Filing for a Divorce in Illinois

If a breakup is in your future, you’re probably wondering where to start when it comes to divorce proceedings. You may also be worried about legalities, how much time it will take, and whether you’re making the right move. 

No one enters into a marriage expecting it to fail. Still, more than 20 percent of first marriages end in divorce within five years, and 48 percent of marriages dissolve by the 20-year mark, according to data from the government’s National Survey of Family Growth.

If you’re contemplating divorce in Illinois, you’ll need to follow certain procedures to start your case. You can file for divorce on your own or with the recommended help of a family law attorney. Here, Masters Law Group outlines the process of divorcing and some helpful information to assist you along the way.

*Each state in America has its own laws regarding terminating a marriage. The following steps will help you get a head start on your divorce proceedings in the state of Illinois.

Getting Started

Asides from contacting your Illinois-based family law attorney, as soon as one or both parties decide that divorce is absolutely the only answer, the first step is filing the paperwork with your local court clerk. The forms you complete may vary from county to county, so it is important that you do some research based on where you live. Wherever you live, however, you will need to file what is called a “petition for dissolution of marriage.” The forms are a bit different if you have children. For example, you will need to file a joint parenting agreement, uniform order of support, and visitation forms if you have children. You can also find other required forms on the Illinois court website.

Historically, the state offered two types of divorce: fault-based and no-fault divorces. Today, irreconcilable differences are the only grounds for divorce in Illinois, meaning Illinois is a no-fault divorce only state.

You must meet certain requirements before you can be granted a divorce in Illinois. These are:

  • Your divorce must be due to “irreconcilable differences;” and
  • You or your spouse must have lived in Illinois for at least 90 days prior to starting your divorce proceedings.

There is a “separate and apart” waiting period intended to allow the parties to cool down and reconsider the decision to divorce. In Illinois, this is a period of six months. You can waive this waiting period by written agreement.

Although the law specifically prohibits judges from analyzing fault when dividing property in a divorce, judges may evaluate whether or not one spouse dissipated marital assets during the marriage.

Contested Divorces

A contested divorce happens when both spouses want a divorce but can’t agree on some of the terms of the divorce, like custody and spousal support. It can also occur if the spouse does not respond to the divorce petition.

In contested divorces, the judge may order you to go through additional steps like divorce mediation. The mediation can result in an agreed settlement between the parties.

If mediation doesn’t work, your case will go to trial, and the judge will make the final determination on specific issues you and your spouse couldn’t agree on.

Alternative Procedures

If you and your spouse don’t have any children, have little money, and agree on everything, Illinois courts may allow you to have what is called a joint and simplified divorce.

You and your spouse can file a Joint Petition for Simplified Dissolution of Marriage if:

  • no spousal support (alimony) will be paid
  • no-fault grounds are used
  • there are no children and the wife is not pregnant
  • you have not been married more than 8 years
  • neither of you have any real property
  • the total equity in your marital property is less than $10,000
  • the combined annual income of you and your spouse is less than $35,000
  • neither of you earn more than $20,000 annually
  • you both disclosed your assets and tax returns for the years you were married, and
  • you and your spouse have a written agreement dividing all of your property in excess of $100 in value, and allocating who will be responsible for each debt owed.

If you don’t meet the requirements for the Simplified procedure, but you and your spouse are in agreement on all matters, you may still file an uncontested divorce using the standard procedure.

Legal Separation

Illinois is one of the states that recognize legal separation. Legal separation does not permanently end the marriage. However, a judge must approve the separation agreement, which defines the spouses’ legal rights and obligations.

For individuals with religious concerns or insurance issues who may be discourage from seeking a formal divorce a legal separation could be the preferred course of action.  With a legal separation, many of the same issues determined in a divorce can be adjudicated, but without the finality of a legal divorce being granted.

This is a good option if you don’t want a divorce but want to live separately and want legal clarification on matters concerning child custody, child support, child custody, and property division.

Civil Union Divorce

Civil unions allow two adults, of either the same or opposite sex, to enter into a legally recognized relationship. Several unique issues can arise during the process of establishing or dissolving a civil union, so it is vital to have a knowledgeable lawyer to guide you through every step.

Dissolving a civil union is nearly the same as dissolving a marriage. Any couple who wishes to dissolve a civil union will be able to do so in the State of Illinois. To receive a certified copy of a Dissolution of Civil Union records, an interested couple will need to go to the county circuit court clerk where the civil union was granted.

