorce, legal separation and an annulment.  Simply stated, a divorce is a judgment by a court that you and your spouse are no longer legally married.  A legal separation is when a husband and wife are separated and no longer living as if they are married, but the parties are still legally married and retain the rights of a spouse.  An annulment is now known as a declaration of invalidity of marriage.  As the name suggests, it is a determination by a court that your marriage was never valid and therefore the marriage is considered not to have existed.

When you consult with us, we can thoroughly discuss your rights and liabilities under these three options.  We will help you determine what options are available and what option is best for your particular situation.

Q) I have seen on shows on television that talk about “divorce papers”, what are they?

This question does not have a definitive answer because they often do not describe what the papers say.  However, more than likely, the divorce papers are a Petition for Dissolution of Marriage or a marital settlement agreement.  Remember though, that just by signing those papers does not mean you are divorced.  Only a judge can officially enter a judgment for dissolution.

Q) Do I get more because my spouse is having an affair?

Under Illinois law, a party’s fault for causing the divorce cannot be considered when dividing marital property and determining maintenance/alimony.

Q) Does it matter who files for divorce first?

For the most important issues, it does not.  However, the person who files first has the burden of proving the grounds for the divorce.  For most other issues, such as support or property distribution, the fact a person files first is unimportant.

Q) Why do we need an attorney if my spouse and I agree on how we want to divide everything in a divorce?

While it s a great situation when both parties settle their own divorce issues, an attorney should still be consulted and used.  You may be inadvertently giving up a valuable right or fail to consider a particular issue.  Additionally, attorneys can assist you in drafting and filing the necessary documents and guide you through the occasionally confusing divorce process.

During a divorce, you face more legal and financial issues than any other event in your life, including issues such as income tax, real estate ownership, splitting retirement funds and the status and future of your children.  Our firm prides itself and makes it a definitive point to get to know our clients on a personal level to obtain the outcome most suited to our client’s needs, goals and dreams.

Q) Can my spouse and I use one attorney for our divorce?

The answer to this question is no.  While the law does not require either of you or both of you have an attorney, you cannot share an attorney or a law firm.  An attorney can only represent one spouse during the divorce.

Q) Is there a way to get a “quickie” divorce?

In Illinois, there is no such thing as a “quickie” divorce.  Illinois requires at least one of the parties must be a resident in Illinois for 90 days prior to the entry of a Judgment for Dissolution.  Additionally, after filing for the divorce, the other spouse has at least 30 days to respond the divorce petition.  Even when both parties agree on everything and execute all of the necessary documents, delays are still an inherent part of the process.

Divorce is a major decision and is often the most difficult time in your life.  It is a decision that should not be rushed into or through.  Our firm does not use a cookie cutter process for our clients.  Rather, we tailor each case to the particular needs and wants of the clients, taking into careful consideration the people and issues involved.

Q) How long does it take to get a divorce?  When will my divorce be final?

The length of divorce proceedings are varied and determined by numerous factors such as the level of cooperation and communication between the parties and their attorneys, the number of issues involved, and how quickly information and discovery are exchanged.  However, the divorce is not considered final until the judge signs and enters the Judgment for Dissolution.

Each divorce is unique based on the people and issues involved. Our firm strongly believes the important thing is not how quickly the divorce is finalized but rather when the divorce is finalized, our client is satisfied with the ultimate outcome and prepared for the next stage in their life.

Q) Will my divorce have to go to trial?

Very few divorces actually go to trial.  Most divorces are settled prior to going to a full trial.  However, some attorneys tend to go to trial more often then others.  There are many potential ways to avoid trials such as mediation, pre-trial conferences and settlement conferences.  Even if there is not a full trial, there may be shorter contested hearings or other court appearances.

Our firm works hard to settle as many cases as possible and but will only settle cases in a way our clients desire.  For one reason or another some of our cases end up at trial.  We prepare your case in such a way that we are ready for trial should the need arise.

Q) How often will I need to go to court?

The number of times you need to go to court varies and depends upon the case.  In some cases, you may need to go to court only once, but other cases require more court appearances.  Drendel & Drendel prides itself at making our clients comfortable in all situations.  We will meet with you prior to your court appearance to review what will happen at your appearance, prepare you for the appearance and answer any questions you may have about the proceedings.

