Frequently Asked Questions – Top 10 Divorce Questions in Illinois

1) What is the difference between divorce and legal separation in Illinois?

The ending of a marriage or domestic partnership is a "dissolution of marriage" or "dissolution of domestic partnership" and is commonly referred to as a divorce. It ends a marriage and allows the parties to marry again; a legal separation does not. In both divorce and legal separation cases, the parties may request orders for child and/or spousal support, custody and visitation, domestic violence restraining orders, etc. Legal separation may be preferable for couples wishing for a legal separation to live apart and to formally decide on money, property, and parenting issues. Reasons include religion, to maintain health insurance for one through the others plan, or to maintain benefits that require the parties to be married.

2) What are the grounds for divorce in Illinois?

The most common grounds for divorce are "irreconcilable differences." Irreconcilable differences are sincere, permanent differences between the spouses that have lead to a breakdown in the marriage. To put it simply: it takes two to marry and only one to divorce. Only one spouse needs to state that irreconcilable differences exist. The other spouse cannot prevent the divorce even if he or she feels the marriage can be saved. In Illinois, divorces are "no-fault." No one spouse can be financially punished for the breakdown of the marriage. Other grounds are available like mental cruelty and physical cruelty. The benefit to these grounds is they do not require you to be separated for 6 months to divorce. You should contact your attorney for a full interpretation of these provisions.

3) What are the grounds for having a marriage annulled?

One of the parties was a minor at the time of marriage. There was a prior existing marriage. One of the parties was of unsound mind unless the party of unsound mind after coming to reason chose to remain as husband and wife. One of the parties relied upon the fraudulent representations of the other unless the defrauded party chose to remain as husband and wife after finding out about the fraud. The marriage was procured by force unless the party whose consent was obtained by force voluntarily cohabitation with the other party as husband and wife. One of the parties was physically incapable of entering into marriage and that incapacity is incurable. Clients often have misconceptions about annulments. Broken promises about fidelity, lies about financial or social status or even the hiding of a criminal record have been found to be insufficient grounds to support a claim for fraud. On the other hand, misrepresentations about their ability to have children or sex could be grounds for annulment.

4) How is the date of separation determined?

Often the date that a spouse moves out of the house determines the date of separation. However, a married couple can be legally separated and still living together if one spouse has informed the other that the marriage is over. The actual date of separation depends on the unique facts of your case. An attorney's advice should be sought on this issue.

5) What is marital property?

Almost any property accumulated during a marriage is marital property except property received as a gift or inheritance. There are other exceptions, which can be explained to you by your attorney. 10. What is non-marital property? Non-marital property is most property that a spouse acquired before marriage, after marriage, or during marriage by gift or inheritance. It is not considered part of the marital estate, and therefore is not divided and shared with the other spouse. Please note that non-marital property may be changed or "transmuted" into marital property during marriage. Ask your attorney to explain this to you.

6) How is marital property divided in Illinois?

Unless there is a written agreement (or an oral agreement made in court or found to have occurred by the court) between the spouses, the court will usually make an equal division of all community property assets and debts. An equal division need not give exactly the same property to each spouse. For example, the court can give a couch worth $500.00 to one spouse but balance it out by ordering that spouse to pay a $500.00 credit card bill. The court can also order the division of the proceeds as gained from the the sale of property sold and money received from the sale divided after a divorce.

7) What is the definition of legal custody?

Legal custody is the right to make decisions on parenting issues such as medical care, education and religious training. Legal custody may be joint or sole. If the parents have been awarded joint custody, decisions must be shared unless otherwise ordered by the Court.

8) What is the definition of physical custody?

Physical custody refers to where a child lives and who has responsibility for supervising the child. When an award of joint physical custody is made, the child will live substantial amounts of time with each parent. Illinois does not currently establish a preference or a presumption for or against joint custody arrangements. When sole physical custody is awarded to one parent the other parent is usually awarded visitation rights, unless it would not be in the "best interests of the child." When the visiting parent could place the child's safety or well-being at risk, the judge may order supervised visits. A judge may award sole physical custody to one parent, and joint legal custody to both. This means that the child will spend most of his or her time with one parent, and both parents will share in making important decisions about the child's life.

9) I was granted sole custody of my child, can I moving out of the area?

You will need a court order to move. If the noncustodial parent can prove that the move would cause significant detriment to the child, the court must grant a full trial to decide whether custody should be given to allow the custodial parent to move. The court considers: The children's interest in stability and continuity in the custodial arrangement. The distance of the move The age of the children and the children's relationship with both parents. The relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests The wishes of the children if they are mature enough for such an inquiry to be appropriate. The reasons for the proposed move. Consult one of our lawyers for specifics.

10) What is Family Law?

Family law generally concerns domestic relations and family-related matters such as marriage, civil unions, domestic partnerships, adoptions, paternity, guardianship's, domestic abuse, surrogacy, child custody, child abduction, the dissolution of marriage and associated issues.

Fact is married couples represented only 48 percent of American households in 2010, according to census data analyzed by the Brookings Institution. This was slightly less than in 2000, but far below the 78 percent of households occupied by married couples in 1950. What is more, just a fifth of households were traditional families — married couples with children — down from about a quarter a decade ago, and from 43 percent in 1950, as the iconic image of the American family continues to break apart.

A large percentage of marriages end in separation or divorce. When a couple decides to terminate their marriage, one of the parties will petition the court for a divorce. Besides seeking a legal termination of the relationship, the couple will also ask the court to divide the marital assets, grant child custody to one or both parents, and impose child and spousal support obligations, if applicable.

Please contact one of our attorneys if you have a more specific question about your personal family law issue at (312) 223-1763 or e-mail us at office@markeylaw.com.

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