Getting the Help You Need with Masters Law Group

Even a no-fault divorce is a complicated legal process, particularly when children or high assets are involved.

Whether you are facing a contested divorce, uncontested divorce, or a civil union divorce, the experienced attorneys at Masters Law Group are ready to skillfully advocate for your position and provide your voice when you need it most.

Masters Law Group is skilled at identifying and valuing assets and wealth, including real estate, securities, business interests, retirement funds, pension plans, tax shelters (domestic and foreign), overseas accounts, stock options, trusts and other actual or potential sources of wealth.

If you are seeking answers to questions regarding divorce, separation, child support and other matters, contact Chicago’s premier family law group here today to schedule a consultation.

Divorce Disputes: Know Your Rights

Divorce can be an extremely emotional time. On top of this, couples need to decide how to split their assets, including money, the marital home and the custody of the children.

The divorce process is stressful and can easily bring out the worst in people. Although divorce can get you out of an unhappy marriage, it can also leave you high and dry if you don’t know your rights.

Emotional vs Financial Decisions

Divorce professionals will tell you that it’s best to approach your settlement discussions as a business discussion; but how do you take your emotions out of your divorce negotiations?

Fear, anger, sadness, loss. While you should let yourself feel all of these emotions and seek out the support you need to get through the hurt, when it comes to the divorce process itself, controlling your emotions is key to getting the outcome that you are looking for.

Reasons why these discussions need to be more about business than emotions include:

  • The legal system is not set up to resolve disagreements based on moral arguments, but bound by statutes and case law and these likely will not provide resolution for the wrongs you’ve experienced.
  • Decisions based on emotions are not the best long term or even short term decisions. For example a fight over a home you can’t afford to upkeep will only harm your financial future.
  • You could easily end up regretting your emotional decisions further down the line. For example you realize something you are fighting for is harming the welfare of the children.

Letting go of those feelings during the divorce process not only helps keep the focus on protecting your legal rights, but it also gets rid of those old hopes and dreams so you can start building new ones for the future.

If your marriage has any complicated issues to settle (see below), a family law attorney can be an invaluable resource.

Spousal Support/Alimony

While divorce may end a marriage, it doesn’t necessarily end the obligations of one spouse to another. Oftentimes, one spouse is able to receive spousal support, or alimony, to help them establish a new, post-divorce life.

The court will award financial assistance based on factors such as the duration of the marriage, each person’s earning capacity, contributions to the household and physical health of the recipient.

There are five different types of alimony that may be awarded:

  • Rehabilitative Alimony: Granted for a specified time period. It provides the recipient with the funds to obtain the job skills and education needed for him or her to become self-sufficient.
  • Lump-Sum Alimony: A one-time, fixed payment and is often granted in lieu of a property settlement. The amount awarded is equal to the total of future monthly payments.
  • Permanent Alimony: Which continues until the recipient remarries or either payor or payee dies. The payments may be adjusted due to changes in financial circumstances.
  • Reimbursement Alimony: The dutiful spouse who works full time to put her partner through school and is divorced shortly after is a candidate for reimbursement alimony. As the name implies, this support reimburses one spouse for expenses incurred in helping the other complete an education or training program.
  • Temporary Alimony: Temporary alimony is sometimes paid when a couple separates but the divorce is not final. The parties execute a written marital separation agreement stipulating how much and when payment will be made.

Property Disputes

When the court grants a divorce, property will be divided equitably (not always equally) between the two spouses. This is decided under the Equitable Distribution Law. During the divorce both spouses have to tell the court about their income and any debts they owe. There are two different types of property for the purposes of a divorce. Property that the couple bought during the marriage is called “marital property”. Property that belonged to you before the marriage or was a gift to just you from someone other than your spouse is called “separate property”. Marital property can be divided between the two spouses. Rather than using an automatic 50/50 split, an Illinois judge will consider all relevant factors in deciding what kind of property division is fair.

There’s no hard and fast rule for who gets the house in an Illinois divorce. In cases where a couple can’t afford to keep the marital home, a judge will order the house to be listed and sold as soon as possible so that the couple could divide the proceeds.

Child Custody

Probably the most contentious and emotionally difficult aspect of a divorce is deciding on custody of the children.

In an Illinois divorce or custody case, either parent may request custody, or both parents may agree to joint custody.