Q) How much input will I have in the divorce proceedings?

Ultimately, this is your case and you will be instrumental in the direction and resolution of your case.  We will consult with you prior to making any major strategic decisions and will carefully review with you options, potential outcomes, and settlement offers that arise as your case progresses.

Drendel & Drendel makes it a point to communicate with our clients consistently.  This means taking calls personally, returning calls in a timely fashion and discussing your options before we embark on a particular path in your case.  As part of our effort to keep you informed, you will receive copies of all correspondences and pleadings.

Q) How much will this divorce cost me?

 This is an important question but unfortunately there is no easy answer.  The ultimate cost of the divorce depends on many factors including the cooperation of the parties and counsel, the level of antagonism, how promptly financial information is produced and exchanged, the complexity of the issues involved and how long the proceedings take to complete.

The important thing in your divorce is not the ultimate cost but rather the end result.  We strongly believe in providing quality, personal representation instead of trying to provide low cost services.  However, we are sensitive to our client’s circumstances and try to accommodate them as best we can, while still staying true to our principles of high quality, personal representation.

Q) How can I afford the attorney fees associated with the divorce?  Do I have to pay the retainer amount upfront?

Generally, the party incurring the attorney’s fees is responsible for payment of the fees.  However, under the level playing field laws, a party without resources may seek interim attorney fees from the other party during the divorce proceedings.  Additionally, a contribution to fees may be awarded to one party after the proceedings have ended.  We will review with you the potentiality that your spouse may be responsible for a portion of your fees or if you will be responsible for your spouse’s fees.

As for the retainer, our firm asks for the retainer upfront to help defray the initial filing costs of the litigation and to help pay for the initial work done on your behalf.  The terms regarding payment of fees are more specifically spelled out in our Legal Services Agreement.

Q) How much will I be able to receive for child support?

In Illinois, the amount of child support is based on the number of children and the net income of the paying spouse.  The following table outlines the statutory guidelines:

NumberOf

Children

PercentageOf

Net Income

1 20%
2 28%
3 32%
4 40%
5 45%
6 or more 50%

Under rare circumstances, a court may deviate from this amount.  During your consultation, we can help you determine the correct amount of child support and can help determine if a deviation is warranted.

Q) Am I entitled to maintenance/alimony?  Will I have to get a job after the divorce?

The answers to these questions depend on numerous factors and are decided on a case by case basis.  During our consultation, we will discuss these factors and help you determine if you may be able to receive maintenance/alimony or would be subject to pay maintenance/alimony.  Additionally, during the consultation and during the course of litigation we will examine and re-examine your current financial situation and help map out strategies for you to continue or even improve your financial situation.

Q) What is unallocated support?

Unallocated support is the combination of child support and maintenance/alimony in a single payment.  Instead of paying for both separately, the two are combined and considered by the law to be maintenance.  Unallocated support may provide tax benefits to both parties in certain circumstances since unallocated support is deductible by the payor and taxable to the recipient.

Q) Can my spouse be forced to contribute to college expenses?

Under Illinois law, both parents and the child are responsible for educational expenses after high school.  A parent may petition the court to have the other parent contribute to college expenses for the child.  The amount of the contribution is based on several factors including the income and resources of both parents and ability of both parents to contribute.

Q) How can I guarantee my spouse pays the required amount of support?

Under Illinois law, the amount of support (either child support, maintenance, or unallocated support) may be withheld from the payor’s paychecks and paid directly to the State Disbursement Unit, who in turn sends the money to the recipient.  This is the best way to guarantee payment because the money is taken out before the payor receives his or her check.

Q) What is joint custody?

There are two types of joint custody commonly confused.  The first is joint residential custody.  This type of joint custody involves both parents splitting the time in which the child resides with each of them.  For example one parent would have the child for 3 days of the week and the other parent would have the child the other 4 days.  This arrangement is rare, often difficult on both the parents and child and disfavored by the courts.