You may also ask the court to determine custody in other situations, including:

  • If you are not married to the other parent but need to determine custody of a child.
  • If you want to be the legal guardian of a child.
  • If you need to determine who the parent of your child is.

Parents may share legal custody, or legal custody may be vested in one parent (i.e. sole legal custody). While it is possible to share residential custody, such arrangements are oftentimes impractical or would impose too much stress on their children.

Child custody cases are intensely fact specific, and it is important to speak to an experienced family law attorney before letting emotions or fear dictate your decisions should you be faced with a custody battle.

Alternative Dispute Resolution (ADR) and Divorce

Despite what you hear and see on television, most legal disputes never make it to court and are usually resolved by a settlement outside of court proceedings.

Resolving divorce issues listed above can happen without lengthy and expensive litigation. More couples are now going with alternative dispute resolution (ADR) to end their marriages. The popularity of mediation has shifted the role of divorce attorneys from representing their clients in a legal battle to acting as divorce mediation lawyers to help clients achieve mediation success. In this new role attorneys can serve as a lawyer coaches, legal consultants, and legal advisers in the divorce mediation process.

ADR may prove to be a beneficial tool in resolving your divorce and related issues, depending on factors such as the degree to which you and your spouse are in dispute on key issues, and your willingness to work together to resolve those issues.

Get the help you need

Unfortunately, while it is always possible to represent yourself in a divorce case, it may not always be advisable.

Masters Law Group understands that divorce is a stressful situation and that our clients want to move on with their lives. As such, we move through settlement negotiations, mediation or litigation with our clients assurance and well-being in mind.

Whether you are facing a contested divorce, uncontested divorce, or civil union divorce, our firm’s attorneys are ready to skillfully advocate for your position and provide your voice when you need it most.

Divorce cases involving substantial assets or complex estates require specialized knowledge. Masters Law Group is skilled at identifying and valuing assets and wealth, including real estate, securities, business interests, retirement funds, pension plans, tax shelters (domestic and foreign), overseas accounts, stock options, trusts and other actual or potential sources of wealth.

Schedule a Consultation today to learn more about how we can assist as your Divorce Mediators and Attorneys.

 

Making a Parenting Plan for Thanksgiving

If this is your first Thanksgiving as a divorced or separated parent, there could be a lot of confusion wondering how to create a fair parenting plan. If the holiday periods haven’t been defined in the custodial arrangements yet, make sure that you are creating a plan that is fair and takes the best interest of the children into consideration.

This year, Thanksgiving falls on Thursday November 26th. A time designed for family gatherings, it’s a tough spot for many recently-divorced or separated parents.

Because Thanksgiving and Thanksgiving weekend are times when both parents want to be with the child or children, you want to make solid arrangements for this holiday in your holiday schedule. The obvious answer is to divide up the holidays, but it’s often hard to imagine how the holidays could be split in a way that feels fair to everyone. Let’s take a look at some of the options for splitting custody for Thanksgiving and other important holidays.

Alternating Holidays

For many parents, it makes sense to take an odd/even approach to the holiday season. For example, one parent could have the child/children for Thanksgiving on odd years, but Christmas for even years. The other parent would have the children for Thanksgiving on odd years and Christmas on even years. This way, each parent has their children for some of the big holidays every year, and they never go more than one year without their child for any given holiday.

Fixed Holidays

An an alternative choice by parents during the holidays is a fixed holiday schedule. This takes a more simple approach of assigning a certain holiday, every year, to a certain parent. While this could cause some form of conflict for those to want to alternate the holidays, it works well for separated couples with different religions. For example, if one parent is Jewish, they will have the child(ren) over Hanukkah, and if the other parent Christian, they will have the child(ren) over the Christmas holidays. However, this does leave holidays like Thanksgiving up for debate where individuals of almost every religion celebrate throughout the United States.

Split Holidays

Split holidays are a great idea if both parents live close together as the child(ren) can spend Thanksgiving (or any holiday) with BOTH parents at different locations. The only thing to decide upon is the time. For example, one parent can have custody the day prior and the first half of Thanksgiving day, then the other parent has custody the second half of the Thanksgiving and the following day. For obvious reasons, if the parents’ homes or holiday celebrations are too far apart, it can get more complicated.

Double Holidays

Finally, some parents may choose to run “double holidays” where they both have a day of celebrations, just on different days. Parents can simply let the custody schedule play out as is, letting whichever parent would normally have the child on the official holiday date celebrate that day, and the other parent can celebrate with the child on their next scheduled visit. Alternatively, parents can designate a date for the second holiday – one parent celebrates Thanksgiving on the 26th and the other celebrates on the 30th. In this scenario, parents could alternate years so that they each get the official holiday every other year.

Final Thoughts

The prospect of formulating a custody calendar is a daunting task for many recently divorced or separated parents.  Working directly with your co-parent to create your joint custody schedule and holiday custody plan is a great way to keep the peace. Your schedule will be unique to your family dynamic and must be sensitive to each of your personal schedules, but most importantly, putting the welfare of the children should always come first and foremost.

Parenting Time Rights with Masters Law Group

From allocation of parental responsibilities to legal separation matters and parenting time rights, Masters Law Group focuses on helping clients assert their rights to further the best interests of their children.

We understand parenting time of your child is a very emotional law topic, especially during the holidays. Masters Law Group represents individuals in both their initial quest to set a parenting time schedule, as well as parents looking to modify a previously determined schedule. Are you facing a family law issue involving the children? Contact us here today to schedule a consultation.

Masters Law Group Case Review: Hague Convention on Civil Aspects of International Child Abduction.

The Hague Convention on the Civil Aspects of International Child Abduction is a treaty between signatory countries (or “contracting states”) that provides for the prompt return of an abducted child to his or her country of habitual residence. Here, Masters Law Group fought, and won a landmark ruling in favor of our client.

CASE OVERVIEW

The husband filed a petition for the return of his two children, (a two year old and eight-month old) who were taken from their residence in Mexico to Wisconsin, USA by his wife – the mother of the two children – represented by Masters Law Group LLC in the Eastern District of Wisconsin United States District Court where the Law Firm of Conway, Olejniczak & Jerry, S.C. served as local counsel.

This case arises under the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq., which implements the Hague Convention on Civil Aspects of International Child Abduction.

The Act entitles a person whose child has been removed from his custody in another country and taken to the United States to petition in federal or state court for the return of the child.

CASE DETAILS

In this case, the mother removed the children from where the family was living in Mexico, and took them to Wisconsin.. The father then commenced an action for the return of the children under the Hague Convention. For the reasons that follow, the Court denied the father’s petition.

CASE RESULTS

ICARA AND THE HAGUE CONVENTION Under the ICARA, a petitioner seeking return of a child must establish by a preponderance of the evidence that the child has been wrongfully removed or retained within the meaning of the Convention.

The removal or retention of a child is to be considered wrongful where – (a) it is a breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

But “[b]ecause children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers,” the Monasky Court noted that “the intentions and circumstances of caregiving parents are relevant considerations.” Id. at 727. Importantly, with respect to children, the Court explained that “an infant’s ‘mere physical presence’ . . . is not a dispositive indicator of an infant’s habitual residence.” Id. at 729. “No single fact, however, is dispositive across all cases.”

Based on the foregoing case details (found here),details the court found that the grave risk exception applied and held that returning the children to Mexico and separating them from their mother would expose them to a grave risk of psychological harm or otherwise place them in an intolerable situation. Case 1:20-cv-01028-WCG Filed 10/16/20 Page 9 of 10 Document 102.

CONCLUSION

In sum, the court found that the father has failed to meet his burden of establishing by a preponderance of the evidence that his children were habitual residents of Mexico. In addition, the court found by clear and convincing evidence that returning the children would subject them to a grave risk of psychological harm or otherwise place them in an intolerable situation.

Accordingly, the retention of the children in the United States was not wrongful within the meaning of the Convention. The petition is therefore denied, and this action is dismissed.

HAGUE CONVENTION – INTERNATIONAL CHILD ABDUCTION LAW WITH MASTERS LAW GROUP

Erin Masters and Anthony Joseph have extensive experience in cases involving international child custody disputes in both courts located in the State of Illinois and the United States federal court system.

Erin Masters and Anthony Joseph have extensive knowledge and experience with The Hague Convention on Civil Aspects of International Child Abduction (“The Hague Convention”) that was enacted into law through the International Child Abduction Remedies Act (“ICARA”) which provides that a parent whose child has been wrongfully removed from or retained in the United States may petition for the child’s return to his or her country of habitual residence.

SCHEDULE A CONSULTATION

If you are faced with instituting or defending child abduction proceedings under the Hague Convention on the Civil Aspects of International Child Abduction in the United States, work with the experienced lawyers at Masters Law Group. Contact us here today to schedule a consultation.