The second type is more common and called joint legal custody.  This means both parents share in the major decision making for the children, including where the children will go to school or if the children will have major medical procedures.  However, this type of joint custody does not automatically mean that both parents share equally in the decision making.  Joint custody could also be defined as one parent must consulting with the other parent on these large issues.  The language of the joint parenting agreement will determine the level of decision making for each parent.

Q) Will we have to sell our house because of the divorce?

There is no definitive answer to this question.  The answer to this question is based on a case by case analysis, considering the wishes/goals of the client, how the marital estate and debts will be divided, and the ability of the spouse who will remain in the marital home to maintain and pay for the marital home after the divorce.

The most important things we keep in mind when structuring your case are your goals and objectives.  Whatever is important to you will often help dictate how various issues in your case are handled.

Q) My spouse has threatened to spend all of our money if I file for a divorce?  Is there a way to stop this?

While you cannot completely cut support for your spouse or prevent them spending any money, you can take legal steps to protect the marital assets.  If this is a concern of yours, we will work with you and advise you regarding immediate and affirmative steps we can take to prevent this type of activity.

Q) Am I responsible for the debt my spouse had prior to the marriage?

Generally, you will not be responsible for debt or other obligations your spouse brought into the marriage.  However, if the debt is related to a valuable asset, such as a house or a car, and the asset becomes marital property, the debt likewise would become marital.

Q) Can my spouse and I reside in the same home during the divorce?

Yes, there is no requirement that you and your spouse reside in different homes during the divorce.  For some families, this situation works well and for others this type of situation is impossible.  We can discuss with you both the pros and cons of this type of arrangement to help you determine if this arrangement is beneficial to your family.

Q) Will my spouse or I be able to move the children out of state after the divorce?

Once a divorce is filed, neither parent can move with the children out of state without either the agreement of the other parent or the permission of the court.  Courts will weigh several factors and make a determination on a case by case basis to determine what is in the best interest of the child.  Since these situations are so fact specific, it is impossible to even attempt to answer this question in this type of format.

By consulting with us, we can help advise you on affirmative steps and actions you can take to make an out of state move with the children easier or attempt to prevent it.

Q) Will I still get credit for my spouse’s contributions to Social Security?

Yes, provided several requirements are met.  Namely the requirements are: you were married over 10 years, your spouse is entitled to receive benefits, your benefits would not be equal to or exceed your spouse’s benefits, you are not remarried and you file the necessary paperwork.

Q) Can we file a joint tax return in the year we are divorced?

No you cannot.  Your tax filing status as a married person or single person is determined by your status on December 31.  If you are divorced on December 31, you must file as a single or head of household.  If you are still married on December 31, you may file as a married filed jointly or married filed separately, but you cannot file as a single.

Q) What if my spouse refuses to participate or cooperate in a divorce proceeding?

Your spouse is not obligated to participate or cooperate in the divorce proceedings.  At the same token, you cannot prevent your spouse from participating in the divorce proceedings.  Your spouse has a right to participate in the proceedings.  If they refuse to participate, they often do so to their own detriment.

If your spouse fails to file a response or an appearance you may obtain a default judgment against your spouse and proceed with the divorce.  If your spouse files an appearance or response but does not otherwise participate in the divorce proceedings, there are other ways in which to complete the divorce process.

Q) Can I obtain support while the divorce is pending?

Yes, while the divorce is pending, you may file a petition for temporary support to obtain either child support and/or maintenance while the divorce is pending.

Q) Can there be limitations and conditions upon my spouse’s visitation with the children?

Yes, however the scope of these limitations and conditions are made on a case by case basis and only granted in limited situations.  We will review the specific facts of your case and help you determine the best course of action to pursue.

Q) I was divorced several years ago, but now want to change some things such as the property distribution, child custody and support.  Can I do that?

Yes and no.  There are certain aspects of a divorce judgment or marital settlement agreement that may be modified if the situation warrants.  Custody and support are subject to modification.  However, the property distribution cannot be changed after the divorce is finalized except in very limited circumstances.

If this is a concern of yours, we will sit down with you and personally review your prior judgments, agreements, orders and evidence indicating a change is warranted.  We will be frank with you regarding the outcome you can expect and how we would go about obtaining any warranted relief.